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United States v. Avagyan

United States District Court, E.D. Virginia, Richmond Division

February 22, 2016

UNITED STATES OF AMERICA, Plaintiff,
v.
MANVEL AVAGYAN, DAVIT G. GHAZARYAN, and HRAYR MARGARYAN Defendants.

MEMORANDUM OPINION

Robert E. Payne Senior United States District Judge

This matter is before the Court on several related motions: Defendants Ghazaryan and Margaryan's MOTION TO SUPPRESS EVIDENCE WITH INCORPORATED REQUEST FOR FRANKS HEARING (Docket No. 37), Defendants Ghazaryan and Margaryan's SUPPLEMENTAL MOTION TO SUPPRESS (Docket No. 59), Defendants Ghazaryan and Margaryan's SECOND SUPPLEMENTAL MOTION TO SUPPRESS (Docket No. 70), Defendant Avagyan's MOTION TO SUPPRESS EVIDENCE WITH INCORPORATED REQUEST FOR FRANKS HEARING (Docket No. 39), and Defendant Avagyan's SUPPLEMENTAL MOTION TO SUPPRESS (Docket No. 58). For the reasons stated below, Ghazaryan and Margaryan's motions have been denied (Order, Docket No. 75), and Avagyan's motions have been granted in part and denied in part. (Order, Docket No. 77).

BACKGROUND

A. Factual Background

1. Ghazaryan, Margaryan, and the Honda Van

On the afternoon of April 21, 2015, a member of the Wells Fargo Bank security staff reported to the Spotsylvania County Sheriff's Office that "three Middle Eastern males" were observed making several trips between a Wells Fargo Bank, a PNC Bank, and a Honda van in the parking lot of Hilltop Shopping Center -behavior that the security staff considered to be inconsistent with normal bank use. (Tr. 36:6-44:5; 130:12-2). The report from the Wells Fargo Bank staff provided a description of the Honda, including a license plate number. (Defendants Ghazaryan and Margaryan's Mtn. to Suppress Evidence with Incorporated Request for Franks Hrg., Docket No. 37, 2 ("G/M Suppression Mem."); Gov't's Resp. in Opp., Docket No. 44, 1 ("Gov't's Suppression Resp."); Tr. 36:6-37:11; 44:9-10). The dispatcher[1] for the she riff's office relayed this information over the radio, and in so doing identified the source of the information as a Wells Fargo Bank security official. (Tr. 36:6-25; 153:10-24).

Having received the dispatch, [2] Deputy Hanrahan was dispatched to Hilltop Shopping Center, where he found a car matching the description and bearing the license plates that had been reported to the dispatcher. (Tr. 44:7-47:6).[3] Hanrahan approached the vehicle from the driver's side and observed, through a partially rolled-down window, Ghazaryan and Margaryan eating. {Tr. 47:13-48:2).[4] The windows of the sliding doors and the rearmost windows were heavily tinted, and, even through the partially opened front window, Hanrahan could not clearly see the back rows of the van. (Tr. 48:3-21; 83:21-25; 95:5-95:6; 210:4-7). Thus, Hanrahan was unable to confirm whether a third person was in the van. Hanrahan asked Ghazaryan and Margaryan what they were doing in the area and informed them about the contents of the dispatch call. (Tr. 49:3-50:1). Ghazaryan denied having been at the banks and denied being with a third person. (Tr. 50:2-23; Gov't's Suppression Resp. 2; G/M Suppression Mem. 2).

During Hanrahan's inquiry, Deputy Davies arrived on the scene and approached the van from the passenger side. (Tr. 51:9-13; 84:8-10; 131:5-22). Like Hanrahan, Davies also was unable to see into the back of the van because of the heavy window tinting. (Tr. 131:23-132:25; 133:1-134:12; 161:20-162:5). Davies asked Ghazaryan and Margaryan if there was a third person in the van, and was told that there was not. {Tr. 133:1-134:12). Davies expressed his concern to Ghazaryan and Margaryan that he had received reports of three, not two, men associated with the van. (Tr. 133:1-134:12). Given the heavy window tint and the reports of a third person, Davies was concerned for his safety and that of his fellow officer, Hanrahan. (Tr. 160:6-161:15). Davies twice asked Margaryan if he could open the van and twice received an affirmative answer. (Tr. 134:12-19). Davies stated that the van door opened automatically before he could pull on the door. (Tr. 134:23-25).[5] With the door opened, Davies saw an open plastic shopping bag on the floor behind the front passenger seats. (Tr. 135:1-6; 162:12-165:3). Without manipulating the bag, Davies could see into[6] the bag, where he observed pieces of cut-up "silver metallic" plastic cards, cut-up magnetic strips, and cut-shredded pieces of paper. (Tr. 137:7-15).[7] Davies also observed a cell phone in the back of the van. (Tr. 137:18-24). When Davies asked Ghazaryan and Margaryan where their cell phones were, they each held up a phone. (Tr. 137:18-24). Ghazaryan subsequently claimed that the phone in the back of the car was also his phone. (Tr. 137:24-138:5).[8]Recognizing that the contents of the bag were likely the tools and results of a process known as credit card skimming, [9] Davies removed the plastic bag from the Honda. (Tr. 138:15-19).

Hanrahan asked Ghazaryan and Margaryan for identification, which both men produced. (Tr. 52:15-18). Both men produced Brooklyn, New York licenses. (Tr. 53:17-19; 55:20-24). Ghazaryan also produced a New York State Highway Patrol Police Benevolent Association card, which Hanrahan interpreted as an attempt to deflect suspicion. (Tr. 52:20-22, 55:14-19). After examining the New York licenses, Hanrahan asked Ghazaryan what he was doing in Spotsylvania County; Ghazaryan advised Hanrahan that he was looking to buy cars to resell. (Tr. 55:25-56:11). Hanrahan found this suspicious because Hilltop Shopping Center was out of the way for interstate travelers and not in the vicinity of used car lots. (Tr. 56:12-58:5) .[10] Hanrahan took defendants' driver's licenses to his squad car so that he could "run their information." (Tr. 58:6-62:11). Ten to fifteen minutes passed while Hanrahan attempted to navigate the New York City Police Department's information clearing houses. (Tr. 62:4-16; 98:20-101:6).

While Hanrahan was in the process of running Ghazaryan and Margaryan's information, Davies approached Hanrahan with the white plastic bag that he had taken from the van. (Tr. 62:18-25) . Davies showed Hanrahan that the bag contained torn up ATM receipts, blank gray credit cards, and cut-up credit cards {Tr. 64:3-8). Hanrahan and Davies each independently believed these materials to be evidence of credit card skimming. (Tr. 66:3-68:3; 140:12-22).

Hanrahan received a call that a possible third related individual had been observed at Scafa's Restaurant, which was nearby but was across the parking lot. (Tr. 68:8-25). As will be discussed subsequently, that person, Avagyan, was later brought to Hanrahan's location. Before Avagyan arrived, Deputy Fuller arrived and began watching Ghazaryan and Margaryan, who were still in the van. (Tr. 71:12-22;169:17-171:14). Ghazaryan persisted in moving his hands even after Fuller asked him to stop, so Hanrahan asked Ghazaryan to step out of the van and Ghazaryan complied. (Tr. 71:23-72:19; 125:16-126:8; 171:15-175:5; 225:17-25). Hanrahan placed Ghazaryan in handcuffs. (Tr. 71:23-72:19; 125:16-126:8; 171:15-175:5; 225:17-25). Hanrahan advised Ghazaryan that he was being detained and that he (Hanrahan) would pat Ghazaryan down for weapons. (Tr. 72:20-73:4). Next, Hanrahan asked Ghazaryan if he (Hanrahan) could search Ghazaryan. (Tr. 72:20-73:4). Ghazaryan assented. (Tr. 73:2-73:4). The search yielded several blank gray[11] credit cards identical to those that were found in the white plastic bag that Davies had removed from the van. (Tr. 73:10-76:1). Margaryan was handcuffed and detained more or less contemporaneously. (Tr. 76:3-7). Both men were placed in squad cars and informed that they were officially under arrest. (Tr. 76:3-20/176:22-178:1). At some point after defendants were removed from the Honda, Detective Rickens[12] gave Miranda warnings to Ghazaryan and Margaryan. (Tr. 212:25-213:2).

After Ghazaryan and Margaryan were placed under arrest, the deputies began to search the Honda. Detective Rickens was on the phone with the Commonwealth's Attorney while the deputies were searching the Honda and, on the Commonwealth's Attorney's advice, Rickens instructed the deputies to stop searching the car until they obtained a warrant. (Tr. 76:19-25; 151:24-152:17; 175:19-21; 210:21-213:6). Rickens obtained a search warrant for the van the next day. (Tr. 213:20-22).

2. Avagyan

While Hanrahan and Davies detained Ghazaryan and Margaryan, other officers went door to door in the shopping center attempting to find the missing third suspect, described as a "male, possibly Hispanic or Middle Eastern, " with "an approximate build of about six-foot, medium build" and "possibly wearing a camouflage shirt. (Tr. 186:20-188:22). At some point, an unspecified "passerby" reported to the sheriff's office that the third suspect might be located at Scafa's Restaurant. (Gov't's Suppression Resp. 5). After receiving that tip, Deputy Horn went to Scafa's Restaurant, encountered Avagyan, and informed Deputy Basil and Captain Pearce that he (Horn) believed that he had located the third suspect. (Tr. 188:22-189:3; 200:19-20). Basil and Pearce went to Scafa's. (Tr. 188:22-189:3; 200:19-20).[13] Avagyan appeared to Basil to meet the physical description of the third subject. (Tr. 200:5-202:12)."[14] Although Basil testified that "Deputy Horn advised [the other deputies that] the subject's actions made him very suspicious of the individual, " Basil could not testify as to the actions that Horn had observed, and Horn did not testify at the suppression hearing. (Tr. 201:2-204:13). At the time that the deputies escorted Avagyan out of Scafa's, the deputies did not have any facts that linked Avagyan to the Honda or to its occupants. (Tr. 206:2-206:6). It was their intent to determine whether Avagyan appeared in the surveillance footage from the cameras at Wells Fargo Bank and PNC Bank. (Tr. 206:2-206:6).

Horn and Basil handcuffed Avagyan, asked him to step outside, took him to Basil's police car some 100 yards away, and searched him. (Tr. 189:15-190:4). Basil could not recall whether he asked or received permission to search Avagyan. (Tr. 204:25-205:1). The search of Avagyan's person yielded $194 in cash and Avagyan's wallet. (Tr. 190:4-17; 194:10-12; 205:6-9). The wallet contained Avagyan's driver's license and a note in a foreign language. (Tr. 190:4-17; 194:10-12; 205:6-9). After finding the note, but before finding the cash, Basil gave Avagyan the standard Miranda warnings. (Tr. 190:3-191:25). Avagyan stated that the letter was from a relative overseas; that he had arrived in the area in a sedan; and that he was in the area alone. (Tr. 192:1-193:22). Basil placed Avagyan in his squad car and drove Avagyan to the location of the Honda, the other officers, and Ghazaryan and Margaryan. (Tr. 195:5-11). En route, Avagyan saw Ghazaryan and Margaryan in handcuffs, and asked why his friends were in handcuffs. (Tr. 195:14-20). Rickens again issued Miranda warnings to Avagyan. (Tr. 196:13-15). Avagyan initially indicated that he did not wish to speak further with the officers. (Tr. 196:13-15). Subsequently, however, he indicated that he wished to speak with Basil again, and asked what was going on. (Tr. 196:24-197:10). Basil advised Avagyan that Avagyan was detained as a result of suspicious activity. (Tr. 196:24-197:10). Basil asked Avagyan how he knew Ghazaryan and Margaryan. (Tr. 197:10-14). Avagyan responded that he did not know them, but that he had met them in a church in New York a day or two earlier. (Tr. 197:10-14). Avagyan also said that he was a truck driver, and that he made the $194 in cash by working at a car wash in New York. (Tr. 197:15-22). At some subsequent point, Avagyan commented that Basil could not charge him with a crime because there was nothing incriminating on his person. (Tr. 197:23-198:2).

B. Procedural History

Ghazaryan, Margaryan, and Avagyan were charged with various offenses related to credit card skimming.

Ghazaryan and Margaryan jointly filed a Motion to Suppress and for a Franks Hearing based on their encounter with the Spotsylvania officers on April 21, 2015, alleging two grounds: (1) that the search of the Honda van and the search of Ghazaryan's person were illegal, and (2) that any evidence discovered after acquiring a warrant should be suppressed because it was the product of an illegal search of the van and the warrant failed to disclose that the warrant was based on illegally obtained evidence. (G/M Suppression Mem.). Avagyan also filed a Motion to Suppress, identical to Ghazaryan and Margaryan's. (Docket No. 39).[15] The Government filed a single Response in Opposition. (Gov't's Suppression Resp.). Ghazaryan and Margaryan jointly filed a Reply to Response. (Docket No. 45) ("G/M Suppression Reply"). Avagyan also filed a Reply to Response, this time focusing on the arrest and search of Avagyan rather than the search of the van. (Docket No. 46) ("Avagyan Suppression Reply") .[16]

Ghazaryan and Margaryan jointly submitted their Supplemental Argument to Motion to Suppress (Docket No. 59) ("G/M Supp. Mem."), which was followed by the Government's Response (Docket No. 61) ("Gov't's G/M Rep.") and Ghazaryan and Margaryan's joint Reply (Docket No. 64) ("G/M Supp. Reply"). Avagyan submitted his Supplemental Brief in Support of Motion to Suppress (Docket No. 58) ("Avagyan Supp. Mem."), which was followed by the Government's Response (Docket No. 60) ("Gov't's Avagyan Supp. Resp.") and Avagyan's Rebuttal (Docket No. 63) ("Avagyan Supp. Reply"). The Government subsequently ordered Avagyan and the Government to clarify the items and statements that each party sought to suppress or introduce. (Order, Docket No. 66); the parties timely filed their supplements (Docket Nos. 67, 68). At the second round of oral argument, the Court requested supplemental briefing from Ghazaryan, Margaryan, and the Government on: (1) the type of remedy sought, and (2) whether and how Brendlin v. California, 551 U.S. 249 (2009) affected the standing of Ghazaryan and Margaryan to challenge the search of the Honda. (Order, Docket No. 72) . The parties submitted their briefing accordingly. (Defendants Ghazaryan and Margaryan's Mtn. to Suppress Second Supplement, Docket No. 70; Gov't's Second Supplemental Resp., Docket No. 73; Defendants Ghazaryan and Margaryan's Reply, Docket No. 74).

GHAZARYAN AND MARGARYAN: STANDING IN THE HONDA

The parties dispute two standing issues: (1) whether Ghazaryan had a legitimate and reasonable privacy interest in the Honda; and (2) whether Margaryan had a legitimate and reasonable privacy interest in the Honda. (Tr. 5:17-24; 16:11-17:5).[17] Before assessing the constitutionality of the officers' actions, the Court must assess whether Ghazaryan and Margaryan have standing to challenge certain items found in the Honda. These items, and the locations where they were found, are:

• Cards, found in the driver's door panels of the van.
• Cards, found in the sunglasses pocket on the driver's side.
• Cards, found in a white plastic bag on the floor in front of the second-row seats in the van.
• A cell phone and $1, 260 cash, found in the glove compartment.
• Cash, cards, and electronics, found in the center console.

(E.g., Gov't's Suppression Resp. 7).

A person who makes a motion to suppress evidence must show that he was "a victim of a search or seizure ... as distinguished form one who claims prejudice only through the evidence gathered as a consequence of a search or seizure directed at someone else." Jones v. United States, 362 U.S. 257, 261 (1960), overruled on other grounds, United States v. Salvucci, 448 U.S. 83 (1980). In other words, a person may only move to suppress to vindicate his own legitimate and reasonable interest in privacy. Rakas v. Illinois, 439 U.S. 128 (1978).

In this case, the scope of Ghazaryan and Margaryan's[18]reasonable and legitimate expectation of privacy, and hence their standing to challenge certain items found in the vehicle, depends on whether they possessed the car with permission of the owner.

A. The Facts Presented Indicate that Ghazaryan and Margaryan were not in the Van with the Owner's Permission

Defendants assert that a legitimate occupant-possessor with the "property rights of a bailee" has standing to challenge the search of a vehicle. (G/M Suppression Reply 2-3) (relying on Jones, 132 S.Ct. at 945 n.2). The Court is faced with a preliminary question, then, of whether Ghazaryan enjoyed the property rights of a bailee - that is, whether Ghazaryan enjoyed the owner's permission to use the vehicle.[19] The parties agreed that neither Ghazaryan nor Margaryan owned the Honda, but dispute whether Ghazaryan had permission from the owner of the Honda to use the van.

The Government presented evidence that the Honda's owners of record had no connection to Ghazaryan and Margaryan, and that no one had attempted to claim the impounded Honda. (Tr. 11:11-25:20). The Court also heard testimony from Ghazaryan, who testified that a "Russian guy" identified only as Yuraslav gave him the keys to the Honda and permission to drive the Honda. (Tr. 6:8-11:5). The Government produced evidence, and cross-examined Ghazaryan to establish, that Ghazaryan could not provide any more identifying information on Yuraslav, that Ghazaryan was unfamiliar with any of the names associated with title to the Honda, and that no one had made an effort to claim the impounded Honda. (Tr. 8:6-16:4; 19:19-21:14). The record also showed that the registered owner of the van was not named Yuraslav. (Tr. 11:11-25:20). Without ruling on the standing issue at that time, [20] the Court stated that it found Ghazaryan's testimony incredible in light of Ghazaryan's inability to provide identifying information for Yuraslav or to explain Yuraslav's lack of connection to the title holders of record. (Tr. 25:21-27:7) {"I can't credit Mr. Ghazaryan's testimony that he received keys from the owner or the permission of the owner. I don't believe him."). In sum, the Court found at the hearing, and reaffirms now, that Ghazaryan's testimony is simply not credible.

The Government has the initial burden to produce evidence tending to show that a vehicle was stolen or was otherwise possessed without the owner's permission. United States v. Rusher, 966 F.2d 868, 874 (4th Cir. 1992). Once the government has produced that evidence, the burden is on a defendant to show that he acquired the vehicle legitimately, i.e., that he possessed it with the owner's permission. United States v. Hargrove, 647 F.2d 411, 412 (4th Cir. 1981); United States v. Dickerson 655 F.2d 559, 561 (4th Cir. 1981) .[21]

In this case, the Government has produced evidence that, if unrebutted, shows that Ghazaryan and Margaryan did not have permission from the owners to be in the van. The Court, having heard Ghazaryan's testimony, has found that testimony to lack credibility. Thus, the only credible evidence comes from the Government. Considering the Government's credible evidence, together with the inference that is drawn from Ghazaryan's untruthful testimony, the Government has met its burden. The Court finds that neither Ghazaryan nor Margaryan had permission from the Honda's owner to occupy the Honda van.[22]

B. Occupants of a Stolen Vehicle have Limited Standing to Challenge the Search of a Vehicle

Having ascertained the status of Ghazaryan and Margaryan with regard to the Honda, the Court considers the outer bounds of defendants' reasonable and legitimate privacy interests in the vehicle which they lacked permission to occupy.

According to the Fourth Circuit and the Supreme Court, a person present in a stolen automobile at the time of the search may not object to the lawfulness of the search of the automobile. Rakas, 439 U.S. at 141 n.9; see also United States v. Wellons, 32 F.3d 117, 120 (4th Cir. 1994); Hargrove, 647 F.2d at 412; United States v. Thomas, 128 F.App'x 986 (4th Cir. 2005).

However, in Rakas, Wellon, and Hargrove, the Supreme Court and the Fourth Circuit have acknowledged that non-owners have a right to challenge the legality of their own detention, stemming from their own interest in not being stopped (rather than any interest in the vehicle). Rakas, 439 U.S. at 128; Wellons, 32 F.3d at 120; Hargrove, 647 F.2d at 412.

Additionally, the Supreme Court held that, when a car is stopped, all passengers are stopped, and have standing to challenge the constitutionality of their stop. Brendlin v. California, 551 U.S. 249, 251 (2007). In Brendlin, a passenger-defendant challenged both the evidence found on his person and the evidence found in the car as fruits of an unconstitutional seizure. Brendlin, 551 U.S. at 252. The passenger-defendant "did not assert that his Fourth Amendment rights were violated by the search of [owner-driver's] vehicle, but claimed only that the traffic stop was an unlawful seizure of his person." Brendlin, 551 U.S. at 252. The Court did not decide whether the passenger-defendant had standing to challenge the evidence. Instead, it only held that the passenger-defendant was seized at the time of the stop.

The Government, in its second supplemental brief in this case, cited several appellate court decisions holding that Brendlin7s scope was quite limited, and that Brendlin does not undermine Rakas or confer an expectation of privacy in a stopped vehicle on a passenger in that vehicle. (Gov't's G/M Second Supp. 2 n.l) (gathering circuit court decisions); see also United States v. Monroe, 396 Fed.App'x 33, 37 (4th Cir. 2010) ("While Tyler had the right to challenge the traffic stop, see Brendlin ... he had no right under the Fourth Amendment to challenge the ensuing search of the vehicle because he lacked a legitimate expectation of privacy with respect to the vehicle that belonged to its driver").[23]

Because Brendlin did not revolutionize the field of non-owner, non-driver standing, the Court may safely look to older decisions on non-owner, non-driver standing to determine the scope of a non-owner, non-driver's standing. In the context of passengers,

[a] passenger in a vehicle that is stopped ordinarily lacks standing to challenge a search of the vehicle, but he does have standing to challenge the legality of his own detention and, if the detention is illegal, to seek suppression of items found during the vehicle search. See United States v. Carter, 300 F.3d 415, 421 (4th Cir.2002) ("A passenger in a car normally has no legitimate expectation of privacy in an automobile in which he asserts neither a property interest nor a possessory interest and where he disclaims any interest in the seized object"); United States v. Rusher, 966 F.2d 868, 874 n.4 (4th Cir. 1992) ("Even though the Rushers cannot challenge the search of the truck, they can challenge their own seizures.... This means that they have standing to argue that the initial stop of the truck [was] ... illegal").

United States v. Mayes, 103 F.App'x 495, 499 (4th Cir. 2004) cert, granted, judgment vacated on other grounds, 543 U.S. 1111 (2005) and adhered to on reconsideration, 178 F.App'x 331 (4th Cir. 2006).

In summary: Brendlin stands for the proposition that a person in a vehicle is always stopped when the vehicle in which he is travelling is stopped. Mayes stands for the proposition that being stopped gives the passenger standing to challenge the stop of his own person and, as in Rakas, any items in the car in which he might have a legitimate and legitimate expectation of privacy; see also Rusher, 966 F.2d at 875 (noting that husband has no interest in privacy in his wife's purse). Brendlin and Mayes have not supplanted the older rules of Rakas, Wellon, Carter, and Hargrove. Rather, taken together, they teach that a non-owner in a stolen vehicle may challenge: (1) the stop of the car; and (2) any resulting search of his person; but not (3) a search of the car. As the Fourth Circuit recently noted in an unpublished opinion:

Mohammed challenges both the stop of the vehicle and its subsequent search as violative of the Fourth Amendment. As a passenger in a stolen vehicle, Mohammed lacks standing to challenge the search of the vehicle. United States v. Carter, 300 F.3d 415, 421 (4th Cir. 2002); United States v. Hargrove, 647 F.2d 411, 412 (4th Cir. 1981). Thus, we decline to review Mohammed's challenges to the validity of the canine alert that precipitated the vehicle search. However, Mohammed does have standing to challenge the stop and his resulting seizure. United States v. Rusher, 966 F.2d 868, 874 (4th Cir. 1992).

United States v. Mohammed, 572 F.App'x 203, 204 (4th Cir. 2014) (emphasis added).[24] Moreover, although Mohammed dealt with a passenger in a stolen vehicle, at least two district courts in this circuit have - even after Brendlin and Mayes - held that drivers of a stolen vehicle do not have standing to challenge the search of a stolen car or suppress items found during the search of that stolen car. United States v. Davis, No. CRIM. DKC 11-0171, 2011 WL 6369253, at *6 (D. Md. Dec. 19, 2011) ("The Fourth Circuit has held that a defendant does not have a reasonable expectation of privacy in a stolen vehicle, and therefore lacks standing to object to a search of the vehicle"; relying on Hargrove); Jackson v. Eagleton, No. CA 6:08-599-TLW-WMC, 2009 WL 799650, at *10 (D.S.C. Mar. 23, 2009) ("[t]he petitioner had no standing to challengee the search and seizure of the video tape because he had no reasonable expectation of privacy in the stolen vehicle") (relying on Wellons and Hargrove).

Considering all of the cases referenced above, the best synthesis of current case law is that: any occupant of a stopped car is stopped himself (Brendlin) such that he has standing to challenge both (1) the legality of the stop (Mayes) and (2) the search/seizure of his person (Mayes, Mohammed); however, an occupant of a stolen vehicle lacks standing to challenge the search of the car. (Rakas, Wellon, Carter, Hargrove).

C. Occupants of a Stolen Vehicle Lack Standing to Challenge the Search or Seizure of Most Areas of that Vehicle

This synthesized rule is largely dependent on Brendlin and Rakas, which both rooted a passenger's standing to challenge the stop of a car in that passenger's interest in his person rather than the passenger's (non-existent) possessory interest in the car. Because the rights of an "occupant of a stolen car" and an "passenger of a legitimately occupied car" both stem from the same source of rights, this Court looks to cases dealing with passengers to determine the outer bounds of the standing enjoyed by unlawful occupants of a vehicle.[25]

Rakas holds that a non-owner passenger who enjoys the owner's permission to use the car has standing to challenge a search of the particular areas of the automobile in which he has a legitimate and reasonable expectation of privacy. Non-owner passengers who have the owner's permission to be in the vehicle enjoy standing only as to items over which they have control; passengers, therefore, have no interest in the space under the driver's seat, in the trunk, or in a locked glovebox to which only the owner has a key. Rakas, 439 U.S. at 148.

Rakas gave examples of places that a passenger (and hence, the occupant of a stolen vehicle) does not have standing; however, case law is actually quite sparse on where a passengers or occupants of a stolen vehicle do have standing. In other decisions, the Fourth Circuit and district courts within the circuit have held that passengers do not enjoy an interest in:

• Items underneath the passenger's seat, United States v. Lusk, 100 F.App'x 938, 940 (4th Cir. 2004) on reh'g, 142 F.App'x 680 (4th Cir. 2005); accord United States v. Pulliam, 405 F.3d 782, 786 (9th Cir. 2005); United States v. Symonevich, 688 F.3d 12, 21 (1st Cir. 2012). Cf . United States v. Mosley, 743 F.3d 1317, 1322 (10th Cir.) cert, denied, 135 S.Ct. 184, 190 L.Ed.2d 143 (2014) (holding that passenger had standing to challenge gun found under seat, when finding of that gun could be characterized as a fruit of the illegal stop of his own person);
• Items found in the driver's lap, United States v. Flowers, 173 F.App'x 240, 242 (4th Cir. 2006);
• Items found in the passenger side glove compartment, United States v. Batista, No. 5:12CR11, 2013 WL 782710, at *1 (W.D. Va. Feb. 28, 2013).

Another circuit court has similarly held that, when no authorized driver is present, the occupants of a car have no interest in bags in the back rows of a vehicle. United States v. Worthon, 520 F.3d 1173, 1183 (10th Cir. 2008); see also United States v. Barragan, 379 F.3d 524, 527 (8th ...


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