United States v. Avent ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-4127
CHARLES F. AVENT,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
Robert R. Merhige, Jr., Senior District Judge.
(CR-97-200)
Submitted: July 28, 1998
Decided: August 19, 1998
Before WILKINS, NIEMEYER, and MICHAEL, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Brent Alan Jackson, Oliver Lewis Norrell, III, JACKSON, PICKUS
& ASSOCIATES, Richmond, Virginia, for Appellant. Helen F.
Fahey, United States Attorney, Cameron S. Heaps, Special Assistant
United States Attorney, Richmond, Virginia, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Charles Fergion Avent appeals his convictions pursuant to his
guilty plea of possession with the intent to distribute crack cocaine,
in violation of 21 U.S.C.A. § 841 (West 1994 & Supp. 1998); using
and carrying a firearm during and in relation to a drug trafficking
offense, in violation of 18 U.S.C.A. § 924(c) (West Supp. 1998); and
possession of a firearm by a felon, in violation of 18 U.S.C.A.
§ 922(g) (West Supp. 1998). The parties agree that Avent entered his
guilty plea with the understanding that he reserved the right to appeal
the district court's denial of his motion to suppress evidence seized
from his car because it concluded he lacked standing. We affirm.
In July 1997, Officers O'Connor and Musselwhite of the Richmond
City Police Department approached a group of men standing on a cor-
ner of the Richmond Redevelopment and Housing Authority property.
As the officers approached, everyone but Avent ran. Avent walked
toward a white Acura Legend parked nearby. As Avent approached
the vehicle, he turned away and walked back towards the sidewalk.
The police officers approached Avent and asked to speak with him.
Avent agreed, and O'Connor inquired if Avent had any drugs or
weapons on him. Avent said that he did not and lifted his shirt to
reveal his waistband to show the officers that he was not carrying a
gun. O'Connor then asked if he could "check" Avent for guns or
drugs. Avent consented, and the officers began a pat-down.
During the search of Avent's person, O'Connor recovered a set of
car keys. At that point, Avent began to cover his pockets to signal that
he did not want his pockets searched. After recovering the keys, the
officers asked several times if the Acura Avent had walked towards
earlier belonged to him. Avent stated several times that the car was
not his and that he was waiting for the bus.* O'Connor then asked
Avent that if the key he found fit a car in the area, whether Avent
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*The exchange between the officers and Avent was tape recorded. The
transcript of the exchange showed that Avent denied ownership of the
car and gave evasive answers when questioned about the car.
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would care if O'Connor used the key. Avent responded that he was
getting ready to catch the bus.
O'Connor then went to the Acura and noticed a "bulge" under the
driver's floormat. The car door was closed but not locked. O'Connor
asked Avent if he minded if he searched the car, and Avent did not
answer. O'Connor determined that the key found on Avent fit the
Acura's lock and opened the door. He discovered a .44 magnum
revolver along with 6.51 grams of crack and .37 grams of heroin
under the floormat.
On appeal, Avent asserts that the evidence found in the car should
have been suppressed due to a warrantless search in violation of the
Fourth Amendment. In reviewing the district court's suppression rul-
ing, we review the district court's legal conclusions de novo and its
factual findings for clear error. See United States v. McDonald, 61
F.3d 248, 254 (4th Cir. 1995).
To challenge a search and seizure, a party must have standing.
Standing is obtained when a party shows that the search and seizure
violated his personal Fourth Amendment right to a legitimate expecta-
tion of privacy in the particular area searched. See Rakas v. Illinois,
439 U.S. 128, 139-40 (1978). Ownership or possession of an item
seized is insufficient in itself to establish a right to a legitimate expec-
tation of privacy in the particular area searched. See United States v.
Manbeck, 744 F.2d 360, 374 (4th Cir. 1984). A legitimate expectation
of privacy depends upon two factors: (1) whether the defendant has
manifested a subjective expectation of privacy in the particular area
searched and (2) whether society is prepared to recognize this expec-
tation of privacy as objectively reasonable. See California v.
Greenwood, 486 U.S. 35, 39 (1988). The burden of establishing these
factors is on the defendant. Rakas, 439 U.S. at 134. Though Avent
established an ownership interest in the car, the fact that he repeatedly
denied ownership denies him standing to challenge the search. See,
e.g., United States v. Washington, 677 F.2d 394, 396 (4th Cir. 1982)
(holding that defendant's denial of ownership of a suitcase precluded
her claim of reasonable expectation of privacy in the suitcase).
Accordingly, we affirm Avent's convictions. We dispense with oral
argument because the facts and legal contentions are adequately pre-
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sented in the materials before the court and argument would not aid
the decisional process.
AFFIRMED
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