United States v. Lemarcus Wright ( 2016 )

  •                   United States Court of Appeals
                                  For the Eighth Circuit
                                      No. 15-3237
                                  United States of America,
                             lllllllllllllllllllll Plaintiff - Appellee,
                                  Lemarcus Arthur Wright,
                           lllllllllllllllllllll Defendant - Appellant.
                          Appeal from United States District Court
                        for the Southern District of Iowa - Davenport
                               Submitted: September 23, 2016
                                 Filed: December 23, 2016
    Before COLLOTON, MELLOY, and SHEPHERD, Circuit Judges.
    COLLOTON, Circuit Judge.
          Lemarcus Wright entered a conditional plea of guilty to a drug trafficking
    charge, reserving his right to appeal an order of the district court1 denying his motion
          The Honorable Stephanie M. Rose, United States District Judge for the
    Southern District of Iowa.
    to suppress evidence seized during and after a search of his vehicle. Wright has not
    established a violation of his rights under the Fourth Amendment, so we affirm.
          The charge against Wright arose from an investigation of one Victor Brown by
    the Davenport, Iowa police department. In December 2014, a confidential informant
    made a controlled purchase of crack cocaine from Brown. A week later, on
    December 11, the informant notified police that Brown and he would be leaving for
    Chicago from Brown’s residence at seven o’clock that evening with an unknown
    black male from Clinton, Iowa, to purchase crack cocaine. The informant said that
    he was supposed to drive the unknown black male’s dark-colored sport utility vehicle
    with Clinton County license plates. Police later identified the unknown companion
    as Wright.
            Based on the informant’s report, officers conducted surveillance near Brown’s
    residence beginning at approximately six o’clock. Shortly after 6:30 p.m., police saw
    a dark-colored SUV with Clinton County license plates approach the home. Brown
    left the home and entered the SUV. Officers followed the vehicle until it merged onto
    eastbound Interstate 80 and then discontinued surveillance.
           Officers in Davenport reestablished surveillance of an area on Brown’s likely
    return route at 12:45 a.m. on December 12. At approximately 1:30 a.m., officers
    observed the same dark-colored SUV traveling south on Highway 61 and followed
    it to Brown’s residence. There, Brown and Wright exited the vehicle, walked to the
    back, opened the rear doors, and rummaged around for several minutes. Brown then
    entered his residence for a short time; when he returned, both men got back into the
    SUV. A few minutes later, Brown left the vehicle with a duffel bag and reentered his
    residence. There is no evidence that the confidential informant accompanied Brown
    and Wright in the vehicle.
          Wright departed Brown’s residence in the SUV. Officers followed as Wright
    made two stops for fifteen to twenty minutes each, without anyone entering or exiting
    the vehicle, and then arrived at the parking lot of a multi-unit apartment complex.
    Officers were familiar with the apartment complex from other drug investigations at
    that address. After waiting for several minutes, the surveillance officers asked a
    uniformed officer to approach the SUV in a marked squad car and identify the
    vehicle’s occupants.
           The uniformed officer drove onto the property, positioned the squad car behind
    Wright’s SUV, and shined a spotlight onto the back window. The officer and Wright
    exited their respective vehicles, and a conversation ensued. Wright identified himself
    and said that he was visiting his cousin. The officer smelled burnt marijuana coming
    from Wright’s person. The officer then directed Wright to walk with another officer
    away from the vehicle for questioning. Wright was eventually placed in the back seat
    of a squad car.
          The uniformed officer then walked around the outside of the SUV, observed
    a marijuana cigar on the front center console, and smelled marijuana emanating from
    the vehicle. Several officers searched the vehicle; they seized the marijuana cigar
    from the console and approximately 113 grams of crack cocaine from the glove
    compartment. Officers then placed Wright under arrest.
          A grand jury charged Wright with possession with intent to distribute cocaine
    base and conspiracy to distribute cocaine base, in violation of 21 U.S.C. §§ 841(a)(1)
    and 846. Wright moved to suppress all evidence seized during the search of his
    vehicle, any statements he made at the scene or while in police custody, and any data
    obtained from his cellular telephone. The court orally denied the motion, and Wright
    entered a conditional plea to the conspiracy charge, reserving his right to appeal the
           On appeal, Wright argues that the police violated the Fourth Amendment
    because they did not have probable cause to enter the apartment complex’s curtilage,
    reasonable suspicion to detain him, or probable cause to search the vehicle. We
    review the district court’s legal conclusions de novo and its factual findings for clear
    error. United States v. Bearden, 
    780 F.3d 887
    , 892 (8th Cir. 2015).
           The Constitution forbids unreasonable searches and seizures, but Fourth
    Amendment rights are personal rights and may not be vicariously asserted. Rakas v.
    439 U.S. 128
    , 133-34 (1978). A person challenging the constitutionality of
    a search must demonstrate a legitimate expectation of privacy in the area
    searched—that is, he must have a subjective expectation of privacy that society is
    prepared to recognize as reasonable. Id. at 143 & n.12.
           Wright lacks standing to challenge the entry into the parking lot of the
    apartment complex because he did not have a reasonable expectation of privacy in
    that area. Wright did not own or live at the property; he was not an overnight guest.
    Cf. Minnesota v. Olson, 
    495 U.S. 91
    , 96-97 (1990). Wright claimed that his cousin
    lived at the apartment complex, but Wright cannot vicariously assert Fourth
    Amendment rights of the cousin. We thus need not address whether the officers’
    entry into the parking lot was lawful.
          Wright also argues that the officers did not have reasonable suspicion to detain
    him in the parking lot. The uniformed officer’s act of shining a spotlight on Wright’s
    car was not a seizure, United States v. Lawhorn, 
    735 F.3d 817
    , 820 (8th Cir. 2013),
    and Wright does not claim that the officer effected a seizure by blocking Wright’s
    SUV with the squad car. Cf. United States v. Tuley, 
    161 F.3d 513
    , 515 (8th Cir.
    1998). Therefore, no suspicion was required at the point of the initial conversation
    between Wright and the uniformed officer. Once the uniformed officer detected an
    odor of marijuana coming from Wright’s person, the officer had probable cause to
    arrest Wright and, a fortiori, reasonable suspicion to detain him for further
    investigation. United States v. Perdoma, 
    621 F.3d 745
    , 749 (8th Cir. 2010).
           In any event, the police had ample reasonable suspicion to justify an
    investigative stop of Wright in the parking lot. They received a tip from a known
    confidential informant that Brown and Wright would be traveling to Chicago to
    obtain drugs. They independently verified the details of the tip through surveillance
    of the SUV when it arrived at Brown’s residence, departed the area eastbound on
    Interstate 80, and returned to Davenport and Brown’s residence after a period of time
    that would have accommodated a round trip to Chicago. See Draper v. United States,
    358 U.S. 307
    , 313 (1959). The police also saw Wright and Brown act in a manner
    consistent with drug trafficking when they rummaged around in the back of Wright’s
    vehicle for several minutes at Brown’s residence before Brown took a duffel bag into
    the house. Wright also drove away from the residence and conducted possible
    countersurveillance maneuvers until arriving at a location that was known to be
    associated with drug activity.
           Wright complains that the officers lacked probable cause to search his vehicle
    in the parking lot, but the smell of burnt marijuana and the presence of a marijuana
    cigar in plain view through the window were sufficient to justify a search for drugs.
    United States v. Walker, 
    840 F.3d 477
    , 483-84 (8th Cir. 2016). No warrant was
    required for search of the vehicle, Carroll v. United States, 
    267 U.S. 132
    , 153 (1925),
    and because the police had probable cause to look for drugs, they properly could
    search the glove compartment as a place that could conceal the object of their search.
    See Wyoming v. Houghton, 
    526 U.S. 295
    , 301 (1999).
           In a submission pursuant to Rule 28(j), Wright suggests that officers unlawfully
    searched his pockets to obtain a key that they used to unlock the SUV. See United
    States v. Craddock, 
    841 F.3d 756
     (8th Cir. 2016). Wright did not raise this argument
    in the district court or in his opening brief on appeal, and it is therefore not properly
    before us. We note, moreover, that before the key was seized, police had probable
    cause to arrest Wright based on the odor of marijuana coming from his person, see
    Perdoma, 621 F.3d at 749, and it is permissible to search an arrestee’s person incident
    to an arrest. Chimel v. California, 
    395 U.S. 752
    , 763 (1969). That the search of
    Wright’s person for the key preceded the formal arrest does not make the search
    unlawful under those circumstances. See Rawlings v. Kentucky, 
    448 U.S. 98
    , 111
    (1980); United States v. Chartier, 
    772 F.3d 539
    , 546 (8th Cir. 2014); United States
    v. Jenkins, 
    496 F.2d 57
    , 73 (2d Cir. 1974).
          For these reasons, the district court properly denied Wright’s motion to
    suppress, and the judgment of the district court is affirmed.