United States v. Jeffrey Castellanos ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 18 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-50342
Plaintiff-Appellee, D.C. No.
8:18-cr-00166-JVS-1
v.
JEFFREY CASTELLANOS, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
James V. Selna, District Judge, Presiding
Argued and Submitted November 17, 2021
Pasadena, California
Before: BYBEE and BENNETT, Circuit Judges, and BATAILLON,** District
Judge.
Jeffrey Castellanos entered a conditional guilty plea to a single count of
possession with intent to distribute methamphetamine. 21 U.S.C. §§ 841(a)(1),
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Joseph F. Bataillon, United States District Judge for
the District of Nebraska, sitting by designation.
841(b)(1)(B)(viii). He appeals the district court’s denial of his motion to suppress.
We have jurisdiction under 28 U.S.C. § 1291 and affirm.
Because the parties are familiar with the facts, we do not recount them here,
except as necessary to provide context to our ruling. Castellanos argues (1) that the
officers conducted an unlawful search when they entered the curtilage of his friend’s
home by walking onto a driveway that he was permitted to use, and (2) that the
officers seized him by a show of authority and by blocking his path before they had
a reasonable suspicion that he was engaged in criminal activity.
This court reviews “the denial of the motion to suppress de novo and any
associated factual findings for clear error.” United States v. Brown, 996 F.3d 998,
1004 (9th Cir. 2021). “Whether an encounter between a defendant and an officer
constitutes a seizure is a mixed question of law and fact that [this court] review[s]
de novo.” United States v. Washington, 490 F.3d 765, 769 (9th Cir. 2007).
Castellanos’s first argument fails because even if the area abutting the public
alley could be considered curtilage (an issue we do not reach), he lacks standing to
raise a Fourth Amendment claim under the trespass theory. “[A]n overnight guest
in a home may claim the protection of the Fourth Amendment, but one who is merely
present with the consent of the householder may not.” Minnesota v. Carter, 525
U.S. 83, 90 (1998). The Court “considers curtilage—‘the area immediately
surrounding and associated with the home’—to be ‘part of the home itself for Fourth
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Amendment purposes.’” Collins v. Virginia, 138 S. Ct. 1663, 1670 (2018) (quoting
Florida v. Jardines, 569 U.S. 1, 6 (2013)). It follows that only an overnight guest
may claim the protection of the Fourth Amendment in the curtilage of a home.
Jaime Garcia declared that Castellanos had “permission to use [the] driveway
and to access [the converted garage].” But mere permission is insufficient for
Castellanos to have standing to raise a trespass theory claim for the officers’ entry
onto the driveway. Garcia did not testify that Castellanos could stay in the converted
garage or the driveway overnight or had permission to exclude others from using the
driveway or the garage. Cf. Lyall v. City of Los Angeles, 807 F.3d 1178, 1188 (9th
Cir. 2015) (“[M]ost importantly, [the appellant] did not have the right to exclude
others from any portion of the [property].”). Castellanos’s argument that he had
“possessory” rights in the driveway are unavailing. We stated in Lyall that standing
under the trespass theory requires possessory rights “beyond mere permission to
remain on the property searched.” Id. at 1187 n.9. The Lyall court found that the
plaintiffs had sufficient possessory rights to a warehouse that the police searched by
showing that they “were in charge of the property that night” because they “had
possession of the warehouse, the right to control it, and the right to bring an action
in trespass against intruders.” Id. at 1189. Castellanos established no such rights
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here, showing only that he had the permission to park his car on the small strip
abutting the public alley that he and Garcia describe as a driveway.1
Castellanos’s second argument fails because, even assuming that he was
seized when the officers approached him, the officers had reasonable suspicion to
support the seizure. An officer may “conduct a brief, investigatory stop when the
officer has a reasonable, articulable suspicion that criminal activity is afoot.” Illinois
v. Wardlow, 528 U.S. 119, 123 (2000). “The officer must be able to articulate more
than an ‘inchoate and unparticularized suspicion or “hunch”’ of criminal activity.”
Id. at 123–24 (quoting Terry v. Ohio, 392 U.S. 1, 27 (1968)). But reasonable
suspicion “is not a particularly high threshold to reach.” United States v. Valdes-
Vega, 738 F.3d 1074, 1078 (9th Cir. 2013). “[T]he likelihood of criminal activity
need not rise to the level required for probable cause, and it falls considerably short
of satisfying a preponderance of the evidence standard.” Id. (quoting United States
v. Arvizu, 534 U.S. 266, 274 (2002). The court considers the totality of the
circumstances and allows officers to rely on their training and experience. See id.First, the “fact that the stop occurred in a high crime area [is] among the
relevant contextual considerations in a Terry analysis.” Wardlow, 528 U.S. at 124(internal quotation marks omitted); see also United States v. Williams, 846 F.3d 303,
1
We agree with the government that Castellanos waived the argument that the search
violated his reasonable expectation of privacy, as he has argued only the trespass
theory on appeal.
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309–10 (9th Cir. 2016). As the government argues, the officers had objective bases
for associating this alley with frequent crime, including that Officer Silva had
arrested more than 15 suspects in that alley for crimes related to drugs, weapons, and
stolen cars. See United States v. Mayo, 394 F.3d 1271, 1275 (9th Cir. 2005) (“[T]his
meeting took place in a high-crime area and in front of a motel that hosted previous
narcotics activity.”); United States v. Diaz-Juarez, 299 F.3d 1138, 1142 (9th Cir.
2002) (“While [the appellant’s] presence in a high-crime area cannot alone provide
reasonable suspicion that he had committed or was about to commit a crime, [the
officer] could consider this fact in forming reasonable suspicion.” (citation
omitted)). Second, nervous behavior is also a relevant consideration in analyzing
reasonable suspicion. United States v. Palos-Marquez, 591 F.3d 1272, 1277–78 (9th
Cir. 2010); United States v. Crasper, 472 F.3d 1141, 1144, 1147 (9th Cir. 2007).
The encounter took place shortly before midnight, and officers observed Castellanos
make quick movements stuffing or hiding something away in his vehicle in a high-
risk drug and gang-activity area, just after he saw their police vehicle approaching.
Such “furtive movements . . . [are] relevant to our analysis.” United States v. Job,
871 F.3d 852, 861 (9th Cir. 2017); see also United States v. Burkett, 612 F.3d 1103,
1104, 1107 (9th Cir. 2010) (finding the fact that the defendant appeared to be “either
hiding or retrieving something from underneath the seat” of his car to be one factor
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supporting a stop and frisk). The officers could reasonably suspect criminal activity
given these circumstances.2
AFFIRMED.
2
We agree with the government that Castellanos has waived any argument about the
seizure or arrest after the Officers viewed the syringe just after approaching
Castellanos.
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