On December 17, 2021, the Fourth Circuit Court of Appeals decided the United States v. Smith[i], which serves as an excellent review of the law related to the legal standing of former vehicle occupants to contest a stop and search of a vehicle. The relevant facts of Smith are as follows:
On May 29, 2017, the Greensboro Police Department Street Crimes Unit (SCU) was conducting surveillance at a nightclub called Lucky 7’s. Vincent Legrande, whom SCU knew to be a convicted felon, was inside. At approximately 2:00 a.m., SCU officers saw Legrande and two others, later determined to be Smith and Ja’kirus Staton, leave Lucky 7’s in a black Chevrolet Malibu. Staton was driving, Smith was in the front right seat, and Legrande was in the back right seat.
Corporal James Buchanan and Detective Robert Mayo began following the Malibu in an unmarked police car. Buchanan radioed another SCU officer to run the license plate, which he identified as “Eagle, Eagle, Lincoln 7755,” or “EEL 7755.” The search for that plate showed that it was registered to a different car, leading the SCU team to believe that the Malibu was being driven with a fictitious registration. There is no dispute that Buchanan inadvertently transposed one letter while reading the license plate and that the Malibu had a valid license plate reading “ELL 7755.”
Mayo and Buchanan followed the Malibu to a gas station, where they were eventually joined by several other SCU units. As they pulled into the parking lot, they saw Legrande get out of the back right passenger seat and walk over to a nearby car. Staton and Smith were already inside the convenience store.
The SCU units pulled around the Malibu and activated their blue lights, began exiting their cars, drew their guns, and yelled at Legrande to keep his hands up. Buchanan approached the Malibu and shined a flashlight inside. He saw a handgun protruding out from underneath the back of the front passenger seat to the footwell of the right-rear seat where the officers had observed Legrande. Detective Jason Lowe later observed another firearm, an Intratec 9mm handgun, on the floorboard of the Malibu’s front-right passenger seat, where Smith had been sitting.
Meanwhile, Mayo and Sergeant Kory Flowers went inside the convenience store. Smith was standing in front of the cashier as if to pay for merchandise; Staton was standing behind Smith in line. Flowers approached Smith, advised him that he was being detained because of a fictitious tag, and placed him in handcuffs. Smith responded that the car was not his. At this time, neither officer knew about the handguns or the identities of Staton or Smith.
Officers detained Smith outside for about thirty minutes while they searched the Malibu. The officers seized both handguns, two cell phones, and a bag of heroin. Upon finding the heroin in the front-right door pocket, they arrested Smith and told him that he was being charged with trafficking. Smith asked how much the heroin weighed, and officers responded that it weighed 4.5 grams. Smith protested several times that the bag weighed a gram and that officers should have weighed the heroin without the packaging, rendering a weight of 3.5 grams. A later laboratory test showed that the heroin weighed 3.32 grams.[ii]
Smith was subsequently indicted under federal law on drug and weapons charges. He filed a motion to suppress and argued that the officers violated the Fourth Amendment and the evidence should be suppressed. Specifically, he argued (1) that the officers lacked reasonable suspicion or probable cause to justify the seizure, and (2) that the search of the car violated his reasonable expectation of privacy. The district court denied the motion, and a jury convicted Smith. Smith later appealed and argued that the district court erred in denying his motion to suppress.
Smith first argued that the officers lacked reasonable suspicion to conduct a seizure at the car because the officers were mistaken about the license plate, and as such the evidence against him should be suppressed. Before examining this issue, the court had to decide whether Smith, as a former, albeit recent, vehicle passenger, had legal standing to contest the seizure of the vehicle. Smith argued that he had standing to contest the seizure (1) because he had a reasonable expectation of privacy in the vehicle, and (2) because he was also seized along with the vehicle.
Did Smith, a former passenger in the vehicle, have a reasonable expectation of privacy in the vehicle, such that he can contest the seizure of evidence?
The court then set out to examine whether Smith had a reasonable expectation of privacy in the vehicle. The court of appeals noted several legal principles relevant to this issue, which are as follows:
- To successfully bring that challenge, a defendant must show both “that he personally has an expectation of privacy in the place searched, and that his expectation is reasonable.” Carter, 525 U.S. at 88; see also United States v. Castellanos, 716 F.3d 828, 832 n.3 (4th Cir. 2013). The defendant bears the burden of demonstrating his legitimate expectation of privacy in the area searched. Rawlings v. Kentucky, 448 U.S. 98, 104, 100 S. Ct. 2556, 65 L. Ed. 2d 633 (1980).[iii]
- A legitimate expectation of privacy is not established solely through legitimate presence in a particular place. Rakas, 439 U.S. at 148. Nor does ownership of the item seized, by itself, confer a privacy interest in the area searched. United States v. Manbeck, 744 F.2d 360, 374 (4th Cir. 1984).[iv]
- [I]f a passenger asserts neither a property nor a possessory interest in the car and simultaneously disavows any interest in the seized objects, that passenger normally has no legitimate expectation of privacy. United States v. Rusher, 966 F.2d 868, 874 (4th Cir. 1992).[v]
- [A] person who is aggrieved by an illegal search and seizure only through the introduction of damaging evidence secured by a search of a third person’s premises or property has not had any of his Fourth Amendment rights infringed.[vi]
The court of appeals then set out to apply the facts of Smith’s case to the legal principles above. First, the court noted that Smith did not claim ownership in the vehicle, in fact, he disclaimed ownership of the vehicle. Second, Smith did not claim ownership of the weapons or drugs that were seized. Third, Smith did claim ownership of his cell phone that he left in the car and was seized by the police. However, the court noted that Smith exited the car and voluntarily left his phone in the car. Thus, while Smith still has a reasonable expectation of privacy in the contents of his phone, leaving his phone in the vehicle does not give him a reasonable expectation of privacy in the vehicle. Fourth, it was noted that Smith was not a passenger of the vehicle at the time the vehicle was seized; rather, he had already exited the vehicle and was inside the convenience store. The court stated
This court has recognized that both bystanders and recent passengers have lesser privacy interests than passengers. See United States v. Rose, 3 F.4th 722, 730 (4th Cir. 2021)[vii]
Fifth, Smith pretended to be a customer at the convenience store when he saw police activity at the vehicle, rather than going to the police to claim interest in the vehicle. The court stated
Smith cannot initially pretend to be unassociated with the Malibu and then later declare a privacy interest in it. Such conduct suggests that his assertion of privacy is contrived rather than legitimate.[viii]
Sixth, the court stated that Smith presented no evidence that would show that he previously used the vehicle, had a key to the vehicle, regularly stored his belongings in the vehicle, or any other special circumstance that would give him a greater expectation of privacy than a typical passenger in a vehicle.
Therefore, the court of appeals held that Smith did not have a reasonable expectation of privacy in vehicle and, as such, lacks standing to contest the search of the vehicle and seizures of evidence from the vehicle.
Does Smith have standing to contest the seizure of the vehicle that was based on a mistaken reading of the license plate?
The court then set out to examine whether Smith had standing to contest the seizure of the vehicle. The court of appeals noted several legal principles relevant to this issue, which are as follows:
- A seizure occurs where, “in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” United States v. Foster, 824 F.3d 84, 88 (4th Cir. 2016) (quoting United States v. Slocumb, 804 F.3d 677, 681 (4th Cir. 2015)). “A person is seized within the meaning of the Fourth Amendment ‘when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen.'” Varner v. Roane, 981 F.3d 288, 292 (4th Cir. 2020) (quoting Terry v. Ohio, 392 U.S. 1, 19 n.16, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968)).[ix]
- Just because a car has been seized does not mean that any nearby pedestrian has also been seized. See United States v. Mendenhall, 446 U.S. 544, 556-57, 100 S. Ct. 1870, 64 L. Ed. 2d 497 (1980)[x]
- While the Supreme Court has held that passengers in cars are seized during traffic stops, see Brendlin v. California, 551 U.S. 249, 251, 127 S. Ct. 2400, 168 L. Ed. 2d 132 (2007), it has not extended that holding to former passengers who have since exited the vehicle. Brendlin‘s holding rests in part on the recognition that once a police officer stops a car, “a sensible person would not expect a police officer to allow people to come and go freely from the physical focal point of an investigation into faulty behavior or wrongdoing.” Brendlin, 551 U.S. at 257.[xi]
The court then examined the facts of the case in light of the legal principles above. First, the court noted that, when the police cars stopped behind the vehicle, lights flashing and multiple officers surrounded the vehicle, the vehicle was seized at that point; however, Smith was “well away from” the vehicle and “not part of the seizure that he wishes to challenge.”[xii] Smith argued that he was seized because a reasonable person would not feel free to leave the convenience store after the vehicle was seized. The court noted that Smith, as a pedestrian at that time, was freely moving around the store and pretending to be a customer. The court opined that just as someone at the gas pumps was not seized when the police seized the vehicle, neither was Smith, in the store, seized.
Second, Smith stated that he was aware the police were following the vehicle he was riding in, which enhances the reasonable belief that he was seized. However, the court noted that Smith attempted to convince the police that he was merely a customer in the store. This showed that Smith did not submit to the show of authority when police seized the vehicle because he stayed inside the convenience store. A person that does not submit to a show of authority or has not been physically seized by the police is not considered “seized” under the Fourth Amendment.
The court then held that Smith was not seized at the time the police seized the vehicle, and as such did not have standing to contest the seizure of the vehicle.
Therefore, the court affirmed the denial of Smith’s motion to suppress.
Note: Court holdings can vary significantly between jurisdictions. As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases. This article is not intended to constitute legal advice on a specific case.
[i] No. 20-4290 (4th Cir. Decided December 17, 2021)
[ii] Id. at 1-4
[iii] Id. at 7
[vi] Id. at 10
[vii] Id. at 9
[viii] Id. at 11
[ix] Id. at 12
[x] Id. at 13
[xi] Id. at 14
[xii] Id. at 12