December 23, 2016
United States of America, Plaintiff-Appellee,
Lemarcus Arthur Wright, Defendant-Appellant.
Submitted: September 23, 2016
from United States District Court for the Southern District
of Iowa - Davenport
COLLOTON, MELLOY, and SHEPHERD, Circuit Judges.
COLLOTON, Circuit Judge.
Wright entered a conditional plea of guilty to a drug
trafficking charge, reserving his right to appeal an order of
the district court denying his motion 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.
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.
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.
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.
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.
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.
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.
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 denial.
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
Constitution forbids unreasonable searches and seizures, but
Fourth Amendment rights are personal rights and may not be
vicariously asserted. Rakas v. Illinois, 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
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.
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).
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
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).
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).
these reasons, the district court properly denied
Wright's motion to suppress, and the judgment of the
district court is affirmed.
The Honorable Stephanie M. Rose, United
States District Judge for the Southern District of