United States v. Stephens

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 08-4979

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

BRIAN A. STEPHENS,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Elizabeth City. Terrence W.
Boyle, District Judge. (2:08-mj-01024-BO-1)

submitted: April 20, 2009 Decided: August 17, 2009

Before NIEMEYER and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Affirmed in part, reversed in part and remanded by unpublished
per curiam opinion.

Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. George E. B. Holding, United States Attorney, Anne
M. Hayes, Jennifer P. May-Parker, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Brian A. Stephens appeals his convictions for carrying

an open container of alcohol in a vehicle within a national

park, in violation of 36 C.F.R. § 4.14(b) (2008), possession of

marijuana in a national park, in violation of 36 C.F.R.

§ 2.35(b)(2) (2008), and possession of drug paraphernalia, in

violation of 18 U.S.C. § 13 (2006), and N.C. Gen. Stat. § 90-

113.22 (2007). On appeal, Stephens contends that the district

court erred in convicting him of the open container offense, as

the facts fell within the exception to the regulation that

exists for “an open container carried or stored in a motor

vehicle parked at an authorized campsite where the motor

vehicle’s occupant(s) are camping.” 36 C.F.R. § 4.14(c)(3)

(2008). Stephens also argues that because the owner of the van

had neither actual nor apparent authority to consent to a search

of the box containing the marijuana, the contraband discovered

therein should have been suppressed as fruit of the poisonous

tree.

The Government concedes that the district court erred

in convicting Stephens of the open container violation, as his

conduct fell within the above-cited exception to the regulation.

Concerning Stephens’s Fourth Amendment argument, the Government

contends that the owner of the van had the actual authority to

consent to a search of the van, and that even if such authority

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did not actually exist, the rangers reasonably relied upon it.

We affirm in part, reverse in part, and remand.

Both Stephens and the Government are in agreement that

the district court erred in convicting Stephens of the open

container violation, and the regulation itself supports their

position. Accordingly, we reverse the judgment of the district

court finding Stephens guilty of violating the open container

prohibition of 36 C.F.R. § 4.14(b), and remand for correction of

the judgment.

Therefore, the only issue remaining before us is

whether the district court erred in denying Stephens’s motion to

suppress. When reviewing the denial of a motion to suppress, we

review de novo the district court’s legal determinations, and

review its factual determinations for clear error. United

States v. Branch, 537 F.3d 328, 337 (4th Cir. 2008), cert.

denied, 129 S. Ct. 943 (2009). Evidence is viewed in the light

most favorable to the government. Id.

The Fourth Amendment does not prohibit all searches

and seizures, merely those found to be unreasonable. Florida v.

Jimeno, 500 U.S. 248, 250 (1991). A warrantless search “is per

se unreasonable subject only to a few specifically established

and well-delineated exceptions,” one of which is “a search that

is conducted pursuant to consent.” Schneckloth v. Bustamonte,

412 U.S. 218, 219 (1973) (internal quotation marks and citations

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omitted). Consent may be given by the owner of the property, or

a third-party possessing common authority over the place or

articles to be searched. United States v. Matlock, 415 U.S.

164, 171 (1974). Common authority is based upon parties’ mutual

use of the property. When performing a consent search, officers

need not separately request permission to open each container

within a vehicle. Jimeno, 500 U.S. at 252.

Here, it is clear that the owner of the van had

authority to consent to a search of the van and containers

therein. Further, as both Stephens and the van’s owner were

living out of the van with no obvious demarcation between one

another’s property, both parties had common authority over

property within the vehicle and the right to permit inspection.

Matlock, 415 U.S. at 171 n.7.

Therefore, as the owner of the van had authority to

consent to a search of his van and the containers therein, the

rangers did not violate Stephens’s Fourth Amendment rights and

the district court did not err in denying the motion to

suppress.

Accordingly, we reverse the judgment of the district

court as to Stephens’s open container conviction, affirm the

remaining convictions, and remand the case for correction of the

judgment. We dispense with oral argument because the facts and

legal contentions are adequately expressed in the materials

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before the court and argument would not aid the decisional

process.

AFFIRMED IN PART;
REVERSED IN PART, AND REMANDED