UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4979
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
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Affirmed in part, reversed in part and remanded by unpublished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Unpublished opinions are not binding precedent in this circuit.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
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