FILED
United States Court of Appeals
Tenth Circuit
PU BL ISH
September 5, 2007
Elisabeth A. Shumaker
UNITED STATES COURT O F APPEALS Clerk of Court
TENTH CIRCUIT
U N ITED STA TES O F A M ER ICA,
Plaintiff - Appellee,
v.
No. 05-4178
JO SH U A CH A D BEC KSTEA D,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Utah
(D.C. No. 2:04-CR-115-02-BSJ)
M ary C. Corporon, Corporon, W illiams & Bradford, P.C., Salt Lake City, Utah,
for D efendant-Appellant Joshua Chad Beckstead.
Diana Hagen, Assistant United States Attorney (Stephen J. Sorenson, United
States Attorney, with her on the brief), Salt Lake City, Utah, for
Plaintiff-A ppellee United States of America.
Before HA RTZ, EBEL and M cCO NNELL, Circuit Judges.
EBEL, Circuit Judge.
In this direct criminal appeal, Defendant-Appellant Joshua Beckstead
challenges four convictions and a twenty-year sentence resulting from his
involvement with a methamphetamine lab. Among other things, Beckstead claims
that the Government denied him due process because officers seized and
immediately disposed of the methamphetamine lab pursuant to standard police
department policy. The department’s policy was developed in response to the
dangers generally presented by methamphetamine labs and the chemicals
associated with them. But Beckstead argues that by destroying this evidence,
officers deprived him of any opportunity to test the lab for fingerprints which
might have eliminated him as the lab’s operator, and deprived him of the ability
to challenge the amounts of chemicals seized. Those weights helped determine
the length of Beckstead’s sentence. Because Beckstead has failed to show that
the police officers acted in bad faith when they destroyed this potentially
exculpatory evidence, we conclude the Government did not deny Beckstead due
process. Having jurisdiction to consider this appeal under 18 U.S.C. § 3742(a)
and 28 U.S.C. § 1291, we reject this challenge, as well as Beckstead’s other
appellate arguments, and AFFIRM his convictions and sentence.
I. BACKGROUND
The evidence presented at trial, viewed in the light most favorable to the
Government, see United States v. Torres-Laranega, 476 F.3d 1148, 1157 (10th
Cir. 2007) (reviewing sufficiency of evidence supporting conviction), petition for
cert. filed, (U.S. M ay 22, 2007) (No. 06-11907), established the following:
Beckstead bought 500 grams of iodine and some ephedrine from the friend of a
friend in January 2004. A few weeks later, he bought 8,000 pills, or 480 grams,
2
of ephedrine from the same person. These ingredients can be used to manufacture
methamphetamine. In fact, the amount of iodine Beckstead purchased, combined
with other ingredients, could produce 166.67 grams of methamphetamine, while
the amount of ephedrine Beckstead purchased could produce 240 grams of
methamphetamine.
On February 9, 2004, two police officers saw Beckstead and a woman leave
an apartment building, get into a black car and apparently drive away. The
officers w ere at the apartment complex investigating an anonymous tip about a
methamphetamine lab. Acting on that tip, officers found such a lab in apartment
number nine, which was rented by Beckstead’s former girlfriend, Ray Lynn
M orris. In addition, officers found 1,233.2 grams of red phosphorus, as well as
other chemicals used to manufacture methamphetamine. W ith this amount of red
phosphorus, an individual could, if he had enough of the other required
ingredients, manufacture 1,233.2 grams of methamphetamine. During a search of
M orris’ apartment, officers also found Beckstead’s driver’s license in one of the
bedrooms.
As officers were leaving the apartment, after disassembling the lab, they
saw the car in which Beckstead had earlier driven away, parked again in the
apartment complex’s parking lot. In that car, which w as registered to Beckstead’s
parents, officers found additional components for a methamphetamine lab.
The U nited States indicted both Beckstead and Ray Lynn M orris’ father,
3
Kevin James, on four charges: 1) attempting to manufacture fifty grams or more
of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), 846; and possessing
2) pseudoephedrine 3) red phosphorus and 4) iodine with the intent to
manufacture methamphetamine, in violation of 21 U.S.C. § 841(c)(1). 1
Beckstead filed a motion to dismiss based on the Government’s destruction
of the evidence. In that motion, Beckstead argued, apparently pursuant to
California v. Trombetta, 467 U.S. 479 (1984), that the Government acted in bad
faith. The district court denied that motion, implicitly finding that the
Government did not act in bad faith.
James pled guilty and testified against Beckstead at his trial. James, who
had been staying at his daughter’s apartment for a few days at the time officers
1
21 U.S.C. § 841(a)(1) makes it “unlawful for any person knowingly or
intentionally . . . to manufacture, distribute, or dispense, or possess with intent to
manufacture, distribute, or dispense a controlled substance.” M ethamphetamine
is a controlled substance. See 21 U.S.C. § 812, Schedule III (a)(3). And 21
U.S.C. § 846 provides that “[a]ny person who attempts or conspires to commit
any offense defined in this subchapter shall be subject to the same penalties as
those prescribed for the offense, the commission of which was the object of the
attempt or conspiracy.”
In addition, 21 U.S.C. § 841(c)(1) makes it unlawful for “[a]ny person [to]
knowingly or intentionally . . . possess[] a listed chemical with intent to
manufacture a controlled substance except as authorized by this subchapter.” List
I includes “a chemical specified by regulation of the Attorney General as a
chemical that is used in manufacturing a controlled substance.” 21 U.S.C.
§ 802(34). Red phosphorus and pseudoephedrine are list I chemicals, see 21
U.S.C. § 802(34)(K); 21 C.F.R. § 1310.02(a)(25), while iodine is a list II
chemical, 21 U.S.C. § 802(35)(I).
4
discovered the methamphetamine lab, testified that it was Beckstead and several
other individuals who were operating the lab in Ray Lynn M orris’ apartment.
A jury convicted Beckstead of all four charges. Pursuant to 21 U.S.C.
§ 841(b)(1)(A), Beckstead’s conviction on count one subjected him to a
mandatory minimum twenty-year sentence because he had a prior conviction for
operating a methamphetamine lab. 2 The presentence report (“PSR”) provided for
a higher advisory guideline sentencing range of between 360 months and life
imprisonment. At sentencing, however, the district court concluded that a
sentence below that guideline range was warranted and instead imposed the
statutory mandatory minimum twenty-year sentence. Beckstead now appeals both
his convictions and sentence.
II. ANALYSIS
A. Destruction of potentially exculpatory evidence
Beckstead argues that the G overnment deprived him of due process because
officers immediately seized and destroyed the methamphetamine lab components
and related chemicals found at M orris’ apartment and in Beckstead’s car. 3
2
Such an offense involving fifty grams or more of methamphetamine would
have ordinarily carried a sentence of not less than ten years, nor more than life in
prison. See 21 U.S.C. § 841(b)(1)(A)(viii). However, because Beckstead had a
prior drug-related conviction, among others, he was subject instead to a sentence
of not less than twenty years, nor more than life imprisonment. See 21 U.S.C.
§ 841(b)(1)(A)(viii).
3
It was actually employees of Envirosolve who disposed of the lab.
(continued...)
5
Beckstead contends that by destroying this potentially exculpatory evidence,
officers deprived him of any opportunity to test the lab for fingerprints which
might have eliminated him as the lab’s operator, and deprived him of the ability
to challenge the amounts of chemicals seized.
To establish that the Government deprived him of due process by
destroying potentially exculpatory evidence, Beckstead must show both that
1) the evidence destroyed was potentially exculpatory and 2) the government
acted in bad faith in destroying it. 4 See United States v. Bohl, 25 F.3d 904,
910-11 (10th Cir. 1994). For purposes of this appeal, we will assume that the
3
(...continued)
Envirosolve is a private company contracted to clean up and dispose of such labs
seized by police. The company’s employees, however, acted only at the specific
direction of police officers. Under these circumstances, we will treat the
destruction of the methamphetamine lab as the government action necessary to
support a due process claim. Cf. Bullock v. Carver, 297 F.3d 1036, 1041,
1056-57 (10th Cir. 2002) (declining to treat child therapist and clinical director of
privately operated sexual abuse treatment center as state agent for purposes of due
process claim challenging Government’s failure to preserve evidence). The
Government does not argue that we should do otherw ise.
4
The Government has a duty to preserve evidence if its exculpatory value is
“‘apparent’” and it is “‘of such a nature that the defendant would be unable to
obtain comparable evidence of other reasonably available means.’” United States
v. Gomez, 191 F.3d 1214, 1218-19 (10th Cir. 1999) (quoting Trombetta, 467 U.S.
at 488-89); see also Bullock, 297 F.3d at 1056. For the most part, however,
Beckstead argues only that the evidence destroyed in this case is potentially
exculpatory, requiring Beckstead to prove the Government acted in bad faith in
destroying it. To the extent Beckstead is also arguing that it was apparent–before
officers destroyed the methamphetamine lab in this case–that it was exculpatory
evidence, we reject that assertion.
6
destroyed evidence was potentially exculpatory and will consider here only
whether the Government acted in bad faith when officers destroyed it. 5
“[U]nless a criminal defendant can show bad faith on the part of the police,
failure to preserve potentially useful evidence does not constitute a denial of due
process of law.” Arizona v. Youngblood, 488 U.S. 51, 58 (1988); see also Snow
v. Sirmons, 474 F.3d 693, 716 (10th Cir. 2007).
[W ]henever potentially excuplatory evidence is permanently lost, courts
face the treacherous task of divining the import of materials whose
contents are unknown and, very often, disputed. Part of it stems from
our unwillingness to read the fundamental fairness requirement of the
Due Process Clause as imposing on the police an undifferentiated and
absolute duty to retain and to preserve all material that might be of
conceivable evidentiary significance in a particular prosecution. W e
think that requiring a defendant to show bad faith on the part of the
police both lim its the extent of the police’s obligation to preserve
evidence to reasonable bounds and confines it to that class of cases
5
It is not necessarily obvious that the fingerprints on the lab equipment and
the weight of precursor chemicals w ould be potentially exculpatory. Even if
Beckstead had been able to test the lab components and had not found his
fingerprints on them, that does not mean that he was not associated with the lab.
And if Beckstead found other people’s fingerprints on the lab, that again would
not necessarily exonerate him. There were many people besides Beckstead in and
out of the apartment. And James testified that Beckstead had been operating the
lab with several other people.
As for the amount of chemicals seized, the jury found that Beckstead had
attempted to manufacture at least fifty grams of methamphetamine. The amount
of red phosphorus police reportedly seized in M orris’ apartment would have made
at least that much methamphetamine. It is the weight of the red phosphorus that
Beckstead vigorously disputes. Nevertheless, there was also testimony that
Beckstead, several weeks earlier, had purchased ephedrine and iodine from a
friend of a friend. These chemicals, completely apart from the red phosphorus
seized with the lab, would have also supported the jury finding that Beckstead had
attempted to manufacture at least fifty grams of methamphetamine.
7
where the interests of justice most clearly require it, i.e., those cases in
which the police themselves by their conduct indicate that the evidence
could form a basis for exonerating the defendant.
Youngblood, 488 U.S. at 57-58 (quotations, citations omitted); see also Illinois v.
Fisher, 540 U.S. 544, 547-48 (2004) (per curiam); Snow, 474 F.3d at 716.
W e review the district court’s determination that the Government did not
act in bad faith for clear error. See Gomez, 191 F.3d at 1219. Beckstead bears
the burden of establishing that the Government acted in bad faith. See Bohl, 25
F.3d at 913.
The presence or absence of bad faith necessarily turns on the G overnment’s
knowledge of the evidence’s potentially exculpatory value. See Youngblood, 488
U.S. at 56 n.*. Generally, however, destroying the evidence according to “an
established procedure,” as the Government did here, “precludes a finding of bad
faith absent other compelling evidence.” Gomez, 191 F.3d at 1219 (quotation
omitted).
This court considers several factors in determining whether the Government
acted in bad faith, see Bohl, 25 F.3d at 911-13:
1) Did the Government have explicit notice that Beckstead believed the
methamphetamine lab and its chemicals were exculpatory? See id. at 911. In this
case, the Government appears to have destroyed this evidence before Beckstead
had an attorney or any opportunity to notify government officials that the lab and
its chemicals were potentially exculpatory. Cf. id. (noting Government “was
8
explicitly placed on notice that [the defendants] believed” the evidence was
potentially exculpatory where defendants sent the government numerous letters to
that effect); United States v. Cooper, 983 F.2d 928, 931 (9th Cir. 1993)
(determining Government was on notice that lab equipment was potentially
exculpatory where, during pre-seizure investigation, defendant’s parole officer
and the lab’s landlord reported that the business operating the lab claimed it was
for legitimate scientific purposes; and after seizure, but before the Government
destroyed the evidence, Government agents were again told lab equipment was set
up for legitimate purposes and was structurally incapable of producing
methamphetamine). In this case, while Beckstead admittedly did not have much
of an opportunity to notify the Government that this evidence was potentially
exculpatory, neither did the Government destroy it in the face of a contrary
request from Beckstead to preserve it, see Bohl, 25 F.3d at 911.
2) Is Beckstead’s claim that this evidence is potentially exculpatory
conclusory, or is it “instead . . . backed up with objective, independent evidence
giving the government reason to believe that further tests on the [destroyed
evidence] might lead to exculpatory evidence”? Id. In this case, Beckstead’s
arguments are conclusory. He does not point to any other, independent evidence
that would have suggested to the Government, at the time it destroyed this
evidence, that further testing of the methamphetamine lab might produce
exculpatory evidence. Cf. Cooper, 983 F.2d at 931 (holding destruction of lab
9
equipment, in the face of evidence corroborating the potentially exculpatory
nature of that equipment, obtained from sources other than the defendants, was in
bad faith).
In fact, the evidence the Government had at the time it destroyed this
evidence was just to the contrary. The samples officers took of the chemicals
found with the lab indicated they were precursors to methamphetamine
production. Officers also found some methamphetamine with the lab. W hen
discovered, officers recognized the equipment as a methamphetamine lab.
Officers photographed the lab pieces before and after they were disassembled, and
documented the pieces of lab equipment they found. From those photographs, a
Government expert testified that the lab, as constructed, was capable of producing
methamphetamine. Further, the Government did try, apparently unsuccessfully,
to obtain fingerprints from the lab equipment before it w as destroyed. M oreover,
even if, as he argues, Beckstead’s fingerprints w ere not on the lab components
found in the apartment, that fact alone would not necessarily exculpate him. See
Torres v. M ullin, 317 F.3d 1145, 1161 (10th Cir. 2003) (addressing whether
destroyed fingerprints were potentially exculpatory).
Given what officers knew at the time they destroyed the methamphetamine
lab, they would not have had objective “reason to believe that further tests on the
[destroyed evidence] might lead to exculpatory evidence.” Bohl, 25 F.3d at 911.
3) Did the Government still have the ability to control the disposition of
10
the evidence at the time Beckstead indicated that the methamphetamine lab and
its chemicals might be exculpatory? See id. at 912. Beckstead has not asserted
any evidence indicating that this was the case here. Rather, it appears that the
Government destroyed the evidence before Beckstead raised the possibility that it
was exculpatory.
4) Was the evidence disposed of central to the case? See id. The answ er to
this inquiry is clearly yes. The lab found in M orris’ apartment and the lab
equipment found in Beckstead’s car were central to Beckstead’s conviction for
attempting to manufacture methamphetamine; and the red phosphorus seized at
M orris’ apartment presumably would have supported the jury’s finding that
Beckstead attempted to manufacture over fifty grams of methamphetamine, as
well as providing the basis for Beckstead’s conviction for possessing red
phosphorus. See generally United States v. Donaldson, 915 F.2d 612, 614 (10th
Cir. 1990) (noting Youngblood’s analysis also applies to sentencing proceedings).
5) Does the Government offer any innocent explanation for its failure to
preserve the evidence? See Bohl, 25 F.3d at 912. Clearly it does. Officers and
Envirosolve technicians testified that they removed and destroyed the lab and its
chemicals in this case pursuant to the police department’s standard policy. This
policy is based upon the significant dangers that such a lab and the chemicals
associated with it present. For example, Officer W ersland testified at a pretrial
evidentiary hearing that the fumes in a trash bag used as a vent for a
11
methamphetamine lab could kill a person, should the bag rupture. And many of
the chemicals associated with the production of methamphetamine are
combustible, toxic or corrosive, and very dangerous.
Beckstead does not dispute this evidence. Instead, he asserts that the
Government could, nevertheless, have carefully preserved the evidence. The fact
that the Government could preserve the evidence, however, is not dispositive.
The same was true in Trombetta, where officers destroyed breath samples used to
support drunk driving charges, even though it was “technically feasible” for
police to preserve those samples. See 467 U.S. at 481-83. The Supreme Court,
nevertheless, concluded that officers’ destruction of this potentially exculpatory
evidence “in accord with their normal practice” did not amount to bad faith, and
therefore did not deprive the defendant of due process. See id. at 486-89.
Considering Bohl’s factors, w e conclude that the officers in this case did
not act in bad faith when they destroyed the components of the methamphetamine
lab and the chemicals found with it. Officers were acting pursuant to the
department’s standard policy, and there is no evidence suggesting that they were
otherw ise acting in bad faith.
Our conclusion mirrors decisions by other courts in similar cases. In
United States v. Heffington, 952 F.2d 275 (9th Cir. 1991), for example, the Ninth
Circuit rejected a similar Youngblood claim because the police had destroyed a
methamphetamine lab “in compliance with ‘departmental procedures.’ This
12
routine disposal of the evidence was apparently not the product of any realization
that the evidence could form a basis for exonerating the defendant. Significantly,
[the defendant] does not claim that the government knew that any test would
exonerate him.” Id. at 281 (quotations, alterations omitted).
And in other circumstances, the Supreme Court, as well as this court, has
similarly rejected Youngblood claims where the Government destroyed
potentially exculpatory evidence pursuant to standard policy. See Fisher, 540
U.S. at 545, 547-49 (rejecting due process claim where Government, acting in
good faith and pursuant to “normal police procedures,” destroyed cocaine seized
during traffic stop ten years earlier); United States v. LaVallee, 439 F.3d 670,
697, 699 (10th Cir. 2006) (rejecting due process claim where Bureau of Prisons
destroyed videotape two years after it was created, pursuant to the B ureau’s
policy, and there was no indication that the Bureau was acting in bad faith when it
did so); Gomez, 191 F.3d at 1217, 1219 (rejecting due process claim where
Government destroyed most of the marijuana it had charged Gomez with
possessing, pursuant to the Government’s “ordinary statutory procedures”). See
generally Bohl, 25 F.3d at 912-13 (noting that “courts have held that the
government does not necessarily engage in bad faith conduct when the destruction
of evidence results from a standard procedure employed by the governmental
department or agency regarding the disposal of like evidence, at least when there
is adequate documentation of the destroyed evidence”).
13
In this case, undisputed evidence indicates that the Government destroyed
the methamphetamine lab pursuant to an established and routinely followed
department policy. Beckstead fails to present any evidence that suggests that the
Government, in this particular case, was nevertheless acting in bad faith when it
destroyed the lab and its related chemicals. The district court, therefore, did not
err in rejecting Beckstead’s due process argument. See United States v. W ard,
182 Fed. Appx. 779, 783-86 (10th Cir. 2006) (unpublished) (reaching same
conclusion in similar case), cert. denied, 127 S. Ct. 422 (2006).
B. Fourth A mendm ent issues
Beckstead next asserts two Fourth Amendment challenges to his
convictions. He argues that officers unlawfully searched both 1) his former
girlfriend M orris’ apartment and 2) his car, which was parked outside M orris’
apartment.
The district court denied Beckstead’s pretrial motion to suppress. W hen
reviewing the denial of a motion to suppress, this court views the evidence in the
light most favorable to the Government. See United States v. M itchell, 429 F.3d
952, 958 (10th Cir. 2005).
W e accept the district court’s factual findings unless they are clearly
erroneous. The credibility of witnesses, the weight to be given
evidence, and the reasonable inferences drawn from the evidence fall
within the province of the district court. However, the ultimate
determination of reasonableness [of the search] under the Fourth
Amendment is a question of law that we review de novo.
14
Id. (quotations, citations omitted).
1. Search of Beckstead’s former girlfriend’s apartment
The district court denied Beckstead’s motion to suppress the evidence
officers found when they searched M orris’ apartment, holding that Beckstead
lacked standing to challenge that search. On appeal, however, Beckstead does not
even address his standing to challenge this search until his reply brief. 6
It is our general rule . . . that arguments and issues presented at such a
late stage are waived. . . . [T]he reasons for our rule are two-fold: First,
to allow an appellant to raise new arguments at this juncture w ould be
manifestly unfair to the appellee who, under our rules, has no
opportunity for a written response. Secondly, it would also be unfair
to the court itself, w hich, without the benefit of a response from
appellee to an appellant’s late-blooming argument, w ould run the risk
of an improvident or ill-advised opinion, given our dependence as an
Article III court on the adversarial process for sharpening the issues for
decision.
Hill v. Kemp, 478 F.3d 1236, 1250-51 (10th Cir. 2007) (quotations, alterations
omitted); see also Stump v. Gates, 211 F.3d 527, 533 (10th Cir. 2000) (noting this
court ordinarily does not permit appellant to raise new issues for the first time in
his reply brief because it “robs the appellee of the opportunity to demonstrate that
6
In his reply brief, Beckstead asserts that the district court’s ruling on
standing was unclear. But that does not appear to be the case. During a hearing
on Beckstead’s motion to suppress, the district court stated “I don’t think either
Beckstead or [his co-defendant] has standing.” In a later hearing, the district
court reiterated that Beckstead “wasn’t there. He’s not a tenant in the apartment.
He can’t complain about the actions of the officers. It isn’t his apartment.” And
in an unsuccessful motion to renew his suppression motion, Beckstead
acknowledged that the district court had denied his first suppression motion “for
lack of standing.”
15
the record does not support an appellant’s factual assertions and to present an
analysis of the pertinent legal precedent that may compel a contrary result”). By
failing to address this issue until his reply brief, Beckstead has waived it. 7 See
United States v. Cantley, 130 F.3d 1371, 1377-78 (10th Cir. 1997) (affirming
district court’s decision to deny suppression motion because appellant did not
dispute on appeal district court’s conclusion that he lacked standing to challenge
the search at issue). And because “[i]t is fundamental law that a person desiring
to have evidence suppressed must first show that he has standing to object to the
search,” we need not further address his challenges to the constitutionality of the
search of his former girlfriend’s apartment. United States v. Deninno, 29 F.3d
572, 576 (10th Cir. 1994); see also Cantley, 130 F.3d at 1377-78.
Even if we were to address the merits of the district court’s standing
determination, however, it would not warrant relief. A “person has standing only
to challenge the violation of his own Fourth Amendment rights.” United States v.
Ladeaux, 454 F.3d 1107, 1112 (10th Cir. 2006). “Fourth Amendment rights are
personal, and, therefore, a defendant cannot claim a violation of his Fourth
Amendment rights based only on the introduction of evidence procured through
an illegal search and seizure of a third person’s property or premises.” United
States v. DeLuca, 269 F.3d 1128, 1131 (10th Cir. 2001) (quotation omitted).
7
This is also true of Beckstead’s argument, asserted for the first time in his
reply brief, that the district court erred in refusing to permit Beckstead to reassert
his suppression motion, based upon newly discovered evidence.
16
The relevant question presented here is whether Beckstead “manifested a
subjective expectation of privacy in the area searched and whether society is
prepared to recognize that expectation as objectively reasonable.” United States
v. Valdez Hocker, 333 F.3d 1206, 1208-09 (10th Cir. 2003) (quotation omitted).
It is Beckstead’s “burden of demonstrating that he had a personal Fourth
Amendment interest that was implicated by the search . . . .” United States v.
Jones, 213 F.3d 1253, 1260 (10th Cir. 2000). The district court concluded that
Beckstead did not have standing to object to the search of the apartment. W e
review the district court’s factual findings for clear error, and the court’s legal
conclusions de novo. Valdez Hocker, 333 F.3d at 1208.
Beckstead argues that he met his burden of proof in light of the evidence
presented at the pretrial suppression hearing that one of the two officers who
approached M orris’ apartment to investigate the anonymous tip about the
methamphetamine lab saw Beckstead leave that apartment, and because officers
found Beckstead’s driver’s license in the apartment. In addition, there was
evidence that Beckstead’s co-defendant James told officers that Beckstead had
brought the methamphetamine lab to M orris’ apartment the previous night, and
James referred to Beckstead as M orris’ boyfriend. That evidence is insufficient
for Beckstead to establish that the officers’ search of M orris’ apartment
implicated Beckstead’s Fourth Amendment rights. At most, this evidence
established only that Beckstead had previously been to M orris’ apartment. But
17
there is no indication he was living there or had spent an occasional night there.
Cf. Trask v. Franco, 446 F.3d 1036, 1042 (10th Cir. 2006) (holding individuals
who were living in residence when a nonconsensual search occurred had
reasonable expectation of privacy there); United States v. Thomas, 372 F.3d 1173,
1176 & n.1 (10th Cir. 2004) (noting that overnight guests and even social guests
who do stay overnight have reasonable expectation of privacy, but a person
present at another’s home to conduct a business transaction does not have a
reasonable expectation of privacy), modified on other grounds by United States v.
Najar, 451 F.3d 710, 717-18 (10th Cir.), cert. denied, 127 S. Ct. 542 (2006).
Even Beckstead’s leaving the methamphetamine lab there is insufficient to
establish that he had a subjective expectation of privacy in M orris’ apartment, let
alone an expectation that society is prepared to recognize as objectively
reasonable. See United States v. Zermeno, 66 F.3d 1058, 1061 (9th Cir. 1995)
(holding that “mere fact that [the defendant] stored contraband at the
. . . residence is insufficient to establish that he had a legitimate expectation of
privacy there”). Therefore, the district court did not err in denying Beckstead’s
suppression motion. 8
8
In his appellate reply brief, Beckstead asserts, without any record citation,
that evidence presented at trial established that he had a reasonable expectation of
privacy in M orris’ apartment. Because Beckstead renew ed his motion to suppress
at trial, we will also consider trial evidence in ruling on the propriety of the
district court’s decision denying Beckstead’s pretrial motion to suppress. See
United States v. Parra, 2 F.3d 1058, 1065 (10th Cir. 1993); see also United States
(continued...)
18
2. Search of Beckstead’s car
Beckstead also asserts that officers violated the Fourth Amendment when
they searched his car, found in the parking lot outside M orris’ apartment, without
a w arrant. In his opening brief, Beckstead only mentions the car search in two
8
(...continued)
v. Humphrey, 208 F.3d 1190, 1203 (10th Cir. 2000). Here, however, the evidence
presented at trial concerning Beckstead’s reasonable expectation of privacy in
M orris’ apartment was conflicting. James testified that M orris and Beckstead
were dating at the time of the search, and that Beckstead was then living at the
apartment. See United States v. Higgins, 282 F.3d 1261, 1270-71 (10th Cir.
2002) (considering defendant’s expectation of privacy at the time the search
occurred). But M orris testified, to the contrary, that Beckstead had never lived at
her apartment, although he had “spent a couple of nights” there when he was
dating her. Nevertheless, according to M orris, her romantic relationship with
Beckstead had ended in December 2003, while the search at issue here did not
occur until February 9, 2004. Beckstead’s mother corroborated that Beckstead
and M orris were no longer dating, although she did not specify when that
relationship ended. In denying Beckstead’s renewed motion to suppress, the
district court had to reconcile that conflicting testimony. Because there was
evidence presented at trial that supported the district court’s previous factual
finding that Beckstead lacked standing to challenge the search of M orris’
apartment, the district court did not err in denying either motion to suppress.
See U nited States v. Cooper, 733 F.2d 1360, 1364-65 (10th Cir. 1984); see also
Jones, 213 F.3d at 1259.
The evidence at trial was further conflicting as to whether Beckstead was
present in M orris’ apartment the night before the search. M orris testified that she
did not see Beckstead in her apartment that night. But James testified instead that
Beckstead was at the apartment the night preceding the search, “cooking”
methamphetamine. Even if the district court found, as the jury did, that
Beckstead had been present in M orris’ apartment “cooking” methamphetamine
the night preceding the search, that alone would not have established that
Beckstead had a legitimate expectation of privacy in M orris’ apartment. Cf.
M innesota v. Carter, 525 U.S. 83, 85, 88-91 (1998) (holding individual present in
another’s home only to conduct business transaction, including one involving
illicit drugs, had no legitimate expectation of privacy in the home).
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section headings, a single sentence in the brief’s summary, and two phrases in
arguments otherwise challenging the search of M orris’ apartment. He makes no
specific argument challenging the car search anywhere in the body of his opening
brief. Nor does he assert any law in support of a Fourth Amendment challenge to
the car search. “It is insufficient merely to state in one’s brief that one is
appealing an adverse ruling below without advancing reasoned argument as to the
grounds for appeal.” G ross v. Burggraf Constr. Co., 53 F.3d 1531, 1547 (10th
Cir. 1995). Because Beckstead failed to brief this issue adequately in his opening
brief, he has waived it. See Stump, 211 F.3d at 533; G ross, 53 F.3d at 1547.
Even if we addressed the merits of his Fourth Amendment challenge to the
search of his car, however, that argument does not warrant relief. The district
court upheld this search under the “automobile exception” to the Fourth
Amendment’s warrant requirement. Under that exception, officers possessing
probable cause to believe a car contains contraband may search the car without
first obtaining a search warrant. See United States v. Brooks, 438 F.3d 1231,
1241 (10th Cir. 2006) (citing, e.g., California v. Carney, 471 U.S. 386, 392
(1985)). “The rationale for the automobile exception is based on both the
inherent mobility of cars (as it is often impracticable to obtain a warrant before a
car can be driven away) and the fact that there is a reduced expectation of privacy
with motor vehicles.” U nited States v. M ercado, 307 F.3d 1226, 1228 (10th Cir.
2002).
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In this case, when the officers looked into Beckstead’s car, they saw
glassware which could be used to manufacture methamphetamine. Further, the
officers had just discovered a methamphetamine lab in a nearby apartment, after
receiving an anonymous tip. That anonymous tip had also included additional
information indicating that there was a black Pontiac matching the description of
Beckstead’s car that was involved w ith the lab. And when officers first
approached the apartment, Beckstead’s car had been parked in front of the
apartment where officers found the lab. All of these facts were sufficient to give
officers probable cause to believe there was contraband in Beckstead’s car. See
United States v. Ledesma, 447 F.3d 1307, 1319 (10th Cir. 2006) (considering
totality of circumstances to determine officers had probable cause to search under
automobile exception). Their warrantless search of Beckstead’s car, therefore,
did not violate the Fourth Amendment.
Beckstead asserts that, under the circumstances of this case, officers had
time to obtain a warrant before searching the car because it was parked when they
discovered it. But that fact is of no moment:
Although the automobile exception is based in part on exigency, ‘the
justification to conduct such a warrantless search does not vanish once
the car has been immobilized; nor does it depend upon a reviewing
court’s assessment of the likelihood in each particular case that the car
would have been driven away, or that its contents would have been
tampered with, during the period required for the police to obtain a
warrant.’
United States v. Ludwig, 10 F.3d 1523, 1528 (10th Cir. 1993) (quoting M ichigan
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v. Thomas, 458 U.S. 259, 261 (1982) (per curiam)). Therefore, the district court
did not err in denying Beckstead’s motion to suppress the evidence discovered in
his car.
C. Expert testimony
Beckstead next challenges O fficer D aniels’ testimony concerning his
involvement in the weighing of three packages of red phosphorus found in a safe
in M orris’ apartment. He specifically asserts that admitting this testimony, which
Beckstead argues was hearsay, violated the Confrontation Clause and several
rules of evidence, as well as depriving him of due process.
Generally, this court reviews a district court’s decision to admit evidence
for an abuse of discretion. See United States v. M ares, 441 F.3d 1152, 1154 (10th
Cir. 2006), cert. denied, 127 S. Ct. 3048 (2007). “[A]nd our review of decisions
to admit evidence over hearsay objections is especially deferential.” United
States v. Dazey, 403 F.3d 1147, 1165-66 (10th Cir. 2005).
On direct examination, Daniels testified that he weighed the three packages
of red phosphorus. On cross-examination, however, Daniels testified that he was
unsure whether he or another officer had physically removed those packages from
the apartment. In response to defense counsel’s question as to which officer
weighed the packages, Daniels testified that “It was either myself or Jason
Richman. W e were the only ones that would be gloved up and suited up and able
to touch those.” Defense counsel objected:
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[O]n cross-examination the officer just indicated that he isn’t sure if he
w eighed the objects found in the safe or not, or whether someone else
weighed the objects found in the safe or not, and he is not sure if he is
the one w ho weighed it and looked at the scales and saw the results.
Based on that, Your Honor, I w ould suggest that the evidence is not
competent evidence, that it is simply hearsay that the packages weighed
what Exhibit 5 [which listed the evidence officers seized at the crime
scene] says they weighed, and I would move to strike his testimony as
to weight and move to redact that portion of Exhibit 5.
The court reserved its ruling on that objection.
On redirect-examination the following day, Daniels clarified his testimony
by stating that he was part of the weighing process and he was able to see the
weights registered on the scale when they were weighed. And it was that
information that was recorded on Government’s Exhibit 5.
On recross-examination, Daniels further explained that, while he did not
recall whether it was him or another officer that physically carried the three
packages to the table to be weighed, once the packages were at the table, “me and
him are the ones that do the weighing and sampling and nobody else.” D aniels
further indicated that he could not “tell you who set [each package] on the scale.
I can tell you that I saw the weights on the scale. I can’t tell you who said to the
person, it weighs this much, but we both stand there and we both weigh them and
we both sample them. I was there during the process when they were weighed.”
Beckstead argues that, even if Daniels “was present and saw the weight
measurement,” “[t]here is still such ambiguity regarding the phosphorus, where it
came from, how it got on the scale, how it was measured, and whether the weight
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included packaging, that the testimony of the weight taken in this makeshift
destruction facility is simply not competent.” W e disagree. Daniels eventually
clarified any confusion. The district court, therefore, did not abuse its discretion
in refusing to strike this testimony.
D. Imposition of statutory m andatory minimum tw enty-year
sentence.
Beckstead argues that the district court’s imposition of the statutory
mandatory minimum twenty-year sentence violated United States v. Booker, 543
U.S. 220 (2005). Because Beckstead objected to the mandatory minimum
sentence in the district court, we review it de novo. See United States v.
Bustamante, 454 F.3d 1200, 1202 (10th Cir. 2006). This court has previously
held that “Booker . . . does not apply to statutory minimum sentences.” United
States v. Harris, 447 F.3d 1300, 1307 (10th Cir. 2006); see also United States v.
Ramirez, 479 F.3d 1229, 1255 (10th Cir. 2007). Beckstead acknowledges this
authority and seeks only to preserve this issue for further appeal.
III. C ON CLU SIO N
For the foregoing reasons, we AFFIRM Beckstead’s convictions and
sentence.
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