United States v. Ewing

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 10-50131
Plaintiff-Appellee, D.C. No.
v.  2:09-cr-00003-
SHAWN LEWIS EWING, GHK-1
Defendant-Appellant.
 OPINION

Appeal from the United States District Court
for the Central District of California
George H. King, District Judge, Presiding

Argued and Submitted
November 1, 2010—Pasadena, California

Filed April 7, 2011

Before: Harry Pregerson, Kenneth F. Ripple,* and
Susan P. Graber, Circuit Judges.

Opinion by Judge Ripple

*The Honorable Kenneth F. Ripple, Senior United States Circuit Judge
for the Seventh Circuit, sitting by designation.

4745
 UNITED STATES v. EWING 4747

COUNSEL

Xochitl D. Arteaga, Assistant United States Attorney, Los
Angeles, California, for the plaintiff-appellee.

Carlton F. Gunn, Deputy Federal Public Defender, Los Ange-
les, California, for the defendant-appellant.
4748 UNITED STATES v. EWING
OPINION

RIPPLE, Circuit Judge:

Shawn Lewis Ewing was charged in the United States Dis-
trict Court for the Central District of California with counter-
feiting currency and possessing with the intent to use
counterfeit currency, in violation of 18 U.S.C. §§ 471 and
474. Mr. Ewing filed a motion to suppress evidence against
him. He contended that the arresting officer’s examination of
folded bills, partially concealed in the weatherstripping of the
car in which he was a passenger, violated his rights under the
Fourth Amendment. The district court denied the motion; it
held that the officer had probable cause to remove and exam-
ine the bills. Mr. Ewing subsequently entered a plea of guilty
conditional on the resolution of his appeal of the motion to
suppress.

We affirm the judgment of the district court. The evidence
establishes that the officer had probable cause to search the
car and to examine suspected contraband within it. The officer
identified several interrelated factors that, under the totality of
the circumstances, created a fair probability that a search of
the car would yield evidence of a crime. Moreover, because
the bills fell within the parameters of the justification for the
search, Mr. Ewing has not established that the officer required
independent probable cause to unfold them.

I

BACKGROUND

A. Facts

On December 18, 2008, Los Angeles Sheriff’s Department
Deputy Jeffrey Doke stopped a car with an expired registra-
tion. Three individuals were inside the vehicle: Sandra Vera,
the owner and driver of the car; Michael Smith, who sat in the
 UNITED STATES v. EWING 4749
passenger seat; and Mr. Ewing, who sat in the backseat. As
the car pulled over, Mr. Ewing told Smith that he possessed
several counterfeit $20 bills on his person. Mr. Ewing then
gave the bills to Smith who stuffed them, folded, into the
weatherstripping between the right front passenger door and
window.

When he approached the car, Deputy Doke first spoke with
Vera, then asked all of the occupants whether any of them
were on probation or parole. Smith replied, “quickly and
loudly,” R.30-2 at 6, that he was on parole. Deputy Doke
walked around to the passenger side of the car to speak with
Smith who, in response to the officer’s further question, told
the officer that a condition of his release was that he allow
law enforcement personnel to search his person for contra-
band. As Deputy Doke conversed with Smith, he noticed the
folded bills, which were still partially visible in their hiding
place. He removed the bills and then asked Smith why there
was money sticking out of the window. When Smith replied
that he did not know, Deputy Doke unfolded and examined
the bills. During this time, neither Vera nor Mr. Ewing
claimed ownership of the money or offered to explain the rea-
son for its presence in the window.

After a brief examination, Deputy Doke observed that the
serial numbers on some of the bills were identical. He then
asked the occupants of the car if any of them knew that the
bills were counterfeit. They all replied in the negative, and
Deputy Doke detained them. Once detained, Smith told the
officer that he had seen Mr. Ewing producing counterfeit cur-
rency in a hotel room and recounted his efforts to hide the
bills in the window.

With Vera’s consent, Deputy Doke then searched the car
and its contents. He discovered two suitcases, which Vera
indicated belonged to Mr. Ewing. Deputy Doke obtained Mr.
Ewing’s consent to search the suitcases, which contained,
among other things, printing equipment, a paper cutter and
4750 UNITED STATES v. EWING
more counterfeit bills. After being read his Miranda rights,
Mr. Ewing confessed that he had produced and used the bills.
Mr. Ewing was arrested and charged with production of, and
possession with intent to use, counterfeit United States cur-
rency in violation of federal law.1

B. Proceedings Before the District Court

Mr. Ewing moved to suppress evidence procured as a result
of the removal and examination of the folded bills. He con-
tended that Deputy Doke had committed an unreasonable
search and seizure in violation of the Fourth Amendment
because he lacked probable cause to believe that the money
was connected to criminal activity.

In opposition to the motion, the Government submitted a
declaration in which Deputy Doke stated that he knew from
training and experience that drug couriers often hide contra-
band, such as the cash proceeds of drug sales, “in door panels
and in hidden compartments in cars.” Deputy Doke also stated
that, when he first spoke to Smith, Smith “appeared nervous,”
“appeared to have a difficult time keeping still” and “spoke in
fast and rapid speech.” From these indicia, Deputy Doke
inferred that Smith was “under the influence of a stimulant.”2
1
See 18 U.S.C. § 471 (“Whoever, with intent to defraud, falsely makes,
forges, counterfeits, or alters any obligation or other security of the United
States, shall be fined under this title or imprisoned not more than 20 years,
or both.”); id. § 474(a) (“Whoever has in his possession or custody, except
under authority from the Secretary of the Treasury or other proper officer,
any obligation or other security made or executed, in whole or in part,
after the similitude of any obligation or other security issued under the
authority of the United States, with intent to sell or otherwise use the same
. . . [i]s guilty of a class B felony.”).
2
Although Deputy Doke stated in his declaration that Smith had blood-
shot eyes, the officer admitted on cross-examination that he did not
observe this further indication of intoxication until after he had removed
and examined the bills. This admission is consistent with his initial
description of events in the arrest report.
 UNITED STATES v. EWING 4751
Deputy Doke described the grounds for his examination of
the money as follows:

When I saw the money sticking out from the window
area of the door, where money ordinarily is not
placed, I was suspicious that someone was trying to
avoid its detection. The location of the money,
together with the fact that there was a parolee pres-
ent, and that Mr. Smith appeared to be under the
influence of a drug, added to my suspicion that
potential criminal activity was occurring.

Id. ¶ 7. He also explained, “I asked about the money at the
same time as I was pulling it out, and the fact that nobody
claimed ownership of the cash raised further suspicion that
there was potential criminal activity occurring.” Id. ¶ 9. On
the basis of these suspicions, the Government contended,
Deputy Doke had probable cause to search the car and to
examine the money. The Government also challenged Mr.
Ewing’s standing to contest the search.

After a brief evidentiary hearing in which Deputy Doke
was cross-examined and Mr. Ewing testified, the district court
denied the motion. The district court ruled that Mr. Ewing did
have standing to contest the search of his money. Neverthe-
less, under the totality of the circumstances, the district court
found that Deputy Doke’s examination of the bills was sup-
ported by probable cause.

Prior to the cross-examination of Deputy Doke, the district
court had concluded that “the officer was completely justified
in seizing the money to look at it and examine it because he
believed he was dealing with drug proceeds and there were
many indications that that’s what the money was.” R.70 at 6.
After the cross-examination, the court found that Deputy
Doke’s testimony established fewer suspicious factors than
were contained in the declaration, but it nevertheless con-
cluded that the seizure was constitutional. Although the bills
4752 UNITED STATES v. EWING
did not turn out to be drug proceeds, Deputy Doke “saw suffi-
cient symptoms of Mr. Smith being under the influence of
narcotics” to believe reasonably that they were, and this belief
established probable cause. Id. at 30. Accordingly, the district
court denied Mr. Ewing’s motion to suppress the evidence.

On September 25, 2009, Mr. Ewing entered a plea of guilty
to the charges against him, but conditioned his plea on the res-
olution of an appeal of the denial of his motion to suppress.
The district court entered a judgment of guilty on both counts
and, on March 1, 2010, sentenced Mr. Ewing to eighteen
months in prison and five years of supervised release. This
appeal followed.

II

DISCUSSION

A. Standard of Review

We review de novo the district court’s denial of Mr.
Ewing’s motion to suppress. United States v. Brooks, 610
F.3d 1186, 1193 (9th Cir. 2010). The district court’s “underly-
ing factual findings are reviewed for clear error.” United
States v. Davis, 530 F.3d 1069, 1077 (9th Cir. 2008).

B. Standing

We begin with the Government’s belated assertion at oral
argument that the district court erred in determining that Mr.
Ewing had standing to contest the search. The district court
held, and Mr. Ewing concedes on appeal, that he did not have
standing with respect to the search of the car because he was
not the owner of the car and did not have any privacy interest
in it. See United States v. Pulliam, 405 F.3d 782, 786 (9th Cir.
2005). Under most circumstances, this concession would be
the end of the matter. See United States v. Thomas, 447 F.3d
1191, 1199 & n.9 (9th Cir. 2006). Mr. Ewing asserts, how-
 UNITED STATES v. EWING 4753
ever, that he has standing to contest the removal, unfolding
and examination of the money because he expected to get the
money back and thus had a reasonable expectation of privacy
in the information concealed inside the folded bills. The dis-
trict court agreed with Mr. Ewing, and the Government did
not dispute this determination in its brief before us. At oral
argument and in a later filing, however, the Government
decided to resurrect the standing issue, which it contends has
not been waived. According to the Government, standing is a
threshold jurisdictional issue that can be raised at any time.

Although Article III standing is jurisdictional, the Govern-
ment has misapprehended the nature of Fourth Amendment
standing, which is analytically distinct from “case or contro-
versy” standing in the Article III context. In Rakas v. Illinois,
439 U.S. 128, 140 (1978), the Supreme Court explained that
standing to contest a search or seizure “is more properly
placed within the purview of substantive Fourth Amendment
law than within that of [Article III] standing.” See also United
States v. Garcia-Villalba, 585 F.3d 1223, 1234 n.6 (9th Cir.
2009) (explaining that Fourth Amendment standing is not
jurisdictional and may be bypassed in favor of the merits).
Since Rakas, we repeatedly have held that Fourth Amendment
standing is not a jurisdictional issue and therefore can be
waived. See, e.g., United States v. Huggins, 299 F.3d 1039,
1050 n.15 (9th Cir. 2002); United States v. Wanless, 882 F.2d
1459, 1462 (9th Cir. 1989).

Here, the Government did not contest the district court’s
standing determination until oral argument. Its failure to brief
the issue results in waiver. See United States v. Riley, 335
F.3d 919, 930 n.6 (9th Cir. 2003) (holding that an argument
first raised by the Government at oral argument “is waived on
appeal”).

C. Probable Cause

Mr. Ewing contends that, when Deputy Doke unfolded the
bills and examined their serial numbers, he conducted a sec-
4754 UNITED STATES v. EWING
ond search, which, for Fourth Amendment purposes, was dis-
tinct from the search of the car and therefore demanded an
independent showing of probable cause. This separate search,
Mr. Ewing believes, was not supported by probable cause
because there was no reason to suspect that unfolding the bills
would yield evidence of drug trafficking.

For support, Mr. Ewing relies on Arizona v. Hicks, 480
U.S. 321 (1987). In Hicks, the Supreme Court held that a
police officer violated the Fourth Amendment when he moved
stereo equipment to examine its serial numbers during a war-
rantless search of an apartment. The police were responding
to a report that a shot had been fired inside the apartment and
that a bullet from the gun had gone through the floor and had
struck a man in the apartment below. The officer’s warrant-
less entry was justified by the exigent circumstances created
by the gunshot. While inside the dwelling, the officer noticed
some expensive stereo equipment, which looked out of place
in the poorly furnished and dilapidated apartment. The officer
moved the equipment to record its serial numbers and subse-
quently discovered that the equipment had been stolen during
an armed robbery.

The Supreme Court held that, even though the officer was
legitimately inside the house and even though the equipment
was in plain view, when the officer moved the equipment, he
committed a new search that required independent justifica-
tion: “[T]aking action, unrelated to the objectives of the
authorized intrusion, which exposed to view concealed por-
tions of the apartment or its contents, did produce a new inva-
sion of respondent’s privacy unjustified by the exigent
circumstance that validated the entry.” Id. at 325. Inspecting
the apartment for stolen property was unconnected to investi-
gating the gunshot, and the exigent circumstances thus did not
permit moving the equipment. Id. at 326. It therefore was nec-
essary for the officer to have probable cause to believe that
the equipment was stolen before he could examine it; because
the Government conceded that the officer had only a reason-
 UNITED STATES v. EWING 4755
able suspicion, the search was unconstitutional. See id. at 326-
28.

Despite its unusual factual circumstances, Hicks does not
state a particularly novel principle of law. The proposition
that the justification for a search defines its permissible scope
is well established. For example, if a law enforcement officer
has probable cause to search a vehicle, that probable cause
extends to all contents in the vehicle that could be connected
to the suspected criminal activity. See Wyoming v. Houghton,
526 U.S. 295, 302 (1999) (“When there is probable cause to
search for contraband in a car, it is reasonable for police offi-
cers . . . to examine packages and containers without a show-
ing of individualized probable cause for each one.”); United
States v. Ross, 456 U.S. 798, 825 (1982) (“If probable cause
justifies the search of a lawfully stopped vehicle, it justifies
the search of every part of the vehicle and its contents that
may conceal the object of the search.”).

[1] Hicks holds that a law enforcement officer may exam-
ine an item unrelated to the initial object of a search if the
item is in plain view and if the officer has probable cause to
believe that the item is connected to criminal activity. 480
U.S. at 326. The case does not set forth a rule that police offi-
cers must justify, on a molecular level, the manner in which
they examine every object within the scope of a valid search.
Therefore, the central question facing us is not whether
unfolding the bills produced a new invasion of Mr. Ewing’s
privacy interest but, instead, whether the justification for the
search of the car extended to the bills.

[2] The Fourth Amendment requires, as a general matter,
that police procure a warrant before searching or seizing prop-
erty. Arizona v. Gant, ___ U.S. ___, 129 S. Ct. 1710, 1716
(2009). “Under the automobile exception to the warrant
requirement,” however, “police may conduct a warrantless
search of a vehicle if there is probable cause to believe that
the vehicle contains evidence of a crime,” Brooks, 610 F.3d
4756 UNITED STATES v. EWING
at 1193, and “the vehicle is readily mobile,” Davis, 530 F.3d
at 1084 (internal quotation marks omitted). An officer has
probable cause “when, under the totality of the circumstances,
there is a fair probability that contraband or evidence of a
crime will be found in a particular place.” Id. (internal quota-
tion marks omitted).

[3] We agree with the district court that the circumstances
presented a fair probability that the money was involved in
drug trafficking and that a search of Vera’s car would have
revealed evidence of a crime. Deputy Doke observed several
factors that led him to suspect that the bills were connected
to an illegal drug transaction. First, Smith was nervous, spoke
loudly and rapidly and had “a difficult time keeping still,”
R.32-2 ¶ 6, which indicated to Deputy Doke that Smith was
under the influence of a stimulant.3 Second, Smith was a paro-
lee. Third, the money was located in a place that suggested an
effort to conceal its presence and called to Deputy Doke’s
mind the door compartments and other hiding places used by
drug couriers to transport contraband and cash.4

Mr. Ewing correctly asserts that nervousness by itself does
not establish probable cause. See Moreno v. Baca, 431 F.3d
633, 642 (9th Cir. 2005). However, nervousness in this
instance was not the sole factor suggesting criminal activity,
3
Smith was in fact under the influence of methamphetamine, an illegal
stimulant. After Deputy Doke detained him, Smith failed several drug rec-
ognition tests and admitted that he had “smoked ‘meth’ earlier in the day.”
R.30-2 at 8.
4
The Government also suggests that the fact that no one responded to
Deputy Doke’s question about the money raised justifiable suspicions.
According to the arrest report, however, Deputy Doke asked Smith about
the money only after he had removed it from the window, and the district
court credited this version of events. Thus, although the silence of the
car’s occupants may be suspicious, it cannot be considered as a factor sup-
porting probable cause to search the car or seize the money, which
occurred as soon as Deputy Doke removed the bills from their hiding
place.
 UNITED STATES v. EWING 4757
but instead was a contributing factor—alongside compulsive
movement and loud and rapid speech—to an inference of ille-
gal stimulant use.5 This suspicion of stimulant use was, in
turn, one of the factors justifying the inference that the car
was part of a drug-trafficking operation.

Mr. Ewing also contends that, because Deputy Doke did
not know the nature of Smith’s prior conviction, the mere
knowledge that he was on parole did not establish probable
cause to search the car. Whatever the merits of this contention
on its own, see Greenstreet v. Cnty. of San Bernardino, 41
F.3d 1306, 1309-10 (9th Cir. 1994) (holding that police offi-
cers lacked probable cause to search a house when there was
“no connection whatsoever between [a parolee’s] criminal
history and Plaintiffs’ residence except . . . that [the parolee]
was seen there”), Smith’s status as a parolee, considered in
conjunction with his appearance of being under the influence
of a stimulant, helps to establish a fair probability that a
search of the car would yield evidence of contraband.

Moreover, both Smith’s apparent intoxication and his paro-
lee status must be viewed alongside the fact that Deputy Doke
observed a number of folded-up $20 bills stuffed between the
passenger door and the window. The weatherstripping of a car
window is a very odd place to store money. Deputy Doke’s
training and experience alerted him to the possibility that, just
as drug couriers hide contraband and cash in door panels and
other hidden compartments to evade detection, so too might
a drug courier attempt to conceal money in the space between
a car door and its window. See United States v. Sanchez-
Lopez, 879 F.2d 541, 555-56 (9th Cir. 1989) (holding that the
discovery of a hidden cut-out in a glove compartment and tes-
timony that “narcotics traffickers often use false compart-
ments to smuggle drugs” was “relevant to establish a
5
The district court found that Deputy Doke did not notice other indicia
of Smith’s intoxication—bloodshot eyes and profuse sweating—until after
he had examined the bills and detained the car’s occupants.
4758 UNITED STATES v. EWING
connection” with a drug trafficking conspiracy); United States
v. U.S. Currency $83,310.78, 851 F.2d 1231, 1236 (9th Cir.
1988) (holding in a civil forfeiture proceeding that a defen-
dant’s attempt to conceal money is “a relevant fact” in estab-
lishing probable cause that the money was tied to drug
trafficking).6

[4] Assessed in its totality, the evidence supports the dis-
trict court’s probable cause determination. Deputy Doke was
confronted with a parolee who probably was using illegal
drugs and who seemed to have hidden several folded-up $20
bills in the door next to him. Deputy Doke made a reasonable
inference—possibly the most reasonable inference under the
circumstances—that the likely explanation for the money’s
location was that the bills were the cash proceeds of a drug
sale.7 See Davis, 530 F.3d at 1084 (stating that “[p]robable
cause determinations may be based in part on reasonable
inferences” (citing United States v. Gourde, 440 F.3d 1065,
1071 (9th Cir. 2006) (en banc))). To be sure, it turned out that
the bills were not drug proceeds.8 Yet, the totality of the cir-
6
Courts frequently have noted the use of hidden compartments in drug
trafficking operations. See, e.g., United States v. Campos, 541 F.3d 735,
740 (7th Cir. 2008); United States v. González, 363 F.3d 15, 19 (1st Cir.
2004) (per curiam). Mr. Ewing nevertheless maintains that there is a dif-
ference between Deputy Doke’s knowledge of the use of hidden compart-
ments and Smith’s use of an unaltered car window. However, the
inferential step from money hidden in door panels to money hidden in
more ordinary places in a car is hardly unwarranted. See, e.g., United
States v. McGilberry, 620 F.3d 880, 882 (8th Cir. 2010) (noting that the
defendants used cereal boxes to conceal money in a car during drug trans-
actions); United States v. Chavez, 340 F. App’x 501, 505 (10th Cir. 2009)
(unpublished decision) (involving a methamphetamine trafficker who
intended to hide drug money in his child’s car seat).
7
Mr. Ewing contends that Deputy Doke’s inference was misguided
because he suspected only that Smith was a drug user, not that he was a
drug courier. We cannot accept this contention. The officer certainly was
entitled to conclude that, although drug users are not necessarily drug cou-
riers, a drug user who travels around with a hidden stash of money looks
very much like a drug courier, even if only a small-time one.
8
That said, the evidence suggests that Deputy Doke’s inference may not
have been too far off the mark. After his arrest, Smith confessed that he
 UNITED STATES v. EWING 4759
cumstances justified Deputy Doke’s belief that they were and,
thus, that there was a fair probability that a search of the car
would yield evidence of criminal activity. See id. (finding
probable cause to search a vehicle where police had evidence
that the driver was part of a drug operation and could infer
that contraband connected to that operation would be inside
the vehicle).

Moreover, a separate search within the meaning of Hicks
did not occur when Deputy Doke unfolded the bills. Because
Deputy Doke had probable cause to search the car, he was
permitted to seize and examine suspected contraband found
within it. Florida v. White, 526 U.S. 559, 563-64 (1999).
Hicks does not counsel a different result. Unlike the stereo
equipment in Hicks, Mr. Ewing’s money was within the scope
of the search. Indeed, although the information that identified
the bills as counterfeit was not apparent until the bills were
unfolded, the money itself was the central factor justifying
Deputy Doke’s decision to search the car for evidence of drug
trafficking. The Court in Hicks made abundantly clear that, if
the officer had possessed probable cause to believe that the
stereo equipment was stolen, his examination of it would have
been sustained: “It would be absurd to say that an object
could lawfully be seized and taken from the premises, but
could not be moved for closer examination.” Hicks, 480 U.S.
at 326; see also United States v. Wilson, 565 F.3d 1059, 1065
(8th Cir. 2009) (upholding the review of videotapes for evi-
dence of illegal activity and distinguishing Hicks “because the
officers had probable cause to believe that the items were con-
nected to criminal activity without viewing their contents”),
cert. denied, 130 S. Ct. 1052 (2010). Deputy Doke therefore
was justified in seizing the bills, which were suspected drug
proceeds, and did not require any new or separate reason to
examine them.

previously had used some bills counterfeited by Mr. Ewing to purchase
methamphetamine and that, when Vera’s car was pulled over, he was on
his way “to get ‘high’ again.” R.30-2 at 8.
4760 UNITED STATES v. EWING
Conclusion

Accordingly, we affirm the judgment of the district court.

AFFIRMED.