In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-2681
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
GABRIEL MENDOZA,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Indiana, Hammond Division.
No. 03 CR 109—James T. Moody, Judge.
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ARGUED DECEMBER 1, 2005—DECIDED FEBRUARY 23, 2006
____________
Before FLAUM, Chief Judge, and BAUER and EVANS, Circuit
Judges.
BAUER, Circuit Judge. Gabriel Mendoza was charged and
convicted of five criminal offenses. Namely, a jury found
him guilty of being a felon in possession of a firearm, in
violation of 18 U.S.C. § 922(g)(1); an alien illegally possess-
ing a firearm, in violation of 18 U.S.C. § 922(g)(5); posses-
sion with intent to distribute 500 grams or more of metham-
phetamine, in violation of 21 U.S.C. § 841; possession with
intent to distribute five kilograms or more of cocaine, in
violation of 21 U.S.C. § 841; and illegal reentry into the
United States as a deported alien, in violation of 8 U.S.C.
§ 1326. The district court sentenced Mendoza to 292 months
in prison.
2 No. 05-2681
Mendoza argues that evidence pertaining to counts three
and four was obtained from a warrantless search of his
vehicle, which was parked in the unattached garage of the
residence where he was staying. The district court found
this evidence admissible because Mendoza failed to dem-
onstrate that he had a reasonable expectation of privacy
in the garage. We affirm the ruling of the district court.
I. Background
The Metro Special Operation Section (“MSOS”) of the
South Bend Police Department received information
suggesting that defendant Gabriel Mendoza and his brother
Juan were dealing in narcotics. On September 9, 2003,
Sergeant Jamie Buford, a member of the MSOS, conducted
surveillance at Mendoza’s home. Buford noticed a Corvette
parked illegally outside the house. Because he was in
plainclothes, Buford requested a uniformed officer’s assis-
tance to knock on the door of the house.
At 3:30 p.m, Gabriel Mendoza answered the door and
spoke with the uniformed police officer. They both walked
to the Corvette, where Buford approached them. Buford
displayed his badge and identified himself to Mendoza. He
then read Mendoza his Miranda rights and explained that
he was conducting a narcotics investigation at the resi-
dence. Mendoza said there were no narcotics at the house.
Buford asked Mendoza if there were any weapons in the
house, and Mendoza said, “Yes”. Seeking permission to
search the residence, Buford asked if he could look around
and he read a “Permit to Search” form to Mendoza verba-
tim. Buford explained that Mendoza was not required to
permit the search. Mendoza verbally agreed to permit a
search, and even laughed at the idea of any drugs being
there, joking that if there were any drugs in the house
he would help the officer carry them out.
No. 05-2681 3
Mendoza and Buford entered the house while the uni-
formed officer stayed outside. They first went to the bed-
room, where Mendoza directed Buford to the firearm. After
Buford secured the weapon, Mendoza admitted to owning
the weapon. He also said that he had been convicted of a
felony in Nebraska for trafficking in marijuana. After he
had been convicted in Nebraska, Mendoza was deported. He
was in the United States illegally.
Continuing the search, Buford found a notebook that
appeared to be a drug ledger. When asked about it,
Mendoza said it was old. They then went to the kitchen,
where Buford found a food vacuum sealer and plastic
baggies. Buford discovered a brown residue on the sealer
that smelled like methamphetamine. He then went into the
hallway, where he found a small digital scale on a shelf that
also had a white powder residue. Buford examined the scale
because he believed it was the kind used by drug traffickers
to weigh narcotics. While Buford was examining the scale,
Mendoza slapped the scale out of his hands and said that it
was used to mail letters to his mother. Buford conducted
field tests on the residue he found, which confirmed his
belief that the residue was methamphetamine and cocaine.
He then arrested Mendoza and placed him in the backseat
of the patrol car.
Buford suspected that Mendoza was a “mule”, a person
who transports narcotics for others, and asked Mendoza
if he would be willing to talk about it further. Mendoza said
that he had been making trips from South Bend to Wash-
ington state, but claimed that he had stopped moving drugs
two months prior because he had made enough money to
retire. With his drug profits, Mendoza said he bought a
Chevy Tahoe and spent about $4,000 on the Corvette that
was parked on the street in front of the house. The Corvette
had Delaware plates. Because the garage door was open,
Buford could see the Chevy Tahoe in the garage. He could
also see the Chevy Tahoe through a garage window.
4 No. 05-2681
At about 4:00 p.m., shortly after Mendoza had been taken
to the police station, Sergeant Buford’s supervisor, Douglas
Radican, arrived at the residence. Radican was a sergeant
with the South Bend Police Department but also had been
cross-designated as a Task Force Agent with the Drug
Enforcement Administration (DEA). Buford had called
Radican and told him that Mendoza had admitted purchas-
ing the Tahoe and Corvette with drug proceeds. He also told
him that Mendoza consented to a search of the residence.
After verifying that the Chevy Tahoe was registered to
Mendoza, and that there were no liens against it, Radican
decided to seize the vehicle. The Corvette, on the other
hand, had substantial liens on it and Radican therefore
decided not to initiate a forfeiture against it.
Pursuant to administrative forfeiture, Radican seized
the Chevy Tahoe from the unattached, one-stall garage
at the residence. Once the Chevy Tahoe was in the police
garage, the officers had it inspected by a drug dog. The dog
was alerted to the rear deck of the vehicle, but since the
officers saw drug residue on the carpet they believed that
the residue was what caught the dog’s attention. The next
day Radican began processing the forfeiture paperwork.
Over the next few days, the DEA received an inordinate
amount of phone calls inquiring about the Chevy Tahoe.
Further, the jail where Mendoza was held received other
phone calls asking about the release of the Chevy Tahoe.
Radican concluded that the number of phone calls and
interest in the vehicle was highly suspicious. As a result, he
arranged to have the vehicle examined for a hidden com-
partment.
On September 24, 2003, the police had a cooperating
source, who was knowledgeable in the installation of trap
doors, examine the vehicle. This examination revealed that
the seals of the back floor had recently been resealed and
repainted. Under the seal there was a hidden compartment,
No. 05-2681 5
or trap, approximately five to six inches deep that ran the
length of the Chevy Tahoe’s back deck. In this hidden
compartment, the police found 26 pounds of methamphet-
amine and 16 kilograms of cocaine.
A Grand Jury for the Northern District of Indiana
returned a five-count indictment against Gabriel Mendoza
on October 9, 2003, alleging violations of 18 U.S.C.
§ 922(g)(1), 18 U.S.C. § 922(g)(5), 21 U.S.C. § 841, and
8 U.S.C. § 1326.
On April 12, 2004, district court Judge Allen Sharp
conducted a hearing on Mendoza’s Motion to Quash Arrest
and Suppress Evidence. Sergeants Buford and Radican both
testified. Mendoza declined to present any evidence at the
suppression hearing. On April 20, 2004, Judge Sharp issued
his order denying the Motion to Quash Arrest and Suppress
Evidence. After several continuances of the trial and a
transfer to Judge James Moody, the two-day trial began on
November 29, 2004, resulting in a guilty verdict on all five
counts. Mendoza was sentenced to 292 months on May 26,
2005, and a timely appeal was filed on June 2, 2005.
II. Discussion
Mendoza seeks to suppress the 26 pounds of methamphet-
amine and 16 kilograms of cocaine found in the Chevy
Tahoe seized after the search of his vehicle. On appeal from
a denial of a motion to suppress, we review the district
court’s factual findings for clear error and questions of law
de novo. United States v. Grap, 403 F.3d 439, 443 (7th Cir.
2005).
A defendant who objects to the search of a particular area
bears the burden of proving a legitimate expectation of
privacy in the area searched. Rawlings v. Kentucky, 448
U.S. 98, 104 (1980). A defendant cannot assert a privacy
interest on behalf of someone else. Indeed, a defendant
6 No. 05-2681
charged with a crime of possession can only claim the
benefits of the exclusionary rule if his or her own Fourth
Amendment rights have been violated. United States v.
Salvucci, 448 U.S. 83, 85 (1980). Additionally, a defendant
must show a privacy interest not only in the seized good,
but also in the area where the good was found. Id. The
Supreme Court has declined “to use possession of a
seized good as a substitute for a factual finding that the
owner of the good had a legitimate expectation of privacy in
the area searched.” Id. at 92.
A reasonable expectation of privacy is infringed when
(1) the defendant exhibits an actual or subjective expecta-
tion of privacy and (2) the expectation is one that society is
prepared to recognize as reasonable. Katz v. United States,
389 U.S. 347, 361 (1967). Further, a defendant objecting to
a search bears the burden of proving that he or she had a
legitimate expectation of privacy in the actual area
searched. United States v. Pitts, 322 F.3d 449, 456 (7th Cir.
2003) (citing United States v. Ruth, 65 F.3d 599, 604 (7th
Cir. 1995)). In order to present a prima facie case of a
violation of the Fourth Amendment, there must be some
“reasonable expectation” of privacy in the area searched.
Kyllo v. United States, 533 U.S. 27, 33 (2001). But, this
reasonable expectation of privacy must be demonstrated to
the Court. As we explained in Ruth, “without an affidavit or
testimony from the defendant, it is almost impossible to
find a privacy interest . . . .” Ruth, 65 F.3d at 605.
In this case, Mendoza has only offered conclusory state-
ments regarding his privacy interest in the unattached
garage. In fact, the only evidence in the record even refer-
encing Mendoza’s residency is a Housing Identification card
from Pasco, Washington and the Delaware license plates on
the Corvette. Mendoza did not show that he had the right
to exclude others or regulate access to the garage where his
Chevy Tahoe was parked. See Rakas v. Illinois, 439 U.S.
128, 143 (1978) (holding that defendant must have a
No. 05-2681 7
legitimate expectation of privacy in the premises before he
can claim protection under the Fourth Amendment). Even
if we were to suppose that the search was illegal, the Court
has held that “legal possession of a seized good is not a
proxy for determining whether the owner had a Fourth
Amendment interest, for it does not invariably represent
the protected Fourth Amendment interest.” Salvucci, 448
U.S. at 91.
At the suppression hearing and throughout the briefing to
this Court, Mendoza has failed to demonstrate his privacy
interest in the unattached garage. Without some factual
finding establishing that Mendoza had an actual or subjec-
tive expectation of privacy, we agree with the district court
that there is no Fourth Amendment violation.
Mendoza volunteered to Buford that he had retired from
drug trafficking. He explained that he had made enough
money to retire and in fact sunk some of his profits into the
Corvette parked on the street and the Chevy Tahoe parked
in the garage. By offering this information, Mendoza
himself gave the police probable cause to believe that the
vehicles were subject to civil forfeiture. As we have stated
elsewhere, “[t]he weight of authority . . . holds that police
may seize a car without a warrant pursuant to a forfeiture
statute if they have probable cause to believe that the car
is subject to forfeiture.” United States v. Pace, 898 F.2d
1218, 1241 (7th Cir. 1990) (citations omitted). Further, all
proceeds traceable to controlled substance distribution are
subject to forfeiture. See 18 U.S.C. § 981 (2000); 21 U.S.C.
§ 881 (2000).
Mendoza contends that the consent he gave to search the
house did not extend to the unattached garage that stored
his Chevy Tahoe. Under the Fourth and Fourteenth
Amendments, it is well-settled law that warrantless
searches are per se unreasonable, “subject only to a few
8 No. 05-2681
specifically established and well-delineated exceptions.”
Katz v. United States, 389 U.S. 347, 357 (1967). One readily
recognized exception is a search pursuant to consent,
Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1967), which
“was not the product of duress or coercion, express or
implied.” Id. at 227. The government must prove that
consent was voluntary by a preponderance of the evidence.
United States v. Bernitt, 392 F.3d 873, 877.
In this case, it seems clear to this court that Mendoza
voluntarily gave his consent for Sergeant Buford to
search the house. In fact, Mendoza even made light of the
situation. Specifically, in response to Buford’s request to
search the house for narcotics, Mendoza laughed and said
that he would have helped Buford carry out any drugs that
he found in there. Even after Buford advised Mendoza
that he could refuse the request to search, Mendoza flip-
pantly answered, as if the thought of drugs found in
the house was laughable.
While Mendoza concedes that he consented to the
search of the house, he argues that his consent did not
extend to the unattached garage. This case, however, does
not hinge on such a fine determination. Instead, the
question is one of a reasonable expectation of privacy. The
close call as to whether Sergeant Buford’s recitation of
the Permit to Search form translates into consent for
Sergeant Radican (who did not arrive at the scene until
after Mendoza was taken to the police station) to search the
unattached garage does not determine the outcome of this
case. Rather, as we have shown, without a demonstrated
legitimate expectation of privacy in the area searched,
Mendoza’s Fourth Amendment rights have not been
violated. We agree with the district court that United States
v. Ruth is controlling here. Ruth, 65 F.3d 599. As a result,
the denial of the motion to suppress, and the conviction and
sentence are AFFIRMED.
No. 05-2681 9
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—2-23-06