United States v. Olguin-Rivera

                                                                      F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                                   PUBLISH
                                                                       FEB 19 1999
                  UNITED STATES COURT OF APPEALS
                                                                    PATRICK FISHER
                                                                            Clerk
                               TENTH CIRCUIT



 UNITED STATES OF AMERICA,

       Plaintiff-Appellant,

 v.                                                   No. 98-1164

 MARIO OLGUIN-RIVERA;
 RODOLFO ALVIDREZ-TERRAZAS,

       Defendants-Appellees.


                 Appeal from the United States District Court
                         for the District of Colorado
                           (D.C. No. 98-CR-75-B)


Kathleen M. Tafoya (Henry L. Solano, United States Attorney, with her on the
briefs), Assistant United States Attorney, Denver, Colorado, for Plaintiff-
Appellant.

Miles A. Cabral (Al Cabral with him on the brief), and Edward A. Pluss, Denver,
Colorado, for Defendants-Appellees.


Before BRORBY, McWILLIAMS and KELLY, Circuit Judges.


BRORBY, Circuit Judge.


      The United States Government brings this appeal challenging a district

court order suppressing contraband evidence obtained in an automobile search.
The district court held that covering the cargo area of a sport utility vehicle

creates the “functional equivalent” of a trunk and places the covered area beyond

the permissible scope of an automobile search incident to arrest. We exercise

jurisdiction pursuant to 18 U.S.C. § 3731 and reverse.



BACKGROUND

      On February 7, 1998 at around 11:00 p.m., two Colorado State Troopers

were parked in the median along Interstate 76 near Ft. Morgan, Colorado, on

routine traffic patrol. The troopers observed a green Isuzu Rodeo sport utility

vehicle pass by without a visible license plate on the back. Appellee, Mr.

Rodolfo Alvidrez-Terrazas, was driving the vehicle, with co-Appellee, Mr. Mario

Olguin-Rivera, riding in the back seat. The officers stopped the vehicle to check

for a licensing violation. After approaching the vehicle for close inspection, the

officers discovered an expired temporary license attached to the inside of the back

window. At that point, the troopers instructed the driver, Mr. Alvidrez-Terrazas,

to get out of the vehicle and present his driver’s license. Because Mr. Alvidrez-

Terrazas was unable to produce a license or any other form of identification, the

troopers decided to arrest him. The troopers also asked the passenger Mr. Olguin-

Rivera to exit the vehicle and produce his driver’s license. Mr. Olguin-Rivera,

who the troopers later discovered had legally rented the vehicle, showed the


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troopers his license and then stood by as they began to search the vehicle.



      The troopers started their search of the interior at the front of the passenger

compartment and worked toward the back. Eventually, one of the troopers opened

the tailgate to search the rear cargo area which had a built-in, vinyl cover pulled

over the top. The trooper testified the vinyl cover operated much like a rolling

window shade that could be extended over the top of cargo and then retracted

when not in use. This particular cover was drawn from the front of the cargo area

near the back of the passenger seat and latched at the back of the vehicle near the

tailgate. After opening the tailgate, the troopers could see two large bags under

the vinyl covering. Without touching or removing the bags, the troopers asked

Mr. Olguin-Rivera who the bags belonged to and what they contained. After

some discussion, Mr. Olguin-Rivera finally admitted the bags were his and that

they contained marijuana. The troopers then arrested Mr. Olguin-Rivera and

searched the bags which, contained a total of 118 pounds of marijuana.



      Mr. Olguin-Rivera and Mr. Alvidrez-Terrazas were subsequently charged

with one count of possession with intent to distribute marijuana under 21 U.S.C.

§ 841(a)(1) and (b)(1)(C), and 18 U.S.C. § 2. Both defendants filed similar

motions to suppress the drug possession evidence claiming the troopers violated


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their Fourth Amendment rights during the initial encounter. On April 16, 1998,

the district court conducted a consolidated hearing, and after hearing testimony

and arguments, the court ruled to suppress the evidence. The district court found

the covering over the rear compartment of the sport utility vehicle created the

“functional equivalent of the trunk of an automobile,” and therefore caused the

troopers’ search to “exceed[] the proper scope” of an automobile search incident

to arrest.



DISCUSSION

       This appeal presents us squarely with the question whether placing a cover

over the luggage or cargo area in a sport utility vehicle creates the functional

equivalent of a trunk and renders the covered area beyond the permissible scope

of an automobile search incident to arrest under the Fourth Amendment. In

reviewing the district court’s grant of a suppression motion, we accept the district

court’s factual findings absent clear error and review   de novo the district court’s

determination of reasonableness under the Fourth Amendment to suppress the

contraband evidence.    See United States v. Lacey , 86 F.3d 956, 971 (10th Cir.),

cert. denied , 117 S. Ct. 331 (1996);   United States v. Lugo , 978 F.2d 631, 634

(10th Cir. 1992).




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      1.     Constitutional Framework

      The Fourth Amendment generally prohibits law enforcement from

conducting a search without a valid warrant supported by probable cause.         See

National Treasury Employees Union v. Von Raab       , 489 U.S. 656, 665 (1989);

Griffin v. Wisconsin , 483 U.S. 868, 873 (1987). However, the Supreme Court

subjects this general rule to a variety of exceptions in order to respond to

situations where certain exigent circumstances make exemption from the warrant

requirement a necessity. In    Chimel v. California , 395 U.S. 752 (1969), for

example, the Court established an exception to allow the contemporaneous search

of a lawfully arrested person and the immediately surrounding area without a

warrant in order to promote safety and prevent the concealment or destruction of

evidence. Id. at 763-64. Chimel limited and defined the area of a permissible

search incident to arrest to include “the area from within which [the arrestee]

might gain possession of a weapon or destructible evidence.”      Id. at 763.

Although Chimel stated a fairly clear rule for general custodial arrests, the courts

found it difficult to apply a workable definition of the area subject to search in

certain cases – especially when the area included the interior of an automobile.



      In order to address this uncertainty and cure the disarray it caused in case

law, the Supreme Court in     New York v. Belton, 453 U.S. 454 (1981), established a


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bright-line rule specific to automobile searches incident to arrest. The Court held

that “when a policeman has made a lawful custodial arrest of the occupant of an

automobile, he may, as a contemporaneous incident of that arrest, search the

passenger compartment of that automobile” and “examine the contents of any

containers found within the passenger compartment.”         Id. at 460 (footnotes

omitted); see also United States v. Franco     , 981 F.2d 470, 472 (10th Cir. 1992).

The rule from Belton is based on the “generalization that articles inside the

relatively narrow compass of the passenger compartment of an automobile are in

fact generally, even if not inevitably, within the area into which an arrestee might

reach in order to grab a weapon or [evidence].”      Belton , 453 U.S. at 460 (internal

quotation marks and citation omitted). Under this same rationale, the Court

expressly noted the passenger compartment did not encompass the trunk of the

automobile, leaving it beyond the scope of a permissible search incident to arrest.

Id. at 460 n.4. The decision in   Belton promoted both privacy and law

enforcement interests by aiding the police in correctly determining beforehand

“whether an invasion of privacy is justified in the interest of law enforcement.”

Id. at 458 (internal quotation marks and citation omitted). Later cases further

defined what constitutes the passenger compartment of an automobile to include

any area “generally reachable without exiting the vehicle, without regard to the

likelihood in a particular case that such a reaching was possible.”     United States


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v. Doward , 41 F.3d 789, 794 (1st Cir. 1994) (internal quotation marks and citation

omitted), cert. denied , 514 U.S. 1075 (1995).



       2.     Application

       The district court applied the rules from   Belton and its progeny to

invalidate the search in this instance because it determined any evidence or

weapons contained in the covered cargo area of the vehicle were beyond the

defendants’ “reasonable ability to access,” thereby making the covered cargo area

more like a trunk than part of the passenger compartment. However, we disagree

with the court’s conclusion and find “where, as here, the vehicle contains no

trunk, the entire inside of the vehicle constitutes the passenger compartment and

may be lawfully searched,”    United States v. Henning , 906 F.2d 1392, 1396 (10th

Cir. 1990), cert. denied , 498 U.S. 1069 (1991), regardless of the imposition of an

easily-retractable vinyl covering or its ostensible effect on the defendants’ ability

to reach the area.   Doward, 41 F.3d at 794.



       In arriving at our decision, we do not ignore the arguments of Mr. Olguin-

Rivera and Mr. Alvidrez-Terrazas or the rationale of the district court. We

acknowledge this case presents a closer legal question than ones involving the

uncovered hatchback area of a car or the luggage area of a station wagon or sport


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utility vehicle generally. A long line of cases from this court and others has

clearly established that police officers may search hatchback or cargo storage

areas in vehicles without a “trunk” (in the traditional sense) as constituting part of

the passenger compartment for purposes of search incident to arrest.   1
                                                                           We find

these cases equally persuasive and controlling in situations where the cargo area

is covered. Consequently, in keeping with the principles these cases establish, we

decline to validate a rule that effectively allows the occupants of sport utility

vehicles or other similar automobiles to transform a cargo area into the functional

equivalent of a trunk simply by covering the area. We find the extension of the

built-in, vinyl cover over the top of the cargo area simply does not make it

tantamount to a trunk for search and seizure purposes.




      1
         See Lacey, 86 F.3d at 971 (upholding search of entire interior of a van);
Henning, 906 F.2d at 1396 (validating search of entire interior area of a Suburban
sport utility vehicle); Doward, 41 F.3d at 794 (finding the hatch area of a car
“reachable without exiting the vehicle” and subject to search); United States v.
Rojo-Alvarez, 944 F.2d 959, 970 (1st Cir.1991) (treating hatch area of a car as
within defendant's reach and subject to search); United States v. Pino, 855 F.2d
357, 364 (6th Cir.1988) (upholding search of "the rear section of a mid-size
station wagon"), cert. denied, 493 U.S. 1090 (1990); United States v. Russell, 670
F.2d 323, 327 (D.C. Cir.) (ruling a hatchback reachable without exiting the
vehicle qualifies as part of the interior or passenger compartment subject to
search), cert. denied, 457 U.S. 1108 (1982). These searches are justified
primarily on the basis that the hatch area or cargo area is readily accessible to the
occupants without exiting the vehicle.


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      Our decision rests on several factors. First, although we emphasize

“reachability” is not itself dispositive, we find the cargo area of the vehicle in this

case was accessible to the defendants. The district court found in its ruling that,

although difficult to do, a passenger in the rear seat could reach the bags under

the cover without exiting the vehicle. One of the troopers on the scene also

testified that a person could climb through the whole vehicle, including the back

cargo area. We find these facts sufficient to make the covered portion of the

cargo area different than a trunk in the traditional sense. Trunks are inaccessible

from the passenger compartment, whereas the cargo area in the vehicle in this

case – whether covered or not – is still accessible to the vehicle’s occupants.



      Second, we rest our decision on principles of consistency. Under      Belton we

allow the officers to search containers within the passenger compartment of an

automobile, 453 U.S. at 460, and we see no valid, rational means of

distinguishing a container from a covered cargo area so as to permit the search of

one and not the other. If, for example, we allow officers to search under blankets,

in coats, and under pillows as part of ordinary automobile searches; we see no

reason to indiscriminately draw an artificial distinction between those type of

permissible searches and the covered cargo area in this case. The search of a

closed container within the passenger compartment is so closely analogous to


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looking under a covered area of the passenger compartment, we must treat them

the same for purposes of search incident to arrest. Attempting to distinguish a

container from the covered cargo area only takes us into the exception-riddled

“gray area” we try to avoid when defining the lawful parameters of warrantless

search and seizure.



       Finally, and most importantly, sound policy compels us to adhere to a

bright-line rule in this instance.   Belton emphasized police officers “have only

limited time and expertise to reflect on and balance the social and individual

interests involved in the specific circumstances they confront,” and consequently

“the protection of the Fourth and Fourteenth Amendments can only be realized if

the police are acting under a set of rules which, in most instances, makes it

possible to reach a correct determination beforehand as to whether an invasion of

privacy is justified in the interest of law enforcement.”   Id. at 458 (internal

quotation marks and citation omitted). Both law enforcement and private citizens

benefit from clear rules in the context of search and seizure because it assures

citizens of the exact bounds of their privacy rights and strictly defines the limits

on law enforcement.



       The basic problem with making a rule allowing the covering of the cargo


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area to create the functional equivalent of a trunk is the path of uncertainty it

leads us down. Such a rule requires the type of subtle, fine-line distinctions the

Court disfavors, see, e.g., Belton, 453 U.S. at 458, and begs a multitude of

questions. We want to avoid the sort of arbitrary, post hoc assessment and

judicial second-guessing that results when uncertain standards exist to govern law

enforcement activity. Therefore, we decide officers may search the entire

passenger compartment, including the interior cargo or luggage area, of sport

utility vehicles or similarly configured automobiles, whether covered or

uncovered.



CONCLUSION

      Accordingly, we REVERSE the order of the district court suppressing the

contraband evidence.




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