United States District Court, D. Nevada
R. HICKS UNITED STATES DISTRICT JUDGE.
narcotics case, defendant Jose Isaias Cabrera contends that
law enforcement violated his Fourth Amendment rights by
conducting an investigatory search of an automobile under the
guise of the inventory exception to warrantless searches. ECF
No. 145. He therefore moves to withdraw his guilty plea or,
alternatively, to suppress the evidence from the search and
omit reference to the search in the guilty plea. Id.
The government opposes Cabrera's motion, arguing that
Cabrera lacks standing to challenge the search and that the
search was constitutional. ECF No. 148. Cabrera reasserts his
arguments in reply. ECF No. 149. The Court finds the search
of the automobile was constitutional and denies Cabrera's
motion as a result.
4, 2015, Cabrera was driving an Audi identified by Nevada
license plate 16A-139. Drug Enforcement Administration
("DEA") investigators previously suspected the Audi
was used to complete unlawful sales of controlled substances.
Based on the DEA's suspicions and investigatory work, a
state-court order made a finding of probable cause and
permitted the placement of a GPS tracker on the Audi. The GPS
tracker was placed on the Audi prior to July 4, 2015.
driving the Audi on July 4, 2015, Cabrera was stopped by
Deputy Vanderwall and Deputy Bailey from the Washoe County
Sheriffs Office. By the end of the stop, the deputies had:
(1) deployed a certified canine-which alerted his handler,
Officer Bare, to the positive detection of controlled
substances towards the rear of the Audi; (2) searched the
Audi, resulting in the discovery of roughly 250 grams of
cocaine and nearly $12, 000 in cash; (3) arrested Cabrera and
his co-defendants; and (4) seized the Audi, impounding it at
the DEA office.
8, 2015, the registered owner of the Audi-Angelina
Navarro-attempted to obtain the Audi from impound. Prior to
releasing the Audi to Navarro, DEA agents conducted a second
search of the Audi. The search resulted in the discovery of
roughly 2, 468 grams of methamphetamine and $5, 800 in cash.
The methamphetamine was found inside the interior of the
trunk wall and the cash was found inside a bag sitting in the
joined his co-defendants in moving to suppress the evidence
obtained by the GPS tracking, the initial stop of the Audi,
and the initial search of the Audi. ECF Nos. 36, 97. The
court denied the motion. ECF No. 99. As a result, Cabrera
pled guilty to one count of conspiracy to possess with intent
to distribute at least 50 grams of a mixture or substance
containing a detectable amount of methamphetamine. ECF No.
107. Cabrera was represented by Attorney Bret Whipple at the
time he entered his guilty plea. With new counsel, Cabrera
now moves to withdraw his guilty plea or, alternatively, to
suppress the evidence from the second search of the Audi and
correct the factual basis of the guilty plea to omit
reference to the search. ECF No. 145. He bases his motion on
the argument that the second search was unconstitutional. ECF
No. 145. The government opposes the motion, contending that
Cabrera lacks standing to challenge the search and that the
second search was constitutional. ECF No. 148. Cabrera
replies by asserting he has standing and by reasserting his
argument that the search was unconstitutional. ECF No. 149.
Rule of Criminal Procedure 11 allows a defendant to withdraw
his guilty plea prior to sentencing if "the defendant
can show a fair and just reason for requesting the
withdrawal." Fed. R. Crim. P. 11(d)(2)(B). The defendant
bears the burden of establishing that withdrawal of the
guilty plea is warranted. United States v. Jones,
472 F.3d 1136, 1141 (9th Cir. 2007). While the court must
apply the fair-and-just standard liberally, a defendant
"may not withdraw his plea 'simply on a
lark.'" United States v. Ensminger, 567
F.3d 587, 590 (9th Cir. 2009) (citing United States v.
Hyde, 520 U.S. 670, 676-77 (1997)). The Ninth Circuit
recognizes "inadequate Rule 11 plea colloquies, newly
discovered evidence, intervening circumstances, or any other
reason for withdrawing the plea that did not exist when the
defendant entered his plea" as fair and just reasons for
withdrawal. Jones, 472 F.3d at 1141 (citing
United States v. Ortega-Ascanio, 376 F.3d 879, 883
(9th Cir. 2004).
court must decide two issues: (1) whether Cabrera has
standing to challenge the second search of the Audi; and (2)
whether the second search of the Audi violated the Fourth
Amendment, thereby warranting withdrawal of Cabrera's
guilty plea. The court considers the issues in turn.
court first considers the issue of standing. Cabrera asserts
he has standing to challenge the search under United
States v. Portillo, 633 F.2d 1313 (9th Cir. 1980),
because he had a legitimate expectation of privacy in the car
after the owner of the car gave him permission to use the car
and gave him the car keys. ECF Nos. 145 at 4-5, 149 at 2. The
government argues Cabrera lacks standing because he has not
established a pattern of use of the car as required by the
First Circuit of Appeals in United States v.
Almeida, 748 F.3d 41, 47-48 (1st Cir. 2014). ECF No. 148
at 9-10. The court agrees with Cabrera.
assert a challenge under the Fourth Amendment, a person must
have "a legitimate expectation of privacy in the invaded
place." Rakas v. Illinois,439 U.S. 128, 143
(1978). "An expectation of privacy is a legitimate one
if it is one which society accepts as objectively
reasonable." United States v. Thomas, 447 F.3d
1191, 1196 (9th Cir. 2006) (citing Minnesota v.
Olson,495 U.S. 91, 95-96, (1990)). A person must have a
possessory or ownership interest in an item to possess a
reasonable expectation of privacy. United States v.
Cormier,220 F.3d 1103, 1108 (9th Cir. 2000) (citing
United States v. Miller,425 U.S. 435, 440 (1976)).
In the context of automobile searches, "a defendant may
have a legitimate expectation of privacy in another's
automobile if the defendant is in possession of the
automobile, has the permission of the owner, holds a key to
the automobile, and has the right and ability to exclude
others, except the owner, from the automobile.
Thomas, 447 F.3d at 1198 (citing United States
v. Portillo,633 F.2d 1313, 1317 (9th Cir. 1980)).
Therefore, a mere passenger does not have standing to
challenge a search of the automobile, Portillo, 633
F.2d at 1316-17 (citing Rakas, 439 U.S. at 148). But
a person that possesses "permission to use [the
owner's] automobile and the keys to the ignition and the
trunk, with ...