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United States v. Cabrera

United States District Court, D. Nevada

October 23, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
JOSE ISAIAS CABRERA, Defendant.

          ORDER

          LARRY R. HICKS UNITED STATES DISTRICT JUDGE.

         In this 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.

         I. BACKGROUND

         On July 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.

         While 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.

         On July 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.[1] 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 trunk.

         Cabrera 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.

         II. LEGAL STANDARD

         Federal 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).

         III. DISCUSSION

         The 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.

         A. Standing

         The 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.

         To 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 ...


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