                       PUBLISHED


UNITED STATES COURT OF APPEALS
             FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,             
                Plaintiff-Appellee,
               v.                          No. 12-4108
ARTURO CASTELLANOS,
            Defendant-Appellant.
                                      
       Appeal from the United States District Court
 for the Middle District of North Carolina, at Greensboro.
        N. Carlton Tilley, Jr., Senior District Judge.
                  (1:11-cr-00031-NCT-5)

                 Argued: January 31, 2013

                  Decided: May 29, 2013

 Before TRAXLER, Chief Judge, and AGEE and DAVIS,
                  Circuit Judges.



Affirmed by published opinion. Judge Agee wrote the major-
ity opinion, in which Chief Judge Traxler joined. Judge Davis
wrote a dissenting opinion.
2                UNITED STATES v. CASTELLANOS
                          COUNSEL

ARGUED: Michael E. Archenbronn, Winston-Salem, North
Carolina, for Appellant. Sandra Jane Hairston, OFFICE OF
THE UNITED STATES ATTORNEY, Greensboro, North
Carolina, for Appellee. ON BRIEF: Ripley Rand, United
States Attorney, Greensboro, North Carolina, for Appellee.


                          OPINION

AGEE, Circuit Judge:

   Arturo Castellanos conditionally pled guilty in the Middle
District of North Carolina to conspiracy to distribute cocaine.
His sole challenge on appeal is to the district court’s denial of
his motion to suppress the cocaine, which had been found in
the gas tank of a Ford Explorer as the vehicle was being trans-
ported on a commercial car carrier. We agree with the govern-
ment that Castellanos failed to prove he had a legitimate
expectation of privacy in the vehicle, and we affirm the judg-
ment of the district court.

                               I.

   On September 20, 2010, Captain Kevin Roberts of the
Reeves County, Texas, Sheriff’s Department, was conducting
a routine patrol at a truck stop near Pecos, Texas. He observed
a Direct Auto Shippers ("DAS") commercial car carrier at a
fuel filling station, and became suspicious that one of the
vehicles being transported on the car carrier, a Ford Explorer
(the "Explorer"), bore a dealership placard in lieu of a regular
license plate.

  Upon questioning the driver of the car carrier about the
Explorer, Roberts was provided shipping documents identify-
ing the owner of the vehicle as Wilmer Castenada. The docu-
                 UNITED STATES v. CASTELLANOS                 3
ments also reflected a trip origin in California with a final
destination for delivery of the vehicle in Greensboro, North
Carolina. Roberts attempted to contact Castenada using the
phone number provided to DAS, but received no answer. He
then attempted to verify the origin and destination addresses
provided to DAS, but the California address was not associ-
ated with anyone bearing Castenada’s name, and the North
Carolina address matched two unrelated businesses. When
Roberts contacted those businesses, their representatives each
stated they had never heard of Castenada and were not expect-
ing delivery of a vehicle.

   Unable to contact Castenada, Roberts asked the driver of
the DAS car carrier for permission to search the Explorer. The
driver consented, and Roberts opened the Explorer and began
to search the interior of the vehicle. He immediately noticed
"grass and stuff" in the utility area, which, in his view was
inconsistent with the Explorer coming from a dealership. He
also noticed the "strong odor of Bondo," a compound com-
monly used in the repair and after-market alteration of vehi-
cles. (J.A. 38). Roberts observed fresh tool marks where the
rear seats were anchored to the floor, indicating those had
recently been removed or installed. When he pounded on the
rear floorboard, Roberts noticed an inconsistency in the sound
on the passenger side above the gas tank.

   Roberts then inserted a fiber optic scope into the Explorer’s
gas tank in order to peer into its interior. When he did so,
Roberts observed several blue bags floating in the tank. He
then asked the car carrier driver if he (Roberts) could take
custody of the Explorer. The driver consented and Roberts,
with other officers, took possession of the Explorer and trans-
ported it to another location for further examination. When
Roberts and other officers examined the Explorer in more
detail, they found that the gas tank had been opened and
resealed with Bondo, and recovered 23 kilogram-sized bricks
of cocaine with a street value of approximately $3 million.
4                   UNITED STATES v. CASTELLANOS
   Subsequently, DAS informed Roberts that someone claim-
ing to be Castenada had been calling DAS to inquire about the
delivery of the Explorer. Using new contact information for
Castenada received from DAS, Roberts called the telephone
number claiming to be an employee of a wrecker service in
Texas. Roberts falsely informed the individual claiming to be
Castenada that the driver of the DAS carrier had been arrested
and his cargo impounded so that Castenada would be required
to travel to Texas in order to claim the Explorer. A few days
later Roberts learned that someone, later identified as Arturo
Castellanos, had arrived locally and was waiting for a ride to
the wrecker service to claim the Explorer.

   Police located and detained Castellanos, who had in his
possession the title to the Explorer, the DAS tracking number
for that vehicle, and a piece of paper bearing Roberts’ phone
number from the earlier calls. Castellanos waived his Miranda1
rights, and told Roberts that he was in the process of purchas-
ing the Explorer from Castenada, who lived in North Caro-
lina. He then explained that Castenada advised him to go from
Castellanos’ home in California to Texas to retrieve the
Explorer, then drive it to Castenada in North Carolina where
Castellanos would pay Castenada for the vehicle. Castellanos
would then drive the Explorer back to California. After Rob-
erts expressed considerable skepticism at his story, Castel-
lanos terminated the interview.

   Police also seized two duffle bags that a co-conspirator (not
party to this appeal) left at a local motel’s front desk. Castel-
lanos, who claimed to be traveling alone, denied that either of
the bags belonged to him. When Roberts opened one of the
bags, he found, in addition to other items, a contoured neck
pillow. Feeling a foreign object inside the pillow, Roberts
opened it and discovered a cellular telephone in a plastic bag.
When Roberts turned the phone on, he found that the number
    1
     Miranda v. Arizona, 384 U.S. 436 (1966).
                 UNITED STATES v. CASTELLANOS                 5
of the telephone matched the number provided by DAS that
he had been using to contact Castenada.

   Castellanos and other individuals not party to this appeal
were later indicted in the Middle District of North Carolina on
one count of conspiracy to distribute five kilograms or more
of a mixture containing a detectable amount of cocaine hydro-
chloride, in violation of 21 U.S.C. §§ 812, 841(a)(1), and
846(b)(1)(A).

   Prior to trial, Castellanos moved to suppress the items con-
tained in the duffle bag and the cocaine found in the gas tank.
The government’s evidence adduced at the suppression hear-
ing consisted entirely of testimony from Roberts, who
detailed the search and seizure of the vehicle and the subse-
quent investigation that lead to the arrest of Castellanos.

   Notably, Castellanos did not introduce any evidence to
show that he owned the Explorer at the time Roberts con-
ducted the warrantless search or had permission to use the
vehicle. Although Castellanos appeared in Texas with a title
document to the Explorer, he did not put the title into evi-
dence or otherwise attempt to demonstrate any ownership or
possessory interest in the vehicle. Castellanos’ out-of-court
statements, as relayed by Roberts, made clear that Castellanos
himself maintained that Castenada was a different person,
insofar as he claimed the purchase of the Explorer from Cas-
tenada was an incomplete transaction. Castellanos made no
showing that he and Castenada were one and the same person
or that Castenada was his alias.

  After hearing argument, the district court issued a short rul-
ing from the bench. The court stated that

    I’m going to deny [Castellanos’] motion as to both
    the duffle bags, and with regard to the automobile,
    which had been given over to a common carrier with
    addresses which were ascertained to be false
6                   UNITED STATES v. CASTELLANOS
        addresses. There was no legitimate expectation of
        privacy at that point. The shipper’s address was
        false. The person who was to receive it was a false
        address.

(J.A. 72.)

    The court did not make any findings of fact.

  Prior to trial, Castellanos entered into a conditional plea
agreement with the government and pled guilty to the sole
count of the indictment, conspiracy to distribute cocaine
hydrochloride. Pursuant to Rule 11(a)(2) of the Federal Rules
of Criminal Procedure, Castellanos reserved the right to
appeal the district court’s adverse decision on his motion to
suppress. Castellanos was sentenced to 120 months’ imprison-
ment and noted a timely appeal. We have jurisdiction pursu-
ant to 28 U.S.C. § 1291.

                                    II.

   The sole assignment of error raised by Castellanos on
appeal is that the district court erred in denying his motion to
suppress the evidence of the cocaine discovered in the gas
tank of the Explorer.2 The government rejoins, however, that
as a threshold matter, Castellanos cannot challenge the search
because he failed to show a reasonable expectation of privacy
in the vehicle’s gas tank. If the government is correct, that
issue is dispositive on appeal so we address it first.

  We review de novo the district court’s legal conclusions on
a motion to suppress. See United States v. Cardwell, 433 F.3d
378, 388 (4th Cir. 2005). Normally, we would review the dis-
    2
    Castellanos does not challenge the district court’s denial of his motion
to suppress the contents of the duffle bags. Accordingly, any challenge to
that ruling is waived. See United States v. Hudson, 673 F.3d 263, 268 (4th
Cir. 2012) (issues not raised in opening brief are waived).
                    UNITED STATES v. CASTELLANOS                          7
trict court’s factual findings in the suppression context for
clear error. See id. Here, however, the court made no findings
of fact. "It is, of course, the better practice for the district
court to make such findings, but where the district court fails
to do so, we assume the district court construed the evidence
in the light most favorable to the party who prevails on the
suppression motion below," id., in this case, the government.

   The Fourth Amendment protects "against unreasonable
searches and seizures." U.S. Const. amend. IV. A government
agent’s search is unreasonable when it infringes on "an expec-
tation of privacy that society is prepared to consider reason-
able." United States v. Jacobsen, 466 U.S. 109, 113 (1984).
"In order to demonstrate a legitimate expectation of privacy,
[Castellanos] must have a subjective expectation of privacy,"
United States v. Bynum, 604 F.3d 161, 164 (4th Cir. 2010),
and that subjective expectation of privacy must be "objec-
tively reasonable; in other words, it must be an expectation
that society is willing to recognize as reasonable," United
States v. Bullard, 645 F.3d 237, 242 (4th Cir. 2011) (internal
quotation marks omitted). The burden of showing a legitimate
expectation of privacy in the area searched rests with the
defendant. Rawlings v. Kentucky, 448 U.S. 98, 104 (1980).

   The government argues that Castellanos lacked any expec-
tation of privacy in the Explorer because the record failed to
establish that he actually owned the vehicle or established any
legitimate possessory interest in it. In the absence of such evi-
dence, the government argues, Castellanos is essentially seek-
ing the protection of the Fourth Amendment vicariously and
such a status is inadequate upon which to raise a Fourth
Amendment claim.3
  3
   We note at the outset that the concept of "standing" as it is used in the
Fourth Amendment context is largely subsumed by substantive Fourth
Amendment law, which views the concept through the lens of a reasonable
expectation of privacy. Put another way, the Supreme Court has moved
away from an independent doctrine of "Fourth Amendment standing." In
8                  UNITED STATES v. CASTELLANOS
   "The Fourth Amendment protects people, not places." Katz
v. United States, 389 U.S. 347, 351 (1967). Accordingly,
Fourth Amendment rights "may not be vicariously asserted."
United States v. Rumley, 588 F.3d 202, 206, n.2 (4th Cir.
2009) (quoting Rakas v. Illinois, 439 U.S. 128 133-34
(1978)). "A person who is aggrieved by an illegal search and
seizure only through the introduction of damaging evidence
secured by a search of a third person’s premises or property
has not had any of his Fourth Amendment rights infringed."
Rakas, 439 U.S. at 134 (citing Alderman v. United States, 394
U.S. 165, 174 (1969)). Conversely, "suppression of the prod-
uct of a Fourth Amendment violation can be successfully
urged only by those whose rights were violated by the search
itself, not by those who are aggrieved solely by the introduc-
tion of damaging evidence." Alderman, 394 U.S. at 171–72.
The "capacity to claim the protection of the Fourth Amend-
ment depends . . . upon whether the person who claims the

Rakas v. Illinois, 439 U.S. 128, 139 (1978), the Court observed that "the
better analysis forthrightly focuses on the extent of a particular defen-
dant’s rights under the Fourth Amendment, rather than on any theoreti-
cally separate, but invariably intertwined concept of standing." The
relevant inquiry, thus focused, is
    whether the challenged search or seizure violated the Fourth
    Amendment rights of a criminal defendant who seeks to exclude
    the evidence obtained during it. That inquiry in turn requires a
    determination of whether the disputed search and seizure has
    infringed an interest of the defendant which the Fourth Amend-
    ment was designed to protect.
Id. at 140. While in contexts outside those of the Fourth Amendement, the
term "standing" might be used to describe the government’s argument that
Castellanos cannot successfully challenge the search of the Explorer, we
recognize that we are ultimately asking whether Castellanos "personally
has an expectation of privacy in the place searched, and [whether] his
expectation is reasonable." Minnesota v. Carter, 525 U.S. 83, 88 (1998)
(emphasis added). Accordingly, we analyze "standing" in the context of
whether Castellanos had a reasonable expectation of privacy within the
gas tank of the Explorer under the facts of this case.
                    UNITED STATES v. CASTELLANOS                           9
protection . . . has a legitimate expectation of privacy in the
invaded place." Rakas, 439 U.S. at 143.

   For the reasons explained herein, we agree with the govern-
ment and hold that Castellanos has failed to demonstrate by
a preponderance of the evidence that, at the time of the
search, the evidence showed that he had a legitimate expecta-
tion of privacy in the Explorer.4

   When attempting to determine whether a defendant has a
reasonable expectation of privacy in property that is held by
another, we consider such factors as "whether that person
claims an ownership or possessory interest in the property,
and whether he has established a right or taken precautions to
exclude others from the property." United States v. Rusher,
966 F.2d 868, 875 (4th Cir. 1992). Here, Castellanos asserted
to Roberts that he was purchasing the Explorer, but his claim
is not substantiated in any way by the record. Castellanos did
not enter the title of the Explorer into evidence, nor did he
establish that he purchased the vehicle with a bill of sale,
Division of Motor Vehicles registration, or anything else. And
  4
    The dissent repeatedly faults the government and the district court for
failing to call Castellanos at the suppression hearing to prove his standing
(i.e., his reasonable expectation of privacy) in order to raise the objection
to the search of the Explorer. See post, at 13-14, 30 n.16. But the dissent
agrees with the undisputed proposition that proving standing was Castel-
lanos’ burden to bear. See post at 33 (citing United States v. Stevenson,
396 F.3d 538, 547 (4th Cir. 2005). Castellanos made no effort to prove his
standing or rebut the government’s argument that he had none. He was
represented by able counsel, and it is not the duty of the court or the gov-
ernment to make Castellanos’ reasonable expectation of privacy case for
him. Indeed, as the dissent itself observes, the government’s primary argu-
ment in opposition to the motion to suppress was that Castellanos lacked
standing to challenge the search of the Explorer. See post at 14. Castel-
lanos, through counsel, was on notice that his standing was disputed, and
neither the government, nor the district court, was obligated to remind him
of his burden. Moreover, the argument made by the dissent appears sua
sponte for the first in the dissent, having never been presented by Castel-
lanos in the trial court or on appeal.
10               UNITED STATES v. CASTELLANOS
there is no evidence that, if he purchased the Explorer at all,
he did so prior to the search.

   Parties other than owners may possess a reasonable expec-
tation of privacy in the contents of a vehicle. See, e.g., United
States v. Jones, 565 U.S. ___, 132 S. Ct. 945, 949 n.2 (2012)
(observing that although the defendant was not the registered
owner of the searched vehicle, he was the "exclusive driver"
and the Court thus "[did] not consider the Fourth Amendment
significance of Jones’s status"). However, Castellanos offered
no evidence that he had any such interest, though he bore the
burden of proof. For example, Castellanos presented no evi-
dence that Castenada (or anyone else) had granted him per-
mission to use the vehicle or act as his agent with DAS, or
any other right of any kind to the vehicle. This is not a case,
like Jones, where the defendant has established an ownership,
or even a possessory interest in the vehicle. Cf. id. (describing
Jones’ rights as similar to those of a bailee). Accordingly, this
is not the type of case where a defendant has established such
a close connection to the vehicle that is subject to search that
he may claim a possessory interest in it.

   Furthermore, although "[i]ndividuals may assert a reason-
able expectation of privacy in packages addressed to them
under fictitious names," United States v. Villarreal, 963 F.2d
770, 774 (5th Cir. 1992), we note that Castellanos adduced no
evidence at the suppression hearing demonstrating that the
name "Wilmer Castenada" was simply an alias. Instead, Cas-
tellanos’ position was that he and Castenada were two sepa-
rate individuals engaged in a sale transaction as testified by
Roberts. Indeed, Castellanos represented to the trial court that
"there is no factual dispute here questioning the facts as ren-
dered by Detective Roberts." (J.A. 67.) In the absence of evi-
dence that Castenada was Castellanos’ alter ego or a fictitious
name, this case is more closely aligned with United States v.
Givens, 733 F.2d 339, 341 (4th Cir. 1984) (per curiam), a case
in which we held that a defendant lacked a legitimate expecta-
                    UNITED STATES v. CASTELLANOS                          11
tion of privacy in a package that was addressed to a third
party.

   In sum, the evidence heard by the district court at the sup-
pression hearing failed to support a conclusion that Castel-
lanos had anything more than a distantly attenuated
connection to the Explorer. Castellanos bore the burden to
show that he had a reasonable expectation of privacy, and he
has not done so.5 Having failed to carry his burden, Castel-
lanos cannot challenge the warrantless search of the Explorer.

   Finally, our good colleague in dissent makes a few points
that we feel warrant a response. First, the dissent contends we
"focus [our] attention on how the facts appeared to Captain
Roberts at the time of the search," post at 34, thus misapply-
ing the proper standard for determining whether Castellanos
had a subjective expectation of privacy that is objectively rea-
sonable. To the contrary, our analysis focuses on the facts in
the record, rather than the facts as they may have appeared to
Captain Roberts. The evidence in the record, of course, is
based in large part on Roberts’ testimony, which was not sup-
plemented or controverted by any proffer from Castellanos.
The Explorer’s title, highly relevant to the question of
whether Castellanos owned or had a sufficiently close connec-
tion to the Explorer, was never entered into evidence. Nor was
there any evidence, other than his claim that, at some point he
purchased the vehicle from Castenada, that Castellanos had an
interest in the Explorer at the time it was searched.
  5
   Because we conclude that Castellanos lacked a reasonable expectation
of privacy in any part of the Explorer, we need not address any aspect of
the search of the gas tank. Accordingly, we disagree with the dissent’s
assertion that we fashion a new rule of law that delivering personal effects
to a common carrier undermines an otherwise objectively reasonable
expectation of privacy in those effects. See post at 16 n.3. Castellanos does
not lack standing because the Explorer was being transported by common
carrier. He lacks standing because he failed to carry his burden to show
that he had a constitutionally sufficient connection to the Explorer to dem-
onstrate an objectively reasonable expectation of privacy.
12                  UNITED STATES v. CASTELLANOS
   In addition, the dissent argues that certain facts, known to
the government and presented to the district court, establish
that Wilmer Castenada was in fact merely an alias of Castel-
lanos. Specifically, the dissent posits that although the address
listed on the bill of lading was not associated with Castellanos
personally, it was near a towing company where the Explorer
may have been destined (Roberts’ testimony was equivocal on
that point), and that someone, who may have been Castel-
lanos, had inquired within about the whereabouts of the
Explorer.

   We first observe that the theory upon which the dissent
bases its conclusion appears for the first time in the dissenting
opinion. Castellanos’ opening brief on appeal is bereft of any
analysis of the standing question, and despite the govern-
ment’s argument on brief that he lacked standing, Castellanos
filed no brief in reply.6 We therefore question the extent to
which Castellanos can be the beneficiary of an argument he
has never made.

   Even granting Castellanos the benefit of the doubt, and
assuming that the Explorer was in fact destined for the Mont-
lieu Avenue towing company in Greensboro, and that Castel-
lanos did in fact inquire therein about the Explorer’s where-
abouts, Castellanos is no closer to establishing that he has a
sufficient connection to the Explorer to establish standing.
Instead, the evidence shows at best that Castellanos asked
about the Explorer at the place where it was to be delivered.
It does not establish either that Castellanos was Castenada, or
that, contrary to the bill of lading, Castellanos was the
intended recipient. In sum, nothing in the dissent alters our
conclusion that Castellanos’ interest in the Explorer is too
attenuated to demonstrate that any expectation of privacy he
may have had in the Explorer’s gas tank was reasonable.
  6
   Indeed, although the dissent relies heavily on facts taken from the gov-
ernment’s response to Castellanos’ motion to suppress, the "Statement of
Facts" contained in Castellanos’ opening brief on appeal consists almost
entirely of facts gleaned from Robert’s testimony.
                    UNITED STATES v. CASTELLANOS                        13
                                   III.

  For all of the foregoing reasons, the judgment of the district
court is affirmed.

                                                            AFFIRMED

DAVIS, Circuit Judge, dissenting:

   We are all familiar with the old legal saw:

      When the facts are against you, hammer the law.
      When the law is against you, hammer the facts.
      When both are against you, hammer the table and
      yell like hell.

   In re Fischer, 131 B.R. 137, 138 (E. D. Mo. 1990).

   The facts and the law cannot be ignored in this appeal. Nor
can the pounding they take from the majority denude them of
the power they possess.

   The record before the district court established, by a pre-
ponderance of the evidence, that "Wilmer Castenada"1 was
the alias of Appellant, who had a possessory interest in, and
an undisputed right to exercise dominion and control over, the
Ford Explorer. Thus, contrary to the holding reached by the
majority’s abbreviated analysis, the proper result on the
record before us is that the district court erred, procedurally
and substantively, factually and legally, in reaching its con-
clusion that Appellant failed to establish an objectively rea-
sonable, i.e., a "legitimate," expectation of privacy2 sufficient
  1
     The parties alternatively spell this name "Castenada" and "Castaneda."
To be consistent with the majority opinion, this dissenting opinion uses
the spelling Castenada, except when used in a direct quote.
   2
     No one doubts that Appellant sufficiently manifested a subjective
expectation of privacy; the only issue presented on appeal, and the only
14                  UNITED STATES v. CASTELLANOS
to maintain his Fourth Amendment challenge to the warrant-
less, nonconsensual search of the vehicle.

   First, the district court never called on Appellant before or
during the evidentiary hearing on the motion to suppress to
"prove" his standing to challenge the search of the Explorer.
See infra n.16. It did not do so, most likely, because the facts
known to the government and the facts before the district
court, prior to the suppression hearing, demonstrated that
Appellant had an objectively reasonable expectation of pri-
vacy in the vehicle. Rather than call on Appellant at the outset
to offer evidence of his standing (evidence that was already
in the record), the district court proceeded directly to the mer-
its of the suppression hearing by requiring the government to
put on evidence. See id.

   Second, like the district court, the government never called
on Appellant to "prove" his standing to challenge the search
of the Explorer. It did not do so because the prosecuting
Assistant United States Attorney knew full well that Appel-
lant, as a member of the narcotics conspiracy charged with
seeing to the delivery from California to North Carolina of the
cocaine hidden in the gas tank of the Explorer, had standing
to challenge the search of the vehicle. Indeed, the record
raises a serious question as to whether the prosecutor affirma-
tively misled the district court, through her selective presenta-
tion and advocacy of certain evidentiary facts, into making its
erroneous determination of the legitimacy of Appellant’s
expectation of privacy. See infra n.6.

  Third, as a matter of law, the government and the district
court misapprehended the nature and the character of the evi-

issue discussed in this dissent, is the correctness of the district court’s
legal conclusion that Appellant lacked a "legitimate expectation of privacy
at [the] point [when the Ford Explorer] had been given over to a common
carrier with addresses which were ascertained to be false addresses." See
J.A. 72.
                 UNITED STATES v. CASTELLANOS                   15
dence necessary for Appellant to establish his standing to
challenge the search of the Ford Explorer. As an initial matter,
the court and the government erroneously believed that stand-
ing could only be established by evidence formally introduced
by Appellant. That is not and has never been the law. See infra
Part III.A. Furthermore, by obsessively and narrowly focusing
on the state of mind of the law enforcement officer who con-
ducted the challenged search, the government and the district
court erroneously failed to apply the appropriate Fourth
Amendment test for standing, a test that hinges on objective
reality at the time of the search, not on a law enforcement
officer’s subjective belief about the state of facts surrounding
search and seizure issues. See infra Part III.B. Viewed as it
must be, in this and any case, from an objective perspective
as of the time of the search, the issue of standing is easily and
correctly resolved in favor of Appellant.

   Fourth and finally, the district court’s finding and conclu-
sion that Appellant’s use of a common carrier to ship narcot-
ics hidden in a constitutionally protected effect, i.e., the gas
tank of an automobile, coupled with the use of an alias,
delegitimizes his expectation of privacy, constitutes clear fac-
tual error and manifest legal error. See infra Parts III.C & D.
The evidence in this record shows that the district court com-
mitted clear error in finding that "[t]he shipper’s address was
false" (whatever that means) and that "[t]he person who was
to receive [the Ford Explorer] was a false address [sic]." J.A.
72; see infra Part III.E. Indeed, directly contrary to the district
court’s finding, the government effectively proved that its sole
suppression hearing witness had erroneously concluded that
the intended destination of the Ford Explorer was an address
other than that identified on the bill of lading.

  At bottom, as a matter of law, Appellant did not relinquish,
and society is not prepared to extinguish, the objective reason-
ableness of his undisputed subjective expectation of privacy
16                   UNITED STATES v. CASTELLANOS
simply because he used an alias to conceal his involvement in
a narcotics trafficking conspiracy.3

   Respectfully, and for all of the reasons set forth herein, I
dissent.

                                       I.

                                      A.

   The majority opinion erroneously regards the relevant nar-
rative of this case to commence on September 20, 2010, when
Captain Kevin Roberts, of the Reeves County, Texas, Sher-
iff’s Department, happened upon $3 million in cocaine hidden
in the gas tank of a Ford Explorer he searched without a war-
rant and without valid consent. Rather, as the government
advised the district court in its written opposition to the
motion to suppress, the story begins sometime in 2009. As the
government explained to the district court:

     During in or about 2009, the Greensboro Resident
   3
     By the same token, the district court and the majority commit legal
error to the extent they fashion a new rule holding that delivering constitu-
tionally protected personal effects to a common carrier is sufficient to
undermine what is otherwise an objectively reasonable expectation of pri-
vacy. Although the Seventh Circuit has held, in the sole authority relied
on by the district court in its summary denial of the motion to suppress
here, that an individual relinquishes any privacy interest in a car when he
turns it over to a shipper, United States v. Crowder, 588 F.3d 929, 934–35
(7th Cir. 2009), the court’s reasoning in that case is deeply flawed and
wholly unpersuasive. Not even the majority in this appeal accepts the Sev-
enth Circuit’s dubious reasoning; the majority does not even bother men-
tioning Crowder. No wonder. As explained infra in Part III.D, the mere
fact of turning over an item to a common carrier does not extinguish one’s
objectively reasonable expectation of privacy in the item. If the majority
intends, sub silentio, to fashion a contrary rule, then, in light of the irregu-
lar procedural course of events below, we should, at a minimum, vacate
the judgment and remand this case for further proceedings on the motion
to suppress.
                      UNITED STATES v. CASTELLANOS                              17
       Office of the Drug Enforcement Administration
       (GRO-DEA) initiated an investigation into the sus-
       pected drug trafficking activity of Juan Manuel
       Lopez. The investigation continued into 2010, and in
       August 2010, DEA agents obtained court authoriza-
       tion to install a global positioning satellite (GPS)
       tracking device on a burgundy Chevrolet Silverado
       pickup truck utilized by Juan Manuel Lopez.

J.A. at 21-22 (footnote omitted).4 Thus, the government had
  4
    This dissent’s consideration of undisputed facts in the record of this
case, set out in the government’s written opposition to Appellant’s motion
to suppress, see J.A. 15-24, but outside the formal testimonial record of
the hearing on the motion to suppress, is fully consonant with circuit pre-
cedent. In United States v. Gray, over a vigorous dissent, this Court relied
on evidence presented at sentencing to shore up its affirmance of the dis-
trict court’s determination, made at the conclusion of an evidentiary hear-
ing on a motion to suppress, that a defendant lacked an objectively
reasonable expectation of privacy. 491 F.3d 138, 146–54 (4th Cir. 2007).
We reasoned as follows, in pertinent part:
         This court has recognized that when later proceedings confirm
      the correctness of the district court’s findings, we can affirm a
      pre-trial suppression ruling based on such evidence. This ruling
      makes sense because all the facts pertinent to a suppression
      motion are not inevitably developed at a pre-trial hearing and
      both the trial court and the appellate court should not be pre-
      cluded from taking note of a more comprehensive record support-
      ing, as it does here, the district court’s initial denial of the motion
      to suppress. In adopting a contrary approach, the dissent would
      create an artificial barrier against ascertainment of truth, lowering
      the curtain well before the end of the play.
Id. at 148 (citations omitted). It would make a mockery of the judiciary’s
assertion that it is an impartial seeker of truth to make this rule a one-way
street by applying it solely to evidence that confirms a district court’s
denial of a motion to suppress, particularly on the threshold issue of stand-
ing.
   Thus, this dissent relies on this Court’s acknowledgement that the
search for truth is enhanced by consideration of "a more comprehensive
record" supporting a district court’s denial of a motion to suppress "be-
18                  UNITED STATES v. CASTELLANOS
been investigating the Greensboro narcotics trafficking opera-
tion of which Appellant was a part for more than a year prior
to the serendipitous intervention of Captain Roberts in Texas
on September 20, 2010. Indeed, as set forth above, for
approximately a month prior to the events in Texas, the
United States had been able to surveil one of the Greensboro,
North Carolina, participants in the conspiracy through the use
of GPS tracking technology. Through the use of that technol-
ogy and other undisclosed investigative activity, the lead
investigator, Agent Razik, came to anticipate the arrival of the
Ford Explorer in Greensboro, and learned that Appellant,
Arturo Castellanos, was using the alias "Wilmer Castenada"
in his management, on behalf of the conspiracy, of the ship-
ping and delivery of the Ford Explorer from California to
North Carolina. J.A. 22–24, 45–48. In short, by the time of
Captain Roberts’s search of the Ford Explorer, the United
States had at least one of the participants in the drug conspir-
acy charged in this case, of which Appellant was a part, well
in its sights.

   The government’s proffer of evidence to the district court
in its opposition to the motion to suppress continued as fol-
lows:

       On September 26, 2010, agents monitoring the
     GPS tracker followed Lopez’s vehicle first to the

cause all the facts pertinent to a suppression motion are not inevitably
developed at a pre-trial hearing." Id. Likewise, when "a more comprehen-
sive record" is available to demonstrate that the denial of a pre-trial ruling
on standing was manifestly and clearly erroneous, the search for truth is
enhanced when we examine that record. This precept is especially true
where, as here, the district court made no independent findings and the
facts relied on are vouched for by the government in its written opposition
to a defendant’s motion to suppress and made a part of the joint appendix
on appeal. See J.A. 15–29. See also United States v. Jordan, 635 F.3d
1181, 1185 (11th Cir. 2011) (noting that, in reviewing "rulings on motions
to suppress," the appellate court is "not restricted to the evidence presented
at the suppression hearing and instead consider[s] the whole record").
                   UNITED STATES v. CASTELLANOS                       19
      intersection of Montlieu Avenue and Market Street in
      Greensboro, North Carolina. Approximately 40
      minutes later, he traveled to a restaurant near High
      Point Road and Meritt Drive in Greensboro. Surveil-
      lance agents saw Lopez leave the restaurant with two
      other men, later identified as Auturo[5] CASTEL-
      LANOS and Raul Hernandez. The three traveled
      together in Lopez’s vehicle to Four Seasons Mall in
      Greensboro. Surveillance footage from the Mall was
      obtained by DEA agents.

         Because he was familiar with a business located
      in the Montlieu Avenue and Market Street area of
      Greensboro that receives shipped vehicles from DAS
      Auto Shippers, Special Agent Razik contacted the
      business and asked if anyone had been in on that day
      inquiring about a vehicle. The agent was advised
      that a Hispanic man had just been in making inquiry
      about a Ford Explorer. Agent Razik was advised that
      the same man had been in several times since Sep-
      tember 24, 2010, asking about the vehicle. The man
      left telephone number 336-263-7145 as a contact
      number.

         On September 27, 2010, the Montlieu Avenue
      business notified Agent Razik that the same Hispanic
      man had called again about the Ford Explorer and
      the man identified himself as "Wilmer." The man
      stated he was going to contact DAS directly. DAS
      Auto notified DEA later on September 27, 2010, that
      the Ford Explorer was seized in Texas on September
      20, 2010.

                                 ***
  5
    The parties have alternatively spelled Appellant’s name "Arturo" and
"Auturo." This dissenting opinion employs the spelling used on the docket
of this appeal: Arturo.
20               UNITED STATES v. CASTELLANOS
         On September 29, 2010, an employee at the Mont-
     lieu Avenue business notified Agent Razik that the
     Hispanic man had again come to the business inquir-
     ing about the Ford Explorer. The employee advised
     that the man had presented a tracking number and a
     copy of the title for the Explorer. Agent Razik went
     to the business and obtained a copy of the vehicle’s
     title. He also showed the two employees who spoke
     with the Hispanic man a photograph that was taken
     from the video footage at Four Seasons Mall on Sep-
     tember 26, 2010. Both employees identified defen-
     dant Auturo CASTELLANOS as the man who had
     been to the business between September 24 and Sep-
     tember 29, 2010, inquiring about the Ford Explorer.

J.A. at 22-24 (emphases added).

   Thus, at the time of the suppression hearing in this case, on
July 6, 2011, the government knew full well that Appellant
had appeared in Greensboro, North Carolina, at the actual
Montlieu Avenue address where the Ford Explorer was to be
received by Appellant, who at all times was using his alias,
"Wilmer," and who was using a phone assigned the 336-263-
7145 number. In short, the government knew at the time of
the hearing on the motion to suppress that Appellant was
"Wilmer Castenada." The government also knew that during
the period between September 24 and 27, 2010, Appellant
was in Greensboro, North Carolina, not in California. And,
the government knew that Appellant was a member of a con-
spiracy that had been under investigation for narcotics traf-
ficking, with a California source, for approximately one year.

   As the majority opinion recites, the disputed search of the
Ford Explorer on September 20, 2010, transpired in parallel
with the above described events in Greensboro. Captain Rob-
erts became suspicious while at a local truck stop when he
came upon a commercial car carrier which, on the top rack of
the trailer, was loaded with an "older model" Ford Explorer
                    UNITED STATES v. CASTELLANOS                           21
that was being transported from California to Greensboro,
North Carolina. J.A. 35. This was the vehicle that Appellant
and his associates had been awaiting in Greensboro, and
which Appellant regularly inquired about at the Montlieu Ave-
nue address in Greensboro beginning no later than September
24, 2010. Roberts examined the shipping documents for the
Ford Explorer; Wilmer Castenada, Appellant’s alias, was
listed as both the shipper and recipient. Regardless of whether
Appellant (or some other member of the conspiracy) was the
actual "shipper"—in the sense that he had been in California
when the Ford Explorer had been loaded onto the DAS trail-
er—he was, unmistakably, the recipient in Greensboro.

   Roberts attempted to contact Appellant at the phone num-
ber listed on the shipping documents, but there was no
answer. Roberts then determined from an unspecified data-
base that Appellant had no apparent connection to the Califor-
nia address. Roberts also determined (apparently using law
enforcement or commercial databases not identified in the
record) that two unidentified businesses could be associated
with an address on Montlieu Avenue in Greensboro, North
Carolina, where the Ford Explorer was to be delivered to
"Wilmer Castenada." But when he called those businesses, no
one at either was familiar with the name "Wilmer Castenada,"
and no one to whom Roberts spoke could confirm the antici-
pated delivery of a Ford Explorer.6 It was upon these
                                                  (Text continued on page 23)

   6
     Although the government did not elicit the address from Roberts dur-
ing his testimony at the suppression hearing, the Montlieu Avenue address
on the bill of lading (which itself is not in the record) was set forth in the
government’s written response to the motion to suppress. J.A. 16. The
address also appeared in the "Factual Basis in Support of Guilty Plea"
filed in the district court about two weeks after the hearing on the motion
to suppress. Factual Basis Document 2, United States v. Castellanos, No.
1:11–cr–00031–NCT-5 (M.D.N.C. July 18, 2011) (hereinafter "Factual
Basis"). See supra n.4 (discussing the propriety of considering supplemen-
tary material outside the formal testimonial record created at the hearing
on the motion to suppress).
22                  UNITED STATES v. CASTELLANOS
   The address is 135 Montlieu Avenue, Greensboro, North Carolina, and
two businesses share that address: Brickwood Builders and Dove Commu-
nications. Factual Basis 2. These are the businesses that Roberts tele-
phoned on September 20, 2010, immediately before he conducted the
warrantless, nonconsensual search of the Ford Explorer. Id. Of course, as
he testified at the motion hearing on July 6, 2011, Roberts learned after
speaking with Agent Razik on September 28, 2010, that, contrary to the
address on the bill of lading, the correct address for the delivery of the
Ford Explorer was just across the street from 135 Montlieu Avenue, to wit,
136 Montlieu Avenue, near Market Street, where there is a towing com-
pany known as Bobby’s Friendly Towing. See J.A. 45 (Roberts’s testi-
mony about his conversation with Agent Razik); id. at 55 (Roberts’s
testimony that Castellanos, upon his arrest, had a piece of paper with
information about "I believe a Bobby’s Towing here in Greensboro where
the vehicle was possibly destine [sic] to"); Better Business Bureau, BBB
Business Review of Bobby’s Friendly Towing & Storage, Inc., http://
www.bbb.org/greensboro/business-reviews/towing-companies/bobbys-
friendly-towing-and-storage-in-greensboro-nc-4004988 (last visited Apr.
16, 2013); GoogleMaps, http://maps.google.com (search "bobby’s friendly
towing greensboro north carolina" and zoom in five times) (last visited
Apr. 16, 2013). Cf. United States v. Foster, 662 F.3d 291, 295 n.6 (4th Cir.
2011) (Agee, J.) ("We take judicial notice of a map of Lee County, Vir-
ginia . . . .").
   I, for one, am disturbed that the government proceeded as it did. The
government presented misleading testimony to the district court that likely
had a grossly distorting effect on the hearing judge’s comprehension of the
evidence bearing on whether, at the time Roberts conducted his warrant-
less, nonconsensual search of the Ford Explorer, Appellant had such an
ownership interest in, or the right (as a member of the narcotics conspir-
acy) to exercise such dominion and control over the Ford Explorer, as to
sustain his objectively reasonable expectation of privacy against govern-
mental intrusion.
   If the judge had been told at the hearing that the bill of lading contained
not a "false address" (as the judge ultimately found) but merely an errone-
ous address, off by one digit in the street number where the Explorer was
to be delivered to Appellant, there is every reason to believe that the dis-
trict court would have taken a closer look at the evidence and likely
reached a contrary result than it did, given the alacrity with which the
court reached its conclusion to deny the motion to suppress. Cf. United
States v. Gamez-Orduno, 235 F.3d 453, 461 (9th Cir. 2000) ("The sup-
                    UNITED STATES v. CASTELLANOS                           23
facts—and, apparently, these facts alone—that the district
court erroneously concluded that Appellant had lacked a "le-
gitimate expectation of privacy" at the point the Ford Explorer
"had been given over to a common carrier with addresses
which were ascertained to be false addresses." J.A. 72.

   Of course, as set forth above, and as the government well
knew at the time of the suppression hearing (even though
Roberts did not know it at the time he searched the vehicle on
September 20, 2010), Roberts was seriously mistaken in his
attempt to investigate the destination of the Explorer. As the
government’s response to the motion to suppress made clear,
"a business located in the Montlieu Avenue and Market Street
area of Greensboro . . . receive[d] shipped vehicles from DAS
Auto Shippers," and "a Hispanic man" had visited the busi-
ness "several times since September 24, 2010," asking about
"a Ford Explorer." J.A. 22–23.

   Captain Roberts, having been stymied in his efforts to allay
or confirm his suspicions regarding the Explorer, decided to
roll the constitutional dice and worry about the consequences
later.7 That is, he proceeded to search the vehicle (1) without

pression of material evidence helpful to the accused, whether at trial or on
a motion to suppress, violates due process if there is a reasonable probabil-
ity that, had the evidence been disclosed, the result of the proceeding
would have been different.") (affirming the district court’s finding that a
Brady violation had occurred with respect to withheld evidence bearing on
motion to suppress proceedings, i.e., the defendants’ Fourth Amendment
standing, but further concluding that the district court had adequately
cured the violation short of dismissal of charges); United States v. Foster,
874 F.2d 491, 495 (8th Cir. 1988) (noting a "prosecutor’s . . . . overriding
duty of candor to the court, and to seek justice rather than convictions").
   7
     It is nothing short of remarkable that, at this late juncture in the ill-
fated forty-year "War on Drugs," before undertaking a risky warrantless
search of the Ford Explorer, Captain Roberts failed to take the time to con-
tact his colleagues in the law enforcement community in Greensboro,
North Carolina, the destination of the suspicious vehicle. For decades,
24                  UNITED STATES v. CASTELLANOS
probable cause to believe it contained contraband or evidence
of a crime;8 (2) without a warrant;9 and (3) without the con-
sent of any person with actual or apparent authority to consent
to the search.10 Upon searching the vehicle, he discovered the

local, state, and federal agencies have demonstrated an admirable capacity
for inter-jurisdictional cooperation. See, e.g., the seminal case of Illinois
v. Gates, 462 U.S. 213, 225–26 (1983) (describing how, in May 1978, in
the course of his investigation of an anonymous tip reporting drug traffick-
ing activity, a narcotics detective in Bloomingdale, Illinois, obtained the
assistance of federal DEA agents in Miami, Florida).
   The irony here is doubly striking inasmuch as it was Gates, in its rejec-
tion of the rigid test for probable cause determinations derived from Agui-
lar v. Texas, 378 U.S. 108 (1964), and Spinelli v. United States, 393 U.S.
410 (1969), that established a "totality of the evidence" approach, and
thereby rendered it far easier for law enforcement officers to obtain war-
rants, for which the Court has long expressed a strong preference. See
Gates, 462 U.S. at 236 ("A magistrate’s determination of probable cause
should be paid great deference by reviewing courts . . . . A grudging or
negative attitude by reviewing courts toward warrants is inconsistent with
the Fourth Amendment’s strong preference for searches conducted pursu-
ant to a warrant . . . .") (internal quotation marks and citations omitted);
see also Terry v. Ohio, 392 U.S. 1, 20 (1968) ("[P]olice must, whenever
practicable, obtain advance judicial approval of searches and seizures
through the warrant procedure"). Captain Roberts’s dubious roll of the
dice in conducting a warrantless search of the Ford Explorer in this case
thus flies in the face of many decades of modern Supreme Court jurispru-
dence.
   8
     The government has never argued that Roberts had probable cause to
search the Ford Explorer.
   9
     The government has never argued that a warrant was sought or
obtained, and Roberts confirmed as much in his testimony. J.A. 63.
   10
      Although the government made fleeting references to consent, J.A. 26,
35, it provided no support to the district court for its contention that the
driver of the automobile carrier had actual or apparent authority to consent
to a search of the Ford Explorer. "[N]ot all bailment situations involve giv-
ing the bailee" such control over an object that the bailor ‘must be taken
to have assumed the risk that [the bailee] would allow someone else to
look inside.’" Wayne R. LaFave, 4 Search & Seizure: A Treatise on the
Fourth Amendment § 8.6(a) (5th ed. 2012) (quoting Frazier v. Cupp, 394
U.S. 731, 740 (1969)). Notably, the record contains no evidence about the
                    UNITED STATES v. CASTELLANOS                          25
following evidence of consequence in this case: (1) the heavy
odor of "Bondo," which is "used for vehicle repairs" and "the
construction of aftermarket compartments"; (2) evidence that
the vehicle seats had been removed and the gas tank accessed;
and, ultimately, using his fiber optic scope, (3) more than
twenty bricks of cocaine, valued by Roberts at $3 million dol-
lars, wrapped in plastic floating in the gas tank. J.A. 39–41,
47.

details of the bailment relationship in this case. In any event, the prosecu-
tor’s argument at the suppression hearing reflected the government’s fun-
damental confusion over its role in this case:
       Your Honor, first regarding the vehicle, the Government has
    argued in its response, the Defendant, based on this evidence, has
    no standing to contest the search of that Ford Explorer. The car
    that was being transported, the shipper is listed as Wilmer Cas-
    tenada. The recipient is listed as Wilmer Castenada. No informa-
    tion on the title or who the owner is. The phone number on the
    bill of lading accompanying the vehicle, several calls that Captain
    Roberts made, he gets no answer. So the true owner of the vehi-
    cle is not identified, and the person who shipped it and to whom
    it was to be shipped, doesn’t live at either address.
       When he spoke to people at the addresses here in Greensboro,
    they didn’t know a Wilmer Castenada, so the vehicle is in posses-
    sion of [the driver], so at that point, the Government would argue
    that [the driver] could lawfully give consent for the officer to
    look inside that vehicle.
J.A. at 64-65 (emphasis added). Thus, the government’s consent argument
was nonsensical: namely, if Appellant lacked standing, then the driver of
the transport trailer could give valid consent. But what the government
seems not to understand at all is that if Appellant lacked standing, neither
consent nor any other substitute for a warrant was necessary because,
without an objectively reasonable expectation of privacy, Appellant had
no claim of right with respect to the vehicle whatsoever. See United States
v. Davis, 690 F.3d 226, 241 (4th Cir. 2012) ("When there is no reasonable
expectation of privacy, the Fourth Amendment is not implicated. A search
or seizure for Fourth Amendment purposes does not occur, therefore,
when a person lacks a reasonable expectation of privacy . . . .") (internal
citations omitted), petition for cert. filed Jan. 29, 2013) (No. 12-8485).
26                     UNITED STATES v. CASTELLANOS
   One week after Roberts had searched and seized the vehi-
cle, on or about September 27, 2010, after putting in place a
ruse with the assistance of DAS, the vehicle transport com-
pany, Roberts finally had contact with Appellant, calling from
the number 336-263-714511 and identifying himself by his
alias, Wilmer Castenada.12 In a phone conversation on that
day, Roberts advised Appellant that he would have to arrange
to retrieve the vehicle from Texas. Appellant agreed to do so
and arrived in Texas sometime on or about October 1, 2010,
when he and one of his coconspirators were arrested. Appel-
lant was in possession of the title document to the Explorer
and tracking information from DAS, and a cell phone using
  11
      Interestingly, Roberts contradicted the government’s assertion in its
opposition to the motion to suppress by testifying that this phone number
"wasn’t matching the phone number that [he] had off the bill of lading."
J.A. 43; id. at 23 (government’s opposition to the motion to suppress,
asserting that "[t]he telephone number listed for Castenada on the Bill of
Lading was 336-263-7145").
   12
      See J.A. 43 (Roberts’s testimony that "Wilmer Castenada" had called
him from 336-263-7145); id. at 50, 58 (Roberts’s testimony that 336-263-
7145 "was the same number" from which "the subject identified as . . .
Wilmer Castenada" had called).
  Roberts testified at the suppression hearing that Wilmer Castenada and
Arturo Castellanos were one and the same:
       Q    And you recognized [(336)263-7145] as being the number
            that the individual was . . . calling from when he was contact-
            ing you?
       A.   Yes. Identified as Mr. Wilmer Castenada. That’s also the
            same number that I believe Mr. Moore with DAS Auto Ship-
            pers had given me.
       Q.   That he said belonged to Wilmer Castenada?
       A.   Yes.
       Q.   And that person you later determined to be Mr. Arturo Cas-
            tellanos, correct?
       A.   Best I can figure, yes.
J.A. 61.
                    UNITED STATES v. CASTELLANOS                        27
the same number he had used to communicate with Roberts
over the preceding several days.13

   Meanwhile, back in Greensboro, Agent Razik had success-
fully uncovered the story of the undelivered Ford Explorer,
when he returned to the towing business on Montlieu Avenue
in Greensboro and learned that Appellant had been the man
inquiring about the Ford Explorer between September 24 and
September 29, 2010. J.A. 23–24. In fact, according to Rob-
erts’s hearing testimony, Agent Razik had telephoned Roberts
on or about September 28, 2010, and the two conferred
regarding what was now their joint investigation of the North
Carolina-based drug conspiracy:

       On the 28th, I believe it was, of September, I spoke
       with Agent Razik . . . . He was aware of the Ford
       Explorer. Matter of fact, he was waiting for the Ford
       Explorer to arrive in North Carolina. The vehicle
       never showed up. Through his investigation, he was
       able to come to the conclusion that it had been
       apprehended and seized in Texas and that’s where he
       got my name and phone number and contacted me.
  13
    Inexplicably, the government, and the majority following the govern-
ment’s lead, devotes much attention to Appellant’s activities in Texas and
specifically his interactions with Captain Roberts after he had been
arrested there. But few of those facts bear on the state of affairs at the
time, one week earlier, when Roberts conducted the warrantless, noncon-
sensual search of the Ford Explorer. And the limited evidence having any
relevance to the issue on appeal of Appellant’s acts and statements in
Texas cut against the government: (1) Appellant appeared with the title to
the vehicle; (2) Appellant insisted (and never denied or disclaimed) he was
the purchaser/owner of the vehicle; and (3) Appellant possessed the phone
assigned to the number which Roberts had been using to communicate
with Appellant. All of these facts were confirmed by Roberts in his hear-
ing testimony. It wholly escapes me how this evidence cuts against a find-
ing, rather than in support of a finding, that at the time of the search of
the vehicle, Appellant harbored an objectively reasonable expectation of
privacy in the vehicle.
28                    UNITED STATES v. CASTELLANOS
Id. at 45-46. The government’s response to the motion to sup-
press further elaborated on the cooperation between the two
law enforcement officers:

       On September 28, 2010, Agent Razik spoke with
       Captain Kevin Roberts who confirmed that the vehi-
       cle had been seized from the DAS car carrier after 23
       kilograms of cocaine were found in the gas tank.
       Captain Roberts advised Agent Razik that the vehi-
       cle’s bill of lading stated the vehicle was being
       shipped from Gardenia, California, to "Wilmer Cas-
       taneda" in Greensboro, North Carolina. The tele-
       phone number listed for Castaneda on the Bill of
       Lading was 336-263-7145.

Id. at 23.

                                 *****

   The sum and substance of the only rational version of the
interstate narrative shown by this record, as of the time Rob-
erts conducted his warrantless and nonconsensual search of
the Ford Explorer on September 20, 2010, is that Appellant’s
job as a coconspirator in the charged conspiracy was to exer-
cise joint possession, dominion, and control over the Ford
Explorer and see to its safe delivery to himself, in the person
of his alias, Wilmer Castenada, at 136 Montlieu Avenue,
Greensboro, North Carolina.14
  14
    The narrative set forth in this summary is fully described in the Fac-
tual Basis:
          During debriefings, Juan Manuel Lopez advised DEA agents
       that defendant CASTELLANOS and Raul Hernandez were the
       two men he had . . . instructed to meet in Greensboro on or about
       September 25, 2010, in order to take possession of a shipment of
       cocaine. According to Lopez, the cocaine was being shipped in
       a vehicle via car carrier from a source in California. The source
       told Lopez that CASTELLANOS and Hernandez would take pos-
                   UNITED STATES v. CASTELLANOS                          29
                                   B.

   On February 1, 2011, a federal grand jury in the Middle
District of North Carolina indicted Castellanos and others for
conspiracy to distribute five kilograms or more of a mixture
or substance containing cocaine hydrochloride, in violation of
21 U.S.C. §§ 841 and 846. On April 1, 2011, he pled not
guilty.

  On June 3, 2011, Castellanos moved to suppress all evi-
dence seized from the Ford Explorer, arguing that the search
had violated the Fourth Amendment.15 The government

    session of the load vehicle and deliver the cocaine to Lopez.
    Lopez stated he took defendant CASTELLANOS to obtain a fic-
    titious identification card. Lopez recalled that the last name on
    the ID card was Castaneda. Lopez advised that defendant CAS-
    TELLANOS went to a carrier business near Market Street and
    Montlieu Avenue in Greensboro several times between Septem-
    ber 25 and September 29, 2010, in order to find out when the
    vehicle would be delivered. On September 29, 2010, CASTEL-
    LANOS was advised by a person at the Greensboro car carrier
    company that the vehicle was in Pecos, Texas. CASTELLANOS
    advised Lopez that he and Hernandez would travel to Pecos in
    order to retrieve the vehicle. Lopez stated that he advised CAS-
    TELLANOS not to make the trip and to take a loss on the vehicle
    and the load. CASTELLANOS decided to make the trip and
    Lopez gave CASTELLANOS and Hernandez $1,000 in cash in
    order to purchase airline tickets to Texas. Lopez dropped the pair
    off at the Raleigh-Durham airport. Lopez stated that he spoke
    with the California source on October 2, 2010. The source
    advised Lopez that the defendant and Hernandez had robbed the
    drug trafficking organization. During a subsequent call, the
    source advised Lopez that something was not right [with the ship-
    ment] and directed Lopez to get rid of the contact number Lopez
    had for defendant CASTELLANOS.
Factual Basis 10–12. The parties confirmed this account, as well, at the
sentencing hearing. See Sentencing Tr. 23–25, United States v. Castel-
lanos, No. 1:11–cr–00031–NCT-5 (M.D.N.C. Apr. 12, 2012), ECF No.
98.
   15
      J.A. 10–13. Castellanos also moved to suppress the evidence seized
from the duffel bag he took with him to Texas, id., but has abandoned that
claim on appeal.
30                   UNITED STATES v. CASTELLANOS
argued that Castellanos had no standing to challenge the
search because he had lacked any "expectation of privacy in
a vehicle that was being shipped under a fictitious name to the
same fictitious person at an address in Greensboro, North Car-
olina that [wa]s assigned to two local businesses." J.A. 26.
See also id. at 64.

   On July 6, 2011, the district court denied the motion to sup-
press, reaching a bare legal conclusion, unsupported by any
findings of fact, that Castellanos had lacked a reasonable
expectation of privacy in a vehicle that "had been given over
to a common carrier with addresses which were ascertained to
be false." J.A. 72.16 On July 18, 2011, Castellanos entered a
  16
     Curiously, although the government’s written opposition to the motion
to suppress relied solely on Appellant’s alleged lack of standing, the tran-
script of the motion hearing shows that neither the government nor the dis-
trict court actually called on Appellant to "prove" his standing.
Specifically, this is how the motion hearing commenced:
       THE COURT: Ms. Hairston.
       MS. HAIRSTON: Good morning. Your Honor, we’re calling
       United States of America versus Arturo Castellanos, case number
       1:11CR31-5. Mr. Castellanos is represented by Mr. Michael Arc-
       henbronn. The case is called for hearing on the Defendant’s
       motion to suppress.
       THE COURT: Do we need an interpreter in this case?
       MR. ARCHENBRONN: No, Your Honor.
       THE COURT: Mr. Castellanos, would you – is Castellanos the
       name you prefer to be addressed by?
       THE DEFENDANT: Yes, sir. That’s fine with me.
       THE COURT: You may be seated. Ms. Hairston, do you have
       evidence?
       MS. HAIRSTON: Yes, sir, Your Honor. We would like to call
       at this time, Captain Kevin Roberts.
       (CAPTAIN KEVIN ROBERTS, GOVERNMENT’S WITNESS,
       WAS SWORN.)
Thus, the government proceeded to introduce evidence even before it was
satisfied it had to do so, because if Appellant lacked standing, there was
                   UNITED STATES v. CASTELLANOS                        31
conditional guilty plea, id. at 74, reserving his right to chal-
lenge the suppression ruling, see Plea Agreement 4, United
States v. Castellanos, No. 1:11-cr-00031-NCT-5 (M.D.N.C.
July 13, 2011), ECF No. 66. On December 2, 2011, he was
sentenced to 120 months in prison. J.A. 5, 74–75. Judgment
was entered on February 3, 2012, and Castellanos filed this
timely appeal on February 13, 2012. Id. at 5, 74.

                                   II.

   Castellanos argues that the district court erred in denying
his motion to suppress the evidence from the Ford Explorer
because the government did not obtain a warrant and no
"well-defined exception existed to justify the search." Appel-
lant’s Br. 13. He contends that "[p]lacing an item into the
hands of a shipper . . . does not . . . diminish one’s expectation
of privacy in that item." Id. at 9.

   The government counters that Castellanos had no legiti-
mate expectation of privacy because, at the time of the search,
"no facts . . . connected [him to] the Ford Explorer": "The
information provided to the car carrier service was totally
false," and any "subjective expectation" that the drugs would
not be discovered is "not one that society is prepared to recog-
nize as reasonable." Appellee’s Br. 13 (internal quotation
marks omitted).

                                   III.

   A proper determination of standing requires careful consid-
eration of all the evidence, regardless of which party, the gov-
ernment or the defendant, introduces the evidence. Moreover,
the evidence must be considered from a wholly objective per-

no need for the government to introduce any evidence at all. See Illinois
v. Andreas, 463 U.S. 765, 771 (1983) ("If the inspection by police does
not intrude upon a legitimate expectation of privacy, there is no ‘search’
. . . .").
32               UNITED STATES v. CASTELLANOS
spective, without regard for the state of mind of the searching
government agent. Finally, neither the use of an alias nor the
transfer of possession of constitutionally protected effects for
transport by a common carrier vitiates an objectively reason-
able expectation of privacy in connection with that property.

                              A.

   "It is axiomatic that ‘suppression of the product of a Fourth
Amendment violation can be successfully urged only by those
whose rights were violated by the search itself, not by those
who are aggrieved solely by the introduction of damaging evi-
dence.’" United States v. Gray, 491 F.3d 138, 144 (4th Cir.
2007) (emphasis in original) (quoting Alderman v. United
States, 394 U.S. 165, 171–72 (1969)). "Thus, the ‘capacity to
claim the protection of the Fourth Amendment depends . . .
upon whether the person who claims the protection . . . has
a legitimate expectation of privacy in the invaded place.’" Id.
(ellipses in original) (quoting Minnesota v. Carter, 525 U.S.
83, 88 (1998) (quoting Rakas v. Illinois, 439 U.S. 128, 143
(1978))). "To be legitimate, an expectation of privacy must be
objectively reasonable: it must flow from ‘a source outside of
the Fourth Amendment, either by reference to concepts of real
or personal property law or to understandings that are recog-
nized and permitted by society.’" Id. at 145 (quoting Carter,
525 U.S. at 88).

   Notably, the Fourth Amendment "does not shield only
those who have title to the searched premises." Mancusi v.
DeForte, 392 U.S. 364, 367 (1968). Indeed, "[a] person may
have a legitimate expectation of privacy in a place or object
he does not own." United States v. Perez, 689 F.2d 1336,
1338 (9th Cir. 1982) (per curiam) (citing United States v.
Reyes, 595 F.2d 275, 278 (5th Cir. 1979)). "What is a reason-
able expectation of privacy is by definition related to time,
place and circumstance." United States v. Ramapuram, 632
F.2d 1149, 1154 (4th Cir. 1980). Thus, in determining
whether a person has a reasonable expectation of privacy in
                    UNITED STATES v. CASTELLANOS                        33
a particular place or object, courts consider the totality of the
circumstances, Gray, 491 F.3d at 151, taking into account
"whether [the] person claims an ownership or possessory
interest in the property," United States v. Rusher, 966 F.2d
868, 875 (4th Cir. 1992); the individual’s "control of the area
searched," United States v. Horowitz, 806 F.2d 1222, 1225
(4th Cir. 1986); "his efforts to ensure [his] privacy" in the
object or area, id.; "the purposes for which the individual uses
the property," United States v. Stevenson, 396 F.3d 538, 546
(4th Cir. 2005); his "historical use of the property," United
States v. Sanchez, 943 F.2d 110, 113 (1st Cir. 1991); and "so-
ciety’s common understanding as to areas that deserve Fourth
Amendment protection," Stevenson, 396 F.3d at 546. "Any
determination of the reasonableness of an individual’s expec-
tation of privacy is necessarily fact intensive," United States
v. Smith, 978 F.2d 171, 180 (5th Cir. 1992), and "custom and
contemporary norms necessarily play . . . a large role in the
constitutional analysis," Payton v. New York, 445 U.S. 573,
600 (1980).

   The defendant bears the burden of proving standing to chal-
lenge a search under the Fourth Amendment. Stevenson, 396
F.3d at 547. Nonetheless, the defendant need not affirmatively
present evidence of his legitimate expectation of privacy;
rather, he may simply "point to specific evidence in the record
which the government [has] presented and which establishe[s]
his standing." United States v. Zermeno, 66 F.3d 1058, 1062
(9th Cir. 1995).17 A mere preponderance of the evidence will
  17
     Accord United States v. Gates, 745 F. Supp. 2d 936, 948 n.4 (N.D.
Cal. 2010) ("[A] defendant may establish standing by pointing to all evi-
dence in the record, including the Government’s evidence."); United
States v. Doe, 801 F. Supp. 1562, 1573 (E.D. Tex. 1992) (finding that
defendant established a legitimate expectation of privacy in a car through
"testimony by a government witness from which it [wa]s reasonable to
infer that defendant’s possession of the vehicle was lawful and with per-
mission"); 6 Wayne R. LaFave, Search & Seizure: A Treatise on the
Fourth Amendment § 11.2(b) (5th ed. 2012) ("[I]t may happen that the
burden is actually met . . . by evidence given by the [government]."), cit-
34                  UNITED STATES v. CASTELLANOS
suffice. United States v. Vega, 221 F.3d 789, 795 (5th Cir.
2000), abrogated on other grounds as recognized by United
States v. Aguirre, 664 F.3d 606, 611 n.13 (5th Cir. 2011).
Accord United States v. Helms, 703 F.2d 759, 763–64 (4th
Cir. 1983) (noting that "any . . . fact at a suppression hearing"
must be "established only by a preponderance of the evi-
dence").

                                    B.

   Because, as the majority recognizes, a reasonable expecta-
tion of privacy exists where the defendant has a subjective
expectation that is objectively reasonable, ante 7, Castellanos
is the only person whose state of mind is relevant. Nonethe-
less, the majority focuses its attention on how the facts
appeared to Captain Roberts at the time of the search. In so
doing, the majority misapplies longstanding Fourth Amend-
ment principles and reaches the wrong result.

   Simply put, in a case like this, the "state of mind of the
searcher regarding the possession or ownership of the item
searched is irrelevant to the issue of standing." United States
v. Han, 74 F.3d 537, 545 (4th Cir. 1996) (quoting United
States v. Canada, 527 F.2d 1374, 1378 (9th Cir. 1975)). See
also United States v. Paradis, 351 F.3d 21, 32 (1st Cir. 2003)
("[A] protectible [Fourth Amendment] interest . . . does not

ing People v. Gonzalez, 502 N.E.2d 1001, 1002 (N.Y. 1986) ("[E]vidence
elicited during the People’s direct case may be cited in support of a defen-
dant’s standing claim.") (internal citation omitted); 1 John Wesley Hall,
Jr., Search & Seizure § 6.3 (LexisNexis 2012) ("It is conceivable that the
defense could show [standing] through prosecution witnesses and that it
could be self-evident in many circumstances."), citing People v. Fuentes-
Borda, 589 N.Y.S.2d 5, 6 (N.Y. App. Div. 1992) (holding that defendant
had standing to challenge police invasion of apartment because, although
defendant had not asserted "personal standing," "the police observations
of defendant and his companion entering, exiting and locking the apart-
ment established a privacy interest sufficient to confer standing").
                 UNITED STATES v. CASTELLANOS                 35
depend on the state of mind of the police at the time of the
seizure."). Rather, it is "the omniscient perspective—what a
judge considering a motion to suppress knows, ex post reali-
ty—that drives standing doctrine." 6 Wayne R. LaFave,
Search & Seizure: A Treatise on the Fourth Amendment
§ 11.3 (5th ed. 2012) (quoting Sherry F. Colb, Standing Room
Only: Why Fourth Amendment Exclusion and Standing Can
No Longer Logically Coexist, 28 Cardozo L. Rev. 1663, 1671
(2007)).

   The results of Roberts’s inquiries about the Ford Explorer
are relevant only insofar as they provide objective evidence of
who had an "ownership or possessory interest" in the vehicle,
Rusher, 966 F.2d at 875, or who had control of it, Horowitz,
806 F.2d at 1225. Such evidence is limited to Roberts’s dis-
covery that the shipping documents identified the owner as
Wilmer Castenada, and the officer’s subsequent discovery
that Wilmer Castenada was Appellant’s alias. See supra n.12.
That Roberts subjectively thought that the bill of lading listed
a false address for delivery is irrelevant; as shown above, the
government’s own filings indicated that a Montlieu Avenue
towing business was expecting delivery of the Ford Explorer.
See supra n.6. Indeed, Roberts himself testified that "Bobby’s
Towing . . . in Greensboro" was where the vehicle was "possi-
bly destine[d]." Id. The officer further testified that Appellant
had called the shipping company several times to inquire
about the Ford Explorer, and had arrived in Texas—to
retrieve the vehicle—with the title document to the Explorer,
tracking information from DAS, and a cell phone using the
same number he had used to communicate with Roberts over
the preceding several days.

   In sum, the objective evidence adduced at the suppression
hearing demonstrated that Wilmer Castenada was Appellant’s
alias, Wilmer Castenada was listed on the bill of lading for the
Ford Explorer, Appellant had the title and shipment tracking
information for the vehicle, he had called several times to
check on the status of the Explorer, he had the cell phone
36                   UNITED STATES v. CASTELLANOS
from which he had made those calls, and a towing company
in Greensboro had been expecting the vehicle’s delivery. The
court also knew, from the government’s opposition to the
motion to suppress, that Appellant had visited the Greensboro
towing business several times to ask about the Ford Explorer.
These undisputed facts were more than sufficient to establish,
by a preponderance of the evidence, that Appellant had an
objectively reasonable protectable Fourth Amendment interest
in the Explorer and, in particular, in the privacy afforded by
its gas tank.

                                      C.

   That Appellant used an alias does not defeat his objectively
reasonable expectation of privacy. Although we have held
that an individual who is not the sender does not have a legiti-
mate expectation of privacy in a mailing addressed to a third
party,18 the use of an alias alone does not foreclose the right
to assert a Fourth Amendment claim. The distinction between
the use of a third party as an addressee, and the use of an alias
disguising the true identity of the addressee, cannot be over-
stated. An individual who is not the sender cannot assert an
expectation of privacy in a mailing addressed to an actual
third party because the privacy right, and thus any Fourth
Amendment challenge, belongs to that third party. In contrast,
where, as here, the individual asserting the expectation of pri-
   18
      See United States v. Givens, 733 F.2d 339, 341-42 (4th Cir. 1984) (per
curiam) (finding defendants lacked a legitimate expectation of privacy in
the contents of a package addressed "neither to them nor to some entity,
real or fictitious, which is their alter ego, but to actual third parties," and
specifically reserving opinion on whether a legitimate expectation of pri-
vacy can exist in a package addressed to a fictitious entity created by the
defendants). See also United States v. Smith, 39 F.3d 1143, 1145 (11th Cir.
1994) (holding a defendant lacked a legitimate expectation of privacy in
a letter addressed to, and opened by, a third party); United States v.
Koenig, 856 F.2d 843, 846 (7th Cir. 1988) (finding a defendant who was
"neither the sender nor the addressee of the package" had no privacy right
in it, and thus lacked standing).
                   UNITED STATES v. CASTELLANOS                        37
vacy is in fact the addressee but has disguised his true identity
by using an alias, he retains an expectation of privacy in the
object, and the right to bring a Fourth Amendment challenge
to the search or seizure of that object.

   Despite the majority’s unwillingness to follow this princi-
ple, a number of courts have already done so. See United
States v. Villarreal, 963 F.2d 770, 774 (5th Cir. 1992) (hold-
ing that "individuals may assert a reasonable expectation of
privacy in packages addressed to them under fictitious
names"); United States v. Johnson, 584 F.3d 995, 1002 (10th
Cir. 2009) ("there is a fundamental difference between merely
using an alias to receive a package and using another’s iden-
tity"); United States v. Colon-Solis, 508 F. Supp. 2d 186 (D.
P.R. 2007) ("It is generally accepted that individuals may
assert a reasonable expectation of privacy in packages
addressed to them under fictitious names") (citing United
States v. Goldsmith, 432 F. Supp. 2d 161, 170 (D. Mass.
2006), and Villarreal, 963 F.2d at 774)).

   As the Seventh Circuit’s opinion in United States v. Pitts
reminds us, "there is nothing inherently wrong with a desire
to remain anonymous when sending or receiving a package."
322 F.3d 449, 459 (7th Cir. 2003). Although a "law enforce-
ment officer or a court is certainly entitled to consider the use
of an alias as a relevant factor in deciding whether to detain
mail . . . or issue a warrant," the use of an alias alone should
not result in a loss of Fourth Amendment rights. Id. at 459
n.1. To hold otherwise significantly weakens Fourth Amend-
ment protections, because the existence of a legitimate expec-
tation of privacy "does not depend on the nature of the
defendant’s activities, whether innocent or criminal." Id. at
458 (citing United States v. Fields, 113 F.3d 313, 321 (2d Cir.
1997)). Thus, Appellant’s use of the alias Wilmer Castenada
did not defeat his legitimate expectation of privacy in the Ford
Explorer.19
  19
   The majority’s observation that Appellant "maintained that Castenada
was a different person" is of little import. Ante p.5. Appellant made such
38                  UNITED STATES v. CASTELLANOS
                                    D.

   Similarly, Appellant did not lose his privacy interest in the
Explorer simply because an automobile transport service had
physical possession of the vehicle. The mere fact of turning
over an item—be it a letter, a package, or a vehicle—to a
common carrier does not extinguish one’s objectively reason-
able expectation of privacy in the item. It has long been held
that letters and packages sent through the mail are accorded
full Fourth Amendment protection. See United States v.
Jacobsen, 466 U.S. 109, 114 (1984) ("Letters and other sealed
packages are in the general class of effects in which the public
at large has a legitimate expectation of privacy; warrantless
searches of such effects are presumptively unreasonable.")
(footnote omitted).

  This Court has observed, "Sealed packages are, of course,
entitled to Fourth Amendment protection against warrantless
searches and seizures, just as any other private area." United
States v. Givens, 733 F.2d 339, 341 (4th Cir. 1984) (per
curiam). The legitimate expectation of privacy in packages
sent through the mail and common carriers extends to both
senders and recipients. See id.; Villarreal, 963 F.2d at 774.
Ordinarily, the sender’s expectation of privacy terminates
upon delivery. United States v. King, 55 F.3d 1193, 1196 (6th
Cir. 1995).

  There is no reason why a vehicle sent through a car deliv-
ery service would be entitled to any lesser expectation of pri-
vacy than, say, a package sent via the U.S. Postal Service. Just

assertions only after he had been arrested on October 1, 2010, and long
after his objectively reasonable expectation of privacy in the Explorer had
been subjected to a governmental intrusion on September 20, 2010. "[I]t
is difficult to understand how a refusal to make incriminating admissions
in response to police interrogation can be held to deprive a person of
Fourth Amendment standing." 6 Wayne R. LaFave, Search & Seizure: A
Treatise on the Fourth Amendment § 11.3(e) (5th ed. 2012).
                    UNITED STATES v. CASTELLANOS                         39
as there is no expectation of privacy in the address on a pack-
age, see United States v. Hinton, 222 F.3d 664, 675 (9th Cir.
2000), one has no reasonable expectation of privacy in the
exterior of a vehicle or respecting objects in a vehicle that are
observed from outside it, see Texas v. Brown, 460 U.S. 730,
740 (1983). But, once placed within a closed container, "a
diary and a dishpan are equally protected by the Fourth
Amendment." Robbins v. California, 453 U.S. 420, 426
(1981) (plurality opinion), abrogated on other grounds, Cali-
fornia v. Acevedo, 500 U.S. 565 (1991).

   It cannot seriously be argued that a vehicle gas tank is any-
thing other than a closed container. Cf. United States v.
Urbina, 431 F.3d 305, 310 (8th Cir. 2005) ("The sound of
objects moving in the tank gave the officers probable cause to
believe that the gas tank contained contraband, and probable
cause is sufficient to justify the warrantless search of an auto-
mobile or a container therein, including the destruction, if
necessary, of the container."). It therefore carries with it a rea-
sonable expectation of privacy, protected by the Fourth
Amendment, and cannot be searched absent a warrant or
probable cause. As the recipient (if not the sender) of the
vehicle, Appellant—using the alias Wilmer Castenada—had
a reasonable expectation of privacy in the areas of the vehicle
not observable by one looking into the interior of the vehicle
from outside. See Robbins, 453 U.S. at 426.20
  20
    Contrary to the majority’s subliminal suggestions, which appear
throughout its analysis, nothing in the record supports the view that the
Ford Explorer had been abandoned at the time Roberts searched it on Sep-
tember 20, 2010. As noted earlier, see supra n.6, the bill of lading listed
a Montlieu Avenue address as the vehicle’s destination, and a towing com-
pany on that street was expecting its delivery, for further delivery to
Appellant. Indeed, Roberts testified to this at the suppression hearing. Id.
At worst, then, the bill of lading contained a typo in the delivery address,
not a "false" address.
  Inexplicably, despite the abundant undisputed evidence in the record,
which includes a photo identification made by an employee of the Mont-
40                  UNITED STATES v. CASTELLANOS
                                     E.

   Considering the totality of the circumstances in this case,
Appellant had a reasonable expectation of privacy sufficient
to maintain his Fourth Amendment challenge to the warrant-
less search of the Ford Explorer and its gas tank. Appellant
used the alias Wilmer Castenada, Wilmer Castenada was
listed on the bill of lading for the Ford Explorer, Appellant
had the title and shipment tracking information for the vehi-
cle, he called several times to check on the status of the
Explorer, and he had the cell phone from which he had made
those calls when he was arrested. Whether or not he was the
actual owner, Appellant had a right to possession, coupled
with constructive dominion and control over the vehicle at the
time Roberts searched it, such that, as a matter of law, he
enjoyed an objectively reasonable expectation of privacy in
the vehicle. The district court’s contrary finding and conclu-
sion was clearly erroneous as a matter of fact and legally erro-
neous, as well.21

lieu Avenue towing company where the drug-laden Ford was to be deliv-
ered, that it was indeed Appellant who repeatedly appeared (as "Wilmer")
between September 24 and 26, 2010, to take delivery of the vehicle, the
majority (purporting to "grant[ ] Castellanos the benefit of the doubt," ante
at 12) seems to reject that undisputed fact. It is not clear to me how an
appellate court can question or ignore such undisputed material facts in the
record, facts to which the parties have stipulated in support of a guilty
plea.
   21
      The majority’s assertion that "the argument made by the dissent
appears sua sponte for the first [time] in the dissent, having never been
presented by Castellanos in the trial court or on appeal," ante at n.4, is
downright puzzling. As previously mentioned, the sole basis for the dis-
trict court’s denial of the motion to suppress was its reliance on United
States v. Crowder, 588 F.3d 929, 934–35 (7th Cir. 2009), for the proposi-
tion that Appellant lacked a "legitimate expectation of privacy at [the]
point [when the Ford Explorer] had been given over to a common carrier
with addresses which were ascertained to be false addresses." See J.A. 72;
see supra n.3. In his brief on appeal, Appellant took direct aim at that legal
conclusion, identifying the issue on appeal as follows:
                    UNITED STATES v. CASTELLANOS                           41
                                    IV.

   For the reasons set forth herein, I would vacate the judg-
ment, reverse the order of the district court ruling that Appel-
lant lacked an objectively reasonable expectation of privacy
in the Ford Explorer on September 20, 2010, and remand this
case for further proceedings.




      DID THE DISTRICT COURT COMMIT ERROR BY DENY-
    ING APPELLANT[ ]’S MOTION TO SUPPRESS THE EVI-
    DENCE FOUND IN THE FORD EXPLORER WHEN IT HELD
    THAT APPELLANT HAD NO LEGITIMATE EXPECTATION
    OF PRIVACY IN THE FORD EXPLORER SINCE IT WAS
    BEING SHIPPED BY A COMMON CARRIER?
Appellant’s Br. 2. Thus, it is the majority, not Appellant or this dissent,
that has fundamentally altered the legal landscape on which the case has
been litigated in the course of this appeal. In any event, as Justice Marshall
instructed the courts of appeals twenty-five years ago:
    When an issue or claim is properly before the court, the court is
    not limited to the particular legal theories advanced by the par-
    ties, but rather retains the independent power to identify and
    apply the proper construction of governing law.
Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 98 (1991). Cf. Interactive
Gift Express, Inc. v. Compuserve, Inc., 256 F.3d 1323, 1346 (Fed. Cir.
2001) (noting "the familiar principle that [an appellate court] does not
review supporting arguments, but only the decisions reached by the trial
court"); Lawlor v. Nat’l Screening Serv. Corp., 352 U.S. 992, 994 (1957)
(per curiam) (Frankfurter, J., dissenting) ("We review judgments not
talk.").
