     Case: 18-30834      Document: 00514970768         Page: 1    Date Filed: 05/24/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                    No. 18-30834                            May 24, 2019
                                  Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

THOMAS JAMES,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                             USDC No. 3:15-CR-138-3


Before DENNIS, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM: *
       Thomas James entered a conditional guilty plea to conspiracy to make
and pass counterfeit checks, produce fraudulent identification documents, and
use unauthorized access devices; access device fraud; and aggravated identity
theft. He appeals the district court’s denial of his motion to suppress evidence
found during a search of a stopped rental car in which he was a passenger. The
district court found that James lacked standing to contest the search of the car.


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                    No. 18-30834

      We review the district court’s findings of fact for clear error, viewing the
evidence in the light most favorable to the prevailing party, and consider legal
conclusions de novo. United States v. Hernandez, 647 F.3d 216, 218 (5th Cir.
2011). The question whether James has standing to contest the search of the
car is an issue of law that we review de novo. See United States v. Riazco,
91 F.3d 752, 754 (5th Cir. 1996).
      To assert the protections of the Fourth Amendment, a person must have
“a legitimate expectation of privacy in the invaded place.” Hernandez, 647 F.3d
at 219. A passenger without a propriety or possessory interest in a vehicle that
was searched has no reasonable expectation of privacy in the car itself. Rakas
v. Illinois, 439 U.S. 128, 148 (1978); United States v. Greer, 939 F.2d 1076, 1093
(5th Cir. 1991), op. reinstated in part on reh’g, 968 F.2d 433 (5th Cir. 1992).
Because James contends only that he had a privacy expectation as a passenger
qua passenger, and the record does not reflect that he owned, rented, drove, or
had control or authority over the car, he lacked standing to contest the search.
See Rakas, 439 U.S. at 148; Greer, 939 F.2d at 1093; Riazco, 91 F.3d at 754-55.
He does not challenge the lawfulness of the initial stop and, thus, cannot assert
that the evidence recovered during the resulting search should be suppressed
as fruits of illegal activity. See United States v. Powell, 732 F.3d 361, 375 (5th
Cir. 2013). He did not gain control over the car by placing his bags in the trunk.
See United States v. Iraheta, 764 F.3d 455, 462 (5th Cir. 2014).
      James contends that the recent decision in Byrd v. United States, 138 S.
Ct. 1518, 1527, 1531 (2018), which held that a driver in lawful possession or
control of a rental car has a reasonable expectation of privacy even if he is not
on the rental agreement, supports that he may challenge the search. However,
there is no indication that Byrd implicates whether a passenger, like James,
with no possessory or property interest in a car has a reasonable expectation



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                                 No. 18-30834

of privacy. See Byrd, 138 S. Ct. at 1526-31. We have not held otherwise and
must follow our controlling authority. See United States v. Lipscomb, 299 F.3d
303, 313 n.34 (5th Cir. 2002).
      Thus, the district court did not err in denying James’s motion to suppress
on the ground that he lacked standing to challenge the search. See Rakas,
439 U.S. at 148; Riazco, 91 F.3d at 754-55. Accordingly, the judgment of the
district court is AFFIRMED.        The Government’s motion for summary
affirmance and the alternative motion for an extension of time to file a brief
are DENIED.




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