                                                                               FILED
                                                                  United States Court of Appeals
                                                                          Tenth Circuit

                                                                         March 25, 2015
                         UNITED STATES COURT OF APPEALSElisabeth A. Shumaker
                                                                           Clerk of Court
                                     TENTH CIRCUIT



 UNITED STATES OF AMERICA,

           Plaintiff-Appellee,
 v.                                                           No. 14-4056
                                                    (D.C. No. 2:12-CR–00606-RJS-3)
 JUSTIN JAMES OCEGUEDA,                                         (D. Utah)

      Defendant-Appellant.
 _________________________________
 UNITED STATES OF AMERICA,

           Plaintiff-Appellee,
 v.                                                            N0. 14-4058
                                                     (D.C. No. 2:12-CR-00606-RJS-1)
 HUGO PAGE SANTOS,                                               (D. Utah)

           Defendant-Appellant.


                                  ORDER AND JUDGMENT*


Before BRISCOE, Chief Judge, SEYMOUR and KELLY, Circuit Judges.


       Defendants Justin Ocegueda and Hugo Santos, each of whom entered a conditional

guilty plea to possessing 500 grams or more of methamphetamine with intent to

distribute, in violation of 21 U.S.C. § 841(a)(1), appeal from the district court’s denial of


       *
        This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
their joint motion to suppress evidence. Exercising jurisdiction pursuant to 28 U.S.C. §

1291, we affirm.

                                              I

                                    Factual background

        On September 23, 2012, Drug Enforcement Administration (DEA) Special Agent

Ron Anson, based in Utah, was informed by a confidential informant (CI) with whom he

had previously worked that an individual known by the name of “Brandon” could deliver

approximately eight pounds of methamphetamine to the CI. Based upon this information,

Anson directed the CI to report to Anson’s office the following day, September 24, 2012.

        At Anson’s office, the CI made phone calls to Brandon regarding the purchase of

methamphetamine. Anson recorded those conversations. During the recorded phone

conversations, Brandon told the CI that the methamphetamine had been transported from

California and that the transaction would take place later that same day at a hotel in Lehi,

Utah.

        Anson and other DEA task force members established surveillance of the area

surrounding the hotel in Lehi. Two cars with California license plates were parked at the

hotel. One of the vehicles was a silver Nissan Altima; the other vehicle was a red Ford

Focus. A task force agent observed two individuals, later identified as Ocegueda and

Santos, transfer something from the Nissan Altima to the Ford Focus and then drive the

Ford Focus from the hotel to the parking lot of a nearby restaurant.

        At approximately this same time, the CI, who had been outfitted by task force

                                             2
members with transmitting and recording devices, arrived at the area in a vehicle and

parked in a Utah Transit Authority Park and Ride lot (Park and Ride lot) near the

restaurant. The CI then received a phone call from Brandon directing the CI to drive to

the restaurant parking lot where Ocegueda and Santos were waiting. The CI complained

to Brandon that there were too many people in the restaurant parking lot and suggested

that the meeting occur at the Park and Ride lot instead. Brandon agreed. Thereafter,

Ocegueda, with Santos in the passenger seat, drove the Ford Focus from the restaurant

parking lot to the Park and Ride lot. Ocegueda ultimately located the CI’s vehicle on the

north side of the Park and Ride lot and parked next to it.

       Ocegueda got out of the Ford Focus, walked to the CI’s vehicle, and sat down

inside it. Ocegueda then handed the CI a cell phone. Brandon was on the other end of

the cell phone and informed the CI that he would not be coming to participate in the

transaction, and that Ocegueda and Santos would instead handle the deal.

       With that, Ocegueda got out of the CI’s vehicle, walked to the back of the Ford

Focus, opened the trunk, and pulled out a large bag. Ocegueda returned to the CI’s

vehicle with the bag and discussed with the CI the drugs that were contained in the bag.

Ocegueda and the CI then cut into one of several wrapped packages contained in the bag

so that the CI could purportedly assess the quality of the methamphetamine. The CI,

upon observing the drugs contained in the package, spoke briefly with Ocegueda about

their quality. During that conversation, the CI stated “this shit looks really good.” App.

at 127. That statement, per Anson’s instructions to the CI prior to the transaction, served

                                             3
as the CI’s signal to the task force members that drugs had been received and positively

identified.

       Anson and the other task force members proceeded to arrest Ocegueda and Santos

in the Park and Ride lot. At the time of their arrest, Santos was sitting in the driver’s seat

of the Ford Focus and Ocegueda was sitting in the passenger’s seat. A search of the Ford

Focus following the arrests produced 5,000 grams of methamphetamine.

       Subsequent investigation by task force agents revealed that the Ford Focus was

owned by a California resident named Geneva Bustamonte and had been driven from

California to Utah by a women named Nicole Flores. The investigation also confirmed

that Santos was the registered owner of the Nissan Altima.

                                  Procedural background

       On September 26, 2012, a complaint was filed in federal court charging Ocegueda

and Santos with a single count of possession of 500 grams or more of methamphetamine

with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). Shortly thereafter, a

federal grand jury indicted defendants on the same charge.1

       Santos moved to suppress, arguing that the “search [of the Ford Focus] without a

warrant was unconstitutional.” Dist. Ct. Docket No. 70 at 3. Santos also argued that his

arrest and the ensuing search of his person were “unlawful.” Id. at 5. The government

filed a brief in opposition asserting that Santos “lack[ed] standing to challenge the search


       1
         Flores was also charged in the complaint and indictment. She is not, however, a
party to this appeal.

                                              4
of the [Ford Focus].” Dist. Ct. Docket No. 77 at 1. Ocegueda was subsequently

permitted by the district court to join Santos’ motion to suppress.

       After conducting two evidentiary hearings and taking testimony from Santos and

Anson, the district court issued a memorandum decision and order denying Santos’

motion to suppress. In doing so, the district court concluded, in pertinent part, that Santos

failed to meet his burden of establishing standing to challenge the search of the Ford

Focus. The district court subsequently issued an order denying the motion to suppress as

to Ocegueda for the same reasons stated in its memorandum decision and order.

       On November 15, 2013, Ocegueda entered a conditional plea of guilty to the single

count alleged in the indictment. On December 2, 2013, Santos also entered a conditional

plea of guilty to the count alleged in the indictment. Both defendants, as part of their

respective plea agreements, reserved the right to appeal the district court’s denial of their

joint motion to suppress.

       On May 9, 2014, the district court sentenced Ocegueda and Santos and ordered

each to serve a term of imprisonment of 120 months, to be followed by a 60-month term

of supervised release. On request of defense counsel, the district court authorized both

defendants to remain on release pending the outcome of their appeals.

       Both Ocegueda and Santos subsequently filed timely notices of appeal.

                                              II

       On appeal, Ocegueda and Santos assert a number of challenges to the district

court’s denial of their joint motion to suppress evidence. We find it unnecessary to

                                              5
address most of those arguments, however, because we agree with the district court that

defendants lacked standing to challenge the search of the Ford Focus.

       “Fourth Amendment rights are personal, and, therefore, a defendant cannot claim a

violation of his Fourth Amendment rights based only on the introduction of evidence

procured through an illegal search and seizure of a third person’s property.” United

States v. Mosley, 743 F.3d 1317, 1322 (10th Cir. 2014) (internal quotation marks

omitted). In other words, “the fruit of the poisonous tree doctrine applies only when the

defendant has standing regarding the Fourth Amendment violation which constitutes the

poisonous tree.” United States v. Olivares-Rangel, 458 F.3d 1104, 1117 (10th Cir. 2006)

(emphasis in original). Thus, a person seeking to suppress evidence produced as the

result of a vehicle search challenge must establish that he has “a possessory or property

interest in the vehicle searched.” Mosley, 743 F.3d at 1322 (internal quotation marks

omitted).

       We review de novo the legal question of “whether a defendant has standing to

challenge a search.” United States v. Davis, 750 F.3d 1186, 1189 (10th Cir. 2014). In

doing so, “we view the evidence in the light most favorable to the Government and accept

the district court’s factual findings unless clearly erroneous.” United States v. Gilmore,

776 F.3d 765, 768 (10th Cir. 2015).

       The district court made several factual findings that are relevant to the issue of the

defendants’ standing to challenge the search of the Ford Focus. To begin with, the

district court found “that neither . . . Santos nor . . . Ocegueda held title to the Ford

                                               6
Focus.” App. at 24. Instead, the district court found, “title was held by Ms. Geneva

Bustamonte.” Id. at 25. The district court further found “no evidence that Ms.

Bustamonte conveyed a possessory interest in the Ford Focus to either . . . Santos or . . .

Ocegueda.” Id. Indeed, the district court noted that “there [wa]s no evidence clarifying

the relationship, if any, between . . . Ocegueda, . . . Santos, and Ms. Bustamonte.” Id.

Although Santos testified that Ocegueda had a possessory interest in the Ford Focus and

in turn conveyed that possessory interest to Santos by giving him the keys to the vehicle

when they arrived at the Lehi hotel and instructing him to drive it to a gas station to fill

the tank, the district court found that this testimony was “insufficient to establish a

possessory interest in the car or a reasonable expectation of privacy.” Id. Ultimately, the

district court found “there [wa]s no evidence to suggest that . . . Santos gained possession

from the owner or someone with the authority to grant possession.” Id.

       Notably, defendants make no attempt on appeal to challenge, as clearly erroneous,

any of these factual findings. Nor do defendants challenge the district court’s related

legal conclusion that they failed to meet their “burden to establish standing to challenge

the search of the Ford Focus and the subsequent seizure of the methamphetamine.” Id. at

26. Consequently, we affirm the district court’s conclusion on this point.

       Defendants suggest, however, that they each have alternative bases upon which

they can seek suppression of the methamphetamine. For his part, Santos argues that he

“is protected in the Tenth Circuit on the basis that a passenger whose Fourth Amendment

rights were violated can suppress an item if it is the fruit of the poisonous tree, and there

                                               7
was a nexus to the seized articles that would not be attenuated by [sic] inevitable

discovery rule.” Aplt. Br. at 27-28. It is true that even if a defendant “lacks the requisite

possessory or ownership interest in a vehicle to directly challenge a search of that

vehicle,” he “may nonetheless contest the lawfulness of his own detention and seek to

suppress evidence found in the vehicle as the fruit of [his] detention.” Mosley, 743 F.3d

at 1322-23 (internal quotation marks omitted). To suppress evidence on this basis,

however, “a defendant must show, first, that he was seized in violation of his Fourth

Amendment rights and, second, that a factual nexus exists between his unlawful seizure

and detention and the challenged evidence.” Id. at 1323 (internal quotation marks

omitted). “Only if the defendant has made these two showings must the government

prove that the evidence sought to be suppressed is not fruit of the poisonous tree.” Id.

(internal quotation marks omitted). In this case, Santos has failed to establish a factual

nexus between his arrest and the seized methamphetamine. To be sure, his arrest

occurred immediately prior to the search of the Ford Focus and the seizure of the

methamphetamine. But his arrest did not lead, directly or indirectly, to the seizure of the

methamphetamine. Indeed, the evidence in the record indicates that the

methamphetamine would have been located and seized from the Ford Focus regardless of

whether or not Santos was arrested. Thus, Santos has failed to establish that the

methamphetamine “would not have come to light but for the government’s

unconstitutional conduct.” United States v. DeLuca, 269 F.3d 1128, 1132 (10th Cir.

2001).

                                              8
       Ocegueda argues that, because he was directly involved in a recorded conversation

with the CI, “he is an aggrieved party under Title III [(the Federal Wiretap Act)], and

acquires standing per se.” Aplt. Br. at 27. This argument, however, confuses standing to

challenge the use of an intercepted oral communication with standing to challenge the

search of a vehicle. And, as we have noted, Ocegueda failed to establish an ownership or

possessory interest in the Ford Focus.

       Lastly, although both defendants also purport to challenge the legality of their

arrests, there is no indication in the record that those arrests resulted in any evidence that

would be suppressed. In particular, the methamphetamine would have been seized

regardless of their arrests. And defendants conceded in their motion to suppress that they

“made no post arrest incriminating statements.” Dist. Ct. Docket No. 70 at 4. As a result,

the district court’s memorandum decision and order did not address the subject of

defendants’ arrests.

       AFFIRMED.



                                                   Entered for the Court


                                                   Mary Beck Briscoe
                                                   Chief Judge




                                               9
