                               UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 08-4979


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

BRIAN A. STEPHENS,

                  Defendant - Appellant.


Appeal from the United States District Court for the Eastern
District of North Carolina, at Elizabeth City.   Terrence W.
Boyle, District Judge. (2:08-mj-01024-BO-1)


submitted:    April 20, 2009                 Decided:   August 17, 2009


Before NIEMEYER and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed in part, reversed in part and remanded by unpublished
per curiam opinion.


Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant.   George E. B. Holding, United States Attorney, Anne
M. Hayes, Jennifer P. May-Parker, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

              Brian A. Stephens appeals his convictions for carrying

an open container of alcohol in a vehicle within a national

park, in violation of 36 C.F.R. § 4.14(b) (2008), possession of

marijuana       in   a    national          park,     in     violation       of    36       C.F.R.

§ 2.35(b)(2) (2008), and possession of drug paraphernalia, in

violation of 18 U.S.C. § 13 (2006), and N.C. Gen. Stat. § 90-

113.22 (2007).           On appeal, Stephens contends that the district

court erred in convicting him of the open container offense, as

the   facts     fell     within       the    exception        to    the    regulation        that

exists    for    “an     open    container          carried    or     stored      in    a   motor

vehicle     parked       at     an    authorized           campsite       where    the      motor

vehicle’s       occupant(s)          are    camping.”         36    C.F.R.        § 4.14(c)(3)

(2008).     Stephens also argues that because the owner of the van

had neither actual nor apparent authority to consent to a search

of the box containing the marijuana, the contraband discovered

therein should have been suppressed as fruit of the poisonous

tree.

              The Government concedes that the district court erred

in convicting Stephens of the open container violation, as his

conduct fell within the above-cited exception to the regulation.

Concerning Stephens’s Fourth Amendment argument, the Government

contends that the owner of the van had the actual authority to

consent to a search of the van, and that even if such authority

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did not actually exist, the rangers reasonably relied upon it.

We affirm in part, reverse in part, and remand.

              Both Stephens and the Government are in agreement that

the   district    court    erred   in     convicting      Stephens     of    the     open

container violation, and the regulation itself supports their

position.      Accordingly, we reverse the judgment of the district

court finding Stephens guilty of violating the open container

prohibition of 36 C.F.R. § 4.14(b), and remand for correction of

the judgment.

              Therefore,    the    only    issue      remaining       before    us    is

whether the district court erred in denying Stephens’s motion to

suppress.      When reviewing the denial of a motion to suppress, we

review de novo the district court’s legal determinations, and

review   its     factual    determinations        for    clear    error.        United

States   v.    Branch,     537   F.3d   328,    337     (4th   Cir.    2008),      cert.

denied, 129 S. Ct. 943 (2009).                Evidence is viewed in the light

most favorable to the government.              Id.

              The Fourth Amendment does not prohibit all searches

and seizures, merely those found to be unreasonable.                        Florida v.

Jimeno, 500 U.S. 248, 250 (1991).                A warrantless search “is per

se unreasonable subject only to a few specifically established

and well-delineated exceptions,” one of which is “a search that

is conducted pursuant to consent.”                   Schneckloth v. Bustamonte,

412 U.S. 218, 219 (1973) (internal quotation marks and citations

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omitted).     Consent may be given by the owner of the property, or

a   third-party      possessing        common        authority     over     the    place    or

articles to be searched.                   United States v. Matlock, 415 U.S.

164, 171 (1974).        Common authority is based upon parties’ mutual

use of the property.          When performing a consent search, officers

need not separately request permission to open each container

within a vehicle.          Jimeno, 500 U.S. at 252.

             Here,    it     is    clear      that     the   owner     of    the    van    had

authority    to    consent        to   a    search     of    the   van    and     containers

therein.      Further, as both Stephens and the van’s owner were

living out of the van with no obvious demarcation between one

another’s     property,       both         parties    had     common      authority       over

property within the vehicle and the right to permit inspection.

Matlock, 415 U.S. at 171 n.7.

             Therefore, as the owner of the van had authority to

consent to a search of his van and the containers therein, the

rangers did not violate Stephens’s Fourth Amendment rights and

the     district     court    did      not     err    in     denying      the     motion   to

suppress.

             Accordingly, we reverse the judgment of the district

court as to Stephens’s open container conviction, affirm the

remaining convictions, and remand the case for correction of the

judgment.     We dispense with oral argument because the facts and

legal    contentions       are     adequately         expressed      in     the    materials

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before   the   court   and   argument   would   not   aid   the   decisional

process.



                                                      AFFIRMED IN PART;
                                         REVERSED IN PART, AND REMANDED




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