                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                December 7, 2010
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                   Clerk of Court
                                 TENTH CIRCUIT



 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                     No. 10-6175
          v.                                          (W.D. Oklahoma)
 RAMON LEE RIOS,                               (D.C. No. 5:10-CR-00062-R-1)

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before HARTZ, ANDERSON, and TYMKOVICH, Circuit Judges.


      Ramon Lee Rios entered a conditional plea of guilty in the United States

District Court for the Western District of Oklahoma to a charge of unlawful

possession of a firearm by a convicted felon, in violation of 18 U.S.C.

§ 922(g)(1). His plea expressly reserved the right to appeal the district court’s

denial of his motion to suppress evidence obtained as a result of the search of a

motel room. On appeal he challenges that denial. We have jurisdiction under


      *
       After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent except under the doctrines of law of the case, res judicata, and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.
28 U.S.C. § 1291 and affirm because Mr. Rios lacked standing to challenge the

search.

I.    BACKGROUND

      The evidence of Mr. Rios’s guilt was found in Room 308 of a Motel 6 in

Oklahoma City. On the morning of August 22, 2009, the motel’s assistant

manager and a housekeeper checked the room after a woman not registered as a

guest requested a key card for the room because the one she had did not work.

After unlocking the door, they found Mr. Rios lying on the bed and a pistol

nearby. The two immediately left the room and called 911 in accordance with the

motel’s policy regarding weapons on motel premises.

      The assistant manager testified that she met an officer at the door to Room

308 and gave him the key card that he used to let himself in. Sergeant Steve

Stolz, however, testified that he found the door open and saw Mr. Rios on the bed

with a pistol lying on a dresser about six feet away. He entered the room and

detained Mr. Rios, who was later arrested.

      After being indicted on the firearms charge, Mr. Rios filed a pretrial motion

to suppress evidence, claiming that officers conducted an unlawful search of the

motel room. The district court conducted an evidentiary hearing and overruled




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the motion. It held that Mr. Rios lacked standing to challenge the search because

he could not demonstrate that he was the invited guest of the renter of the room.1

      Mr. Rios then filed a motion to reconsider, arguing that new evidence

indicated that he was the lawful guest of the room’s registered renter, Sheena

Craig. The motion attached an affidavit by Craig. It stated that after renting the

room she had to go home to deal with a family emergency and had given Mr. Rios

permission to stay overnight in the room. The district court denied the motion as

untimely, because Mr. Rios had this information to share with counsel before the

hearing.

      On April 9, 2010, Mr. Rios entered a conditional plea of guilty to the

firearms charge, expressly reserving his right to appeal the district court’s denial

of his motion to suppress. The court sentenced him to 188 months’ imprisonment.

II.   DISCUSSION

      On appeal from the denial of a motion to suppress, we review the factual

findings of the district court for clear error and view the evidence in the light

most favorable to the government. See United States v. Worthon, 520 F.3d 1173,

1178 (10th Cir. 2008). We review de novo whether a defendant has standing to

challenge a search. See id.




      1
        The court also ruled that exigent circumstances justified Sergeant Stolz’s
entering the motel room, but we need not address this issue.

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      “[I]n order to claim the protection of the Fourth Amendment, a defendant

must demonstrate that he personally has an expectation of privacy in the place

searched, and that his expectation is reasonable.” Minnesota v. Carter, 525 U.S.

83, 88 (1998). “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 or premises.” Worthon, 520 F.3d at 1178 (internal

quotation marks omitted).

      An invited guest may possess a reasonable expectation of privacy in the

premises of his host, but “[m]ere physical possession or control of property is not

sufficient to establish standing to object to a search of that property.” United

States v. Conway, 73 F.3d 975, 979 (10th Cir. 1995). “Although a defendant need

not come forward with documentation establishing legal possession of the area

searched, he must at least demonstrate, in the case of a motel room, that he was

the invited guest of the renter of the premises.” Id. (citation omitted).

      Room 308 was registered to Sheena Craig. Craig’s affidavit states that

Mr. Rios was her invited guest in the room. But the district court rejected the

affidavit as untimely, and Mr. Rios’s opening brief on appeal does not present any

arguments challenging this denial. Therefore, we do not consider the affidavit.

See Phillips v. Calhoun, 956 F.2d 949, 954 (10th Cir. 1992) (“[E]ven issues




                                         -4-
designated for review are lost if they are not actually argued in the party’s

brief.”).

       Without Craig’s affidavit, the evidence in the record does not establish the

permission necessary to give Mr. Rios standing. He points out that when he was

found by hotel staff, the room was locked and curtains were drawn, thus

demonstrating his ability to control and exclude others. He further notes that he

had stayed overnight, was found before check-out time, and had his belongings

inside the room. But under our precedents this evidence was not enough. In

Conway the defendant lacked standing even though he was the one who opened

the motel-room door for the officers (while he was completely undressed), gave

the first name of the registered renter, and had a room key. See 73 F.3d at

978–80. And in United States v. Carr, 939 F.2d 1442, 1446 (10th Cir. 1991), we

held that the defendant’s affidavit that he had occupied the motel room for three

weeks did not suffice to establish his standing.

III.   CONCLUSION

       We AFFIRM the judgment below.

                                        ENTERED FOR THE COURT


                                        Harris L Hartz
                                        Circuit Judge




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