AGEE

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.

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

Affirmed by published opinion. Judge wrote the majority opinion, in which Chief Judge TRAXLER joined. Judge DAVIS wrote a dissenting opinion.

OPINION

, 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 transported on a commercial car carrier. We agree with the government that Castellanos failed to prove he had a legitimate expectation of privacy in the vehicle, and we affirm the judgment 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 identifying the owner of the vehicle as Wilmer Castenada. The documents 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 associated 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 expecting 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 commonly used in the repair and after-market alteration of vehicles. (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 transported 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.

Subsequently, DAS informed Roberts that someone claiming 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 Miranda rights, and told Roberts that he was in the process of purchasing the Explorer from Castenada, who lived in North Carolina. 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 Roberts expressed considerable skepticism at his story, Castellanos 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. Castellanos, 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 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 hydrochloride, 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 contained in the duffle bag and the cocaine found in the gas tank. The government's evidence adduced at the suppression hearing consisted entirely of testimony from Roberts, who detailed the search and seizure of the vehicle and the subsequent 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 conducted 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 evidence 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 Castenada 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 ruling 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 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' imprisonment and noted a timely appeal. We have jurisdiction pursuant 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. 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 district 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 expectation of privacy that society is prepared to consider reasonable.” United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 80 L.Ed.2d 85 (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 “objectively 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, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980).

The government argues that Castellanos lacked any expectation 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 evidence, the government argues, Castellanos is essentially seeking the protection of the Fourth Amendment vicariously and such a status is inadequate upon which to raise a Fourth Amendment claim.

“The Fourth Amendment protects people, not places.” Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 19 L.Ed.2d 576 (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, 99 S.Ct. 421, 58 L.Ed.2d 387 (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, 99 S.Ct. 421 (citing Alderman v. United States, 394 U.S. 165, 174, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969)). Conversely, “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 evidence.” Alderman, 394 U.S. at 171–72, 89 S.Ct. 961. 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.” Rakas, 439 U.S. at 143, 99 S.Ct. 421.

For the reasons explained herein, we agree with the government 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 expectation of privacy in the Explorer.

When attempting to determine whether a defendant has a reasonable expectationof 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 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 expectation 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, 181 L.Ed.2d 911 (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 evidence that Castenada (or anyone else) had granted him permission 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 reasonable 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, Castellanos' position was that he and Castenada were two separate 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 rendered by Detective Roberts.” (J.A. 67.) In the absence of evidence 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 expectation of privacy in a package that was addressed to a third party.

In sum, the evidence heard by the district court at the suppression hearing failed to support a conclusion that Castellanos 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. Having failed to carry his burden, Castellanos 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 847, thus misapplying the proper standard for determining whether Castellanos had a subjective expectation of privacy that is objectively reasonable. 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 supplemented 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 connection 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.

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 Castellanos. 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 Castellanos, 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 government's argument on brief that he lacked standing, Castellanos filed no brief in reply. 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 Montlieu Avenue towing company in Greensboro, and that Castellanos did in fact inquire therein about the Explorer's whereabouts, 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.

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 preponderance of the evidence, that “Wilmer Castenada” 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 conclusion that Appellant failed to establish an objectively reasonable, i.e., a “legitimate,” expectation of privacy sufficient to maintain his Fourth Amendment challenge to the warrantless, 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 privacy 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 merits 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 Appellant, 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 affirmatively misled the district court, through her selective presentation 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 evidence 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 standing 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 conducted 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 conclusion that Appellant's use of a common carrier to ship narcotics 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 factual error and manifest legal error. See infra Parts III.C & D. The evidence in this record shows that the district court committed 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 reasonableness of his undisputed subjective expectation of privacy simply because he used an alias to conceal his involvement in a narcotics trafficking conspiracy.

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

I.

A.

The majority opinion erroneously regards the relevant narrative of this case to commence on September 20, 2010, when Captain Kevin Roberts, of the Reeves County, Texas, Sheriff's Department, happened upon $3 million in cocaine hidden in the gas tank of a Ford Explorer he searched without a warrant 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 Office of the Drug EnforcementAdministration (GRO–DEA) initiated an investigation into the suspected drug trafficking activity of Juan Manuel Lopez. The investigation continued into 2010, and in August 2010, DEA agents obtained court authorization 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). Thus, the government had been investigating the Greensboro narcotics trafficking operation 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 technology 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 shipping 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 conspiracy 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 follows:

On September 26, 2010, agents monitoring the GPS tracker followed Lopez's vehicle first to the 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. Surveillance agents saw Lopez leave the restaurant with two other men, later identified as Auturo CASTELLANOS 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 September 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.

* * *

On September 29, 2010, an employee at the Montlieu Avenue business notified Agent Razik that the Hispanic man had again come to the business inquiring 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 September 26, 2010. Both employees identified defendant Auturo CASTELLANOS as the man who had been to the business between September 24 and September 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 conspiracy that had been under investigation for narcotics trafficking, 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 Roberts 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 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 Avenue 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 trailer—he was, unmistakably, the recipient in Greensboro.

Roberts attempted to contact Appellant at the phone number listed on the shipping documents, but there was no answer. Roberts then determined from an unspecified database that Appellant had no apparent connection to the California 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 anticipated delivery of a Ford Explorer. It was upon these facts—and, apparently, these facts alone—that the district court erroneously concluded that Appellant had lacked a “legitimate 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 business “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. That is, he proceeded to search the vehicle (1) without probable cause to believe it contained contraband or evidence of a crime; (2) without a warrant; and (3) without the consent of any person with actual or apparent authority to consent to the search. Upon searching the vehicle, he discovered the 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 dollars, wrapped in plastic floating in the gas tank. J.A. 39–41, 47.

One week after Roberts had searched and seized the vehicle, on or about September 27, 2010, after putting in place a ruse with the assistance of DAS, the vehicle transport company, Roberts finally had contact with Appellant, calling from the number 336–263–7145 and identifying himself by his alias, Wilmer Castenada. 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. Appellant was in possession of the title document to the Explorer and tracking information from DAS, and a cell phone using the same number he had used to communicate with Roberts over the preceding several days.

Meanwhile, back in Greensboro, Agent Razik had successfully 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 Roberts'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.
Id. at 45–46. The government's response to the motion to suppress 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 vehicle 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 vehicle's bill of lading stated the vehicle was being shipped from Gardenia, California, to “Wilmer Castaneda” in Greensboro, North Carolina. The telephone 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 Roberts 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 exercise 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.

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 evidence seized from the Ford Explorer, arguing that the search had violated the Fourth Amendment. The government 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 Carolina 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 suppress, 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. On July 18, 2011, Castellanos entered a conditional guilty plea, id. at 74, reserving his right to challenge 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.” Appellant'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 legitimate 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 recognize as reasonable.” Appellee's Br. 13 (internal quotation marks omitted).

III.

A proper determination of standing requires careful consideration of all the evidence, regardless of which party, the government or the defendant, introduces the evidence. Moreover, the evidence must be considered from a wholly objective perspective, 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 reasonable 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 evidence.’ ” 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, 89 S.Ct. 961, 22 L.Ed.2d 176 (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, 119 S.Ct. 469, 142 L.Ed.2d 373 (1998) (quoting Rakas v. Illinois, 439 U.S. 128, 143, 99 S.Ct. 421, 58 L.Ed.2d 387 (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 recognized and permitted by society.’ ” Id. at 145 (quoting Carter, 525 U.S. at 88, 119 S.Ct. 469).

Notably, the Fourth Amendment “does not shield only those who have title to the searched premises.” Mancusi v. DeForte, 392 U.S. 364, 367, 88 S.Ct. 2120, 20 L.Ed.2d 1154 (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 reasonable 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 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 “society'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 expectation 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, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980).

The defendant bears the burden of proving standing to challenge 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). A mere preponderance of the evidence will 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 evidence”).

B.

Because, as the majority recognizes, a reasonable expectation of privacy exists where the defendant has a subjective expectation that is objectively reasonable, ante 832, Castellanos is the only person whose state of mind is relevant. Nonetheless, 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 Amendment 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 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 reality—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 discovery 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 “possibly 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 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 legitimate expectation of privacy in a mailing addressed to a third party, 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 overstated. 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 privacy 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 principle, a number of courts have already done so. See United States v. Villarreal, 963 F.2d 770, 774 (5th Cir.1992) (holding 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 identity”); 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 enforcement 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 Amendment protections, because the existence of a legitimate expectation 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.

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 reasonable 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, 104 S.Ct. 1652, 80 L.Ed.2d 85 (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 delivery service would be entitled to any lesser expectation of privacy than, say, a package sent via the U.S. Postal Service. Just as there is no expectation of privacy in the address on a package, 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, 103 S.Ct. 1535, 75 L.Ed.2d 502 (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, 101 S.Ct. 2841, 69 L.Ed.2d 744 (1981) (plurality opinion), abrogated on other grounds, California v. Acevedo, 500 U.S. 565, 111 S.Ct. 1982, 114 L.Ed.2d 619 (1991).

It cannot seriously be argued that a vehicle gas tank is anything 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 automobile or a container therein, including the destruction, if necessary, of the container.”). It therefore carries with it a reasonable 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, 101 S.Ct. 2841.

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 warrantless 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 vehicle, 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 conclusion was clearly erroneous as a matter of fact and legally erroneous, as well.

IV.

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