No Expectation of Privacy In Car By Passenger Who Recently Exited It

US v. Smith: Smith was a passenger in a car into which a person whom police knew was a felon was also a passenger. Police followed the car (driven by a third person) and ran the license plate number, accidentally transcribing two of the numbers and getting a result showing the plate belonged to another car. The car pulled into a gas station, where police also pulled in and began to confront the known felon. Smith had already gone into the convenience store at the station, in line to check out. Police placed him in handcuffs because “of a fictitious tag,” which prompted Smith to say the car was not his. A search of the car uncovered drugs and guns. When Smith was arrested and told he was being charged with trafficking, prompting Smith to ask about the weight of heroin seized and that it should only be 3.5 grams, not 4.5 as claimed by the police (it was actually 3.32 grams). 

Smith was charged with drug and firearm offenses and moved to suppress the evidence found in the car. The district court denied the motion, concluding both that the stop was lawful and that Smith had no standing to challenge the stop. Smith went to trial and was convicted on all counts. He was sentenced to 138 months in prison.

On appeal, the Fourth Circuit affirmed Smith’s conviction. As to the stop and search of the car, the court agreed with the district court that Smith lacked standing to challenge the stop and search. As to the search, Smith disclaimed ownership in the car and merely being a passenger does not confer a legitimate expectation of privacy to challenge the search. Nor did Smith claim ownership of the drugs and firearms found in the court, although he did claim a cell phone found in the center console. While a “fact to be considered,” it was not enough to support standing, particularly as Smith was not in the car at the time. As to the stop itself, Smith also lacked standing because he was not in the car when it was actually seized. The court also concluded that the district court did not err in not giving a jury instruction on the lesser-included offense of simple possession. Expert testimony at trial was that there the amount of heroin involved “between eleven and thirty-two doses,” and, when coupled with his behavior (taking that amount into a nightclub, asking the police about weight), supported the district court’s decision not to give a simple possession instruction. The court also concluded that the evidence was sufficient to support Smith’s convictions. 

Judge Wynn dissented on the jury instruction issue, arguing that “our precedent requires that a jury decide whether Smith was guilty of the lesser or greater offense.”