On appeal from The United States District Court for the District of Kansas - Kansas City ">

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Date: 11-05-2021

Case Style:

United States of America v. Benjamin Salas, Jr.

Case Number: 06-3153

Judge: Jerome A. Holmes

On appeal from The United States District Court for the District of Kansas - Kansas City

Plaintiff's Attorney: United States Attorney’s Office

Defendant's Attorney:

Denver, CO - Criminal defense Lawyer Directory


Denver, CO - Criminal defense lawyer represented defendant with possession with intent to distribute more than five grams of actual methamphetamine (count 1) and for using, carrying and possessing a firearm during and in relation to drug trafficking (count 2) charges.

During afternoon rush hour, Kansas Highway Patrol Trooper Charles
Lovewell stopped a vehicle on I-435 for following too clos ely and not
maintaining a lane. Trooper Lovewell approached the passenger side
window, iden tified h imself to the driver, M r. Salas, and requested a license
an d proo f o f insurance . April Urbano, one o f three passengers in the ca r,
claimed that she owned the vehicle. Trooper Lovewell noticed a strong odor
of alcohol and marijuana coming from the car. Intending to s earch the
vehicle , Troope r Lovewe ll asked the dispa tch e r to send anothe r pa trol unit.
While wa iting for ba ckup, Troope r Lovewe ll asked M r. Sa las to exit
the vehicle and inquired about the group’s trave ls. As the ba ckup unit
arrived, Trooper Lovewell informed Mr. Salas that becaus e he smelled
marijuana and alcohol, he was going to perform a vehicle search. Since the
vehicle’s occupants outnumbered the officers, Trooper Lovewell explained
tha t he would handcuff but not arre st M r. Sa las. After Troope r Lovewe ll
Appellate Case: 06-3153 Document: 010136855 Date Filed: 09/21/2007 Page: 2
Troope r Lovewe ll subsequently handcuff ed the othe r ma le 1
pa ssenge r, J e rry Cura sco, and pla c ed him inside his vehic le .
Trooper Lov ewell also testified that he fo un d a p air of brass 2
knuck les in the b ack sea t. Both before the district court an d on ap pea l Mr.
Sa la s a rgued tha t the evidenc e did not adequa te ly support this te stimony,
nor even the more general con tention that Trooper Lov ewell fou nd brass
knuckles at all. M r. Salas underscores for us that the district court did not
expre ssly make a finding conc e rn ing the dis cove ry of bra ss knuckle s.
However, given ou r ration ale for resolving this case, which includes a
determination that M r. Salas lacks standing to challenge the vehicle search,
whe the r Tro ope r Lovewe ll dis cove red bra ss knuckle s is imma te ria l.
han dcu ff ed M r. Salas, the b ackup officer sea ted h im in a p olice cruiser. 1
The officers then removed the passengers from the vehicle and informed
them tha t the vehic le would be s e a rched.
Trooper Lovewell found an open beer container in the back s eat of the
passenger compartmen t. Troo per Lovewell then sea rched the trun k where 2
he fo und several metal boxes, and a wooden box co ntaining two gun s. M s.
Urbano spoke to Trooper Lovewell as he searched the trunk. After finding
the guns, Trooper Lovewell returned to his s earch of the back s eat of the
passenger compartment. There, he located a suspected methamphetamine
pipe .
By chance, a Leawood, Kansas Police Department canine unit drove
by and voluntarily joined the se a rch. The dog se a rched the trunk a lerting to
the me ta l boxe s. A furthe r s e a rch of the boxe s reve a led ammunitio n, a
digital scale, eleven bundles of money, and a drug pipe. As the search
Appellate Case: 06-3153 Document: 010136855 Date Filed: 09/21/2007 Page: 3
continued, the dog a le rted to s eve ra l a re a s in the fro nt s e a t of the vehic le .
Trooper Lov ewell fou nd several more drug pipes, plastic tub ing and glass
fittings, a sma ll gre en vial containing a white powde ry su bstanc e , a p lastic
bag contain ing su sp e c ted me thamphe tamine , an d a “wrapping or sa ck” with
a ve ry stro ng odor o f raw ma rijuana . See R. Vol. II, Doc. 69, at 26-32, 44
(Suppre ssion He a ring, da ted Novembe r 2 2, 2005).
The search took a little more than one hour during which Mr. Salas
remained han dcu ff ed . Upon discovering methamphetamine in the d river’s
side door compa rtment, Troope r Lovewe ll arr e sted M r. Sa las and his
pa ss enge rs. A su bsequent inventory se a rch of the vehicle reve a led a cup in
the console tha t conta ined a bag of me thamphe tamine , a bag of ma rijuana , a
bag with pills in it, and a stubbed-o ut ma rijuana c iga re tte .
Following his ind ictment, M r. Salas filed a motion to sup press
ev iden ce discovered in the veh icle. The d istrict court den ied M r. Salas’s
motion to suppress concluding that: (1) Trooper Lovewell had sufficient
grounds to initia te th e tra ffic stop; (2) M r. Sa las lacked standing to
challenge the constitutionality of the vehicle search, but even if he had
standing, the officers would have inevitably discovered the evidence
through lawful means; and (3) the officers did not illegally arrest M r. Salas
by handcuffing and de ta ining him a s they conduc ted the se a rch.
Reserving his right to appeal the district court’s denial of his motion
Appellate Case: 06-3153 Document: 010136855 Date Filed: 09/21/2007 Page: 4
Counts 1 and 2 of the superseding indictment charged, 3
respectively, the same drug trafficking and firearms crimes found in the
corresponding counts of the initial indictment. The superseding indictment
added one additional count (count 3), however, charging M r. Salas with a
f e lon-in-p osse ssion off ense , in viola tion of 18 U.S.C. § 922(g )(1).
M r. Salas also challenges the district court’s finding that he had 4
no standing to objec t to the se a rch of the vehicle . With ne ed for little
discussion, howeve r, we conc lude tha t the distric t co urt did not err. “Fourth
Amendm ent rights a re pe rsona l, and, the re fore , a de f endant c annot c la im a
violation of his Fourth Amendment rights based only on the introduction of
ev iden ce procured through an illega l search an d seizu re of a third person’s
property or premises.” United States v. DeLuca, 269 F.3d 1128, 1131 (10th
Cir. 2001) (quoting United States v . Erwin, 875 F.2d 268, 270 (10 th Cir.
1989)) (interna l quotation ma rks omitted). Absent a p oss e ssory or prope rty
interest in the vehicle searched, “passengers lack standing to challenge
vehicle searches.” United States v. Eylicio-M ontoya, 70 F.3d 1158, 1162
(10th Cir. 1995). Further, when the owner of a vehicle is present, a nonowner driver of the vehicle, like Mr. Salas, has no standing to challenge the
constitu tiona lity of a se a rch of the vehic le . United States v. Jefferson, 925
to suppress, M r. Salas pleaded guilty, respectively, to the drug trafficking
and firearms offens es of counts 1and 2, which were now embodied in a
su pe rseding indictment. The distric t court senten c ed M r. Sa las to 3
consecutive terms of imprisonment as to counts 1 and 2, respectively, 108
and 60 months. Mr. Sa la s time ly ap pe a led.
II. D is cussio n
On ap pea l, M r. Salas contend s tha t bec au se the v alid investigatory
stop e sc a lated into an illega l arre st, the distric t co urt e rred in re fusing to
suppress the evidence discovered in the vehicle as the fruit of his illegal
detention. Although lacking standing to ch allen ge the veh icle se arch, M r. 4
Appellate Case: 06-3153 Document: 010136855 Date Filed: 09/21/2007 Page: 5
(...continued) 4
F.2d 1242, 1250 (10th Cir. 1991). Mr. Sa las conc ede s tha t Jefferson is
de termina tive , but argue s tha t it wa s wrongly de c ided. This a rgument is
unavailing; we are bound to follow our precedent. Having determined that
the distric t co urt’s ruling on M r. Sa las’s stan ding to cha llenge the vehicle
sea rch was correct, we n eed not add ress his argumen t that the d istrict court
e rred in finding tha t, assuming he had standing to cha llenge the vehicle
search, the ev iden ce discov ered during the search was admissible because
law enforc ement inevitably would have discove red it.
Salas nonetheless can challenge the lawfulness of his own detention, and
move to suppre ss the evidenc e dis cove red a s a re sult. See United States v.
Nava-Ramirez, 210 F.3d 1128, 1131 (10th Cir. 2000); United States v.
Shareef, 100 F.3d 1491, 1500 (10th Cir. 1996). In reviewing the district
court’s denial of a motion to suppress, we view the evidence in the light
most favorable to the government and accept the district court’s factual
findings unle ss c le a rly e rroneous. United States v. Gama-Bastidas, 142
F.3d 1233, 1237 (10th Cir. 1998). Be c ause re a so nablen e ss unde r the Fourth
Amen dmen t is a q uestion of law, we review the d istrict court’s
de te rmina tion of the re a sonablene ss of a se a rch and se izure de novo. United
States v. Higgins, 282 F.3d 1261, 1269 (10 th Cir. 2002). “Finally, whethe r a
defendant has standing to challenge a search is . . . subject to de novo
review.” Nava-Ramirez, 210 F.3d at 1131 (quoting Eylicio-M ontoya, 70
F.3d a t 1161) (inte rn a l quota tion ma rk s omitted).
To suppress evidence as the fruit of an unlawful detention, a defendant
must first e stablish tha t the de tention viola ted his Fourth Amendment rights.
Appellate Case: 06-3153 Document: 010136855 Date Filed: 09/21/2007 Page: 6
Nava-Ramirez, 210 F.3d a t 1131. A de f endant must then demonstra te tha t a
factual nexus exists between the Fourth Amendment violation and the
cha llenged evidenc e . Id. If a defendant adduces the requisite proof, the
burden shifts to the government to show that the evidence is not “fruit of the
poisonous tree.” Id.
Assuming without deciding that M r. Salas’s detention escalated into an
illega l arre st a s h e conten ds, M r. Sa las ha s, neve rthe less, f a iled to sa tisfy his
burden of establishing a factual link between his allegedly illegal arrest and
the discove ry of contraband in the vehicle . To sa tisfy the nexus requirement,
M r. Salas must show the evidence he seeks to suppress “would never have
been fo und but for his, an d only his, unlawfu l deten tion [i.e., M r. Salas’s
arrest].” DeLuca, 269 F.3d at 11 33. Absen t a nexus between M r. Salas’s
allegedly illegal arrest and the discovered contraband, M r. Salas simply has
no constitu tiona l c la im. Id.
M r. Sa las ha s f a iled to sh ow tha t, bu t for his a llegedly illega l arre st,
the o fficers would not hav e d iscovered the contrab an d in the veh icle. Mr.
Salas does not argue that prior to his allegedly illegal arrest he was
empow ered to remove the vehicle containing the contraband from the
officers’ reach – in other words, that he had permission to leave with M s.
Urb ano’s vehic le prior to the a rr e st. Id. (“Just as in Nava-Ramirez, M r.
DeLuca has failed to show that had he requested to leave the scene of the
Appellate Case: 06-3153 Document: 010136855 Date Filed: 09/21/2007 Page: 7
traffic stop , he would hav e b een ab le to do so in M r. Boyer’s ca r.”)
M oreover, M r. Salas does not claim, nor does the record show, that during
the course of his allegedly illegal arrest Trooper Lovewell either discovered
information from M r. Salas d uring questioning or found ev iden ce on M r.
Salas’s person that caused him to search the vehicle and discover the
con traband. Because the vehicle remained with its owner, “we must
assume” that the o fficers would hav e se arched it regardless of w hethe r Mr.
Sa la s wa s illega lly arr e sted a t the se a rch site or p e rmitted to depa rt. Id.
Accordingly, M r. Salas’s allegedly illegal arrest shares no factual nexus
with the discovered contraband. Without proof of a factual nexus, the
distric t court did not e rr in denying M r. Sa la s’s motion to suppre ss.

Outcome: M r. Sa las ha s f a iled to demonstra te th a t the evidenc e he ha s sought to
suppre ss is the produc t of his a llegedly illega l a rre st. Consequently, we
A FFIR M the d istrict cou rt’s order, den ying M r. Salas’s motion to sup press.

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