Filed: Jul. 08, 2009
Latest Update: Feb. 22, 2020
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ FILED U.S. COURT OF APPEALS No. 08-15694 ELEVENTH CIRCUIT JULY 8, 2009 Non-Argument Calendar THOMAS K. KAHN _ CLERK D. C. Docket No. 08-00026-CR-T-24-MSS UNITED STATES OF AMERICA, Plaintiff-Appellee, versus LUIS A. COSSIO, Defendant-Appellant. _ Appeal from the United States District Court for the Middle District of Florida _ (July 8, 2009) Before BLACK, BARKETT and PRYOR, Circuit Judges. PER CURIAM: Luis A. Coss
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ FILED U.S. COURT OF APPEALS No. 08-15694 ELEVENTH CIRCUIT JULY 8, 2009 Non-Argument Calendar THOMAS K. KAHN _ CLERK D. C. Docket No. 08-00026-CR-T-24-MSS UNITED STATES OF AMERICA, Plaintiff-Appellee, versus LUIS A. COSSIO, Defendant-Appellant. _ Appeal from the United States District Court for the Middle District of Florida _ (July 8, 2009) Before BLACK, BARKETT and PRYOR, Circuit Judges. PER CURIAM: Luis A. Cossi..
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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-15694 ELEVENTH CIRCUIT
JULY 8, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 08-00026-CR-T-24-MSS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LUIS A. COSSIO,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(July 8, 2009)
Before BLACK, BARKETT and PRYOR, Circuit Judges.
PER CURIAM:
Luis A. Cossio appeals his convictions for conspiracy to manufacture 100 or
more marijuana plants, 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B)(vii), 846, and
manufacturing 100 or more marijuana plants, id. §§ 841(a)(1), (b)(1)(B)(vii); 18
U.S.C. § 2. Cossio challenges the denial of his motion to suppress, which we
affirm, and the effectiveness of his trial counsel, which we decline to review.
I. BACKGROUND
Detectives Corey Hover and Corey Lanier investigated whether a house
located at 1380 Northwest 36th Street in Winter Haven, Florida, was being used to
cultivate marijuana. When the detectives approached the house, they noticed that
boards covered the windows. While Detective Hover knocked on the front door,
Detective Lanier walked into the backyard, where he noticed two large air
conditioners sitting on the ground and a third unit installed in a window of the
house. Based on similar investigations, Detective Lanier knew that growers
commonly used air conditioning to maintain a constant temperature for the
marijuana plants.
After Detective Lanier returned to the front of the house, Detective Hover
knocked on the front door, and Cossio opened the door and joined the detectives on
the porch. When Cossio later opened the door briefly to yell to other occupants in
Spanish, Detective Hover noticed a board with a metallic side inside the house.
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Detective Hover knew that boards with metallic sides were used to reflect light on
marijuana plants and asked Cossio for permission to search the house. After
Cossio refused consent, Detective Lanier assumed control of the conversation
while Detective Hover walked to the side of the house, where he smelled
marijuana, and proceeded to the back of the house where he observed the air
conditioners.
Detective Hover returned to the front porch, spoke to Detective Lanier about
his observations, and the detectives decided to request a search warrant. While
they waited for the warrant, the detectives entered the house to secure evidence and
search for possible weapons. The detectives discovered two men hidden in a grow
room and moved them to the carport.
When officers later executed the search warrant, they discovered that the
interior of the house, except a kitchen that contained a small bed and an adjoining
bathroom, had been converted to grow marijuana. Some of the interior walls had
been removed, metallic sheets covered the walls, and an irrigation system had been
installed to water and fertilize the marijuana plants. The officers seized 138
marijuana plants from the house. Cossio was indicted for conspiracy to
manufacture 100 or more marijuana plants, 21 U.S.C. §§ 841(a)(1),
841(b)(1)(B)(vii), 846, and the manufacture of 100 or more marijuana plants, id.
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§§ 841(a)(1), 841(b)(1)(B)(vii); 18 U.S.C. § 2.
Cossio moved to suppress the drug evidence discovered in what he alleged
was a residence owned by Raul Santana. Cossio argued that he had standing to
challenge the search because he had an expectation of privacy. Cossio based his
argument on two grounds: the search warrant stated that he was the primary
occupant of the residence and he was the caretaker of the residence. The
government argued that Cossio was a visitor and lacked standing to challenge the
search.
At the motion hearing, counsel for Cossio argued that he had standing based
on statements by Detectives Hover and Lanier in the police report that described
Cossio as an occupant and caretaker, but the district court ruled that Cossio was
required to produce evidence that he kept belongings and had spent the night at the
residence. Detective Hover testified that he had described Cossio as an occupant
and caretaker because Cassio had answered the door and told the detectives that he
had been maintaining his brother’s house.
Cossio and the government provided different accounts about Cossio’s
refusal to consent to a search. Detectives Hover and Lanier testified that Cossio
said he did not live in the house and refused consent because his brother owned the
residence. Cossio denied that statement and testified that he had refused to open
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the door unless the detectives produced a search warrant, but Cossio later testified
that he told the officers, “house of my brother, but if you have one paper, . . . me
open the door.”
Cossio’s testimony was rife with inconsistencies. Cossio explained that
there were two separate spaces in the house composed of “a rented house and a
little house on the [right] side” that had separate entrances. Cossio stated that the
spaces had an internal door that remained locked, but he later testified that the
growers had access to both sides of the house. Cossio testified that he stayed in a
one-room apartment on the right side of the house while the growers stayed on the
left side of the house, but he later testified that the growers stored personal
property in the apartment and slept there. Cossio stated that he was restricted to
the right side of the house, but he knew that the other side of the house was used to
cultivate marijuana.
Cossio equivocated about how frequently he occupied the apartment. Cossio
first testified that he mowed grass at the residence as part of his landscaping
business and arrived at the house that morning to complete his work when the
detectives arrived, but he later testified that he had spent the night in his apartment.
Cossio testified that he did not live in the apartment but kept a television and
clothes there and would stay overnight when the house was not occupied, but he
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testified that he had stayed at the apartment when the other side was occupied.
When later questioned by the district court whether he ordinarily spent the night at
the residence, Cossio responded, “no, just that night” and on one other occasion
about six months earlier. In response to Cossio’s numerous contradictions, the
district court remarked, “[t]he story keeps changing a little, so it’s sort of like
following a bouncing ball here.”
Cossio argued that he had a subjective expectation of privacy in the
residence as an overnight guest that extended to the side where the marijuana was
grown because he was the “caretaker” for the residence, “the entire property was
under one roof[,]” and “[t]here was common access.” The government countered
with three arguments: (1) Cossio lacked standing because he had told the police he
did not live in the house and it belonged to his brother; (2) if Cossio had spent one
night in the house, he did not have standing to challenge the search of the side of
the house where marijuana was cultivated; and (3) Cossio did not have standing
because he was on the premises for commercial, instead of personal, reasons.
The district court denied Cossio’s motion to suppress. The court discredited
Cossio’s testimony that he had spent the night at the house and ruled that his
presence to cut the lawn was insufficient to convey standing. The court ruled in
the alternative that even if it credited Cossio’s testimony, Cossio lacked standing to
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challenge that portion of the house where marijuana was discovered. The court
issued a written order that contained three findings of fact: the residence was
owned by Raul Santana; Cossio lived at a different residence; and Cossio’s
testimony that he spent the night in Santana’s house was not credible.
The case proceeded to trial and Alvaro Mejia-Solares testified about
Cossio’s participation in the marijuana operation. Mejia-Solares testified that
Cossio instructed him how to care for the marijuana plants; delivered food three or
four times to the house; and took some small marijuana plants four days before the
search and seizure. Mejia-Solares testified that Cossio “arrived like 20 minutes
before the arrest.”
II. STANDARDS OF REVIEW
On denial of a motion to suppress, we review findings of fact for clear error
and the application of law to those facts de novo. United States v. Ramirez, 476
F.3d 1231, 1235 (11th Cir. 2007). We construe all facts in the light most favorable
to the government.
Id. at 1235–36.
III. DISCUSSION
Cossio raises issues related to his motion to suppress. Cossio argues that he
had a reasonable expectation of privacy in the residence as an overnight guest or,
alternatively, as the caretaker of the property. Cossio also raises an issue of
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ineffectiveness in which he argues that counsel failed to investigate whether the
search warrant was possibly forged. We decline to address Cossio’s argument of
ineffectiveness because there is no evidence in the record about what, if any, steps
counsel took to investigate the warrant. See United States v. Bender, 290 F.3d
1279, 1284 (11th Cir. 2002). That issue can be reviewed in a postconviction
motion. 28 U.S.C. § 2255.
The district court did not err when it denied Cossio’s motion to suppress.
The district court was entitled to discredit Cossio’s inconsistent and implausible
testimony and conclude that Cossio lacked standing to challenge the search. See
United States v. Ramirez-Chilel, 289 F.3d 744, 749 (11th Cir. 2002). Even if we
were to credit Cossio’s testimony, his argument would fail. Cossio failed to prove
he had “an unrestricted right of occupancy or custody and control of the premises”
that would create a legitimate expectation of privacy in the area of the house where
the marijuana was discovered. United States v. Baron-Mantilla,
743 F.2d 868, 870
(11th Cir. 1984) (quoting United States v. Bachner,
706 F.2d 1121, 1126 n.6 (11th
Cir. 1983)). Cossio did not have standing to challenge the search of the residence.
IV. CONCLUSION
Cossio’s convictions are AFFIRMED.
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