US v. Davit Ghazaryan

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 3:15-cr-00155-REP-2. Copies to all parties and the district court/agency. [1000063404]. [16-4424]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 16-4424

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
DAVIT G. GHAZARYAN,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at
Richmond. Robert E. Payne, Senior District Judge. (3:15-cr-00155-REP-2)

Submitted: March 27, 2017

Decided: April 18, 2017

Before KEENAN, DIAZ, and FLOYD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Geremy C. Kamens, Federal Public Defender, Patrick L. Bryant, OFFICE OF THE
FEDERAL PUBLIC DEFENDER, Mary E. Maguire, Assistant Federal Public Defender,
Alexandria, Virginia, for Appellant. Dana J. Boente, United States Attorney, Michael C.
Moore, Assistant United States Attorney, Richmond, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Davit G. Ghazaryan appeals from the criminal judgment entered following his
convictions for conspiracy to commit bank fraud, bank fraud, aggravated identity theft,
and access device fraud. On appeal, Ghazaryan challenges the district court’s denial of
his pretrial motions to suppress evidence of fraudulent activity discovered on his person
and in the van he occupied when engaged by police. We affirm.
“In reviewing a district court's ruling on a motion to suppress, [we] review
conclusions of law de novo and underlying factual findings for clear error.” United
States v. Clarke, 842 F.3d 288, 293 (4th Cir. 2016) (alterations and internal quotation
marks omitted). “When reviewing factual findings for clear error, we particularly defer
to a district court’s credibility determinations, for it is the role of the district court to
observe witnesses and weigh their credibility during a pre-trial motion to suppress.”
United States v. Palmer, 820 F.3d 640, 653 (4th Cir. 2016) (alterations and internal
quotation marks omitted).

When the district court denies a defendant’s motion to

suppress, “we construe the evidence in the light most favorable to the government.”
Clarke, 842 F.3d at 293 (internal quotation marks omitted).
Ghazaryan first contests the district court’s conclusion that he had only “limited
standing” to challenge the search of the van based on the district court’s finding that
Ghazaryan did not have the owner’s permission to use the van. While an individual using
a vehicle with the owner’s permission has a reasonable expectation of privacy in the
vehicle, United States v. Rusher, 966 F.2d 868, 874 (4th Cir. 1992), an occupant of a
stolen vehicle cannot claim a legitimate expectation of privacy in either the vehicle or
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containers found in that vehicle, United States v. Hargrove, 647 F.2d 411, 412 (4th Cir.
1981). A non-owner driver may be presumed to have permission to use the vehicle
unless there is evidence “tending to show that he was illegitimately in possession of [the
vehicle].” Rusher, 966 F.2d at 874.
We conclude that the district court properly found that Ghazaryan was
illegitimately in possession of the van based on the evidence introduced by the
Government and Ghazaryan’s failure to rebut that evidence.

See United States v.

Dickerson, 655 F.2d 559, 561 (4th Cir. 1981). Therefore, Ghazaryan lacked a reasonable
expectation of privacy in the van and its contents, including the plastic bag discovered
behind the van’s passenger’s seat. See United States v. Wellons, 32 F.3d 117, 119 (4th
Cir. 1994); Hargrove, 647 F.2d at 412.

However, Ghazaryan retains standing to

challenge the legality of the investigative stop and of his arrest. See Rusher, 966 F.2d at
875.
Ghazaryan argues that the police did not have reasonable suspicion to justify his
detention. “Although brief encounters between police and citizens require no objective
justification, a brief investigatory stop is impermissible unless the officer’s action is
supported by a reasonable and articulable suspicion that criminal activity may be afoot.”
United States v. Foster, 824 F.3d 84, 88 (4th Cir. 2016) (alterations, citations, and
internal quotation marks omitted). If a person is seized within the meaning of the Fourth
Amendment, then we consider whether the seizure is supported by reasonable suspicion
under the totality of the circumstances. Id. at 89. “Seemingly innocent factors, when
viewed together, can amount to reasonable suspicion.” Id. However, we have cautioned
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the government not “to spin largely mundane acts into a web of deception.”

Id.

(alterations and internal quotation marks omitted).
We conclude that reasonable suspicion existed to detain Ghazaryan and investigate
whether he was engaged in criminal activity. The responding officer received a tip of
seemingly suspicious activity at banks in a county where officers were aware of recent
credit card fraud. The tip provided a detailed description of the van used by the suspect
individuals and of the van’s location. Furthermore, the officer believed that the tip was
based on the personal observations of a security officer at one of the banks, which added
to the reliability of the tip. See United States v. Torres, 534 F.3d 207, 213 (3d Cir. 2008)
(distinguishing between anonymous tip and tip from identifiable person); United States v.
Elston, 479 F.3d 314, 318 (4th Cir. 2007) (listing factors indicating reliability of tip).
The responding officer observed a van with a matching license plate near the banks
identified by the informant and, upon approaching the van, viewed two men who
matched a general description provided by the informant. Based on the corroboration of
the tip, the officer reasonably could believe that Ghazaryan’s answers to the officer’s
initial inquiries, such as whether Ghazaryan had recently visited any banks and why
Ghazaryan was in the area, were untruthful. Under the totality of the circumstances, we
conclude that the officer had reasonable suspicion that criminal activity was afoot. See
United States v. Lee, 317 F.3d 26, 30-31 (1st Cir. 2003) (holding officer had reasonable
suspicion to stop defendant under similar circumstances).
Assuming that the stop was justified at its inception, Ghazaryan argues that the
stop evolved into an arrest without probable cause based on the responding officer’s
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“protracted investigation.” The scope of an investigatory stop “must not exceed the least
intrusive means reasonably available to verify or dispel the officer’s suspicion,” and the
duration of the stop “must be reasonable in light of its purpose.” United States v. White,
836 F.3d 437, 441 (4th Cir. 2016) (internal quotation marks omitted). We agree with the
district court that the officer diligently pursued an investigation related to the objective of
the stop, and therefore, Ghazaryan’s detention did not transform into an unlawful arrest.
The officer’s reasonable investigation was interrupted when another officer discovered a
plastic bag of cut-up credit cards and shredded papers in the van, which established
probable cause to arrest Ghazaryan.
Finally, Ghazaryan contends that the seizure of the plastic bag from the van during
the stop was unconstitutional. We reiterate that Ghazaryan lacks standing to challenge
the search of the van and the seizure of the plastic bag. See Hargrove, 647 F.2d at 412.
Further, we conclude that the seizure of the bag was constitutional under the plain view
doctrine. See United States v. Davis, 690 F.3d 226, 233 (4th Cir. 2012) (describing plain
view exception). The officer was permitted to open the van’s sliding door for safety
reasons, see United States v. Stanfield, 109 F.3d 976, 978, 984 (4th Cir. 1997), and once
the door was opened, he observed the bag containing several cut-up credit cards, which
he had probable cause to believe were evidence of a crime.

See United States v.

Rodriguez, 601 F.3d 402, 407 (5th Cir. 2010) (recognizing that probable cause standard
applies to immediately apparent element of plain view exception). Therefore, the officer
appropriately seized the bag.

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Accordingly, we conclude that the district court properly denied Ghazaryan’s
motions to suppress and affirm the district court’s judgment. We dispense with oral
argument because the facts and legal contentions are adequately presented in the
materials before this court and argument would not aid the decisional process.
AFFIRMED

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