FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

 JULY 8, 2009

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 08-15694

Non-Argument Calendar

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D. C. Docket No. 08-00026-CR-T-24-MSS

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

LUIS A. COSSIO,

Defendant-Appellant.

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Appeal from the United States District Court

for the Middle District of Florida

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(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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