FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 10-50131

Plaintiff-Appellee, D.C. No.

v.  2:09-cr-00003-

GHK-1 SHAWN LEWIS EWING,

Defendant-Appellant. OPINION 

Appeal from the United States District Court

for the Central District of California

George H. King, District Judge, Presiding

Argued and Submitted

November 1, 2010—Pasadena, California

Filed April 7, 2011

Before: Harry Pregerson, Kenneth F. Ripple,* and

Susan P. Graber, Circuit Judges.

Opinion by Judge Ripple

*The Honorable Kenneth F. Ripple, Senior United States Circuit Judge

for the Seventh Circuit, sitting by designation. 

4745
COUNSEL

Xochitl D. Arteaga, Assistant United States Attorney, Los

Angeles, California, for the plaintiff-appellee.

Carlton F. Gunn, Deputy Federal Public Defender, Los Angeles, California, for the defendant-appellant. 

UNITED STATES v. EWING 4747
OPINION

RIPPLE, Circuit Judge: 

Shawn Lewis Ewing was charged in the United States District Court for the Central District of California with counterfeiting currency and possessing with the intent to use

counterfeit currency, in violation of 18 U.S.C. §§ 471 and

474. Mr. Ewing filed a motion to suppress evidence against

him. He contended that the arresting officer’s examination of

folded bills, partially concealed in the weatherstripping of the

car in which he was a passenger, violated his rights under the

Fourth Amendment. The district court denied the motion; it

held that the officer had probable cause to remove and examine the bills. Mr. Ewing subsequently entered a plea of guilty

conditional on the resolution of his appeal of the motion to

suppress. 

We affirm the judgment of the district court. The evidence

establishes that the officer had probable cause to search the

car and to examine suspected contraband within it. The officer

identified several interrelated factors that, under the totality of

the circumstances, created a fair probability that a search of

the car would yield evidence of a crime. Moreover, because

the bills fell within the parameters of the justification for the

search, Mr. Ewing has not established that the officer required

independent probable cause to unfold them. 

I

BACKGROUND

A. Facts

On December 18, 2008, Los Angeles Sheriff’s Department

Deputy Jeffrey Doke stopped a car with an expired registration. Three individuals were inside the vehicle: Sandra Vera,

the owner and driver of the car; Michael Smith, who sat in the

4748 UNITED STATES v. EWING
passenger seat; and Mr. Ewing, who sat in the backseat. As

the car pulled over, Mr. Ewing told Smith that he possessed

several counterfeit $20 bills on his person. Mr. Ewing then

gave the bills to Smith who stuffed them, folded, into the

weatherstripping between the right front passenger door and

window. 

When he approached the car, Deputy Doke first spoke with

Vera, then asked all of the occupants whether any of them

were on probation or parole. Smith replied, “quickly and

loudly,” R.30-2 at 6, that he was on parole. Deputy Doke

walked around to the passenger side of the car to speak with

Smith who, in response to the officer’s further question, told

the officer that a condition of his release was that he allow

law enforcement personnel to search his person for contraband. As Deputy Doke conversed with Smith, he noticed the

folded bills, which were still partially visible in their hiding

place. He removed the bills and then asked Smith why there

was money sticking out of the window. When Smith replied

that he did not know, Deputy Doke unfolded and examined

the bills. During this time, neither Vera nor Mr. Ewing

claimed ownership of the money or offered to explain the reason for its presence in the window. 

After a brief examination, Deputy Doke observed that the

serial numbers on some of the bills were identical. He then

asked the occupants of the car if any of them knew that the

bills were counterfeit. They all replied in the negative, and

Deputy Doke detained them. Once detained, Smith told the

officer that he had seen Mr. Ewing producing counterfeit currency in a hotel room and recounted his efforts to hide the

bills in the window. 

With Vera’s consent, Deputy Doke then searched the car

and its contents. He discovered two suitcases, which Vera

indicated belonged to Mr. Ewing. Deputy Doke obtained Mr.

Ewing’s consent to search the suitcases, which contained,

among other things, printing equipment, a paper cutter and

UNITED STATES v. EWING 4749
more counterfeit bills. After being read his Miranda rights,

Mr. Ewing confessed that he had produced and used the bills.

Mr. Ewing was arrested and charged with production of, and

possession with intent to use, counterfeit United States currency in violation of federal law.1

B. Proceedings Before the District Court

Mr. Ewing moved to suppress evidence procured as a result

of the removal and examination of the folded bills. He contended that Deputy Doke had committed an unreasonable

search and seizure in violation of the Fourth Amendment

because he lacked probable cause to believe that the money

was connected to criminal activity. 

In opposition to the motion, the Government submitted a

declaration in which Deputy Doke stated that he knew from

training and experience that drug couriers often hide contraband, such as the cash proceeds of drug sales, “in door panels

and in hidden compartments in cars.” Deputy Doke also stated

that, when he first spoke to Smith, Smith “appeared nervous,”

“appeared to have a difficult time keeping still” and “spoke in

fast and rapid speech.” From these indicia, Deputy Doke

inferred that Smith was “under the influence of a stimulant.”

2

1

See 18 U.S.C. § 471 (“Whoever, with intent to defraud, falsely makes,

forges, counterfeits, or alters any obligation or other security of the United

States, shall be fined under this title or imprisoned not more than 20 years,

or both.”); id. § 474(a) (“Whoever has in his possession or custody, except

under authority from the Secretary of the Treasury or other proper officer,

any obligation or other security made or executed, in whole or in part,

after the similitude of any obligation or other security issued under the

authority of the United States, with intent to sell or otherwise use the same

. . . [i]s guilty of a class B felony.”). 

2Although Deputy Doke stated in his declaration that Smith had bloodshot eyes, the officer admitted on cross-examination that he did not

observe this further indication of intoxication until after he had removed

and examined the bills. This admission is consistent with his initial

description of events in the arrest report. 

4750 UNITED STATES v. EWING
Deputy Doke described the grounds for his examination of

the money as follows: 

When I saw the money sticking out from the window

area of the door, where money ordinarily is not

placed, I was suspicious that someone was trying to

avoid its detection. The location of the money,

together with the fact that there was a parolee present, and that Mr. Smith appeared to be under the

influence of a drug, added to my suspicion that

potential criminal activity was occurring.

Id. ¶ 7. He also explained, “I asked about the money at the

same time as I was pulling it out, and the fact that nobody

claimed ownership of the cash raised further suspicion that

there was potential criminal activity occurring.” Id. ¶ 9. On

the basis of these suspicions, the Government contended,

Deputy Doke had probable cause to search the car and to

examine the money. The Government also challenged Mr.

Ewing’s standing to contest the search. 

After a brief evidentiary hearing in which Deputy Doke

was cross-examined and Mr. Ewing testified, the district court

denied the motion. The district court ruled that Mr. Ewing did

have standing to contest the search of his money. Nevertheless, under the totality of the circumstances, the district court

found that Deputy Doke’s examination of the bills was supported by probable cause. 

Prior to the cross-examination of Deputy Doke, the district

court had concluded that “the officer was completely justified

in seizing the money to look at it and examine it because he

believed he was dealing with drug proceeds and there were

many indications that that’s what the money was.” R.70 at 6.

After the cross-examination, the court found that Deputy

Doke’s testimony established fewer suspicious factors than

were contained in the declaration, but it nevertheless concluded that the seizure was constitutional. Although the bills

UNITED STATES v. EWING 4751
did not turn out to be drug proceeds, Deputy Doke “saw sufficient symptoms of Mr. Smith being under the influence of

narcotics” to believe reasonably that they were, and this belief

established probable cause. Id. at 30. Accordingly, the district

court denied Mr. Ewing’s motion to suppress the evidence. 

On September 25, 2009, Mr. Ewing entered a plea of guilty

to the charges against him, but conditioned his plea on the resolution of an appeal of the denial of his motion to suppress.

The district court entered a judgment of guilty on both counts

and, on March 1, 2010, sentenced Mr. Ewing to eighteen

months in prison and five years of supervised release. This

appeal followed. 

II

DISCUSSION

A. Standard of Review

We review de novo the district court’s denial of Mr.

Ewing’s motion to suppress. United States v. Brooks, 610

F.3d 1186, 1193 (9th Cir. 2010). The district court’s “underlying factual findings are reviewed for clear error.” United

States v. Davis, 530 F.3d 1069, 1077 (9th Cir. 2008). 

B. Standing

We begin with the Government’s belated assertion at oral

argument that the district court erred in determining that Mr.

Ewing had standing to contest the search. The district court

held, and Mr. Ewing concedes on appeal, that he did not have

standing with respect to the search of the car because he was

not the owner of the car and did not have any privacy interest

in it. See United States v. Pulliam, 405 F.3d 782, 786 (9th Cir.

2005). Under most circumstances, this concession would be

the end of the matter. See United States v. Thomas, 447 F.3d

1191, 1199 & n.9 (9th Cir. 2006). Mr. Ewing asserts, how4752 UNITED STATES v. EWING
ever, that he has standing to contest the removal, unfolding

and examination of the money because he expected to get the

money back and thus had a reasonable expectation of privacy

in the information concealed inside the folded bills. The district court agreed with Mr. Ewing, and the Government did

not dispute this determination in its brief before us. At oral

argument and in a later filing, however, the Government

decided to resurrect the standing issue, which it contends has

not been waived. According to the Government, standing is a

threshold jurisdictional issue that can be raised at any time. 

Although Article III standing is jurisdictional, the Government has misapprehended the nature of Fourth Amendment

standing, which is analytically distinct from “case or controversy” standing in the Article III context. In Rakas v. Illinois,

439 U.S. 128, 140 (1978), the Supreme Court explained that

standing to contest a search or seizure “is more properly

placed within the purview of substantive Fourth Amendment

law than within that of [Article III] standing.” See also United

States v. Garcia-Villalba, 585 F.3d 1223, 1234 n.6 (9th Cir.

2009) (explaining that Fourth Amendment standing is not

jurisdictional and may be bypassed in favor of the merits).

Since Rakas, we repeatedly have held that Fourth Amendment

standing is not a jurisdictional issue and therefore can be

waived. See, e.g., United States v. Huggins, 299 F.3d 1039,

1050 n.15 (9th Cir. 2002); United States v. Wanless, 882 F.2d

1459, 1462 (9th Cir. 1989).

Here, the Government did not contest the district court’s

standing determination until oral argument. Its failure to brief

the issue results in waiver. See United States v. Riley, 335

F.3d 919, 930 n.6 (9th Cir. 2003) (holding that an argument

first raised by the Government at oral argument “is waived on

appeal”). 

C. Probable Cause

Mr. Ewing contends that, when Deputy Doke unfolded the

bills and examined their serial numbers, he conducted a secUNITED STATES v. EWING 4753
ond search, which, for Fourth Amendment purposes, was distinct from the search of the car and therefore demanded an

independent showing of probable cause. This separate search,

Mr. Ewing believes, was not supported by probable cause

because there was no reason to suspect that unfolding the bills

would yield evidence of drug trafficking.

For support, Mr. Ewing relies on Arizona v. Hicks, 480

U.S. 321 (1987). In Hicks, the Supreme Court held that a

police officer violated the Fourth Amendment when he moved

stereo equipment to examine its serial numbers during a warrantless search of an apartment. The police were responding

to a report that a shot had been fired inside the apartment and

that a bullet from the gun had gone through the floor and had

struck a man in the apartment below. The officer’s warrantless entry was justified by the exigent circumstances created

by the gunshot. While inside the dwelling, the officer noticed

some expensive stereo equipment, which looked out of place

in the poorly furnished and dilapidated apartment. The officer

moved the equipment to record its serial numbers and subsequently discovered that the equipment had been stolen during

an armed robbery. 

The Supreme Court held that, even though the officer was

legitimately inside the house and even though the equipment

was in plain view, when the officer moved the equipment, he

committed a new search that required independent justification: “[T]aking action, unrelated to the objectives of the

authorized intrusion, which exposed to view concealed portions of the apartment or its contents, did produce a new invasion of respondent’s privacy unjustified by the exigent

circumstance that validated the entry.” Id. at 325. Inspecting

the apartment for stolen property was unconnected to investigating the gunshot, and the exigent circumstances thus did not

permit moving the equipment. Id. at 326. It therefore was necessary for the officer to have probable cause to believe that

the equipment was stolen before he could examine it; because

the Government conceded that the officer had only a reason4754 UNITED STATES v. EWING
able suspicion, the search was unconstitutional. See id. at 326-

28. 

Despite its unusual factual circumstances, Hicks does not

state a particularly novel principle of law. The proposition

that the justification for a search defines its permissible scope

is well established. For example, if a law enforcement officer

has probable cause to search a vehicle, that probable cause

extends to all contents in the vehicle that could be connected

to the suspected criminal activity. See Wyoming v. Houghton,

526 U.S. 295, 302 (1999) (“When there is probable cause to

search for contraband in a car, it is reasonable for police officers . . . to examine packages and containers without a showing of individualized probable cause for each one.”); United

States v. Ross, 456 U.S. 798, 825 (1982) (“If probable cause

justifies the search of a lawfully stopped vehicle, it justifies

the search of every part of the vehicle and its contents that

may conceal the object of the search.”). 

[1] Hicks holds that a law enforcement officer may examine an item unrelated to the initial object of a search if the

item is in plain view and if the officer has probable cause to

believe that the item is connected to criminal activity. 480

U.S. at 326. The case does not set forth a rule that police officers must justify, on a molecular level, the manner in which

they examine every object within the scope of a valid search.

Therefore, the central question facing us is not whether

unfolding the bills produced a new invasion of Mr. Ewing’s

privacy interest but, instead, whether the justification for the

search of the car extended to the bills. 

[2] The Fourth Amendment requires, as a general matter,

that police procure a warrant before searching or seizing property. Arizona v. Gant, ___ U.S. ___, 129 S. Ct. 1710, 1716

(2009). “Under the automobile exception to the warrant

requirement,” however, “police may conduct a warrantless

search of a vehicle if there is probable cause to believe that

the vehicle contains evidence of a crime,” Brooks, 610 F.3d

UNITED STATES v. EWING 4755
at 1193, and “the vehicle is readily mobile,” Davis, 530 F.3d

at 1084 (internal quotation marks omitted). An officer has

probable cause “when, under the totality of the circumstances,

there is a fair probability that contraband or evidence of a

crime will be found in a particular place.” Id. (internal quotation marks omitted). 

[3] We agree with the district court that the circumstances

presented a fair probability that the money was involved in

drug trafficking and that a search of Vera’s car would have

revealed evidence of a crime. Deputy Doke observed several

factors that led him to suspect that the bills were connected

to an illegal drug transaction. First, Smith was nervous, spoke

loudly and rapidly and had “a difficult time keeping still,”

R.32-2 ¶ 6, which indicated to Deputy Doke that Smith was

under the influence of a stimulant.3 Second, Smith was a parolee. Third, the money was located in a place that suggested an

effort to conceal its presence and called to Deputy Doke’s

mind the door compartments and other hiding places used by

drug couriers to transport contraband and cash.4

Mr. Ewing correctly asserts that nervousness by itself does

not establish probable cause. See Moreno v. Baca, 431 F.3d

633, 642 (9th Cir. 2005). However, nervousness in this

instance was not the sole factor suggesting criminal activity,

3Smith was in fact under the influence of methamphetamine, an illegal

stimulant. After Deputy Doke detained him, Smith failed several drug recognition tests and admitted that he had “smoked ‘meth’ earlier in the day.”

R.30-2 at 8. 

4The Government also suggests that the fact that no one responded to

Deputy Doke’s question about the money raised justifiable suspicions.

According to the arrest report, however, Deputy Doke asked Smith about

the money only after he had removed it from the window, and the district

court credited this version of events. Thus, although the silence of the

car’s occupants may be suspicious, it cannot be considered as a factor supporting probable cause to search the car or seize the money, which

occurred as soon as Deputy Doke removed the bills from their hiding

place. 

4756 UNITED STATES v. EWING
but instead was a contributing factor—alongside compulsive

movement and loud and rapid speech—to an inference of illegal stimulant use.5

 This suspicion of stimulant use was, in

turn, one of the factors justifying the inference that the car

was part of a drug-trafficking operation. 

Mr. Ewing also contends that, because Deputy Doke did

not know the nature of Smith’s prior conviction, the mere

knowledge that he was on parole did not establish probable

cause to search the car. Whatever the merits of this contention

on its own, see Greenstreet v. Cnty. of San Bernardino, 41

F.3d 1306, 1309-10 (9th Cir. 1994) (holding that police officers lacked probable cause to search a house when there was

“no connection whatsoever between [a parolee’s] criminal

history and Plaintiffs’ residence except . . . that [the parolee]

was seen there”), Smith’s status as a parolee, considered in

conjunction with his appearance of being under the influence

of a stimulant, helps to establish a fair probability that a

search of the car would yield evidence of contraband. 

Moreover, both Smith’s apparent intoxication and his parolee status must be viewed alongside the fact that Deputy Doke

observed a number of folded-up $20 bills stuffed between the

passenger door and the window. The weatherstripping of a car

window is a very odd place to store money. Deputy Doke’s

training and experience alerted him to the possibility that, just

as drug couriers hide contraband and cash in door panels and

other hidden compartments to evade detection, so too might

a drug courier attempt to conceal money in the space between

a car door and its window. See United States v. SanchezLopez, 879 F.2d 541, 555-56 (9th Cir. 1989) (holding that the

discovery of a hidden cut-out in a glove compartment and testimony that “narcotics traffickers often use false compartments to smuggle drugs” was “relevant to establish a

5The district court found that Deputy Doke did not notice other indicia

of Smith’s intoxication—bloodshot eyes and profuse sweating—until after

he had examined the bills and detained the car’s occupants. 

UNITED STATES v. EWING 4757
connection” with a drug trafficking conspiracy); United States

v. U.S. Currency $83,310.78, 851 F.2d 1231, 1236 (9th Cir.

1988) (holding in a civil forfeiture proceeding that a defendant’s attempt to conceal money is “a relevant fact” in establishing probable cause that the money was tied to drug

trafficking).6

[4] Assessed in its totality, the evidence supports the district court’s probable cause determination. Deputy Doke was

confronted with a parolee who probably was using illegal

drugs and who seemed to have hidden several folded-up $20

bills in the door next to him. Deputy Doke made a reasonable

inference—possibly the most reasonable inference under the

circumstances—that the likely explanation for the money’s

location was that the bills were the cash proceeds of a drug

sale.7See Davis, 530 F.3d at 1084 (stating that “[p]robable

cause determinations may be based in part on reasonable

inferences” (citing United States v. Gourde, 440 F.3d 1065,

1071 (9th Cir. 2006) (en banc))). To be sure, it turned out that

the bills were not drug proceeds.8 Yet, the totality of the cir6Courts frequently have noted the use of hidden compartments in drug

trafficking operations. See, e.g., United States v. Campos, 541 F.3d 735,

740 (7th Cir. 2008); United States v. González, 363 F.3d 15, 19 (1st Cir.

2004) (per curiam). Mr. Ewing nevertheless maintains that there is a difference between Deputy Doke’s knowledge of the use of hidden compartments and Smith’s use of an unaltered car window. However, the

inferential step from money hidden in door panels to money hidden in

more ordinary places in a car is hardly unwarranted. See, e.g., United

States v. McGilberry, 620 F.3d 880, 882 (8th Cir. 2010) (noting that the

defendants used cereal boxes to conceal money in a car during drug transactions); United States v. Chavez, 340 F. App’x 501, 505 (10th Cir. 2009)

(unpublished decision) (involving a methamphetamine trafficker who

intended to hide drug money in his child’s car seat). 

7Mr. Ewing contends that Deputy Doke’s inference was misguided

because he suspected only that Smith was a drug user, not that he was a

drug courier. We cannot accept this contention. The officer certainly was

entitled to conclude that, although drug users are not necessarily drug couriers, a drug user who travels around with a hidden stash of money looks

very much like a drug courier, even if only a small-time one. 

8That said, the evidence suggests that Deputy Doke’s inference may not

have been too far off the mark. After his arrest, Smith confessed that he

4758 UNITED STATES v. EWING
cumstances justified Deputy Doke’s belief that they were and,

thus, that there was a fair probability that a search of the car

would yield evidence of criminal activity. See id. (finding

probable cause to search a vehicle where police had evidence

that the driver was part of a drug operation and could infer

that contraband connected to that operation would be inside

the vehicle). 

Moreover, a separate search within the meaning of Hicks

did not occur when Deputy Doke unfolded the bills. Because

Deputy Doke had probable cause to search the car, he was

permitted to seize and examine suspected contraband found

within it. Florida v. White, 526 U.S. 559, 563-64 (1999).

Hicks does not counsel a different result. Unlike the stereo

equipment in Hicks, Mr. Ewing’s money was within the scope

of the search. Indeed, although the information that identified

the bills as counterfeit was not apparent until the bills were

unfolded, the money itself was the central factor justifying

Deputy Doke’s decision to search the car for evidence of drug

trafficking. The Court in Hicks made abundantly clear that, if

the officer had possessed probable cause to believe that the

stereo equipment was stolen, his examination of it would have

been sustained: “It would be absurd to say that an object

could lawfully be seized and taken from the premises, but

could not be moved for closer examination.” Hicks, 480 U.S.

at 326; see also United States v. Wilson, 565 F.3d 1059, 1065

(8th Cir. 2009) (upholding the review of videotapes for evidence of illegal activity and distinguishing Hicks “because the

officers had probable cause to believe that the items were connected to criminal activity without viewing their contents”),

cert. denied, 130 S. Ct. 1052 (2010). Deputy Doke therefore

was justified in seizing the bills, which were suspected drug

proceeds, and did not require any new or separate reason to

examine them.

previously had used some bills counterfeited by Mr. Ewing to purchase

methamphetamine and that, when Vera’s car was pulled over, he was on

his way “to get ‘high’ again.” R.30-2 at 8. 

UNITED STATES v. EWING 4759
Conclusion 

Accordingly, we affirm the judgment of the district court.

AFFIRMED.

4760 UNITED STATES v. EWING