UNITED STATES COURT OF APPEALS September 20, 2024

Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 23-1156

SCOTT LOWE,

Defendant - Appellant. _________________________________

Appeal from the United States District Court for the District of Colorado (D.C. No. 1:20-CR-00326-WJM-1) _________________________________ Jason B. Wesoky, Member of the Tenth Circuit’s CJA Appellate Panel, Ogborn Mihm LLP, Denver, Colorado, for Defendant-Appellant. Jess D. Mekeel, Assistant United States Attorney (Cole Finegan, United States Attorney, with him on the brief), United States Attorney’s Office, Denver, Colorado, for Plaintiff- Appellee. _________________________________ Before TYMKOVICH, EBEL, and ROSSMAN, Circuit Judges. _________________________________ TYMKOVICH, Circuit Judge. _________________________________

Scott Lowe challenges his conviction for drug trafficking and unlawful possession of a firearm. He contends that the government intruded on his Fourth Amendment privacy rights when it searched a storage unit he was using in his Appellate Case: 23-1156 Document: 71-1 Date Filed: 09/20/2024 Page: 2

apartment building without permission from the manager. When Denver Police Department officers searched the storage unit, they uncovered incriminating evidence linking Mr. Lowe to drug trafficking crimes. Mr. Lowe moved to suppress the evidence, claiming a possessory interest in the unit that required the officers to obtain a search warrant first. The district court denied the motion.

We affirm. Mr. Lowe failed to establish a legitimate expectation of privacy in the storage unit. Moreover, sufficient evidence supports his conviction, and we find no legal error in sentencing.

I. Background

In 2014, Mr. Lowe pleaded guilty to possession of a firearm by a felon under 18 U.S.C. § 922(g)(1) and was sentenced to 48-months’ imprisonment, followed by three years of supervised release. After serving his sentence, Mr. Lowe entered supervised release under the supervision of Officer Buescher in September 2018. He eventually moved into an apartment in Denver in August 2019.

Officer Buescher began receiving information from a confidential informant who alleged that Mr. Lowe used a storage unit to hide narcotics and firearms. Because of the informant’s unreliable history, Officer Buescher did not immediately act on the information. When Officer Buescher eventually asked Mr. Lowe whether he had a storage locker, Mr. Lowe denied it. Officer Buescher also contacted the building management for Mr. Lowe’s apartment, who confirmed that Mr. Lowe did not rent one.

On December 2, 2019, Officer Buescher conducted an unannounced search of Mr. Lowe’s apartment and cell phone. The search uncovered messages implying involvement

2 Appellate Case: 23-1156 Document: 71-1 Date Filed: 09/20/2024 Page: 3

in narcotics trafficking, a search history related to a firearm, and a large plastic bag containing hundreds of empty gelatin capsules in Mr. Lowe’s kitchen cabinet. On February 24, 2020, during another compliance check, officers found a digital scale, plastic baggies, a pill bottle, concentrated marijuana, a pill press, and Xanax pills in Mr. Lowe’s apartment. Notably, Mr. Lowe’s four-year-old son pointed towards a storage room on the seventh floor, exclaiming th