United States v. Simmons ( 1998 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-40566
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TOMMY LEE SIMMONS, JR.,
Defendant-Appellant.
Appeal from the United States District Court for the
Eastern District of Texas
(4:96-CR-58-ALL)
January 5, 1998
Before GARWOOD, JONES and STEWART, Circuit Judges.*
PER CURIAM:
Defendant-appellant Tommy Lee Simmons, Jr. appeals his
conviction under 18 U.S.C. § 841(a)(1) for possession with the
intent to distribute in excess of five grams of crack cocaine.
Appellant’s main argument on appeal is that both his arrest and the
subsequent seizure of cocaine were unlawful. Having reviewed the
*
Pursuant to 5TH CIR. R. 47.5 the Court has determined that this
opinion should not be published and is not precedent except under
the limited circumstances set forth in 5TH CIR. R. 47.5.4.
record and the parties’ briefs, we affirm the district court’s
holding, and specifically its ruling on the admissibility of the
crack cocaine discovered subsequent to appellant’s arrest, for the
reasons orally stated by the district court. See United States v.
Simmons, No. 4:96-CR-58-ALL (E.D. Tex. Jan. 13, 1997).
The district court ruled that appellant had no standing to
challenge the seizure of the baggie of cocaine found on the ground
near to where appellant was standing because appellant had
abandoned the baggie. See United States v. Quiroz-Hernandez, 48
F.3d 858, 864 (5th Cir. 1995); United States v. Barlow, 17 F.3d 85,
88 (5th Cir. 1994). Appellant argues that this rule does not apply
because his abandonment of the baggie was the product of his
assertedly illegal arrest. This argument fails for two reasons.
To begin with, it is raised for the first time on appeal, and is
essentially inconsistent with the position appellant took in the
district court.1 In the second place, appellant’s present argument
1
Appellant took the opposite position before the district
court, arguing at the suppression hearing that it was unreasonable
to infer that the baggie of crack cocaine, found inches from his
right foot on the shoulder of a deserted stretch of highway shortly
after he had been placed under arrest, was or ever had been in his
possession. Accordingly, the trial court held that appellant had
abandoned the contraband and lacked standing to object to its
admission at trial. At trial, appellant presented testimonial
evidence that the baggie had been thrown from the window of a
second automobile, which he claimed was driven by a (now deceased)
relative. Thus, because appellant denied that the cocaine was his
or had ever been in his possession, the factual question of whether
appellant abandoned the cocaine due to the arrest was never raised
in the lower court.
Furthermore, at the suppression hearing, the Government
2
is based on the incorrect premise that a violation of Texas
Transportation Code §§ 601.051 and 601.053 is not an offense for
which an officer is authorized to arrest. As we have previously
noted, officers are authorized under the Texas Code of Criminal
Procedure to arrest for virtually any misdemeanor crime that is
committed in their presence, including failure to carry proof of
automobile insurance as required by Texas law. See United States
v. Basey, 816 F.2d 980, 990 & 990 n.17 (5th Cir. 1987) (stating
that a warrantless arrest for failure to carry proof of liability
insurance under Tex. Code Crim. Proc. Art. 14.01(b) is lawful); cf.
United States v. Hernandez, 901 F.2d 1217 (5th Cir. 1990) (stating
that Tex. Code Crim. Proc. Art. 14.01(b) allows custodial arrest
for failure to display vehicle license plates). Appellant does not
cite a single case to support his assertion that the arrest was
unauthorized, and has thus failed to show any error, let alone
clear error, that would mandate reversal.
The judgment of the district court is
AFFIRMED.
specifically asked the arresting officer whether "failure to
maintain financial responsibility" (i.e., failure to carry proof of
minimum liability insurance) was a violation for which officers
were authorized to arrest. He responded that it was. On cross-
examination, counsel for the appellant asked the same question,
received the same answer, and did not at that, or any other, time
during the hearing dispute that the arrest was authorized under
Texas law.
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