United States v. Durham ( 2023 )

Case: 22-20057 Document: 00516667272 Page: 1 Date Filed: 03/06/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
March 6, 2023
No. 22-20057 Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Terrence Spidell Durham,
Defendant—Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:20-CR-276-1
Before Jolly, Haynes, and Graves, Circuit Judges.
Per Curiam: *
Terrence Spidell Durham was charged with one count of attempt to
possess with intent to distribute five kilograms or more of a mixture or
substance containing a detectable amount of cocaine, 21 U.S.C. §§ 846,
841(a)(1), (b)(1)(A)(ii). Durham moved to suppress all physical evidence
seized during a search of his vehicle. The motion was denied by the district
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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court. He was ultimately found guilty following a bench trial. Durham timely
appealed and now challenges the denial of his motion to suppress physical
evidence, specifically the $100,000 cash and the drug test kit seized from his
vehicle. We AFFIRM.
Factual and Procedural Background
The Drug Enforcement Administration (“DEA”) was provided
information that Durham was involved in the distribution of cocaine. He
allegedly attempted to buy multiple kilograms of cocaine in Houston, Texas
to distribute on the East Coast. DEA agents began investigating Durham and
coordinated with the Houston Police Department to surveil Durham, and he
was introduced to an undercover officer, Kimberly King. Durham and Officer
King ultimately coordinated a “Buy-Bust” operation where Officer King
negotiated a drug transaction with Durham and agreed to provide five
kilograms of cocaine in exchange for $100,000 cash. Durham and Officer
King met in a parking lot and were followed by surveillance units. There, they
walked to the trunk of a black Infiniti sedan and Officer King observed a paper
bag filled with cash and immediately signaled to the surveillance units to
arrest Durham. During a search of the vehicle, $100,000 cash and a cocaine
drug test kit located inside the Infiniti were seized without a warrant. Also
seized from the vehicle were odor absorbing charcoal foam floor mats, latex
gloves, and an insurance card indicating that Durham was a named insured
or operator of the Infiniti.
On appeal, Durham argues that the district court erred in denying his
motion to suppress because the Government failed to prove that the search
of the interior of the Infiniti met the inventory exception or search incident
to arrest to the warrant requirement. The Government argues that the
$100,000 cash was seized in plain view and the drug test kit was discovered
pursuant to an inventory search or a search incident to arrest.
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Legal Standard
The Government has the burden of justifying a warrantless search.
United States v. Garcia-Lopez, 809 F.3d 834, 838 (5th Cir. 2016). In an appeal
from the denial of a motion to suppress, this court reviews the district court’s
legal conclusions de novo and its factual determinations for clear error. Id.Evidence is viewed in the light most favorable to the prevailing party, and
“the clearly erroneous standard is particularly strong” where the district
court’s ruling is based on live oral testimony. United States v. Gibbs, 421 F.3d
352, 357 (5th Cir. 2005) (internal quotation marks and citation omitted).
“The district court’s ruling should be upheld if there is any reasonable view
of the evidence to support it.” Garcia-Lopez, 809 F.3d at 838 (internal
quotation marks and citation omitted). “A factual finding is not clearly
erroneous as long as it is plausible in light of the record as a whole.” United
States v. Gomez, 623 F.3d 265, 268 (5th Cir. 2010) (internal quotation marks
and citation omitted). In reviewing the district court’s denial of the motion,
this court considers “not only evidence introduced during the suppression
hearing but also any additional evidence presented during the trial.” United
States v. Menchaca-Castruita, 587 F.3d 283, 289 (5th Cir. 2009).
Discussion
1. The $100,000 Cash Plain View Exception
“It is well-established that under certain circumstances the police may
seize evidence in plain view without a warrant.” Arizona v. Hicks, 480 U.S.
321, 326 (1987) (internal quotation marks and citation omitted). “The plain
view doctrine will justify such a seizure if (1) the officers lawfully entered the
area where the items could be plainly viewed; (2) the incriminating nature of
the items was immediately apparent; and (3) the officers had a lawful right of
access to the items.” United States v. Waldrop, 404 F.3d 365, 368 (5th Cir.
2005). “The incriminating nature of an item is ‘immediately apparent’ if the
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officers have ‘probable cause’ to believe that the item is either evidence of a
crime or contraband. Probable cause does not require certainty.” Id. at 369(internal quotation marks and citation omitted). “To have probable cause, it
is not necessary that the officer know that the discovered res is contraband or
evidence of a crime, but only that there be a practical, nontechnical
probability that incriminating evidence is involved.” United States v. Turner,
839 F.3d 429, 433 (5th Cir. 2016) (internal quotation marks and citations
omitted). “When reviewing probable cause determinations, we consider the
totality of the circumstances—including the officers’ training and experience
as well as their knowledge of the situation at hand.” Id. (internal quotation
marks and citations omitted).
Here, Durham and Officer King had discussed the exchange of
$100,000 cash for “five kilos.” Officer King testified at trial that she visually
saw the cash in the bag before Durham was arrested. She further stated that
upon meeting with Durham in advance of the deal, he expressed concerns
about going back to jail and wanting “to make sure everything was right.”
When they met, Officer King understood that Durham was uncomfortable
with the meeting location due to the presence of security. She further
testified that she had 25 years of experience in narcotics, had played an
undercover role “[o]ver 100 . . . maybe over 500” times, and that there was
an understanding that in this case, “kilo” referred to a kilogram of cocaine.
Accordingly, Officer King had sufficient probable cause to believe that the
bag of cash was evidence of a crime. See Turner, 839 F.3d at 433; United States
v. Munoz, 957 F.2d 171, 174 (5th Cir. 1992) (noting that “[p]roof of intent to
distribute may be inferred from . . . large quantities of cash”). Therefore, the
plain view exception applied to the seizure of the $100,000.
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2. The Drug Test Kit
Durham claims that the drug test kit was inadmissible evidence
because the Government did not meet its burden to prove a valid inventory
search as an exception to the warrant requirement. He argues that during the
suppression hearing the Government failed to “elicit any information about
the DEA’s inventory policy or the reasons it conducted an inventory
search,” “provided no evidence about what steps its agents took to comply
with the inventory policy during the search,” “did not address whether the
DEA had a policy to address closed containers,” and “did not introduce an
inventory sheet into evidence.”
While the Government concedes that it “did not present testimony
regarding the DEA’s inventory policy or whether it was followed by agents,”
it notes that Officer King relayed to her team that she saw the money in the
trunk and that she testified at trial that she “visually saw the cash.” Thus,
the Government claims that when Durham showed Officer King the
$100,000 in plain view, that provided her with the probable cause to arrest
him for attempting to possess with intent to distribute and search his vehicle
based on a reasonable belief that evidence relevant to the crime would be
found, creating a lawful search incident to arrest. The Government states
that “[s]pecifically, for purpose of this appeal, Officer King saw the $100,000
in cash in plain view prior to giving the bust signal and that the drug test kit
was seized pursuant to the search incident to arrest Durham and an inventory
search of the vehicle.”
In his reply, Durham claims that the Government never raised the
search incident to arrest argument before the trial court, and there is no
evidence of record to support it. Relying on Arizona v. Gant, 556 U.S. 332(2009), Durham argues that “there is no record evidence that the arresting
officers had any belief, reasonable or otherwise, that they would locate
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additional contraband or evidence of an attempt to possess cocaine inside the
vehicle[,]” especially “in the interior of the Infiniti 50, and in particular,
inside a Versace sunglasses case.” Durham further argues that the Infiniti
had been impounded and was in the control of law enforcement, easily
allowing the Government to get a search warrant to search the vehicle.
a. Inventory Search
“An inventory search is the search of property lawfully seized and
detained, in order to ensure that it is harmless, to secure valuable items (such
as might kept in a towed car), and to protect against false claims of loss or
damage.” Whren v. United States, 517 U.S. 806, 811 n.1 (1996). Inventory
searches are an exception to the warrant requirement because they serve
“‘caretaking’ purposes, and because they are not designed to uncover
evidence of criminal activity.” United States v. Andrews, 22 F.3d 1328, 1334
(5th Cir. 1994). Accordingly, “an inventory search of a seized vehicle is
reasonable and not violative of the Fourth Amendment if it is conducted
pursuant to standardized regulations and procedures that are consistent with
(1) protecting the property of the vehicle’s owner, (2) protecting the police
against claims or disputes over lost or stolen property, and (3) protecting the
police from danger.” United States v. McKinnon, 681 F.3d 203, 209 (5th Cir.
2012) (per curiam) (internal quotation marks and citation omitted).
“[A]n ‘inventory search’ must not be a ruse for a general rummaging
in order to discover incriminating evidence . . .” Whren, 517 U.S. at 811(internal quotation marks and citation omitted). Thus, standardized criteria
or established routine must regulate the opening of containers found when
conducting an inventory search. Florida v. Wells, 495 U.S. 1, 4 (1990).
Importantly, “[i]t is beyond serious debate that the prosecution bears the
burden of establishing that any evidence submitted, which resulted from an
inventory search, was the result of a search conducted in accordance with
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known, established police procedures.” United States v. Hope, 102 F.3d 114,
117 (5th Cir. 1996). “There is no requirement that the prosecution submit
evidence of written procedures for inventory searches; testimony regarding
reliance on standardized procedures is sufficient . . . as is an officer’s
unrebutted testimony that he acted in accordance with standard inventory
procedures . . .” United States v. Lage, 183 F.3d 374, 380 (5th Cir. 1999).
The Government admits that it “did not present testimony regarding
the DEA’s inventory policy or whether it was followed by agents.” The only
testimony presented was that of Officer Kedwin Polanco who in response to
the Government’s question: “There was a search later conducted on the –
inventory search of the vehicle?” replied “Yes, sir, it was.” There is no
testimony referring to DEA guidelines or that they were followed. “The
record is devoid of any evidence that standard inventory procedures were in
place and were, in fact, followed by the [DEA] when they searched the
[Infiniti].” Hope, 102 F.3d at 117.
Therefore, it is impossible to determine whether this “inventory
search” complied with the DEA’s guidelines, and there is no evidence that
the inventory exception to the warrant requirement applied.
b. Search Incident to Arrest
A search incident to a lawful arrest is an exception to the warrant
requirement. Gant, 556 U.S. at 338. “The exception derives from interests
in officer safety and evidence preservation that are typically implicated in
arrest situations.” Id. (citation omitted). Accordingly, a search incident to
arrest is limited to an arrestee’s person and the area “within his immediate
control,” in other words, “the area from within which he might gain
possession of a weapon or destructible evidence.” Id. at 339 (internal
quotation marks and citation omitted). “If there is no possibility that an
arrestee could reach into the area that law enforcement officers seek to
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search, both justifications for the search-incident-to-arrest exception are
absent and the rule does not apply.” Id. (citation omitted).
The Government admits in its response to Durham’s suppression
motions that the drug test kit was found after Durham was arrested, pursuant
to an inventory search. The presentence report also describes a “vehicle
inventory” when discussing the seized “currency, vehicle, and drug test
kit . . .” At the suppression hearing, Polanco testified that the vehicle was
towed to the DEA office and an “inventory search” was “later conducted.”
The Government states that “[t]he DEA seized the bag of cash from the
trunk, had it processed and counted ($100,000), and towed the Infiniti back
to the DEA office.”
Certainly, “circumstances unique to the vehicle context justify a
search incident to a lawful arrest when it is reasonable to believe evidence
relevant to the crime of arrest might be found in the vehicle.” Gant, 556 U.S.
at 343 (internal quotation marks and citation omitted). However, the
Government had no reason to know that the drug transaction would take
place in a vehicle and Durham was not driving the vehicle where the cash was
found. Furthermore, the Government does not point to any evidence to
explain why the officers may have had a reasonable belief that additional
evidence of the specific crime for which Durham was arrested would be in
Durham’s vehicle. While the Government claims that Officer King had a
reasonable belief that evidence relevant to the crime would be found, there is
no argument beyond this conclusory statement and no evidence of record to
show that the exception in Gant would apply.
Accordingly, the search of Durham’s vehicle that produced the drug
test kit was not a valid search incident to arrest because he had already been
arrested and taken into custody before the search occurred.
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3. Harmless Error
The $100,000 cash was validly seized pursuant to the plain view
exception. The admission of the drug test kit was harmless error because
there was sufficient evidence to convict Durham even without the other
physical evidence, the drug test kit, found inside the vehicle. The test for
harmless error is “whether the trier of fact would have found the defendant
guilty beyond a reasonable doubt if the evidence had been suppressed.”
United States v. Willingham, 310 F.3d 367, 372 (5th Cir. 2002) (internal
quotation marks, brackets, and citation omitted).
In this case, DEA Agent Johnson testified that the DEA opened an
investigation into Durham after receiving a tip from an informant. Through
the informant, the DEA arranged for an initial meeting with Officer King with
terms already set for a purchase. Officer King testified that Durham initiated
contact with her by phone to arrange the purchase. Durham negotiated a deal
to purchase “five kilos” in exchange for $100,000, and Officer King testified
that there was an understanding that “kilo” referred to a kilogram of cocaine.
Officer King testified that Durham repeated to her that he did not want to go
back to jail. DEA Agent Johnson testified they surveilled Durham after the
initial meeting until Durham performed counter-surveillance maneuvers.
Durham met with Officer King at a pre-arranged spot to perfect the
exchange, Durham openly showed Officer King the $100,000 cash bargained
for in the transaction, and it was lawfully seized in plain view.
Even without the drug test kit evidence found in the Infiniti, the
evidence was sufficient to support the conviction for attempt to possess with
intent to distribute five kilograms or more of cocaine. See, e.g., United States
v. Armendariz-Mata, 949 F.2d 151, 154 (5th Cir. 1991) (holding that where the
defendant brought cash to meet with undercover agents, negotiated a drug
deal, and returned to the pre-arranged spot to perfect the exchange, those
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actions constituted a “substantial step in an attempt to possess narcotics”);
United States v. August, 835 F.2d 76, 77–79 (5th Cir. 1987) (per curiam)
(holding that where “cash had been assembled in an agreed and substantial
amount, hundreds of miles travelled by a buyer, and contact made with a
seller who possessed the drug,” the evidence supported a conviction of
attempted possession with intent to distribute cocaine). Accordingly,
Durham cannot overcome the harmless error standard.
The judgment is AFFIRMED.
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