United States v. Olvera , 178 F. App'x 373 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 28, 2006
Charles R. Fulbruge III
Clerk
No. 04-11499
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARIO OLVERA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of
USDC No. 3:03-CR-188-2-N
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Before JOLLY, DAVIS, and OWEN, Circuit Judges.
PER CURIAM:*
Mario Olvera appeals the district court’s denial of his
motion to suppress drug evidence discovered during a search of a
car that he was driving. Finding no error, we affirm.
We review a district court’s factual findings on a motion to
suppress for clear error and the district court’s ultimate Fourth
Amendment conclusions de novo. United States v. Santiago, 310
F.3d 336, 340 (5th Cir. 2002). Under the automobile exception to
the warrant requirement, officers may search an automobile if
*
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this opinion should not be published and is not precedent except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.
No. 04-11499
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they have probable cause to believe that it contains contraband
or evidence of a crime. United States v. Buchner, 7 F.3d 1149,
1154 (5th Cir. 1993). “Probable cause exists when facts and
circumstances within the knowledge of the arresting officer would
be sufficient to cause an officer of reasonable caution to
believe that an offense has been or is being committed.” United
States v. Carrillo-Morales, 27 F.3d 1054, 1062 (5th Cir. 1994).
The evidence at the suppression hearing established that
Drug Enforcement Agency (DEA) Task Force agents learned through
investigating another known drug ring that Juan Pablo Elizondo
was a cocaine supplier. This led to wiretaps and surveillance on
the Elizondo organization, including Olvera, who was known to
frequent houses used by the organization. Based on wiretaps,
task force agents seized $254,000 in cash from a car driven by
persons associated with the Elizondo group just a few weeks
before Olvera’s arrest.
DEA Task Force Agent Tommy Hale had substantial experience
in intercepting wiretaps and interpreting code used by drug
dealers. On the date in question, agents intercepted a series of
telephone calls which indicated that a shipment of “60,” which
Hale interpreted to mean 60 kilograms of cocaine, was arriving in
three vehicles; that the vehicles were at a Days Inn; and that
Elizondo would send someone to get them. Olvera left one of the
Elizondo houses and went to the Days Inn, where agents saw him
get into one of three Honda Accords, a type of car commonly used
No. 04-11499
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by drug dealers. All three Accords left at the same time and
entered the interstate highway.
Given the foregoing facts, the district court did not err in
concluding that the totality of the circumstances supported a
finding of probable cause that Olvera was transporting drugs.
Although Olvera challenges whether Agent Hale’s interpretation of
the numerical code words used provided probable cause, Agent Hale
testified based on his substantial experience in interpreting
drug dealer code. Given that experience, combined with all the
other factors, particularly the prior knowledge that the Elizondo
organization distributed cocaine, the prior seizure of cash, the
use of Honda Accords, and the timing and sequence of the
telephone calls and activities leading up to Olvera’s arrest, the
district court did not err in concluding that the task force
agents had probable cause to believe that Olvera was transporting
cocaine.
Once probable cause existed to stop and search the car, the
officers were justified in searching the car at the time of the
stop without obtaining a warrant. See United States v.
Sinisterra, 77 F.3d 101, 104 (5th Cir. 1996). Further, they were
allowed to search the entire car, including any areas where
contraband could be hidden. See United States v. McSween, 53
F.3d 684, 687 (5th Cir. 1995).
Olvera argues that exigent circumstances did not exist to
justify the warrantless search. Although we ordinarily review an
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exigent circumstances finding for clear error, see United States
v. Hicks, 389 F.3d 514, 527 (5th Cir. 2004), cert. denied, 126
S. Ct. 1022 (2006), Olvera’s conclusory assertion in his motion
that exigent circumstances were not present was insufficient to
preserve the issue for appeal, particularly in light of his
failure to address the issue at the suppression hearing.
See United States v. Musa, 45 F.3d 922, 924 n.5 (5th Cir. 1995).
Accordingly, we review for plain error. See United States v.
Rodriguez, 15 F.3d 408, 414-15 (5th Cir. 1994).
“Given that [Olvera] was stopped while traveling on an
interstate highway, the requisite exigent circumstances were
clearly present.” United States v. Castelo, 415 F.3d 407, 412
(5th Cir. 2005). Thus, even under the more generous clear error
standard of review, Olvera’s argument would fail.
Because we conclude that probable cause existed to justify
the warrantless stop and search, we need not reach Olvera’s
additional arguments that the alternative basis for the stop was
improper and that the subsequent search exceeded the permissible
bounds of a search incident to Olvera’s arrest on traffic
violations. See McSween, 53 F.3d at 687 n.3 (court of appeals
could affirm suppression ruling on any basis supported by the
record).
For the foregoing reasons, the judgment of the district
court is AFFIRMED.