United States v. Sinisterra ( 1996 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 95-20498
Summary Calendar
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UNITED STATES OF AMERICA,
Appellant,
versus
TOMAS VENTE SINISTERRA,
Appellee.
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Appeal from the United States District Court for the
Southern District of Texas
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(Febuary 21, 1996)
Before GARWOOD, DAVIS and BENAVIDES, Circuit Judges.
GARWOOD, Circuit Judge:
Appellee Tomas Vente Sinisterra (Sinisterra) is the defendant
in pending criminal proceedings in the district court below in
which he is charged with possession with intent to distribute of
five kilograms or more of cocaine. The district court granted
Sinisterra’s motion to suppress approximately 200 kilograms of
cocaine seized from an unoccupied van in a shopping center parking
lot, and it denied the Government’s motion for reconsideration.
This case is now before us on the Government’s appeal of the
district court’s suppression order.1
Facts and Proceedings Below
The basic facts relevant to the suppression issue are not
disputed. Federal agents placed a house located at 7306 Daleview
in Houston, Texas, under surveillance based on information that the
house was used for drug-related activities. The agents saw
Sinisterra arrive in a green Nissan and enter the house. Shortly
thereafter, a woman came out of the house and drove the Nissan
around the neighborhood, making brief stops at two houses. The
agents concluded that the woman was making a "heat run." The woman
returned to 7306 Daleview and entered the house. She was inside
the house for approximately one minute; then she left and drove
away in the Nissan. Sinisterra left the house in a brown Dodge van
and caught up with the woman. The brown van and the Nissan drove
slowly in tandem for some time; when the Nissan turned off, agents
followed the van. Sinisterra drove the van to a shopping mall,
Memorial City Mall, parked in the mall’s public parking lot, and
got out of the van with a small dog. He made a call from a pay
telephone and walked around the mall. He went into a Sears
Automotive Center and tethered the dog in a service bay. He walked
to a nearby medical office building and made another telephone
call. After about twenty minutes, he left the medical building and
got on a city bus. He rode the bus for about one and one-half
A motions panel of this court denied Sinisterra’s motion to
dismiss the appeal on the grounds that the Government had not
timely complied with the interlocutory appeal certificate
requirements of 18 U.S.C. § 3731. We agree with the decision of
the motions panel as well as with its admonitions to the Government
in regard to the certificate requirements of § 3731.
2
miles, then he got off and began to walk back towards the mall. He
stopped at a food store to make a telephone call and then he walked
into a residential neighborhood where the agents "lost" him.
The unoccupied van was under continuous surveillance, but no
one approached it. Houston police officers walked a trained
narcotics-detecting dog around the van, and the dog alerted
strongly to the van. An officer then looked into the van’s window
(without entering or opening the van) and saw two large duffle
bags. Two officers left to obtain a search warrant. While the
officers were gone, Sinisterra and the woman returned to the
parking lot in the green Nissan. Sinisterra retrieved his dog, but
he did not go near the van. He drove the Nissan out of the mall
parking lot and stopped at a pay telephone in a nearby strip
shopping center, about 100 yards away from the van. Agents
detained him before he could make a telephone call and asked him to
explain his behavior. A Spanish-speaking officer obtained
Sinisterra's permission to search the Nissan, but Sinisterra
refused to consent to a search of the van. Sinisterra was placed
under arrest and the Nissan was searched, but it did not contain
any contraband.
By this time, it was night. Andy Fullerton, a U.S. Customs
Agent with over twenty years' experience, looked through the
windows of the van with a flashlight. Agent Fullerton saw several
kilogram-size, cellophane-wrapped packages. One of the packages
was marked with a logo and had the name "Lotus" printed on it.
Agent Fullerton testified that it was his experience that packages
marked in this way always contained either cocaine or marihuana.
3
When the officers who were charged with obtaining the warrant told
an assistant U.S. Attorney of Agent Fullerton's discovery, the
assistant U.S. Attorney advised that a warrant was unnecessary, and
all efforts to obtain a warrant ceased. The van was then towed to
the police department where a warrantless search revealed
approximately 200 kilograms of cocaine.
After a suppression hearing, the district court held that
Sinisterra had standing to challenge the search of the van, a
holding the Government does not challenge on this appeal. The
district court also determined that the officers had probable cause
to arrest Sinisterra, but it held that Sinisterra's relationship to
the van at the time of his arrest was too attenuated for the
evidence to be admissible as seized in a search incident to arrest.
The court held that the plain-view exception to the warrant
requirement authorized the officers to seize the van without a
warrant, but that they could not search the vehicle without a
warrant or consent. Citing United States v. McBee, 659 F.2d 1302,
1304 (5th Cir. 1981), cert. denied, 456 U.S. 949 (1982), the court
held that the automobile exception to the warrant requirement
requires both probable cause and exigent circumstances. The court
determined that the search was not justified by exigent
circumstances because the police had a valid basis to seize the
vehicle and, thus, could have obtained a warrant at their leisure.2
In its oral ruling on the motion to suppress, the district
court stated “that is not an [sic] in dispute here, whether or not
the contraband [in the van] was in plain view provides a basis for
the arrest of the defendant. And the answer, I believe, is, yes,
that that would provide a basis for the arrest of the defendant”;
and, “[t]he whole basis of this defendant’s arrest centers, it
4
The court further reasoned that the automobile exception to the
warrant requirement did not apply because the van was parked in a
privately owned parking lot.3 Consequently, the district court
granted the motion to suppress.
Discussion
The Government argues, inter alia, that the evidence is
admissible under the automobile exception to the warrant
requirement. We Agree.
This court reviews the district court's fact-findings on a
seems
to me, on the probable cause to arrest, which obviously, in my
opinion, existed”; and, “[s]o, the evidence . . . does not suggest
that any exigent circumstances existed . . . . the fact that the
vehicle itself was seized and was taken to the police lot gives
rise to the fact that there was no exigent circumstance, because,
in my view, the police had a valid basis for seizing the vehicle
and holding it”; further “I think there was probable cause for the
arrest, I think there was probable cause for seizures [sic] of the
vehicle based upon what they saw and believed to be in the
vehicle”; and finally “[t]hey seized the vehicle, which I think
they were totally entitled to do, they did not have the right to
search it. They were seeking a search warrant, they should have
gotten it, that’s all.” In its written order granting the
suppression motion, the court recites that the motion was “granted
based on its [the court’s] findings and statements in the record
and those stated here.” The written order further states that “the
police officers had probable cause for a detention and arrest and
possibly a seizure of the vehicle.” It is entirely plain that the
district court found that the officers had probable cause to
believe that the van (when it was seized and searched) contained
narcotics and that that--plus the defendant’s association with the
van--is what constituted probable cause to arrest the defendant.
The district court also distinguished the result in McBee,
where suppression was denied, on the basis that there “the vehicle
was parked on a public street”, while here “unlike McBee, the
vehicle was not on the public street but on private property”. The
district court recognized that the mall parking lot, where the van
was seized, was open to the public, but felt it was significant
that the parking lot was privately owned. The Government urged
that the parking lot was a “public area”. The district court
responded “sure. Anything outside the [mall] building is public,
but that’s private property” and not “the public streets”.
5
motion to suppress for clear error and reviews de novo the
"ultimate determination of Fourth Amendment reasonableness."
United States v. Seals, 987 F.2d 1102, 1106 (5th Cir.), cert.
denied, 114 S. Ct. 155 (1993). The district court's determination
that the search of the van was unreasonable under the Fourth
Amendment was based on certain erroneous legal assumptions.
First, the district court concluded that the officers had
probable cause to arrest Sinisterra and to seize the van, but that
they were prohibited from searching the van without obtaining a
warrant. There is no constitutional difference between "seizing
and holding a car before presenting the probable cause issue to a
magistrate and on the other hand carrying out an immediate search
without a warrant. Given probable cause to search, either course
is reasonable under the Fourth Amendment." Chambers v. Maroney,
399 U.S. 42, 52 (1970).
Second, to the extent that McBee and its progeny require, in
a situation such as the present, a finding of exigent circumstances
other than the fact of the automobile's potential mobility, they
are inconsistent with more recent Supreme Court jurisprudence. The
Supreme Court has held that the automobile exception to the warrant
requirement applies when a vehicle is "readily capable" of "being
used on the highways" and it "is found stationary in a place not
regularly used for residential purposes . . . ." California v.
Carney, 105 S. Ct. 2066, 2070 (1985). Under these circumstances
"overriding societal interests in effective law enforcement"
justify an immediate warrantless search because (1) "the vehicle is
obviously readily mobile by the turn of an ignition key . . ." and
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(2) it is subject to a "reduced expectation of privacy stemming
from its use as a licensed motor vehicle subject to a range of
police regulation inapplicable to a fixed dwelling." Id.
Finally, the district court attached importance to the fact
that the car was parked in a shopping center parking lot--rather
than on a public street--at the time that it was seized. For the
reasons discussed below, this fact is not determinative of the
legality of the seizure and subsequent search here.
In Carney, the Supreme Court upheld the warrantless search of
a motor home parked in a downtown San Diego parking “lot”. Id. at
2067. Drug Enforcement Agency (DEA) agents had information that
Carney and other persons were engaging in sex in the motor home and
paying their partners with marihuana. They searched the motor home
without a warrant or consent and discovered a quantity of marihuana
and drug paraphernalia. The California Supreme Court suppressed
the drugs and reversed Carney's conviction for possession of
marihuana. The Supreme Court granted certiorari and reversed
because it concluded that the automobile exception to the warrant
requirement applied. Id. at 2070.
This court has concluded that, under Carney, "probable cause
alone suffices to justify a warrantless search of a vehicle
lawfully parked in a public place, as long as the scope of the
search is reasonable." United States v. Cooper, 949 F.2d 737, 747
(5th Cir. 1991) (quotation omitted; emphasis in original), cert.
denied, 504 U.S. 975 (1992). Sinisterra argues that Coolidge v.
New Hampshire, 403 U.S. 443, 461-62 (1971), and United States v.
Reed, 26 F.3d 523, 530 (5th Cir. 1994), cert. denied, 115 S. Ct.
7
1116 (1995), dictate that exigent circumstances were required to
justify a warrantless search of the van.4 Coolidge and Reed are
distinguishable because both cases involved vehicles parked in the
driveways of the residences of the defendants (who were in
custody). See Coolidge, 403 U.S. at 447; Reed, 26 F.3d at 525.
Carney controls this case because of the similarity of the factual
situations. Here, the mall parking lot was not related to anyone’s
residence, it was open to the public and available for public use,
and Sinisterra had no more right in it than any member of the
public. That the lot was owned by the mall--and not by the city--
is irrelevant in these circumstances.5
This court has applied the automobile exception to admit
evidence seized in warrantless searches of vehicles which were
legally parked in privately-owned motel parking lots where there
was probable cause to search but no showing of exigent
circumstances. United States v. Buchner, 7 F.3d 1149, 1150-51,
1154-55 (5th Cir. 1993) (LaQuinta Motel), cert. denied, 114 S. Ct.
1331 (1994); United States v. Ervin, 907 F.2d 1534, 1536-39 (5th
Cir. 1990) (Big Bend Motor Inn Motel). The rule applicable here is
that if, under the totality of the circumstances, officers have
probable cause to believe that a vehicle contains contraband, they
are authorized to search the van without a warrant. Buchner, 7
Sinisterra does not suggest that the duffle bags should not
have been searched incident to the search of the van. See
California v. Acevedo, 500 U.S. 565, 580 (1991) (containers in an
automobile may be searched if there is probable cause to believe
that they contain contraband).
Nothing in Carney indicates that the parking “lot” there was
publicly owned.
8
F.3d at 1154-55; Seals, 987 F.2d at 1107.
Here, in addition to the dog alert, the officers were also
aware of the informant's tip; Sinisterra's unusual behavior that
afternoon; and the fact that Agent Fullerton had recognized that
the packages in the van contained narcotics. Probable cause was
thus clearly established. See United States v. Williams, 69 F.3d
27, 28 (5th Cir. 1995); United States v. Mendez, 27 F.3d 126, 129-
130 (5th Cir. 1994); United States v. Hernandez, 976 F.2d 929, 930
(5th Cir. 1992); United States v. Gonzalez-Basulto, 898 F.2d 1011,
1013 (5th Cir. 1990); United States v. Davila-Avila, 895 F.2d 206,
207 (5th Cir. 1990).
Because the officers had probable cause to believe that the
van--which was in operational condition and was parked in the mall
parking lot which was open to the public (at least those shopping
at the mall) though not publicly owned--contained narcotics, they
were legally authorized to search it without a warrant, even if the
circumstances were not exigent.6 The district court hence erred in
granting the motion to suppress.
Accordingly, the district court’s order granting Sinisterra’s
motion to suppress is REVERSED.
Because of our holding in this respect, we do not determine
whether suppression should have been denied either on the
inevitable discovery doctrine or on the theory that the officers
acted on the reasonable, good faith belief that a warrant was not
required.
9