United States v. Melendez , 127 F. App'x 708 ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 5, 2005
Charles R. Fulbruge III
Clerk
No. 03-41240
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
VICTOR ALLEN MELENDEZ, JR
Defendant - Appellant
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:03-CR-304-1
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Before KING, Chief Judge, and BARKSDALE and STEWART, Circuit
Judges.
PER CURIAM:*
Victor Allen Melendez, Jr., appeals his conviction,
following a bench trial, of possession of more than 1,000
kilograms of marijuana with intent to distribute, a violation of
21 U.S.C. § 841(a)(1) and (b)(1)(A). Melendez was sentenced to a
mandatory minimum term of 10 years in prison and to five years of
supervised release.
Melendez contends that the district court erred in denying
his motion to suppress evidence: the 1,360 kilograms of
marijuana contained in the trailer Melendez was pulling near
*
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this opinion should not be published and is not precedent except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. 03-41240
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Laredo, Texas, on January 31, 2003. On that morning, an
anonymous telephone tip to the police advised officers that a
specific trailer containing drugs was ready to be picked up at a
specific Laredo warehouse, and that the drugs would then be
transported northward on Interstate 35. Surveilling officers
observed Melendez arrive at the warehouse in a tractor, hook the
tractor to the trailer described by the caller, seal the trailer,
drive away, and take a roundabout route toward the interstate.
As Melendez was entering the interstate, officers radioed ahead
to a patrol officer on the interstate to stop Melendez, and the
patrol officer stopped Melendez for speeding.
Melendez contends that the anonymous tip did not provide
reasonable suspicion to justify the stop and search of the
tractor-trailer, that the stop for speeding was completely
pretextual, and that the surveilling officers who arrived on the
scene almost immediately thereafter impermissibly extended the
duration of the traffic stop to gain Melendez’s consent to search
the trailer and to conduct a search by a drug-sniffing dog.
Regardless of the patrol officer’s subjective motivation for the
stop, the stop was reasonable because he had probable cause to
believe that Melendez was speeding. See Whren v. United States,
517 U.S. 806, 810, 812-13 (1996). That the surveilling officers
who arrived minutes afterward questioned Melendez about
narcotics, after they had discovered that Melendez had given
false statements to the patrol officer, did not violate
No. 03-41240
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Melendez’s Fourth Amendment rights. See United States v.
Brigham, 382 F.3d 500, 508 (5th Cir. 2004) (en banc); United
States v. Shabazz, 993 F.2d 431, 436 (5th Cir. 1993). Moreover,
although the anonymous tip, standing alone, did not justify the
stop, “independent corroboration by the police of significant
aspects of the informer’s predictions imparted some degree of
reliability to the other allegations made by the caller.” See
Alabama v. White, 496 U.S. 325, 329, 332 (1990). Given these
factors and Melendez’s apparently evasive driving maneuvers, the
officers were permitted to detain Melendez for as long as it took
to “diligently pursu[e] a means of investigation that was likely
to confirm or dispel [the officers’] suspicion” about drug
trafficking. United States v. Hare, 150 F.3d 419, 426 (5th Cir.
1998), overruled on other grounds, United States v. Doggett, 230
F.3d 160, 163-64 (5th Cir. 2000). The means used in the instant
case was a drug-sniffing dog, which was summoned within minutes
of the stop of Melendez and which almost immediately alerted to
the trailer. The dog’s alert constituted probable cause to
search the trailer. Hare, 150 F.3d at 427. The district court
did not err in denying Melendez’s motion to suppress.
The evidence at Melendez’s suppression hearing reflected
that Melendez also consented to the search. Other than arguing
that the officers impermissibly extended the scope of the stop,
however, Melendez has abandoned any contention that such consent
No. 03-41240
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was invalidly obtained. See United States v. Flanagan, 87 F.3d
121, 124 n.2 (5th Cir. 1996).
The judgment of the district court is AFFIRMED.