United States v. Proctor ( 2000 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-50031
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MORRIS PROCTOR, JR.,
Defendant-Appellant.
____________________________
Appeal from the United States District Court
for the Western District of Texas
EP-99-CR-302-ALL-P
_____________________________
December 8, 2000
Before BARKSDALE, EMILIO M. GARZA, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Morris Proctor, Jr. (Proctor) appeals his conviction for
possession with intent to distribute marijuana, alleging that his
consent to search was involuntary and that the government committed
a discovery violation. Finding no reversible error, we AFFIRM.
I. FACTUAL AND PROCEDURAL HISTORY
Proctor, a sergeant in the United States Army stationed in
Georgia, stopped his vehicle at the Sierra Blanca checkpoint in 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opinion should not be published and is not precedent except under the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.
early morning hours of February 22, 1999. When the border patrol
agent began making inquiries with respect to his citizenship and
identification, Proctor “started gripping” the wheel and looked
forward. The agent asked Proctor whether he “could take a look
into his trunk.” When Proctor answered, “Sure, go ahead,” the
agent asked Proctor to drive his vehicle to the right where the
secondary inspection area was located.
The agent in the secondary inspection area also asked Proctor
if he could look into his trunk, and Proctor again responded, “Go
ahead.” When the trunk was opened, the agent smelled a strong odor
of marijuana. The agent at the secondary checkpoint requested that
the first agent retrieve his drug-sniffing canine. The canine
alerted to the trunk of the car. Inside the trunk, the agent saw
two suitcases; one suitcase had an identification tag with
Proctor’s name on it. The border patrol agent discovered
approximately 70 pounds of marijuana in the two suitcases.
Prior to trial, Proctor moved to suppress the marijuana. He
argued that he was unlawfully detained at the secondary inspection
point and that the agent searched the trunk without his voluntary
consent. Proctor argued that he merely acquiesced to the border
patrol agent’s claim of authority. Proctor argued that the opening
of the trunk, the canine inspection, and the search of the luggage
were products of an illegal detention. He argued that the evidence
discovered in the search should be suppressed.
Following an evidentiary hearing on the motion to suppress,
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the district court denied the motion. The district court
determined that the referral to the secondary inspection point was
authorized and was not without justification based on Proctor’s
nervous behavior. The district court also found that Proctor
consented to go to the secondary checkpoint. The district court
determined that Proctor cooperated with the agents and consented to
open his trunk for inspection. The district court rejected
Proctor’s argument that he acquiesced to the agents’ show of
authority.
A jury convicted Proctor on one count of possession with
intent to distribute marijuana. The district court sentenced
Proctor to 27 months’ imprisonment and two years’ supervised
release and ordered him to pay a $1,000 fine and a $100 assessment.
Proctor now appeals to this Court.
II. ANALYSIS
A. Voluntary Consent
Proctor contends that he did not consent voluntarily to the
search of the trunk of his vehicle; he asserts that he acquiesced
in the border patrol agents’ show of authority. He contends that
he was detained involuntarily at the checkpoint and the agents used
an element of coercion, i.e., “a show of lawful authority,” to
secure consent to open the trunk. Proctor asserts that the traffic
signs leading to the checkpoint, the flashing lights, the traffic
cones, and the uniformed officers caused him to believe that the
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officers were “entitled to search.” He adds that the border patrol
agents did not inform him that he could refuse their requests to
search. Proctor contends that his cooperation resulted from the
agents’ show of authority and that his military background
contributed to his characterization of the agents’ requests to
search as “affirmative assertions of lawful authority.” He asserts
that because he did not voluntarily consent to the search, the
marijuana found in the trunk should have been suppressed.
“Border patrol agents may briefly detain motorists at
permanent immigration checkpoints to question them about their
citizenship . . . [and] may refer motorists to the secondary
inspection area with any ‘particularized reason.’” United States
v. Gonzalez-Basulto, 898 F.2d 1011, 1012 (5th Cir. 1990)(citations
omitted). The agents’ referral of Proctor to the secondary
inspection area did not violate his constitutional rights. See id.The voluntariness of consent to a search is a question of fact
that is determined by an examination of the “totality of the
circumstances.” Id. at 1012-13. The government has the burden of
proving that consent was given freely and voluntarily. See
Schneckloth v. Bustamonte, 412 U.S. 218, 222, 93 S.Ct. 2041, 2045
(1973). Consent is not given voluntarily if it was “coerced by
threat or force, or granted only in submission to a claim of lawful
authority.” Id. at 233, 93 S.Ct. at 2051.
The district court considers six factors in evaluating the
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voluntariness of consent: (1) the defendant’s custodial status;
(2) the presence of coercive police procedures; (3) the extent and
level of cooperation with the police; (4) the defendant’s awareness
of his right to refuse to consent; (5) the defendant’s education
and intelligence; and (6) the defendant’s belief that no
incriminating evidence will be found. See Gonzalez-Basulto, 898
F.2d at 1013. This Court cannot overturn the district court’s
finding that consent was voluntarily obtained unless the finding is
clearly erroneous. See id. When a district judge’s finding of
consent is based on oral testimony at a suppression hearing, the
clear error standard of review of factual findings “is particularly
strong since the judge had the opportunity to observe the demeanor
of the witnesses.” United States v. Gonzales, 79 F.3d 413, 421
(5th Cir. 1996)(citation and internal quotations omitted).
The district court evaluated the above-mentioned factors
before it denied Proctor’s motion to suppress. The district court
found that the agents did not brandish weapons or threaten Proctor.
Proctor testified that he cooperated with the agents by agreeing to
open the trunk. The district court found no evidence that the
agents “put any pressure” on Proctor to open the trunk. The
district court found no evidence that Proctor was of substandard
intelligence and noted that Proctor’s demeanor at the hearing
suggested otherwise.
We have rejected a very similar claim. In Gonzalez-Basulto,
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border patrol agents stopped a motorist at the Sierra Blanca
checkpoint and inquired regarding his citizenship; the motorist
responded nervously, and the agents referred him to the secondary
inspection area. See 898 F.2d at 1012. The agent asked whether
the motorist would mind opening the trailer for an inspection and
the motorist said, “No problem.” Id. A dog alerted on a row of
boxes in the trailer. See id. When the agents opened the boxes,
they discovered cocaine. See id.This Court rejected the appellant’s argument in Gonzalez-
Basulto that his consent was not given voluntarily. See id. at
1013. We found that the agents did not threaten or pressure the
appellant to submit; the appellant cooperated with the agents; and
the appellant, although not well-educated, sufficiently understood
the circumstances. See id. We expressly noted that the agents did
not inform the appellant that he could refuse consent. See id.Nevertheless, under the totality of the circumstances, this Court
affirmed the district court’s finding that the appellant had
consented to the search. See id.In the instant case, as the district court recognized, the
facts of Proctor’s case are practically identical to those in
Gonzalez-Basulto. Proctor testified that the agent said, “Can you
open the trunk,” and he complied. The agent testified that he did
not threaten, restrain, or touch Proctor and that he did not
display a weapon. The agent testified that Proctor twice consented
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to open the trunk when the agents asked for such consent. Proctor
has not shown that the district court’s finding that he voluntarily
consented to a search of the trunk was clearly erroneous.1
B. Discovery Violation
The day before Proctor’s trial began, a border patrol agent
who had questioned Proctor at the checkpoint informed the
prosecutor that Proctor had admitted ownership of the suitcases in
the trunk. It is undisputed that the government did not disclose
this statement prior to trial and that Proctor had not made a
request for such evidence. Neither is it disputed that, pursuant
to Rule 16 of the Federal Rules of Criminal Procedure, the court’s
general order of discovery directed the government to permit the
defendant to inspect and copy or photograph:
The substance of any oral statement which the
Government intends to offer in evidence at the
trial made by the Defendant whether before or
after arrest in response to interrogation by
any person then known to the Defendant to be a
Government agency.
Relying on the district court’s general order of discovery,
Proctor argues that, in light of the prosecutor’s failure to
disclose the evidence, the district court erred in allowing the
prosecutor to elicit the testimony. We will assume solely for purposes
of this appeal that, pursuant to the district court’s discovery order,
the prosecutor should have disclosed the statement prior to trial.
1
See also United States v. Olivier-Becerril, 861 F.2d 424,
425-26 (5th Cir. 1988)(affirming denial of motion to suppress on
similar facts).
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Nonetheless, because any error was harmless, Proctor is not entitled to
any relief.
We may reverse Proctor’s conviction only upon “a showing that the
error was prejudicial to the substantial rights of the defendant.”
United States v. Arcentales, 532 F.2d 1046, 1050 (5th Cir. 1976).
Proctor has failed to make such a showing.
Proctor contends that the admission of this statement, without
prior notice, deprived him of the opportunity to investigate the
circumstances under which the statement was made, preempted any attempt
to suppress the statement, prejudiced his defense, and prevented him
from designing an intelligent defense strategy. Further, Proctor
asserts that the surprise admission of his statement derailed his
defense strategy midway through trial in that his defense focused on the
theory that he did not know that marijuana was in the suitcases and that
he did not own the luggage. He claims that his defense strategy
“undoubtedly would have been different if counsel had known of Proctor’s
purported statement claiming ownership of the bags[.]”
We are not persuaded that Proctor has shown his substantial rights
were prejudiced. His contentions with respect to a different strategy
are all speculative in that he has not shown how he would have changed
his strategy.
More importantly, in light of the other evidence at trial, Proctor
cannot show that this evidence violated his substantial rights.
Proctor’s friend, Gerald Bryant, purchased a one-way plane ticket for
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Proctor from Georgia to El Paso, Texas. Bryant and Proctor flew
together to El Paso but Proctor claimed to have no idea where Bryant
went after they left the airport. Prior to leaving the airport, Bryant
rented one vehicle for Proctor and one vehicle for himself. After
spending only a few hours in El Paso, Proctor began to drive his one-way
rental car back to Georgia.
Upon questioning at the checkpoint, Proctor informed the border
patrol agents that the purpose for his trip to El Paso was shopping.
Proctor later changed his story and claimed he had flown to El Paso
because he was interested in finding a position as an instructor at Fort
Bliss. Proctor was the sole occupant of the car, and the brown suitcase
containing marijuana had an airline identification tag attached to it
bearing Proctor’s name. After the marijuana was discovered, Proctor
quickly volunteered to the agents that he may have been “set up.”
Accordingly, because there was other evidence indicating Proctor’s
ownership of the suitcases and the evidence of his guilt was
overwhelming, Proctor has not shown that his substantial rights were
prejudiced. The judgment of the district court is AFFIRMED.
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