United States v. Jose Cortez-Palomino ( 2006 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 05-3327
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United States of America, *
*
Plaintiff-Appellee, *
* Appeal from the United States
v. * District Court for the
* Southern District of Iowa.
Jose Cortez-Palomino, *
* [PUBLISHED]
Defendant-Appellant. *
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Submitted: January 12, 2006
Filed: February 28, 2006
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Before WOLLMAN, LAY, and ARNOLD, Circuit Judges.
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PER CURIAM.
Jose Cortez-Palomino entered a conditional plea of guilty to possession with
intent to distribute 100 kilograms or more of a substance containing marijuana, in
violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B), after the district court1 denied
his motion to suppress marijuana seized during the search of his pickup truck
following a traffic stop. Cortez-Palomino appeals the denial of his motion to
suppress. We affirm.
1
The Honorable James E. Gritzner, United States District Judge for the Southern
District of Iowa.
I.
On November 16, 2004, Iowa State Highway Patrol Trooper Kenneth Haas
stopped Cortez-Palomino for speeding on Interstate 80 in Council Bluffs, Iowa.
Cortez-Palomino was driving a pickup truck with a bed cover. Trooper Haas testified
that as he exited his patrol car and approached the pickup on the passenger side, he
observed that the pickup’s bed cover had come apart on the side. He testified that the
opening was approximately three or four inches wide and ran two feet down the length
of the pickup bed. Through this opening, Trooper Haas observed two large bales
wrapped in green cellophane. Trooper Haas testified that, based on his training and
experience, he immediately recognized the cellophane-wrapped packages as
contraband because illegal narcotics are often packaged in this manner. He also noted
the strong smell of axle grease, which he testified was used as a masking agent.
Trooper Haas commented, for the benefit of his patrol car camera’s audio recording,
that he observed green cellophane packages in the truck bed that appeared to contain
narcotics. Trooper Haas made contact with the driver, Cortez-Palomino, asked him
to exit the vehicle and placed him in handcuffs, advising him that he was being
detained.
Trooper Haas called for assistance and Trooper Craig Zenor and Trooper C.J.
Noelk arrived on the scene. Trooper Haas instructed Troopers Zenor and Noelk to
make a passenger side approach and advise him of what they observed. Trooper
Noelk testified that he went straight to the passenger compartment and smelled dryer
sheets, or a similar masking agent. Trooper Noelk then made a second approach and
saw green cellophane bundles through the gap in the pickup bed cover. Trooper
Noelk testified that this packaging was consistent with transporting a controlled
substance and that he had never seen anything other than drugs packaged in this
manner in a vehicle.
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Trooper Zenor also testified that he initially looked in the front of the vehicle.
He testified that at this time he smelled marijuana.2 Trooper Zenor testified that on
his second approach, he could see green cellophane packaging through the opening
in the pickup bed cover, which was consistent with marijuana. Trooper Zenor stated
that the scent of marijuana and his observation of the packaging quickly led him to
conclude that the pickup bed contained marijuana.
Trooper Haas advised Cortez-Palomino of his rights under Miranda v. Arizona,
384 U.S. 436 (1966). He then asked Cortez-Palomino if there was marijuana in the
back of the pickup. Cortez-Palomino stated that he did not know what was in the back
of the truck. The troopers opened the tailgate of the pickup and observed pieces of
cardboard boxes that covered several large bales of marijuana wrapped in green
cellophane.
The truck was transported to the Iowa State Patrol field office, where it was
searched and inventoried. This search revealed twenty-nine packages that were
wrapped in plastic and covered with grease. The packages contained 445.5 pounds
of marijuana. Cortez-Palomino was then advised, in Spanish, of his Miranda rights.
In a subsequent conversation, Cortez-Palomino made a number of admissions
indicating that he had been paid to drive a vehicle containing a load of an unknown
substance across the country.
After he was charged with possession with intent to distribute marijuana,
Cortez-Palomino filed a motion to suppress the evidence. The district court denied
the motion on the grounds that the warrantless search of Cortez-Palomino’s vehicle
2
The district court did not consider this factor in reaching its decision regarding
the existence of probable cause because it concluded that the value of this testimony
was diminished by the other two officers’ testimony that they smelled axle grease and
dryer sheets.
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was supported by probable cause. Palomino-Cortez entered a conditional guilty plea,
and now appeals the denial of the motion to suppress.
II.
We review the district court’s conclusions of law de novo and its findings of
fact for clear error.3 United States v. Williams, 429 F.3d 767, 771 (8th Cir. 2005).
Any traffic violation, however minor, provides probable cause for a traffic stop.
United States v. Barragan, 379 F.3d 524, 528 (8th Cir. 2004). There is no question
that Trooper Haas had probable cause to initiate the traffic stop when he observed
Cortez-Palomino’s vehicle exceeding the speed limit. The issue in this case is whether
the troopers had probable cause to search the pickup driven by Cortez-Palomino.
The Fourth Amendment protects an individual’s right to be free from
unreasonable searches and seizures. U.S. Const. amend. IV. Searches conducted
without a warrant are per se unreasonable, subject to a few well-established
exceptions. United States v. Hill, 386 F.3d 855, 858 (8th Cir. 2004). Under the
automobile exception, officers may search a vehicle without a warrant if they have
probable cause to believe the vehicle contains evidence of criminal activity. Id.
Probable cause exists “where, in the totality of the circumstances, there is a fair
3
While the district court related the state troopers’ testimony in its decision, it
failed to explicitly make specific findings of fact, except to note that it chose not to
credit Trooper Zenor’s testimony that he smelled marijuana. However, the district
court did state the troopers’ observations gave rise to probable cause that Cortez-
Palomino was transporting illegal narcotics. Therefore, we can conclude the district
court found the troopers’ testimony and recitation of their observations to be credible.
Because the district court’s legal basis for denying the motion to suppress is stated on
the record, and because a reasonable view of the evidence can support this decision,
a remand is unnecessary. United States v. Bloomfield, 40 F.3d 910, 915 (8th Cir.
1994) (en banc).
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probability that contraband or evidence of a crime will be found in a particular place.”
United States v. Kennedy, 427 F.3d 1136, 1141 (8th Cir. 2005).
In this case, the troopers observed large packages wrapped in green cellophane.
Trooper Haas detected the strong odor of axle grease, which he testified was used as
a masking agent. Trooper Noelk smelled dryer sheets, another common masking
agent, when he approached the passenger compartment of the pickup. All three
troopers testified that their experience led them to believe that the green cellophane
packages contained illegal narcotics. In determining probable cause, law enforcement
officers may draw inferences based upon their experience. Ornelas v. United States,
517 U.S. 690, 700 (1996); United States v. Caves, 890 F.2d 87, 90 (8th Cir. 1989).
From their vantage point, the troopers immediately recognized the green cellophane
wrapped packages as probable contraband. This provided probable cause for the
officers to lower the tailgate and search the pickup without a warrant. See United
States v. Barnes, 374 F.3d 601, 605 (8th Cir. 2004); United States v. Van Zee, 380
F.3d 342, 343-44 (8th Cir. 2004); see also United States v. Bugarin-Casas, 484 F.2d
853, 854 (9th Cir. 1973); cf. Texas v. Brown, 460 U.S. 730, 742-43 (1983) (officer’s
observation of a balloon tied in a manner consistent with trafficking illegal narcotics
provided probable cause under the plain view doctrine).
The observations of the troopers created a fair probability that contraband
would be found in the truck bed. Therefore, the warrantless search of the pickup truck
was supported by probable cause and the district court did not err in denying the
motion to suppress.
III.
For the foregoing reasons, we affirm the decision of the district court.
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