U.S. v. Castro

• Decision Date: 28 January 1999
• Docket Number: 96-40694,Nos. 96-40687,s. 96-40687
• Citation: 166 F.3d 728
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Edgar CASTRO, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Susana Gomez, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 728

166 F.3d 728

UNITED STATES of America, Plaintiff-Appellee, v. Edgar CASTRO, Defendant-Appellant.

United States of America, Plaintiff-Appellee, v. Susana Gomez, Defendant-Appellant.

Nos. 96-40687, 96-40694.

United States Court of Appeals, Fifth Circuit.

Jan. 28, 1999.

Keith Fredrick Giblin, Beaumont, TX, for Plaintiff-Appellee.

George A. Scharmen, II, San Antonio, TX, for Defendants-Appellants.

Jonathan Lewis Munier, Law Offices of Jonathan Munier, Houston, TX, for Castro.

Terry G. Collins, Houston, TX, for Gomez.

Appeals from the United States District Court for the Eastern District of Texas.

Before KING, ^* Chief Judge, POLITZ,* JOLLY, HIGGINBOTHAM, DAVIS, JONES, SMITH, DUHE, WIENER, BARKSDALE, EMILIO M. GARZA, DeMOSS, BENAVIDES, STEWART, PARKER and DENNIS, Circuit Judges.

PER CURIAM:

On November 9, 1995, an officer of the Polk County Sheriff's Department stopped a Chevrolet Suburban traveling north on Highway 59, in Texas, for speeding and seat belt violations. He subsequently arrested two of the three occupants for seat belt violations, and impounded the Suburban. At the sheriff's department a search of the Suburban revealed over 900 pounds of cocaine hidden in the back of the vehicle. Edgar Castro, the driver, and Susana Gomez, the back seat passenger, were then charged with conspiracy to possess with intent to distribute cocaine, in violation of 21 U.S.C. § 846, and possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1). ¹ When the district court denied their motions to suppress evidence found during the search, Castro and Gomez pleaded guilty to the charges and appealed. ² In that appeal we were asked to decide whether the district court erred in not suppressing the evidence. A panel of this Court answered that question in the affirmative, holding that the officer violated the Fourth Amendment rights of Castro and Gomez by impounding the Suburban and searching the vehicle. United States v. Castro, 129 F.3d 752 (5th Cir.1997). We granted rehearing en banc, United States v. Castro, 143 F.3d 920 (5th Cir.1998), and now hold that Castro and Gomez did not suffer a violation of their Fourth Amendment rights.

I.

On the afternoon of November 9, 1995, several officers of a joint state and federal task force were conducting surveillance of Javier Vallejo, a suspected narcotics trafficker, at a mall in Houston, Texas. In the course of their surveillance the officers noticed that Vallejo was accompanied by Gomez and an unidentified Hispanic male. Shortly after, the agents observed Gomez and the unidentified male leaving the mall in a grey van. Gomez was subsequently dropped off at a K-Mart, where she made a telephone call and bought some insignificant items, while her companion detoured to a known stash house. The unidentified male eventually returned to K-Mart--after engaging in several evasive maneuvers aimed at losing any possible surveillance--and retrieved Gomez. The agents then followed the pair to a local motel, where Gomez was joined by Castro and Muriel Cristina Vicencio.

From the motel Castro drove a blue Chevrolet Suburban to the mall, while Gomez and Vicencio followed in two separate vehicles. After going inside the mall for roughly fifteen minutes, the trio left the mall in the Suburban and began to travel north on Highway 59. Castro was driving, Vicencio occupied the front seat, and Gomez occupied the rear seat. Several members of the task force followed the Suburban for approximately 115 miles through Harris, Montgomery and San Jacinto Counties, and into Polk County. After the Texas Department of Public Safety informed the officers that it did not have an available unit to stop the vehicle, officers of the task force contacted the Polk County Sheriff's Department for assistance.

In a brief conversation, Lieutenant Mike Nettles of the Polk County Sheriff's Department was given a description of the Suburban and informed that it was "involved in a narcotics investigation." He was also instructed that he would have to "develop his own probable cause" for stopping the vehicle. Officer Nettles, who had positioned his patrol car in the median of Highway 59, watched the Suburban as it passed and noticed that Castro, the driver, was not wearing his seat belt, and that the Suburban seemed to be traveling at an excessive rate of speed. Officer Nettles then followed the Suburban for several miles and with his speedometer paced the Suburban at 67 m.p.h. in a 55 m.p.h. zone. While following the vehicle Officer Nettles also observed that Vicencio, the front seat passenger, was not wearing her seat belt, and that the vehicle appeared to have a heavy rear load which was causing it to sway slightly.

Officer Nettles then stopped the Suburban for speeding and seat belt violations. On approaching the vehicle Officer Nettles again observed that Castro and Vicencio were not wearing their seat belts. In the ensuing conversation, Castro produced a valid Maryland driver's license and explained that all three of the occupants were from out of state. Officer Nettles ran a check on Castro's license, which revealed no outstanding warrants. Nonetheless, after receiving several conflicting statements from the occupants, and based on their nervous demeanor, Nettles decided to arrest Castro and Vicencio for the seat belt violations. Officer Nettles also requested Castro's consent to search the Suburban, which was denied. Castro and Vicencio were then taken into custody; the Suburban was impounded and brought to the sheriff's department. ³

There, Castro again refused to consent to a search of the Suburban. A trained narcotics detection dog was subsequently brought to the sheriff's department and walked around the Suburban. After the dog alerted to the rear of the Suburban, the vehicle was entered and searched, uncovering almost 900 pounds of powder cocaine, packaged in two-kilogram bricks contained in several large trash bags.

On December 7, 1995, the three occupants were indicted by a federal grand jury on one count of conspiring to possess with intent to distribute cocaine, in violation of 21 U.S.C. § 846, and one count of possession with the intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1). Castro and Gomez subsequently filed motions to suppress the cocaine as evidence based on the contention that Officer Nettles had violated their rights under the Fourth Amendment. A suppression hearing was held over the course of two days, in which the district court heard testimony from roughly a dozen witnesses. On March 15, 1996, the district court denied the motions to suppress in a lengthy and detailed memorandum order. Castro and Gomez then pleaded guilty to the two charges, reserving their right to appeal the district court's ruling on the suppression issue. Castro and Gomez were sentenced to 135 months of imprisonment for each count, to run concurrently, and a five year term of supervised release. Gomez and Castro ("appellants") each filed timely notices of appeal.

II.

The sole issue we must decide in this appeal is whether the district court correctly found that Officer Nettles' conduct did not violate the Fourth Amendment. In reviewing a district court's ruling on a motion to suppress, we review questions of law de novo, and accept the trial court's factual findings unless they are clearly erroneous. United States v. Carrillo-Morales, 27 F.3d 1054, 1060-61 (5th Cir.1994), cert. denied, 513 U.S. 1178, 115 S.Ct. 1163, 130 L.Ed.2d 1119 (1995). We also view the relevant evidence in a light most favorable to the party that prevailed; in this case, the government. United States v. Nichols, 142 F.3d 857, 866 (5th Cir.1998).

In this appeal the appellants contend that Officer Nettles exceeded the scope of his authority under the Fourth Amendment by arresting Castro and Vicencio for seat belt violations, and by later searching the Suburban at the sheriff's department. The appellants rest that contention on three separate theories. We review each in turn.

A.

The appellants first argue that the arrests of Castro and Vicencio for seat belt violations were unlawful because Texas is a party to the Nonresident Violator Compact ("NVC"), Tex. Transp. Code Ann. § 703.002 (Vernon Pamph.1998). That compact, the appellants insist, requires a police officer to issue a nonresident motorist a citation in lieu of arrest on the motorist's promise to appear. ⁴ The appellants conclude that, because the arrests violated the NVC, the subsequently discovered cocaine is inadmissible as "fruit of the poisonous tree." See Segura v. United States, 468 U.S. 796, 804, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984) (observing that exclusionary rule reaches not only primary evidence obtained as direct result of illegal search or seizure, but also evidence later discovered and found to be derivative of illegality, or "fruit of the poisonous tree"). We note, as an initial matter, that our consideration of this issue is colored by the fact that the appellants never raised this issue below. Accordingly, we review their argument under the plain error standard.

To prevail on a claim raised for the first time on appeal, an appellant must show (1) the existence of actual error; (2) that the error was plain; and (3) that it affects substantial rights. United States v. Calverley, 37 F.3d 160, 162-64 (5th Cir.1994) (en banc), cert. denied, 513 U.S. 1196, 115 S.Ct. 1266, 131 L.Ed.2d 145 (1995). When these elements are satisfied, a court has the discretion to correct forfeited errors if they "seriously affect the fairness, integrity, or public reputation of judicial proceedings." United States v. Calverley, 37 F.3d 160, 164 (5th Cir.1994) (en banc ), cert. denied, 513 U.S. 1196, 115 S.Ct. 1266, 131 L.Ed.2d 145 (1995). In Calverley we explained plain error in the following terms: "[p]lain is synonymous with 'clear' or 'obvious,' and '[a]t a minimum,' contemplates an error which was 'clear under current law' at the...