22 F.3d 1328 (5th Cir. 1994), 92-7625, United States v. Andrews

Docket Nº:92-7625.
Citation:22 F.3d 1328
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Claude Harris ANDREWS, Defendant-Appellant.
Case Date:June 07, 1994
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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22 F.3d 1328 (5th Cir. 1994)

UNITED STATES of America, Plaintiff-Appellee,


Claude Harris ANDREWS, Defendant-Appellant.

No. 92-7625.

United States Court of Appeals, Fifth Circuit

June 7, 1994

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Chuck D. Barlow, Jackson, MS (Court-appointed), for appellant.

Ruth Morgan, Asst. U.S. Atty., George Phillips, U.S. Atty., Biloxi, MS, for appellee.

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Appeal from the United States District Court for the Southern District of Mississippi.

Before DUHE and EMILIO M. GARZA, Circuit Judges, STAGG, [*] District Judge.

EMILIO M. GARZA, Circuit Judge.

Claude Harris Andrews appeals his conviction for possession of marijuana with intent to distribute, in violation of 21 U.S.C. Sec. 841(a)(1) (1988), and importation of marijuana, in violation of 21 U.S.C. Secs. 952, 960. Andrews contends that he is entitled to a new trial because (a) the district court erroneously admitted evidence which was seized during an unregulated inventory search of his car, in violation of the Fourth Amendment; (b) the district court erroneously admitted into evidence statements which Andrews made to law enforcement officers without knowingly and intelligently waiving his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); (c) the prosecutor made improper comments at trial; (d) the district court failed to instruct the jury not to convict Andrews of importation unless he knowingly brought marijuana into the United States; (e) Andrews received ineffective assistance of counsel at trial; and (f) in the alternative, the cumulative effect of all of the foregoing errors rendered Andrews' trial fundamentally unfair. Finding no reversible error, we affirm.


Our discussion of the issues raised on appeal requires only a partial statement of the facts. The United States Drug Enforcement Administration ("DEA") received a tip that the tugboat Concord was bound for the port at Pascagoula, Mississippi, carrying a cargo of either marijuana or cocaine from Panama. When the Concord arrived at a small, secluded boatyard in Pascagoula, DEA and United States Customs Service agents began covert surveillance of the boat.

Andrews was waiting at the dock when the Concord arrived, and he told a Customs agent, who was posing as a uniformed Customs inspector, that he was the front man for a tug boat operation which would ferry barges from New Orleans to Puerto Rico. Andrews told the agent that he was having some repairs done on the Concord at Pascagoula, including draining and scraping the fuel tanks.

Thereafter, DEA and Customs agents maintained continual surveillance of Andrews when he was away from the dock and the Concord. Around 2:00 a.m. on the third day after the Concord docked at Pascagoula, after following Andrews as he visited several local drinking establishments, federal agents noticed that Andrews was driving erratically, and reported the situation to local police. Officer Doug Adams of the Moss Point Police Department ("MPPD") arrived shortly and stopped Andrews. After Andrews failed several field sobriety tests, Adams arrested him for driving under the influence of alcohol ("DUI").

At the scene of the arrest, Adams conducted a routine inventory search of Andrews' vehicle, finding among Andrews' personal effects a red spiral notebook containing two diagrams and several names. 1 Adams also found a radio frequency detector--an electronic device used to detect radio transmissions. 2

At the Moss Point jail, approximately two hours after his arrest, Andrews was interrogated by agents of the Customs Service and DEA. Andrews stated that he had leased the Concord from Aldo Gomez, whom he had met through Pedro Lopez, a Cuban from Miami. Other statements which Andrews

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made during the interview were used against him at trial, or were used by federal agents to obtain evidence about Andrews, the Concord, and its cargo.

On the day after Andrews' arrest for DUI, fire fighters for the Pascagoula Fire Department searched inside the fuel tanks of the Concord and found a hidden, airtight compartment containing over four thousand pounds of marijuana, with an estimated street value of $3,600,000. One of the firefighters testified that a diagram in Andrews' red spiral notebook depicted the Concord's fuel tanks and the location of the marijuana in the hidden compartment.

An agent for the DEA interviewed Andrews again, and informed him that marijuana had been discovered on the Concord. Andrews then stated that "Aldo Gomez was the key to everything in Panama," and that the DEA could have "got" Gomez and "the big people" if they had waited until Gomez arrived in Pascagoula in a few days.

Andrews was indicted for importing marijuana, in violation of 21 U.S.C. Secs. 952, 960, and possessing marijuana with intent to distribute, in violation of 21 U.S.C. Sec. 841(a)(1). Before trial, Andrews moved to suppress the notebook and radio frequency detector seized from his car, on the grounds that the search of his vehicle was an unreasonable search in violation of the Fourth Amendment. Andrews also moved to suppress statements he made to federal officers following his arrest for DUI, arguing that use of those statements at trial would violate the Fifth Amendment. The district court denied both motions to suppress. The jury convicted Andrews on both counts, and the district court sentenced him to 136 months imprisonment.



Andrews contends that the district court erred by admitting into evidence a notebook which was seized during a warrantless inventory search of Andrews' car after he was arrested for DUI. While conducting an inventory of the contents of Andrews' vehicle, MPPD Patrolman Doug Adams opened a red spiral notebook, and observed a diagram which he thought might be of evidentiary value to the DEA. 3 Adams turned the notebook over to the DEA. Before trial Andrews moved to suppress the notebook, and after conducting an evidentiary hearing, the district court denied the motion to suppress. Andrews contends that Adams' search of the notebook and delivery of the notebook to the DEA violated his rights under the Fourth Amendment, because Adams exercised discretion which was not adequately constrained by standard MPPD regulations governing inventory searches.

In reviewing the denial of a motion to suppress which alleges a violation of the Fourth Amendment, "we must accept the district court's purely factual findings unless they are clearly erroneous or influenced by an incorrect view of the law." United States v. Hahn, 922 F.2d 243, 245 (5th Cir.1991); see also United States v. Ramirez, 963 F.2d 693, 704-05 (5th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 388, 121 L.Ed.2d 296 (1992). However, "[t]he ultimate determination of reasonableness of the search ... is a conclusion of law," which we review de novo. Hahn, 922 F.2d at 245; see also United States v. Capote-Capote, 946 F.2d 1100, 1102 (5th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 2278, 119 L.Ed.2d 204 (1992). We will not find a district court's factual determination to be clearly erroneous unless we are left with the definite and firm conviction that a mistake has been committed, United States v. Mitchell, 964 F.2d 454, 457-58 (5th Cir.1992), and we view the evidence in the light most favorable to the party that prevailed below. See Ramirez, 963 F.2d at 705; Capote-Capote, 946 F.2d at 1102.

"The fourth amendment proscribes ... unreasonable searches and seizures. To be reasonable a search must normally be conducted pursuant to a warrant, but courts

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have long recognized an exception to the warrant requirement for so-called 'inventory searches' of automobiles." United States v. Prescott, 599 F.2d 103, 105 (5th Cir.1979) (citations omitted); see South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976). "When a car is impounded, the police generally inventory its contents to protect the owner's property while it is in police custody, to protect the police against claims of lost or stolen property, and to protect the police and the public from potential danger." United States v. Gallo, 927 F.2d 815, 819 (5th Cir.1991) (citing Opperman, 428 U.S. at 369, 96 S.Ct. at 3097). Inventory searches are excepted from the warrant requirement because they serve these "caretaking" purposes, and because they are not designed to uncover evidence of criminal activity. See Opperman, 428 U.S. at 370 & n. 5, 96 S.Ct. at 3097 & n. 5 ("In view of the noncriminal context of inventory searches ... courts have held--and quite correctly--that search warrants are not required.... With respect to noninvestigative police inventories of automobiles ... the policies underlying the warrant requirement ... are inapplicable.").

Cases dealing with inventory searches have required that such searches be conducted according to standard regulations and procedures, consistent with the proper purpose of a noninvestigative inventory search. In Opperman, the seminal case on the subject, the Supreme Court stated that "inventories pursuant to standard police procedures are reasonable," and noted that standard procedures are "a factor tending to ensure that the intrusion [represented by an inventory search] would be limited in scope to the extent necessary to carry out the caretaking function." Id. at 372, 375; 96 S.Ct. at 3098-3100.

In Colorado v. Bertine, 479 U.S. 367, 107 S.Ct. 738, 93 L.Ed.2d 739 (1987), after the defendant was stopped for driving under the influence of alcohol, an inventory of the contents of the defendant's vehicle revealed cocaine in a closed backpack. See id. at 368-69, 107 S.Ct. at 739. The Court held that the search was not unreasonable...

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