735 F.2d 809 (5th Cir. 1984), 83-2710, United States v. Maldonado

Docket Nº:83-2710
Citation:735 F.2d 809
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Tomas MALDONADO, Defendant-Appellant.
Case Date:June 18, 1984
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 809

735 F.2d 809 (5th Cir. 1984)

UNITED STATES of America, Plaintiff-Appellee,

v.

Tomas MALDONADO, Defendant-Appellant.

No. 83-2710

United States Court of Appeals, Fifth Circuit

June 18, 1984

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        Roland E. Dahlin, II, Federal Public Defender, Thomas S. Berg, Asst. Federal Public Defender, Houston, Tex., for defendant-appellant.

        Daniel K. Hedges, U.S. Atty., James R. Gough, Susan L. Yarbrough, Asst. U.S. Attys., Houston, Tex., for plaintiff-appellee.

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

        Before GARWOOD, HIGGINBOTHAM, and DAVIS, Circuit Judges.

        GARWOOD, Circuit Judge:

        Defendant Tomas Maldonado appeals the district court's affirmance of his misdemeanor conviction for simple possession of heroin. 21 U.S.C. Sec. 844. He challenges both the denial of his motion to suppress heroin found during a search of his car and the sufficiency of the evidence to support his conviction for the knowing possession of this illegal drug. Finding no reversible error, we affirm the conviction.

        FACTS

        On May 25, 1982, Sergeant David Brink of the Corpus Christi Police Department, acting on information supplied earlier that day by a reliable informant, obtained a warrant to search an apartment at 2708 Mary Street in that city. His informant told Sergeant Brink that appellant was the source of heroin allegedly located at this address. Brink relayed this information to the officers who executed the warrant--Captain Crisp, Sergeant Whitman, Sergeant Williams, and Police Officers Stacey and Almanza. The officers executed the warrant the same day.

        While the police were searching the residence and after they had found a quantity of heroin on the premises and had detained one Hernandez, who was described in the warrant affidavit, Maldonado came to the house. 1 When Crisp asked appellant who he was, Maldonado replied that he was Tomas Garcia. Almanza, who was searching an adjacent room, overheard this exchange and came to the living room to see whether he could help. Almanza, who had known Maldonado for about a year preceding the search, during which time he had had various "personal encounters" with Maldonado and had "seen him involved or

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talking to known heroin traffickers," had observed Maldonado driving his car between the searched premises and the house next door about thirty minutes or an hour before the search commenced. Upon now seeing Maldonado, Almanza asked Crisp what name the appellant had given, and Crisp replied, "Tomas Garcia." Almanza then asked appellant his name. The reply was, "No, my name is Tomas Maldonado. I am looking for Tomas Garcia." Maldonado was then advised of the warrant, patted down, and detained.

        From inside the house, officers could see an individual, later identified as Eduardo Alvarado, sitting in the front passenger seat of Maldonado's car. Sergeant Whitman and Officer Stacey went to the car, asked Alvarado to step out, and, when he had done so, patted him down. The pat down yielded a bottle of orange-colored liquid that Crisp and Almanza correctly believed to be methadone, a controlled substance. The officers then arrested Alvarado.

        While conducting an inventory search of Maldonado's car, Almanza found a small package containing a white substance later determined to be heroin. The package was sitting on the "console," a portable tray for holding drinks and small items, just in front of the middle of the front seat, and was partially covered by a paper bag or piece of paper.

        Based on the discovery of the drug in his car, Maldonado was charged with simple possession of heroin in violation of 21 U.S.C. Sec. 844(a). He consented to trial before a magistrate. After holding a hearing, the magistrate, on October 26, 1982, denied Maldonado's motion to suppress. Trial was had before a jury, and appellant was found guilty on November 10, 1982. The magistrate assessed a sentence of one year to be served concurrently with a subsisting parole sentence, should appellant's parole be revoked. Maldonado then appealed his conviction to the district court and that court affirmed his conviction. This appeal followed.

        MOOTNESS

        We address first the government's motion to dismiss Maldonado's appeal as moot. 2 In support of its motion, the government points out that appellant has completed his one-year prison term and has been restored to his prior parole status. 3 The government argues that Maldonado therefore is suffering no current or ongoing prejudice as a result of his misdemeanor conviction and that any collateral consequences are speculative. We reject the claim of mootness.

        The government relies in part on St. Pierre v. United States, 319 U.S. 41, 63 S.Ct. 910, 87 L.Ed. 1199 (1943), in which the Supreme Court held that completion of a six-month sentence for a criminal contempt conviction rendered the appeal moot "because, after petitioner's service of his sentence and its expiration, there was no longer a subject matter on which the judgment of this Court could operate." Id. at 42, 63 S.Ct. at 911. We have said, however, that the Court has since "expressly abandoned" the rule in St. Pierre. In re Stewart, 571 F.2d 958 (5th Cir.1978), citing Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977).

        One of the exceptions to the mootness doctrine was first announced in Sibron v.

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New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968), in which the Court, recognizing as an "obvious fact" that most criminal convictions entail adverse collateral consequences, stated that the "mere possibility" of such consequences is enough to preclude a finding of mootness. Id. at 55, 88 S.Ct. at 1899. 4 Like Maldonado, the appellant in Sibron had been convicted on a misdemeanor count of possession. In assessing the potential adverse collateral consequences that might affect Sibron, the Court noted that his conviction could be used for impeachment and sentencing purposes, finding it irrelevant that Sibron had prior convictions. Id. at 55-56, 88 S.Ct. at 1889-1899. And the Court stated that "[t]here are doubtless other collateral consequences" which should be considered in such cases. Id. at 56, 88 S.Ct. at 1899.

        We have since applied this exception to allow review of fully served sentences, including cases involving criminal contempt convictions, such as that in St. Pierre. See, e.g., In re Stewart, supra; United States v. Schrimsher, 493 F.2d 842, 843-44 (5th Cir.1974). Here, as in these cases, we find that the government has failed to show that the possibility of adverse collateral consequences is sufficiently minimal that it should be disregarded.

        While Maldonado's conviction may not serve as the basis for his impeachment in federal court, 5 it is possible that it may serve this purpose in some state court proceeding. More important, his conviction on this count may have an effect on the amount of bail, see Mimms, or on any future sentence that Maldonado may receive. Of particular significance, the statute under which Maldonado was convicted allows the imposition of a harsher penalty on a second violation under that statute. 21 U.S.C. Sec. 844(a). Sentencing decisions in state court may also be affected by the fact of his conviction.

        Nor does the Court's recent decision in Lane v. Williams, 455 U.S. 624, 102 S.Ct. 1322, 71 L.Ed.2d 508 (1982), affect the result in Maldonado's appeal. Williams involved a collateral habeas corpus appeal--rather than a direct appeal as in this case and Sibron --by two prisoners who sought only to have a portion of their sentence, a mandatory period of parole, removed. They did not attack their underlying guilty plea convictions nor did they seek the opportunity to plead anew. Id. at 630-31, 102 S.Ct. at 1326-27. In each case, their sentences and terms of parole had expired prior to the Court's consideration. They claimed, however, that they would suffer adverse consequences as a result of a finding of parole violation. In responding to these claims, the Court noted that decisions that might be made by a future employer or a sentencing judge would be more directly affected by the conduct underlying a parole violation than by the mere fact that such a violation had occurred. Maldonado's situation is not comparable to Lane. 6

        We find that the government has failed to meet its burden of showing that there is no sufficient possibility that adverse collateral consequences will occur as a result of appellant's conviction. Thus, we address the merits of his claim.

        VALIDITY OF THE SEARCH

        Appellant contends that the district court erred in affirming the denial of his motion to suppress the heroin seized during the inventory search of his car. He argues

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that he was unlawfully subjected to an arrest under circumstances justifying a less intrusive detention, if any, and that, therefore, no proper basis existed for the inventory search. We uphold the search and the admission of the heroin into evidence.

        Maldonado first contends that the initial invitation by Captain Crisp for Maldonado to enter the apartment and the request as to his name effected an improper detention under the Fourth Amendment. He asserts that the facts of his case differ from...

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