U.S. v. Sheppard
Decision Date | 14 May 1990 |
Docket Number | No. 89-1422,89-1422 |
Parties | UNITED STATES of America, Plaintiff-Appellee, v. Maurice Deteige SHEPPARD, Defendant-Appellant. |
Court | U.S. Court of Appeals — Fifth Circuit |
David R. Weiner and Charles B. Tennison, San Antonio, Tex., for defendant-appellant.
Michael R. Hardy, LeRoy Morgan Jahn, Asst. U.S. Attys., and Ronald F. Ederer, Interim, U.S. Atty., San Antonio, Tex., for plaintiff-appellee.
Appeal from the United States District Court for the Western District of Texas.
Before KING, GARWOOD and SMITH, Circuit Judges.
Following a bench trial, defendant-appellant Maurice Deteige Sheppard (Sheppard) was convicted of possessing cocaine with intent to distribute it. In this appeal from his conviction, Sheppard challenges only the district court's denial of his motion to suppress evidence, contending that the evidence in question was the fruit of an illegal search. We affirm.
On the morning of January 11, 1989, Sheppard arrived in a California-licensed Cadillac with passenger Keith Tobin (Tobin) at the permanent U.S. Border Patrol checkpoint located a few miles west of Sierra Blanca, Texas. At the checkpoint, which is about twenty miles from the Mexican border, agents stop most traffic traveling east on Interstate 10 and inquire about the citizenship of vehicle occupants. Border Patrol Agent Lonnie Hillin (Hillin) approached the Cadillac at the checkpoint's primary inspection area and signaled Sheppard to lower his window, which Sheppard did. In accordance with his standard practice, but without the consent of or any articulable suspicion concerning the occupants, Hillin then leaned his head into the car to establish eye contact with the occupants when questioning them about their citizenship. He testified that "when I talk to someone I look at them" and that eye contact thus established was useful in determining the veracity or evasiveness of a person's response to questions. 1
Hillin immediately detected the odor of freshly burnt marihuana in the interior of the Cadillac, but did not inform Sheppard or Tobin of this. He also testified that both Sheppard and Tobin appeared to be dumbfounded and confused when asserting that they were American citizens, and that their speech was slurred and their eyes were bloodshot.
Suspicious that the car contained contraband, but without so informing Sheppard or Tobin, Hillin directed that Sheppard drive to the secondary inspection area and exit the car. There, upon inquiry from Hillin, Sheppard asserted that the Cadillac's trunk contained suitcases and clothing. In response to Hillin's request to view the contents of the trunk, Sheppard replied, "Sure, no problem," and opened the trunk with a key, exposing three suitcases and a black suit bag. Sheppard related to Hillin that the luggage belonged to Tobin and himself and that the suit bag held suits and sweaters. He also agreed to Hillin's request to look inside the suit bag, saying, according to Hillin, "anything you need, whatever you need, anything you need at all." 2 When Sheppard moved the suitcases off the suit bag, Hillin noticed the outline of a brick-shaped object that felt hard.
Having previously seen narcotics concealed in such a fashion, Hillin believed that Sheppard and Tobin were carrying contraband. Responding to Hillin's further questioning, Sheppard stated that the suit bag belonged to him and that he would not mind Hillin's looking inside it. Upon unzipping the bag, Hillin observed a brick-shaped object wrapped in duct tape sitting on top of sweaters. Sheppard asserted that the object contained pictures and stated, "you don't need to look at it."
At this point, certain that Sheppard and Tobin were transporting narcotics, Hillin asked Sheppard, who appeared apprehensive and attempted to make eye contact with Tobin, to place his hands on the car. Agent Jorge Reza (Reza), who had been covering Hillin, asked Tobin to exit the vehicle. Hillin assured Sheppard that he was not under arrest, but would be detained, pending analysis of the brick-shaped object, and frisked for weapons. As soon as Hillin said this, Sheppard and Tobin immediately began to flee, shoving the agents aside and forcibly resisting their efforts to prevent the escape. The pair then hurriedly jumped into the Cadillac and sped away from the checkpoint.
With agents in hot pursuit, Sheppard absconded to the town of Sierra Blanca, on the way driving through a barbed-wire fence, and eventually fled through the desert. Near Sierra Blanca, agents observed Sheppard stop the car, remove the suit bag from the trunk, and begin throwing objects, some of which turned out to be marihuana, from the bag into the brush. The chase resumed until the Cadillac suffered a blowout, at which time it became disabled and Sheppard and Tobin surrendered.
Agents recovered from the Cadillac and the brush 10 bricks of 92 percent pure cocaine weighing about 10 kilograms with an El Paso street value of $300,000. The Border Patrol canine handler on the scene found the remains of a marihuana cigarette and debris in the car, as well as a bag containing .02 pounds of marihuana. The handler also testified that his canine alerted to the exterior of the Cadillac and that he could detect the odor of marihuana coming from the car before entering it.
Sheppard waived his right to trial by jury and, by agreement between the parties, his motion to suppress was heard together with the evidence on the merits at the bench trial. The district court denied the motion to suppress and found Sheppard guilty as charged of possessing more than five kilograms of cocaine with intent to distribute it. The court then sentenced him to 151 months' imprisonment to be followed by 5 years' supervised release. Sheppard brings the present appeal, challenging only the denial of his motion to suppress.
The district court's findings and conclusions entered in support of its denial of Sheppard's motion to suppress include the following:
"... Sheppard was not taken into custody until after he attempted to flee from the secondary inspection site." 3
On appeal, Sheppard does not challenge any of the district court's determinations presented in the text above. Rather, he contends only that his Fourth Amendment rights were violated when Hillin intruded his head into the open driver's window of the Cadillac at the primary inspection area, thus smelling marihuana. 4 Sheppard's entire argument is encapsulated in the following statement in his appellant's brief:
The government urges affirmance on three alternative grounds. First, it contends that the only issue raised on appeal--whether the insertion of Hillin's head into the car at the primary inspection area constituted an unlawful search prohibited by the Fourth Amendment 5--was not raised below. We reject this contention as a basis for affirmance, agreeing with Sheppard that, for this purpose, the issue was adequately raised at the suppression hearing, as the district court recognized in its sentencing colloquy with Sheppard's counsel. Next, the government argues that Hillin's insertion of his head into the vehicle was not inconsistent with the Fourth Amendment, either because it was reasonable or did not constitute a search (or seizure). 6 We do not reach this contention, as we sustain the government's final argument for affirmance, namely that the connection between Hillin's challenged conduct--inserting his head into the open driver's window of the...
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