901 F.2d 1230 (5th Cir. 1990), 89-1422, United States v. Sheppard

Docket Nº:89-1422.
Citation:901 F.2d 1230
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Maurice Deteige SHEPPARD, Defendant-Appellant.
Case Date:May 14, 1990
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 1230

901 F.2d 1230 (5th Cir. 1990)

UNITED STATES of America, Plaintiff-Appellee,

v.

Maurice Deteige SHEPPARD, Defendant-Appellant.

No. 89-1422.

United States Court of Appeals, Fifth Circuit

May 14, 1990

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.

GARWOOD, Circuit Judge:

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.

Facts and Proceedings Below

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

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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

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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.

Discussion

The district court's findings and conclusions entered in support of its denial of Sheppard's motion to suppress include the following:

"On January 11, 1989 Defendant drove up to the checkpoint in a 1988 Cadillac and was signalled to stop by Agent Hillin of the U.S. Border Patrol. Hillin bent down to speak to the Defendant and his passenger, Keith Tobin. The two men looked surprised and dumbfounded. Agent Hillin detected the odor of burnt marijuana emitting from the inside of the vehicle. Upon inquiry, both men replied that they were U.S. citizens. Hillin observed, however, that both men had blood-shot eyes and that they spoke with slurred speech. He directed the Defendant to pull the vehicle into the secondary inspection area.

"....

"At the time that Agent Hillin referred Sheppard to secondary inspection, he had these indices of suspicious behavior before him: (1) a strong odor of burnt marijuana was emitting from the vehicle; and (2) the two occupants had blood-shot eyes and slurred speech.

"....

"Sheppard consented by word and deed to the search of the trunk of the automobile. Agent Hillin asked Sheppard if he would open the trunk not once but twice and Sheppard gave an affirmative "sure" to both queries, then proceeded to open the trunk for the Agent. The Court does not find that the circumstances of the inquiry or the manner of response rendered the consent involuntary for the purposes of the Fourth Amendment.

"... In the alternative, probable cause to believe that Sheppard was trafficking in contraband arose first when Hillin detected the smell of burned marijuana at the primary inspection area, second when the suspects fled the scene of the investigation [footnote omitted] and third when Sheppard was observed throwing the brick-shaped contents from out of the suit bag. These indices comprise the matrix of elements sufficient to give the Agents probable cause to take Sheppard into custody.

"... 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

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argument is encapsulated in the following statement in his appellant's brief:

"Defendant Sheppard submits that Agent Hillin's conduct in intruding his head into the vehicle without probable cause or consent constituted an unreasonable search in violation of Sheppard's rights under the Fourth Amendment. Hillin's referral of the vehicle to the secondary inspection area, his request to search the trunk, and his actual search of the trunk, which resulted in discovery of the contraband, were based on what he observed (the odor of burnt marijuana) as the result of this unlawful search. Consequently, the evidence seized as the result of the unlawful search, and the testimony concerning that evidence, should have been suppressed."

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...

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