U.S. v. Pierre

Citation958 F.2d 1304
Decision Date13 April 1992
Docket NumberNo. 90-8273,90-8273
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Terry James PIERRE and Otis Harris, III, Defendants-Appellants.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Kenneth D. DeHart, Alpine, Tex. (court-appointed), for Pierre.

Charles Louis Roberts, El Paso, Tex., for Harris.

LeRoy M. Jahn, W.W. Torrey, Richard L. Durbin, W. Ray Jahn, Asst. U.S. Attys., Ronald F. Ederer, U.S. Atty., San Antonio, Tex., for U.S.

Appeals from the United States District Court For the Western District of Texas.

Before POLITZ, Chief Judge, KING, GARWOOD, JOLLY, HIGGINBOTHAM, DAVIS, JONES, SMITH, DUHE, WIENER, BARKSDALE, EMILIO M. GARZA, and DeMOSS, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

Otis Harris and Terry Pierre appeal their convictions for possession of cocaine with intent to distribute and for conspiracy to commit the same offense. A panel of this court concluded that the district court erred in denying Harris' motion to suppress evidence found in a consent search of luggage at a fixed checkpoint in Sierra Blanca, Texas. Based on this determination, the panel reversed Harris' convictions. After en banc briefing and argument, we conclude that even if the checkpoint agent conducted a search, the search was not unreasonable.

The panel also gave plenary review to Harris' and Pierre's arguments that the evidence was insufficient to support their convictions. Based on this standard of review, the panel found the evidence sufficient to convict Harris of possession but insufficient to convict Pierre of either charge. Upon rehearing and reviewing the sufficiency of the evidence under the proper plain error standard, we find the evidence sufficient to convict both defendants on both charges. We also find no merit to Harris' argument that his conviction should be reversed because the prosecutor made an improper argument. We therefore affirm Harris' and Pierre's convictions.

I.

In early November 1989, Terry Pierre, Derrick Turner and Calvin Broadnax drove from New Orleans to Los Angeles in a 1987 GMC Jimmy. During the one-week visit to Los Angeles these three men met Otis Harris, a New Orleans resident who had known Broadnax when they were children. He was looking for a ride back to New Orleans. Harris, Pierre and Turner stayed in various hotels in Los Angeles and Broadnax paid their expenses.

The day they left Los Angeles, the group stopped at an expensive residence where they were met by two men--Don Tanner and "Rob" or "Bob". Pierre and Turner preceded Harris into the residence. Harris heard Tanner tell Broadnax that he was only able to get "four of them chickens". Broadnax replied that it was no problem because he had two. Harris testified that he did not realize the significance of the conversation at the time. He later remembered that in street talk, "chicken" is a code word for a kilo of cocaine.

Broadnax and Tanner left the others who waited in the entertainment room of the house. Broadnax returned a few minutes later carrying a gray Samsonite suitcase. Broadnax left the house and returned about forty minutes later. Broadnax then told Harris, Pierre and Turner that he would not be returning to New Orleans with them and gave Pierre cash for expenses. A short time later the three men left Los Angeles for New Orleans in the GMC Jimmy. Pierre did the bulk of the driving until Harris took over just west of the Sierra Blanca checkpoint.

Border Patrol Agent Lonny Hillin stopped the Jimmy at the fixed checkpoint in Sierra Blanca, Texas. The two-door vehicle was equipped with tinted fixed rear windows. Harris was driving, Turner was in the passenger seat, and Pierre was lying down in the back seat. Harris rolled down the driver's window at the stop sign next to Agent Hillin. Hillin asked Harris and Turner about their citizenship. They responded that they were United States citizens. Hillin, who thought he saw someone in the back seat, asked Harris if anyone else was in the back. Hillin then "ducked [his] head in [the window] to get a clear view of the back seat" and to talk to Pierre about his citizenship. As he did so, Hillin smelled freshly burned marijuana. Harris and Pierre had rolled and smoked a marijuana cigarette in the Jimmy about an hour before arriving at the checkpoint.

Hillin did not indicate to the occupants of the Jimmy that he had smelled marijuana. He asked Harris to pull the vehicle over to the secondary inspection area. Once there, Harris exited the vehicle. Hillin asked Harris if he objected to his searching the luggage; Harris said he did not. Harris opened the back of the vehicle and lowered the tailgate. He then took out and opened each piece of luggage for Hillin to inspect. They reached the Samsonite suitcase last. Hillin testified that it was in an upright position propped against the rear seat of the vehicle. In that suitcase, Hillin discovered six tape-wrapped bundles that later proved to contain 13.8 pounds of cocaine.

The district court denied Harris' motion to suppress the drugs. A jury convicted Pierre and Harris on one count each of conspiracy to possess cocaine with intent to distribute, in violation of 21 U.S.C. § 846, and one count each of possession of cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). The government did not charge its principal witness, Turner. On appeal, both defendants argued that the evidence was insufficient to support their convictions. United States v. Pierre, 932 F.2d 377 (5th Cir.1991). The panel held that the evidence was sufficient to convict Harris on the possession charge. Id. at 381. The panel, however, found the evidence insufficient to convict Pierre on either charge and reversed his convictions. Id. at 392, 394.

Harris also argued on appeal as he had in the district court that Agent Hillin conducted an illegal search. He contended that agent Hillin violated rights secured to him by the Fourth Amendment when he inserted his head into the vehicle through the driver-side window and smelled the marijuana. He argued that the court should have suppressed the cocaine later discovered as a fruit of this illegal search. On this issue, the panel held that Hillin conducted a search when he stuck his head into the vehicle and that the search was unreasonable. The panel concluded further that Harris' consent to search the luggage was not sufficiently attenuated from the illegal search to cure the taint. Id. at 390-91. It determined therefore that the district court should have suppressed the evidence and reversed Harris' convictions.

On the court's own motion, we ordered rehearing en banc primarily to address this issue. United States v. Pierre, 943 F.2d 6 (5th Cir.1991).

II.

The search and arrests at issue took place at the Sierra Blanca checkpoint, a fixed checkpoint on Interstate 10 near the Texas-Mexico border. The key case establishing the constitutional limits of non-border checkpoint stops at this and other similar locations is United States v. Martinez-Fuerte, 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976). In that case the Supreme Court held that agents at fixed checkpoints may stop and briefly question the occupants of any vehicle without violating their Fourth Amendment rights. The Court agreed that the stops do intrude to some degree "on motorists' right to 'free passage without interruption.' " But the Court reasoned that the government has a substantial interest in conducting routine stops for inquiry at permanent checkpoints near the border to interrupt the flow of illegal aliens into the country from Mexico. Id. at 557-58, 96 S.Ct. at 3082-83.

The Court also noted that "while the need to make routine checkpoint stops is great, the consequent intrusion on Fourth Amendment interests is quite limited." Id. at 557, 96 S.Ct. at 3083. In particular, "all that is required of the vehicle's occupants is a response to a brief question or two and possibly the production of a document evidencing a right to be in the United States." Id. at 558, 96 S.Ct. at 3083 (quoting United States v. Brignoni-Ponce, 422 U.S. 873, 880, 95 S.Ct. 2574, 2579-80, 45 L.Ed.2d 607 (1975)). The Court recognized that officers may refer cars to the secondary inspection area for any or no reason. Martinez-Fuerte, 428 U.S. at 562, 96 S.Ct. at 3085; 25 see also United States v. Price, 869 F.2d 801, 804 (5th Cir.1989) (quoting United States v. Garcia, 616 F.2d 210, 211 (5th Cir.1980)); United States v. Gonzalez-Basulto, 898 F.2d 1011, 1012 (5th Cir.1990). If agents wish to search vehicles or their occupants, however, they must have probable cause or consent. Martinez-Fuerte, 428 U.S. at 567, 96 S.Ct. at 3087; United States v. Jackson, 825 F.2d 853 (5th Cir.1987) (en banc).

In Jackson, the en banc court applied the holding in Martinez-Fuerte specifically to the Sierra Blanca checkpoint. We held that Sierra Blanca is not the "functional equivalent" of the border; consequently full customs and immigration searches are not allowed. We also held that Martinez-Fuerte delineates the lawful scope of law enforcement action during stops at the Sierra Blanca checkpoint. With this background, we turn to Harris' arguments in this case that the district court should have suppressed the evidence as the product of an illegal search.

III.

Harris argues that (1) Agent Hillin conducted a search of the car when he stuck his head in the vehicle to address the back seat passenger, (2) the search exceeded the limits on checkpoint stops set in Martinez-Fuerte and Jackson and was therefore unreasonable because it was not based on probable cause or consent, and (3) his consent to search the luggage given in the secondary inspection area was not sufficiently attenuated from the initial illegal search to cure the taint. Assuming without deciding that Hillin's actions did constitute a search, we nevertheless conclude that based on the particular facts of this stop Agent Hillin's conduct was reasonable. Because this...

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