U.S. v. Gallo

• Decision Date: 19 March 1991
• Docket Number: No. 89-2843,89-2843
• Citation: 927 F.2d 815
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jose Alvaro GALLO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 815

927 F.2d 815

UNITED STATES of America, Plaintiff-Appellee, v. Jose Alvaro GALLO, Defendant-Appellant.

No. 89-2843.

United States Court of Appeals,

Fifth Circuit.

March 19, 1991.

Ron Rainey, Richard Haynes, Houston, Tex., for defendant-appellant.

Kathlyn G. Snyder, Paula C. Offenhauser, Asst. U.S. Attys., Henry K. Oncken, U.S. Atty., Houston, Tex., for plaintiff-appellee.

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

Before POLITZ, WILLIAMS, and JONES, Circuit Judges.

EDITH H. JONES, Circuit Judge:

I.

Defendant-Appellant Jose Alvaro Gallo was convicted of conspiring to possess with intent to distribute in excess of five kilograms of cocaine, aiding and abetting the possession of in excess of five kilograms of cocaine with intent to distribute, and aiding and abetting the laundering of monetary instruments. On appeal, Gallo challenges the warrantless stop and search of his car, the sufficiency of the evidence, and the district court's refusal to group his offenses under U.S.S.G. Sec. 3D1.2. Finding no reversible error, we affirm the judgment of the district court.

II.

BACKGROUND

Gallo was arrested on January 12, 1990, following the Drug Enforcement Administration's (DEA) surveillance of Miryam Balcazar and Jose Antonio Cruz. ¹ On January 12, 1990, DEA agents observed the activities of Cruz and Balcazar until they met at a skating rink in Kingwood, Texas. At the skating rink, Cruz parked his car, a silver Honda, next to Balcazar's blue Oldsmobile. The DEA agents then observed Balcazar and Cruz conversing outside the cars. When Balcazar and Cruz left the skating rink parking lot, DEA agent Turner followed Cruz to a gas station where Cruz made a telephone call. About two minutes later Gallo entered the gas station, driving a brown Mazda RX7, and parked near Cruz's car. After a short meeting at the gas station, Cruz and Gallo drove to a nearby auto shop. At the auto shop, Cruz and Gallo parked their cars within five to eight feet of each other. They then exited their cars and after a brief conversation, Cruz removed a brown box from the back of his car and placed it in the rear of Gallo's car. After this transfer, both Cruz and Gallo exited the parking lot and headed in opposite directions on the freeway. Agent Turner followed Gallo and attempted to read the car's rear license plate to determine its ownership. The license plate was covered with mud and was unreadable, therefore, Turner sought assistance from the Harris County Sheriff's Office and the Houston Police Department (HPD).

Houston police officer, J.R. Knott, received a dispatch from the DEA requesting After deciding to impound Gallo's car, Knott inventoried the contents of the car pursuant to HPD procedure. The only item in the car was a closed cardboard box, which was in the rear hatchback area of the car. Knott listed one cardboard box on his inventory slip. Generally, the HPD automobile inventory procedure requires an officer to list items found inside the vehicle. If, however, there are circumstances that indicate that valuable or dangerous items may be hidden in a container inside the car, then these containers may also be inventoried. Officer Knott testified that he had listed "one cardboard box" on the wrecker slip when someone suggested that he look inside the closed box. Knott decided to look in the box to determine if it contained something of value. When Knott opened the box he saw that it contained thin packets wrapped in aluminum foil. Knott did not inventory the contents of the box and did not investigate the contents of the aluminum-foil packets. After Knott completed his inventory of the car, the officers at the scene decided to drive the car to the police substation rather than have it towed to a storage lot. At the police substation, DEA agents searched the box and discovered $299,985 in United States currency wrapped in the aluminum-foil packets. Balcazar's fingerprints were later discovered on the aluminum-foil wrappings on the currency. Gallo told DEA agents that he did not know how the box got inside the car, and that someone else had put the box in the car.

a marked patrol car to check the license plate on a car that was currently being followed by a Harris County deputy sheriff. Officer Knott observed a Harris County Sheriff's car, with its emergency lights flashing, following a brown Mazda at a high rate of speed. Knott observed that the Mazda continued for several blocks without responding to the Sheriff's unit. Knott then pulled alongside the Mazda and signaled for the driver, whom he identified as Gallo, to pull over. After Knott had stopped Gallo he discovered that Gallo's driver's license was suspended. Knott placed Gallo under arrest for driving with a suspended driver's license.

Balcazar and Cruz were also arrested on January 12, 1990. When DEA agents arrested Balcazar they found a cardboard box, similar to the box in Gallo's car, that contained $300,000 in United States currency wrapped in aluminum-foil packets. The agents then obtained a search warrant and searched Balcazar's home where they found $1,240,810 in cash, part of which was wrapped in aluminum foil and placed in a brown suitcase and in a cardboard box. The agents also discovered a money counting machine. After Cruz was arrested, agents obtained a search warrant for his home where they discovered fifty kilograms of cocaine.

Gallo was tried by the district court, which denied Gallo's motion to suppress the $299,985 discovered in the box in his car and found Gallo guilty on all three counts.

III.

FOURTH AMENDMENT CLAIMS

A. The Stop of Gallo's Car.

Gallo first contends that the police violated his rights under the fourth amendment by stopping his car to conduct an investigative search. The DEA agents and Houston police officers involved in this stop and arrest testified that they stopped Gallo because they believed that he had engaged in a narcotics transaction and because his rear license plate was obstructed with mud. Officer Knott also observed Gallo speeding and failing to respond to the Harris County Deputy Sheriff's emergency signal. Based on these traffic violations, Officer Knott had the right to stop Gallo. This court has held that "where police officers are doing what they are legally authorized to do ... the results of their investigations are not to be called into question on the basis of any subjective intent with which they acted." United States v. Causey, 834 F.2d 1179, 1184 (5th Cir.1987) (en banc). Therefore, even if the officers wished to stop Gallo to further their narcotics investigation, they did not violate Gallo's fourth amendment rights because Gallo's traffic violations

                provided a legitimate reason for his stop and subsequent arrest.  "[S]o long as the police do no more than they are objectively permitted to do, their motives in doing so are irrelevant and hence not subject to inquiry."    Id
                

B. The Search of the Box.

Gallo next contends that the warrantless search of the box found in his car violated the fourth amendment. Apparently, Gallo is arguing that the district court erred by not suppressing the evidence discovered in this search. The Government contends that this search was justified as an inventory search or search incident to arrest. The district court found that this was a valid inventory search that conformed to the HPD's inventory procedures. In reviewing the district court's ruling on a motion to suppress based on live testimony at a suppression hearing, we must accept the district court's factual findings unless they are clearly erroneous or influenced by an incorrect view of the law. United States v. Muniz-Melchor, 894 F.2d 1430, 1433 (5th Cir.), cert. denied, --- U.S. ----, 110 S.Ct. 1957, 109 L.Ed.2d 319 (1990) (quoting United States v. Maldonado, 735 F.2d 809, 814 (5th Cir.1984)). Therefore, we must accept the district court's finding that the HPD inventory procedure allowed HPD to open the box to check for valuable or dangerous items. However, we must apply a de novo standard of review to determine whether this was a valid inventory search. Id.

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. South Dakota v. Opperman, 428 U.S. 364, 369, 96 S.Ct. 3092, 3097, 49 L.Ed.2d 1000 (1976). However, to prevent the police from conducting inventory searches as a ruse for general rummaging to discover incriminating evidence, standardized criteria or established routine must regulate the opening of containers found during inventory searches. Florida v. Wells, --- U.S. ----, 110 S.Ct. 1632, 1635, 109 L.Ed.2d 1 (1990). The police department's inventory procedures can allow an officer "latitude to determine whether a particular container should or should not be opened in light of the nature of the search and characteristics of the container itself." Id. If there is no showing that the police acted in bad faith, or for the sole purpose of investigation, evidence discovered during an inventory search is admissible. Colorado v. Bertine, 479 U.S. 367, 372, 107 S.Ct. 738, 741, 93 L.Ed.2d 739 (1987).

In this case, Officer Knott testified that he began an inventory search of Gallo's car, following HPD's standard procedures. Gallo argues that Knott violated those inventory procedures when he opened the box at the suggestion of an unidentified officer. Knott stated that he opened the box because he could not tell what it contained, and because HPD procedures required that he make a list of everything in an impounded car. Gallo argues that the search of the box was an "investigative foray" because Knott did not list the contents of the box on the inventory wrecker sheet. Knott testified, however, that after he opened the box and found the thin aluminum-foil packets, he...