U.S. v. Jaras

• Decision Date: 16 September 1996
• Docket Number: No. 95-40113,95-40113
• Citation: 96 F.3d 764
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jose JARAS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 764

96 F.3d 764

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

No. 95-40113.

United States Court of Appeals, Fifth Circuit.

Sept. 16, 1996.

David Haskell Henderson, Jr., Assistant U.S. Attorney, Office of the United States Attorney, Beaumont, TX, for United States of America, plaintiff-appellee.

Gary M. Polland, Houston, TX, Stephen S. Morris, Houston, TX, Roger Neil Moss, Lufkin, TX, for Jose Jaras, defendant-appellant.

Appeal from the United States District Court for the Eastern District of Texas (No. 9:94-CR-19-2); John H. Hannah, Judge.

Before DEMOSS and DENNIS, Circuit Judges, and DUPLANTIER, District Judge. ^*

PER CURIAM:

A member of the Court in active service having requested a poll on the reconsideration of this cause en banc, and a majority of the judges in active service not having voted in favor, rehearing en banc is DENIED.

RHESA HAWKINS BARKSDALE, Circuit Judge, with whom W. EUGENE DAVIS, EDITH H. JONES, JERRY E. SMITH, and EMILIO M. GARZA, Circuit Judges, join, dissenting:

Marijuana was found after an officer received consent to search a vehicle in which there were two occupants. Contrary to binding circuit precedent, the panel majority held the search unconstitutional. United States v. Jaras, 86 F.3d 383, 388-91 (5th Cir.1996) (Duplantier, J., dissenting). The issue at hand arises often. It is an issue that demands en banc review. I dissent from our court's refusal to do so. Among other things, left standing is an opinion which flies in the face of the plain wording of the Fourth Amendment (prohibits only "unreasonable" search and seizure), and our precedent.

At best, the panel opinion will confuse the law in this circuit governing consent (actual or implied) searches of vehicles; at worst, it will be read, albeit mistakenly, to impose new restrictions on such searches. True, consent searches are fact specific; but, at least the applicable law should be clear. This clarity is necessary not only for the courts ruling on the constitutionality of such searches but also, and most especially, for the law enforcement officers conducting them under attendant fast-paced, tense and stressful circumstances. That necessary clarity is muddied greatly by the opinion in this case.

Having been convicted for possession of marijuana with intent to distribute, in violation of 21 U.S.C. § 841(a)(1), Jose Jaras contended on appeal, inter alia, that the district court erred by denying his motion to suppress evidence found during the warrantless search of his suitcase found in the trunk of an automobile driven by another (Salazar). The panel majority agreed, holding that Salazar (the driver) had no actual or apparent authority to consent to the search of Jaras' luggage, and that Jaras did not impliedly consent to the search. In so holding, it did not mention, among other things, that the trunk apparently was opened initially by Jaras. The panel majority disregards the overriding reasonableness standard of the Fourth Amendment; fails to consider binding circuit precedent concerning Salazar's authority to consent to the search of Jaras' luggage; and, in effect, abolishes the principle of implied consent, again contrary to binding circuit precedent.

I.

At the suppression hearing, only Officer Mitchell testified. After observing an automobile cross the solid white line on the road's shoulder, he stopped it because he suspected the driver, Salazar, might be intoxicated. Salazar explained that he swerved because he was attempting to eat while driving; that he was traveling to Ohio to visit a sick friend; and that he knew his passenger (Jaras) only as "Cheeto" and had known him for only a few weeks. But, when the Officer questioned Jaras, he stated that the two were on their way to Illinois to visit Salazar's uncle.

His suspicion aroused by these grossly inconsistent accounts, by the fact that Salazar knew his passenger only by a nickname, and by the unusual difference in their ages considering that they were unrelated yet traveling together, the Officer asked Salazar whether the vehicle contained any narcotics or contraband. Salazar's response--"not that I know of"--heightened the Officer's suspicion.

The Officer then requested Salazar's consent to search the vehicle, by asking if he "would mind if [the Officer] looked in [his] car"; Salazar consented by saying that "there would be no problem with that". The Officer testified that he asked to search the vehicle and its contents, noting that he "always ask[ed]" to search the "automobile and contents thereof".

Next, the Officer informed Jaras that Salazar had consented to the vehicle being searched, and asked him to exit. During this exchange, the trunk opened; the Officer believed that Jaras had opened it for him, using the trunk release in the glove compartment. The Officer closed the trunk; with it open, he was unable to see Jaras and Salazar, who were standing behind the car. Being alone, he felt that he needed to keep them under observation while he searched.

The search of the passenger compartment revealed nothing. The Officer then searched the trunk, which he reopened using the keys. The trunk contained two suitcases and a garment bag. He searched the garment bag, and Salazar told him that the suitcases belonged to Jaras. Jaras said nothing.

The Officer noticed that the suitcases were particularly heavy and asked Jaras what was inside them. Jaras responded that he did not know. He did not object to the Officer searching them. The Officer opened the suitcases and discovered bundles of what appeared to be marijuana, wrapped in cellophane. He then arrested Jaras and Salazar.

The district court denied Jaras' motion to suppress. It found that, prior to the search of Jaras' luggage, Jaras was informed that Salazar had consented to the vehicle being searched; that Jaras indicated to the Officer that he did not know what was inside the luggage; and that Jaras stood by and made no objection when the Officer searched his luggage. Based on these findings, the court concluded that the Officer was "objectively reasonable in believing that the scope of the consent included the suitcases" and, in the alternative, that Jaras "impliedly consented to the search". Jaras, 86 F.3d at 388 (quoting district court).

II.

The bases for the district court correctly denying the motion to suppress are ably presented in the dissent's very thorough analysis: (1) Salazar's consent authorized the search of Jaras' luggage; (2) Jaras' conduct constituted implied consent to search; and (3) Jaras had no reasonable expectation of privacy in the contents of his luggage. Id. at 391-94 (Duplantier, J., dissenting).

A.

Concerning Salazar's actual authority to consent to the search, the panel opinion does not even cite United States v. Crain, 33 F.3d 480 (5th Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1142, 130 L.Ed.2d 1102 (1995), in which our court held that the non-owner driver of an automobile has authority to consent to a search of that vehicle, even over the objection of a non-owner passenger who enjoyed a greater possessory interest in the vehicle, in that the latter had paid money to borrow it. As for Salazar's apparent authority, the panel majority does not cite any case law from our circuit to support its conclusion that the Government failed to demonstrate Salazar had such authority.

Crain reiterates the well-settled principle that a driver's consent to an officer's request to look inside the vehicle "is equivalent to general consent to search the vehicle and its contents, including containers such as luggage ". Id. at 484 (emphasis added) (citing United States v. Rich, 992 F.2d 502, 508 (5th Cir.), cert. denied, 510 U.S. 933, 114 S.Ct. 348, 126 L.Ed.2d 312 (1993)). Crain instructs that a passenger "assume[s] the risk" that a driver with whom the passenger shares control of the vehicle may consent to it being searched. Id. The fact that the drugs in Crain were in a paper sack rather than in luggage does not make it distinguishable; I have found no authority drawing a distinction, for Fourth Amendment purposes, between luggage and other types of containers in automobiles.

In concluding that Salazar lacked actual and apparent authority to consent, the panel majority primarily relies on cases from the First, Ninth, and Tenth Circuits, and from state courts.

The cases from other Circuits are not on point. At issue in United States v. Infante- Ruiz, 13 F.3d 498 (1st Cir.1994), was not whether the person who consented had such authority, but whether he had in fact consented. At issue in United States v. Welch, 4 F.3d 761 (9th Cir.1993), were the circumstances under which an officer must inquire further whether the person giving consent had authority to do so; because Officer Mitchell did inquire further (and, as discussed below, received implied consent from Jaras), Welch does not support the panel majority's conclusion. United States v. Salinas-Cano, 959 F.2d 861 (10th Cir.1992), addresses authority to consent to search a boyfriend's suitcase, left in his girlfriend's home; it does not address the special circumstance of a container in an automobile, a unique circumstance governed by a specific line of cases since the container rule in United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982).

As for the cited state court cases, an initial and obvious point is that they are a poor source for guidance on federal constitutional questions when the cases simultaneously address similar federal and state constitutional provisions. Obviously, a state court's construction of its own state constitutional protections, even when they are derived from language nearly identical to that found in the federal constitution, is not binding on the issue before us.

For example, State v. Suazo, 133 N.J. 315, 627 A.2d 1074 (1993), cited by the majority for the proposition that "a driver's apparent authority to consent to a search...