U.S. v. Kelly, 91-5554

• Decision Date: 13 May 1992
• Docket Number: No. 91-5554,91-5554
• Citation: 961 F.2d 524
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Lynda Marie KELLY, Defendant-Appellee. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 524

961 F.2d 524

UNITED STATES of America, Plaintiff-Appellant, v. Lynda Marie KELLY, Defendant-Appellee.

No. 91-5554

Summary Calendar.

United States Court of Appeals Fifth Circuit.

May 13, 1992.

LeRoy Morgan Jahn, Diane D. Kirstein, Asst. U.S. Attys., Ronald F. Ederer, U.S. Atty., and Charlie Strauss, Asst. U.S. Atty., San Antonio, Tex., for plaintiff-appellant.

P. Joseph Brake, Philip J. Lynch, Asst. Federal Public Defenders, Lucien B. Campbell, Federal Public Defender, San Antonio, Tex., for defendant-appellee.

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

Before GARWOOD, HIGGINBOTHAM, and BARKSDALE, Circuit Judges.

GARWOOD, Circuit Judge:

The Government appeals the district court's order granting defendant-appellee Lynda Marie Kelly's (Kelly) motion to suppress evidence. Concluding that the district court erred as a matter of law, we reverse and remand.

Facts and Proceedings Below

At approximately 1:10 a.m. July 19, 1990, Kerr County Deputy Sheriff James Trolinger (Trolinger) was patrolling on Interstate Highway 10 in Kerr County, when he spotted a 1990 Nissan with California license plates that appeared to be speeding. Trolinger turned on his radar and confirmed that the Nissan was going eighty-four miles per hour in a sixty-five miles per hour zone. Trolinger stopped the car. Kelly's codefendant, Donald Craig McCaney (McCaney), was driving, and Kelly was riding in the passenger seat. Trolinger radioed his location and the California license plate number of the Nissan to the sheriff's office dispatcher.

Trolinger then approached the Nissan. McCaney rolled down his window, and as Trolinger walked forward, he could smell the odor of burnt marijuana. Trolinger asked McCaney for his license and proof of insurance; McCaney handed Trolinger a folded piece of paper with his name, California address, and driver's license number on it. Kelly handed Trolinger a driver's license with her picture. Trolinger asked McCaney if he had a valid driver's license. McCaney answered affirmatively, but that the folded paper was all that he had with him. Trolinger asked who owned the Nissan. Kelly responded that it was a rental, but was unable to find the rental papers.

Trolinger then heard through the ear piece of his portable radio the sheriff's office advice that the Nissan was reported stolen. While waiting for confirmation, Trolinger asked McCaney and Kelly to step out of the car and walk to its rear. McCaney asked what was wrong, and Trolinger responded that he simply wanted to make sure that McCaney's driver's license was valid. Both McCaney and Kelly consented to a pat down, but no weapons were found. Trolinger then separated McCaney and Kelly and questioned them individually about their destination. Kelly purportedly responded that they were going to San Antonio to visit McCaney's sick relatives. McCaney answered that they were headed to San Antonio to see Kelly's sick friends.

Ten minutes after the initial stop, Deputy Sheriff Philip Karasek (Karasek) arrived at the scene as backup. Trolinger told Karasek that he had smelled marijuana emanating from the car and asked Karasek to check inside the vehicle for weapons or narcotics. Karasek leaned his head into the car and saw a box of ammunition lying on top of a sports bag on the back seat. Karasek reported his discovery to Trolinger. McCaney and Kelly were then arrested, handcuffed, and read their rights.

After arresting McCaney and Kelly, Trolinger proceeded to search the passenger compartment of the car. In the back seat, he saw the open black bag with a box of ammunition lying on top that Karasek had seen. Trolinger removed the ammunition and reached inside the bag, where he felt a handgun that he removed. The gun was loaded. In a compartment on the side of the bag facing the front seat, Trolinger found a small clear plastic bag containing numerous other small ziplock bags. ¹ Continuing his search, Trolinger found three marijuana cigarette butts in the front ashtray and marijuana residue all over the floorboard in the front seat.

Approximately twenty-five minutes after the initial stop, Trolinger received confirmation that the Nissan was stolen. The officers seized the vehicle to impound it and informed Kelly and McCaney that they were under arrest for the unauthorized use of a motor vehicle. ²

Pursuant to the Kerr County Sheriff Department's unwritten policy to inventory all impounded vehicles, Trolinger and Karasek inventoried the car and its contents. Two pagers were found in the front seat and were seized. Under the hood, between a firewall and the quarter panel on the driver's side, Trolinger and Karasek found a paper bag. Inside the bag was a white plastic package wrapped with masking tape. They slit the plastic bag and found approximately 900 grams of cocaine inside. Both McCaney and Kelly were then transported to Kerrville.

McCaney was indicted for conspiracy to possess with intent to distribute and aiding and abetting the possession with intent to distribute in excess of 500 grams of cocaine. Before his bench trial, McCaney filed a motion to suppress the cocaine, which was carried with the bench trial. At the close of the evidence, the district court granted McCaney's motion to suppress as to the cocaine found under the hood and acquitted him. The district court noted that the officers had a right to search inside the car and stated that they had sufficient probable cause to obtain a warrant to search under the hood. The district court found, however, that the search under the hood was not proper without a warrant as a valid inventory search because there was not sufficient proof as to the Kerr County Sheriff's Department's inventory policy.

Kelly was indicted for possession of cocaine with intent to distribute, and possession of a firearm during, and in relation to, a narcotics offense. Kelly filed a motion to suppress the evidence seized from the car and a motion to dismiss the indictment. The district court held a hearing on the motions on January 14, 1991. The transcripts of the testimony by Trolinger and Kelly from McCaney's trial were admitted as exhibits. The transcript of the district court's oral ruling on the motion to suppress in McCaney's case was also admitted as an exhibit. The district court granted the motion to suppress with regard to the cocaine found under the hood on the basis that it was not a proper inventory search. ³ The district court subsequently entered an order granting the motion to suppress based on the findings of fact and conclusions of law orally made part of the record in McCaney's trial. The Government timely filed a notice of appeal.

Discussion

The Government contends that the district court erred in granting Kelly's motion to suppress on three grounds. First, the Government argues that Kelly lacked standing to complain that the search of the engine compartment violated her Fourth Amendment rights. Second, it contends that the search of the engine was valid because it was based on probable cause. Finally, the Government urges that the district court erred in finding that the search of the engine was not conducted as part of a lawful inventory search of an impounded car. Because we find that the search was a proper warrantless automobile search based on probable cause, we do not reach the first or third issues.

The Government argues that the search was a valid warrantless automobile search because it was supported by probable cause. Kelly responds that this issue has been waived because the Government did not raise it at the suppression hearing. While we will address the issue of waiver in more detail infra, we simply note at the outset that the issue of adequate probable cause was at least partially raised before the district court. ⁴ Furthermore, the district court explicitly found that sufficient probable cause existed for the officers to have obtained a search warrant authorizing the search of the engine compartment. The district court granted the motion to suppress not because it concluded that probable cause did not exist on the facts (indeed it found the exact opposite), but because it erroneously believed that a search warrant was necessary to search the engine compartment, despite the existence of probable cause to search the passenger compartment.

With regard to the substance of the Government's argument, it is well-established that warrantless searches of automobiles are permitted by the Fourth Amendment if supported by probable cause. See United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 2164-65, 72 L.Ed.2d 572 (1982). In Ross, the Supreme Court confronted the issue of the scope of a warrantless automobile search:

"The scope of a warrantless search based on probable cause is no narrower--and no broader--than the scope of a search authorized by a warrant supported by probable cause. Only the prior approval of the magistrate is waived; the search otherwise is as the magistrate could authorize." Id. 102 S.Ct. at 2172.

The Court concluded that "[i]f probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search." Id. at 2173; see also United States v. Sanchez, 861 F.2d 89, 92 (5th Cir.1988).

"Probable cause determinations are not to be made on the basis of factors considered in isolation, but rather on the totality of the circumstances." United States v. Reed, 882 F.2d 147, 149 (5th Cir.1989). "The factors relevant to probable cause are not technical ones, but rather 'factual and practical ones of everyday life on which reasonable and prudent persons, not legal technicians, act.' " Id. (quoting United States v. Tarango-Hinojos, 791 F.2d 1174, 1176 (5th Cir.1986)).

In the present case, Trolinger and Karasek observed numerous factors that led them to believe that the vehicle contained contraband. First, Trolinger stopped the car in...