U.S. v. Pierre, 90-8273

• Decision Date: 21 May 1991
• Docket Number: No. 90-8273,90-8273
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Terry James PIERRE and Otis Harris, III, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 377

932 F.2d 377

UNITED STATES of America, Plaintiff-Appellee, v. Terry James PIERRE and Otis Harris, III, Defendants-Appellants.

No. 90-8273.

United States Court of Appeals, Fifth Circuit.

May 21, 1991.

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

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

W.W. Torrey, LeRoy Morgan Jahn, Asst. U.S. Attys., Ronald F. Ederer, U.S. Atty., San Antonio, Tex., for the U.S.

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

Before RUBIN, POLITZ, and DUHE, Circuit Judges.

ALVIN B. RUBIN, Circuit Judge:

We consider whether a border patrol agent conducted a search when he put his head inside a vehicle and, if so, whether the effect of the search was dissipated by the later consent of the driver to the opening of a suitcase found to contain cocaine. We reverse the driver's convictions for conspiracy and possession with intent to distribute, which rested on denial of his motion to suppress the content of the suitcase. As to the codefendant passenger, we find the evidence insufficient to support the verdict on either charge and reverse his convictions.

I FACTS AND PROCEEDINGS BELOW

In early November, 1989, Terry Pierre, Derrick Turner, and Calvin Broadnax left New Orleans in a 1987 GMC Jimmy bound for Los Angeles. Each advanced a different reason for making the trip: Broadnax, a man of unspecified occupation, had said he wanted to purchase a two-seat chocolate brown Mercedes Benz; appellant Pierre, a carpenter who had learned his trade at Angola state prison and who had worked On November 14, just before leaving Los Angeles, Broadnax told Pierre, Harris, and Turner that he wouldn't be returning to New Orleans with them. The three then departed from Los Angeles in the Jimmy without Broadnax. Pierre drove most of the way, with Harris relieving him some time before they reached the border patrol checkpoint at Sierra Blanca, Texas. Turner denied that he had driven the Jimmy at any time on the return trip. Approximately an hour before reaching the checkpoint, Pierre and Harris smoked some marihuana. Turner denied that he had smoked any.

on several of Broadnax's homes, was to drive one of the two vehicles back to New Orleans for Broadnax; Turner, a nineteen year-old high school student, said he was missing school and going all the way to Los Angeles to buy a jacket at a swap meet. They stayed in L.A. for nearly a week, with Broadnax paying all expenses. There they met Otis Harris, a New Orleans resident who had been living in California and whom Broadnax had known when both were children.

Border Patrol Agent Lonny Hillin stopped the Jimmy when it reached the Sierra Blanca checkpoint. At that time, Harris was driving, Turner was in the passenger seat, and Pierre was resting in the back. Harris rolled down his window. Hillin asked Harris and Turner if they were citizens; both responded in the affirmative. Hillin then inserted his head through the window into the car, purportedly to get a clear view of Pierre in the back seat. At that moment, Hillin smelled burned marihuana. He then directed Harris to pull the Jimmy into the secondary inspection area.

In the secondary area, Harris exited the vehicle. Hillin asked if Harris would object 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, until only a grey Samsonite suitcase, resting against the back seat, remained. All of the occupants of the vehicle, including Turner, testified that they had never seen the suitcase before. Harris snapped open the latch, then suddenly paused and closed it again. He told Hillin that the suitcase was locked and that he was unable to open it. Hillin took the suitcase and opened it himself, discovering six tape-wrapped bundles that later proved to contain 13.8 pounds of cocaine.

All three men were arrested and searched. Pierre was in possession of a small baggie of marihuana, a baggie containing 0.4 grams of cocaine, and a razor blade with cocaine residue on it. Harris had a short piece of straw, also with cocaine residue on it. No contraband was found on Turner, and he was never charged.

A jury convicted both Pierre and Harris on one count of conspiracy to possess cocaine with intent to distribute, in violation of 21 U.S.C. Sec. 846, and one count of possession of cocaine with intent to distribute, in violation of 21 U.S.C. Sec. 841(a)(1). Pierre was sentenced to concurrent 188-month terms of imprisonment on each count and concurrent five-year terms of supervised release. Harris was sentenced to concurrent 360-month terms of imprisonment and concurrent five-year terms of supervised release.

II SUFFICIENCY OF THE EVIDENCE AGAINST HARRIS

Harris argues that the evidence adduced against him at trial was insufficient to support his convictions. We believe that, viewing the evidence most favorably to the Government, a reasonable jury could find beyond a reasonable doubt that Harris possessed cocaine with intent to distribute. To do so, the jury had to find (1) knowing (2) possession (3) with intent to distribute. ¹

Harris testified that, just as they were preparing to leave Los Angeles, Calvin Broadnax instructed Harris, Pierre, and Turner to follow him to an undesignated location that proved to be the spacious Carson, California home of Don Tanner, whom Broadnax knew. Harris recalled that, as Harris, Pierre, and Turner were ushered into Tanner's large entertainment room while Broadnax and Tanner went to a different part of the house. Pierre went to the other end of the room to play pool while Harris and Turner watched a large screen television and sipped wine. Harris then saw Broadnax coming down the hallway with a suitcase in his hand. Broadnax asked Turner if he had the key, to which Turner replied, "No, Junie got the key." Having known Broadnax from childhood, Harris knew that Junie was Broadnax's cousin and was a reputed drug dealer. Broadnax then went outside. He returned forty minutes later, and told Harris, Turner, and Pierre that he would not be returning with them to New Orleans.

                they entered, Tanner said to Broadnax, "Hey, Calvin, I wasn't able to get but four of them chickens, man."    Broadnax responded, "Well, that is okay, man, I got two."    Harris testified that, from divers sources, he was aware that dealers often used references to poultry as a code for kilos of cocaine
                

We note that the Government's witness, Derrick Turner, denied that any of this happened--that they ever visited Don Tanner--and that the Government in closing argued to the jury that it should accept Turner's version of events. Even so, our task compels us to draw all inferences from the evidence and make all credibility choices in favor of sustaining the jury's verdict. ² We are not bound to accept the Government's theory of the case, even when doing so would, as here, raise serious questions about the sufficiency of the evidence. Because Harris's testimony in this respect provides the only competent evidence to support the verdict, we accept it as true. We therefore believe that a reasonable jury could find that Harris knew that the suitcase contained cocaine.

We also believe that a reasonable jury could find that Harris knew the suitcase was in the vehicle. The suitcase was relatively large and was the only piece of hard luggage in the vehicle, the storage of area of the Jimmy was relatively small, and Agent Hillin testified that the suitcase was in view, standing upright in the right side of the storage area, pushed up against the back seat. The jury could infer simply from the circumstances--the nature of the vehicle, the nature of the suitcase, and the nature of the journey itself--that Harris knew that the suitcase was in the vehicle. In addition, Harris testified that he had gone into the back of the vehicle during the trip to get a jacket out of his luggage. The jury could also infer that he became aware of the suitcase at that time, even if he was not aware of it before.

Once Harris's knowledge of the suitcase and its contents are established, it is but a small leap to find possession. Both Agent Hillin and Harris testified that Harris purported to consent--even though he might have tried implicitly to withdraw that consent--to a search of the suitcase. That alone is sufficient basis for the jury to infer that Harris exercised or had the right to exercise dominion or control over the suitcase.

The evidence was therefore sufficient to sustain Harris's conviction for possessing cocaine with intent to distribute. We offer no opinion on whether, in light of Harris's testimony, it might also have been sufficient to link Harris to a Broadnax-Tanner-Turner conspiracy, for such a conspiracy was neither pleaded by the Government nor proved at trial. In any case, finding the evidence sufficient as to one count, we must consider Harris's Fourth Amendment claim.

III THE SIERRA BLANCA SEARCH

Harris argues that Agent Hillin conducted an illegal search, violating his Fourth Amendment rights, by inserting his head into the vehicle through the driver-side window, and that the cocaine later discovered as the fruit of this illegal search should have been suppressed. Harris points out that only after Agent Hillin's "headlong" intrusion did the Agent smell the burned marihuana, which gave him probable cause for his later search of the suitcase.

The Border Patrol agents at the Sierra Blanca checkpoint have apparently made it a practice to insert their heads into vehicles lawfully ³ stopped for immigration checks. Similar conduct by Border Patrol agents at the Sierra Blanca checkpoint has been challenged in this court at least twice before, ⁴ and in one of those cases Agent Hillin testified that he put his head through the window of every car he stops at the checkpoint. ⁵ In neither of those cases, however, did we squarely...