UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 98-30630
UNITED STATES OF AMERICA,
Plaintiff -- Appellee,
VERSUS
ROBERT A. JONES,
Defendant -- Appellant.
Appeal from the United States District Court
for the Western District of Louisiana
August 17, 1999
Before POLITZ, JOLLY, and DUHÉ, Circuit Judges,
JOHN M. DUHÉ, JR., Circuit Judge:
A jury convicted Robert A. Jones (“Jones”) of one count of
possession with the intent to distribute five or more kilograms of
cocaine in violation of 21 U.S.C.A. § 841(a)(1). See 21 U.S.C.A.
841(a)(1) (West 1981). Jones raises three issues on appeal.
First, Jones argues that the cocaine seized from his car should be
suppressed because Deputy Sheriff Picou lacked reasonable suspicion
to stop him and because Deputy Picou was not properly commissioned
under Louisiana state law. Second, he argues the government
presented insufficient evidence to support his conviction. Third,
he argues that the district court erred in failing to consider the
“safety valve” provisions of U.S.S.G. § 5C1.2 in imposing his
sentence. We affirm Jones’ conviction and sentence, holding that
the stop was reasonable under the Fourth Amendment and that the
evidence supports his conviction. We do not address the
Defendant’s sentencing argument, because his counsel conceded at
oral argument that he does not satisfy the requirements of the
“safety valve” provisions in U.S.S.G. § 5C1.2.
BACKGROUND
At approximately 9:37 p.m. on June 12, 1997, Deputy
Sheriff Picou observed Jones driving a 1995 Thunderbird on
Interstate Highway 20 in Madison Parish, Louisiana. Deputy Picou
followed in the left lane behind Jones who was driving in the right
lane. Deputy Picou observed Jones abruptly change lanes,
apparently to avoid construction, and momentarily cross the solid
yellow line or “fog line” on the left. Deputy Picou stopped Jones,
advised him he was being stopped for improper lane usage, and asked
him for his driver’s license and insurance. Jones explained that
the insurance was in the name of Maria and Vanessa Rodriguez of El
Paso, Texas because he was buying the car from his girlfriend,
Maria Rodriguez. He said he was driving from El Paso, Texas to
Atlanta, Georgia to visit his children for Father’s Day. When
Deputy Picou asked Jones if he had ever been convicted of any
offenses or “been in trouble with the law,” Jones replied no.
Deputy Picou called in Jones’ driver’s license information to the
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dispatcher noting that his Texas driver’s license was issued only
one day earlier. The criminal history check of Jones revealed that
he had a prior federal drug conviction and had served a lengthy
prison sentence. Deputy Picou returned from his car and asked
Jones to exit the Thunderbird. He questioned Jones about his prior
conviction and noted a large discrepancy between the amount of time
Jones and the dispatcher said he had served.
After Deputy Picou issued Jones a warning ticket for improper
lane usage and returned his license and documents, he asked Jones
if he had any guns, knives or other contraband in his car. When
Jones replied no, Deputy Picou asked if he could search his car.
Jones consented to the search. While the preliminary search of the
interior of the car and its trunk revealed only the odor of fabric
softener, Jones began to fidget, appear nervous, and sweat. Deputy
Picou then walked his drug dog around the vehicle, but the dog did
not alert. While Deputy Picou was putting away the dog, Deputy
Matthews arrived as backup. Deputy Picou observed that Jones had
now sweated through his shirt. Relying on his knowledge that
Thunderbirds have a large empty space beneath the stereo speakers,
Deputy Picou removed the speaker cover from the driver’s rear side
speaker and noticed that one screw was missing although the
speakers did not seem custom made. Deputy Picou unscrewed the
remaining screws, removed the speaker, and found numerous bundles
covered with gray duct tape in this space. Underneath the tape,
the packages were covered alternately with fabric softener sheets
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and mustard. The Deputies also found bundles in the space beneath
the other rear speaker. The bundles contained 32.2 pounds of
cocaine with an estimated $1.3 million street value. Deputies
Picou and Matthews placed Jones in custody at approximately 10:31
p.m.
Jones was convicted of possession with the intent to
distribute five or more kilograms of cocaine in violation of 21
U.S.C.A. § 841(a)(1) and sentenced to the statutory minimum of 240
months pursuant to 21 U.S.C.A. § 851. See 21 U.S.C.A. § 841(a)(1),
§ 851 (West 1981). On appeal, he argues the district court should
have excluded the cocaine seized from the Thunderbird because
Deputy Sheriff Picou did not have reasonable suspicion to stop him
and because Deputy Picou was not properly commissioned in Madison
Parish. Additionally, he contends the evidence is insufficient to
support his conviction.
ANALYSIS
I. Seizure of the Cocaine
Jones contends the district court should have suppressed the
cocaine seized from the Thunderbird because Deputy Picou did not
have reasonable suspicion to stop him. Additionally, he argues the
stop is impermissible under the Fourth Amendment because Deputy
Picou lacked the legal authority to stop him due to administrative
deficiencies in Deputy Picou’s commission. We review the district
court’s factual findings on a motion to suppress for clear error
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and its ultimate conclusion as to the constitutionality of the law
enforcement action de novo. See United States v. Tompkins, 130
F.3d 117, 119-20 (5th Cir. 1997).
A. Administrative Deficiency in Deputy Picou’s Commission
The Defendant argues the district court should have suppressed
the cocaine seized from his car because the deputy sheriff lacked
the legal authority to stop him for a traffic violation. The
Defendant relies on two Louisiana statutes requiring a deputy
sheriff to reside in the parish in which he is commissioned and
requiring the bond of the deputy sheriff to be filed with the clerk
of court. See La. Rev. Stat. Ann. 33:1432.1 (A)(1) and
33:1433(A)(3) (West Supp. 1999). While Deputy Picou had taken the
oath of office, had received commissions from both Tensas and
Madison parishes, and had bonds posted on his behalf by the
Sheriffs of both parishes, the Sheriffs had not filed those bonds
with the respective clerks of court. Additionally, Deputy Picou
was not a resident of either parish. Relying on United States v.
Di Re, 332 U.S. 581 (1948) (holding the legality of an arrest for
a federal crime by state officers is determined by state law),
Jones argues an arrest that is illegal under state law cannot be a
reasonable seizure of the person under the Fourth Amendment.
The district court agreed that state law determined the
legality of the arrest relying on United States v. Garcia, 676 F.2d
1086, 1089 (5th Cir. 1982), vacated, 462 U.S. 1127 (1983). As a
result, the district court upheld the deputy sheriff’s stop by
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relying on Louisiana’s “de facto officer” doctrine. Under the “de
facto officer” doctrine, a public officer’s acts “under color of
authority,” even though the authority may be legally defective,
“are valid as to third persons and the public until the officer’s
title to office is adjudged insufficient.” Perschall v. State, 697
So.2d 240, 261 (La. 1997) (citing State v. Johnson, 192 So.2d 135,
145 (La. 1966)). The government also relies on the “de facto
officer” doctrine arguing that Deputy Sheriff Picou’s act of
stopping the Defendant was valid despite the administrative
deficiencies of his commission. However, Louisiana courts have not
yet extended this doctrine to police officers.
Because the district court erred in relying on Garcia, we need
not resort to the “de facto officer” doctrine. Deputy Sheriff
Picou’s actions were proper under the Fourth Amendment. In Garcia,
a Texas game warden stopped and arrested suspects after discovering
marijuana in their trucks. See Garcia, 676 F.2d at 1087-88. The
suspects argued the evidence seized from their vehicles should be
suppressed because their arrest by the game warden was illegal
under Texas law. See id. at 1089. Judging the legality of the
suspects’ arrest by state law, the court excluded the evidence as
the fruit of an illegal arrest because the Texas game warden lacked
the authority under Texas law to make such an arrest and Texas law
did not embrace the good faith exception to the exclusionary rule.
See id. at 1089-94. The Supreme Court vacated the court’s decision
in Garcia and remanded for reconsideration in light of United
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States v. Ross, 456 U.S. 798 (1982). See United States v. Garcia,
462 U.S. 1127 (1983). Ross determined the scope of a warrantless
search of a container in an automobile. We have since held that:
[b]y remanding Garcia for reconsideration in light of the
fourth amendment standards announced in Ross, the Court
perforce instructed that state law did not control the
case and that the admissibility of evidence depends on
the legality of the search and seizure under federal law.
United States v. Mahoney, 712 F.2d 956, 959 (5th Cir. 1983)
(emphasis added).1 “The question that a federal court must ask”
when state officials secure “evidence to be used against a
defendant accused of a federal offense is whether the actions of
the state officials violated the Fourth Amendment of the United
States Constitution.” United States v. Walker, 960 F.2d 409, 415
(5th Cir. 1992).2 Walker held that the exclusionary rule was
created to discourage violations of federal law rather than
violations of state law. See id. “Whether the Fourth Amendment has
been violated is determined solely by looking to federal law on the
1
Mahoney involved an arrest executed by Texas police officers
pursuant to an arrest warrant that did not identify the suspect
with sufficient particularity. See Mahoney, 712 F.2d at 957-58.
The district court suppressed the defendant’s confession following
his arrest because the officers did not satisfy any of the
exceptions justifying a warrantless arrest and Texas law did not
recognize a good faith exception to the exclusionary rule. See id.
On appeal, we held the search was valid pursuant to federal law
relying on the good faith exception to the exclusionary rule set
forth in United States v. Williams, 622 F.2d 830 (5th Cir. 1980).
See id. at 962.
2
Walker involved a warrantless arrest which violated Texas law.
See Walker, 960 F.2d at 415. We upheld the arrest because
“probable cause existed . . . making it valid under federal law.”
See id.
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subject.” Id. (citing California v. Greenwood, 486 U.S. 35
(1988)). Because we must examine Deputy Picou’s stop of Jones
under federal law, the state law administrative deficiency in his
commission as Deputy Sheriff does not affect our analysis.
B. Reasonable Suspicion or Probable Cause
Applying federal law to Jones’ arrest as Mahoney and Walker
teach, the stop and arrest are clearly sustainable under the Fourth
Amendment. Deputy Sheriff Picou observed Jones’ traffic violation,
i.e. improper lane usage,3 creating sufficient probable cause to
support the stop. See Whren v. United States, 517 U.S. 806, 810
(1996)(holding “the decision to stop an automobile is reasonable
where the police have probable cause to believe that a traffic
violation has occurred.”); United States v. Castro, 166 F.3d 728,
734 (5th Cir. 1999). For these reasons, we hold that Deputy
Picou’s stop and subsequent arrest of Jones was proper under the
Fourth Amendment.4
II. Sufficiency of the Evidence
Jones also challenges the sufficiency of the evidence
3
La. Rev. Stat. Ann. § 32:79 provides that a driver must remain
“as nearly as practical entirely within a single lane” and lane
changes shall not be made “until the driver has first ascertained
that such movement can be made with safety.” La. Stat. Rev. Ann.
§ 32:79 (West 1963).
4
While the Defendant does not dispute that he consented to the
search of the Thunderbird, he argues that the consent was
involuntary because it was the unattenuated result of Deputy
Picou’s illegal traffic stop. Because Deputy Picou’s stop is
permissible under the Fourth Amendment, we need not address this
issue.
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supporting his conviction. He contends that the government’s
evidence did not establish beyond a reasonable doubt that he had
dominion and control over the cocaine found in the Thunderbird.
The standard of review for a sufficiency of evidence claim is
whether, after viewing the evidence and the reasonable inferences
which flow therefrom in the light most favorable to the verdict,
any rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt. See Jackson v. Virginia,
443 U.S. 307, 317-18 (1979); United States v. Mulderig, 120 F.3d
534, 546 (5th Cir. 1997).
To prove possession of cocaine with the intent to distribute
under 21 U.S.C.A. § 841(a)(1), the government must show (1) knowing
(2) possession (3) with the intent to distribute. See 21 U.S.C.A.
§ 841(a)(1) (West 1981); United States v. Gourley, 168 F.3d 165,
169 (5th Cir. 1999). Constructive possession of a controlled
substance may be shown by ownership, dominion or control over the
illegal drugs or over the vehicle in which the drugs are concealed.
See United States v. Skipper, 74 F.3d 608, 611 (5th Cir. 1997).
The jury may infer knowledge of the presence of contraband from the
exercise of control over the vehicle in which it is concealed. See
United States v. Shabazz, 993 F.2d 431, 441 (5th Cir. 1993). If
the substance is in a hidden compartment of the vehicle, as in
Jones’ case, additional circumstantial evidence that is suspicious
in nature or demonstrates guilty knowledge is required. See United
States v. Garza, 990 F.2d 171, 174 (5th Cir. 1993). Circumstantial
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evidence proving guilty knowledge may include nervousness,
conflicting statements to law enforcement officials, and an
implausible story. See United States v. Daiz-Carreon, 915 F.2d
951, 954 (5th Cir. 1990). While nervousness alone is insufficient,
it may support an inference of guilty knowledge when combined with
facts suggesting that the nervousness is derived from an underlying
consciousness of criminal behavior. See Garza, 990 F.2d at 174.
Jones contends that he did not know the cocaine was in the car
and that he had only borrowed the car from Maria Contreras
(formerly Maria Rodriguez) for the trip to Atlanta. At trial,
Maria testified that Jones had purchased the Thunderbird from her
daughter and had sole control over the vehicle prior to the
discovery of the cocaine. According to Maria, neither she nor her
daughter had used the vehicle since the sale to Jones. Although
Jones disputes the purchase of the car, the jury is free to judge
the credibility of one witness over that of another. See United
States v. Williams, 132 F.3d 1055, 1059 (5th Cir. 1998). Jones was
unemployed, yet had $1800 in cash with him when he was stopped. He
was dressed in a suit at 9:30 in the evening although he was
driving from El Paso, Texas to Atlanta, Georgia. Deputy Picou
testified that Jones grew nervous, sweated profusely, and avoided
eye contact when asked if he would consent to the search of the
Thunderbird. In the trunk, Deputy Picou found a suitcase with two
locks on the zipper containing only one or two wadded up shirts.
Additionally, Jones initially lied to Deputy Picou about the
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existence of his prior drug conviction. When confronted, he lied
again about the length of time he served in prison. Taken
together, a reasonable juror could have concluded that this
circumstantial evidence supports an inference of guilty knowledge.
For these reasons, we affirm Jones’ conviction.
CONCLUSION
We affirm Jones’ conviction holding Deputy Picou’s stop was
proper under the Fourth Amendment and the government’s evidence
sufficiently supports his conviction.
AFFIRMED
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