IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-21138
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LUIS ORLANDO ROSARIO, also known as Luis Landy Rosario,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-99-CR-149-2
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January 2, 2001
Before REAVLEY, JOLLY and JONES, Circuit Judges.
PER CURIAM:*
Luis Orlando Rosario appeals the district court's denial of
his motion to suppress evidence (marijuana) obtained during a
stop and search of a rental truck driven by Rosario. He contends
that he was stopped and detained or arrested without probable
cause, that his consent to search the truck was not voluntarily
given, that the district court relied on incriminating statements
obtained in violation of his Miranda1 rights, and that the
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
1
Miranda v. Arizona, 384 U.S. 436 (1966).
No. 99-21138
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district court erred in considering such statements because they
were not part of the evidence adduced at the suppression hearing.
Rosario has not shown that the district court erred in
determining that there was cause to stop and detain him because
the trailer he was towing had an expired registration sticker.
See United States v. Hernandez, 901 F.2d 1217, 1219 & n.1 (5th
Cir. 1990). He has not shown that the district court erred in
determining that his consent to search the truck was voluntary
under the circumstances. See United States v. Davis, 749 F.2d
292, 294 (5th Cir. 1985); United States v. Kelley, 981 F.2d 1464,
1470 (5th Cir. 1993).
Rosario's suppression motion challenged the
constitutionality of the stop and search but did not raise the
issue of the admissibility of his statement in response to a
canine sniff (prior to receiving Miranda warnings) that the truck
contained marijuana. There was no testimony concerning the
statement at the suppression hearing, but the statement was
referenced elsewhere in the record, and Rosario stipulated that
the statement was made. Rosario did not raise below the issue
whether the district court erred in referring to the statement in
denying the suppression motion, and thus review is for plain
error. See United States v. Calverley, 37 F.3d 160, 162-64 (5th
Cir. 1994) (en banc). Rosario has not shown plain error. Even
if Rosario could show that he was "in custody" at the time he
made the statement for purposes of Miranda, the inevitable
discovery exception would apply to the statement because there
was a reasonable probability that the marijuana would have been
No. 99-21138
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discovered absent the statement since he had already consented to
the search and the agents were actively pursuing the search of
the truck at the time he made the statement. See United States
v. Kirk, 111 F.3d 390, 392 (5th Cir. 1997).
AFFIRMED.