United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
August 19, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
_________________________ Clerk
No. 03 - 41578
SUMMARY CALENDAR
_________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SERGIO CHAVEZ,
Defendant - Appellant.
_________________________________________________________________
On Appeal from the United States District Court for the
Southern District of Texas
(C-03-CR-196-1)
_________________________________________________________________
Before REYNALDO G. GARZA, JONES, and SMITH, Circuit Judges.
PER CURIAM:1
In this appeal, we review Sergio Chavez’s conviction for
possession with intent to distribute 18 kilograms of cocaine.
Chavez argues that the district court should have suppressed
evidence of the cocaine seized from his vehicle at the Sarita
Border Patrol Checkpoint because he claims that the search of the
back seat of his vehicle by border patrol agents was involuntary.
1
Pursuant to 5th Cir. R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5th Cir. R.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.
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When Chavez was stopped at the checkpoint, the border patrol
agent smelled BenGay, a common odor-masking agent, and noticed
that Chavez was nervously avoiding eye contact. The agent then
asked Chavez if he could open the back door of his vehicle.
Chavez testified that he assented to the agent’s request to open
the back door. Chavez argues that by assenting he did not,
however, grant the agent permission to actually look inside the
vehicle. Regardless, upon opening the back door of the vehicle,
the officer saw that the carpet was loose and that a nut was
missing from one of the back seats. The officer also noticed an
anomaly on the vehicle’s rear tires. The officer then asked
Chavez if he could perform a free-air canine search. When the
canine alerted to the rear wheel section of the vehicle, a
further examination was conducted and 18 kilograms of cocaine
were found.
After conducting a hearing on Chavez’s motion to suppress,
the district court held that even if the initial search of
Chavez’s vehicle was prohibited, the cocaine was nevertheless
admissible under the inevitable discovery exception to the
exclusionary rule. We review the evidence in the light most
favorable to the Government, the prevailing party. United States
v. Foy, 28 F.3d 464, 474 (5th Cir. 1994).
Under the inevitable discovery exception to the exclusionary
rule, evidence that is otherwise suppressible is admitted if it
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would inevitably have been discovered without the aid of the
illegally obtained evidence. United States v. Singh, 261 F.3d
530, 535 (5th Cir. 2001). The border patrol agent testified that
had Chavez refused the agent’s request to open his vehicle’s back
door, the agent would have sent the vehicle to secondary
inspection for a free-air canine search. Chavez’s consent was
not necessary to perform a free-air canine search at secondary
inspection. United States v. Duffaut, 314 F.3d 203, 208 (5th
Cir. 2002).
Thus, the district court correctly held the fruits of the
canine search, the 18 kilograms of cocaine, admissible under the
inevitable discovery exception. Chavez’s conviction is therefore
AFFIRMED.
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