United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT January 13, 2006
Charles R. Fulbruge III
Clerk
No. 04-50996
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KENNETH LENZ,
Defendant-Appellant.
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Appeals from the United States District Court
for the Western District of Texas
USDC No. 5:03-CR-499-1-XR
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Before JONES, WIENER, and DeMOSS, Circuit Judges.
PER CURIAM:*
Following the denial of his motion to suppress, Kenneth Lenz
entered a conditional guilty plea to one count of conspiring to
manufacture an unspecified quantity of methamphetamine. He appeals
the denial of his motion to suppress and the 80-month sentence
imposed by the district court. We AFFIRM.
Lenz challenges the stop of his brother’s pickup truck, in
which Lenz was a passenger, and the seizure of evidence from the
truck. Lenz does not have standing to challenge the seizure of
*
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opinion should not be published and is not precedent except under the limited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.
evidence. See United States v. Roberson, 6 F.3d 1088, 1091 (5th
Cir. 1993). However, because a stop of the vehicle results in the
seizure of the passenger, Lenz has standing to challenge the stop
of the truck. See id.
Lenz argues that the stop of the truck, which occurred in a
driveway on Lenz’s property, was not based on probable cause. He
also challenges his warrantless arrest as unsupported by probable
cause. This court may affirm the district court’s ruling on a
motion to suppress based on any rationale supported by the record.
United States v. Ibarra-Sanchez, 199 F.3d 753, 758 (5th Cir. 1999).
As the Government points out, and a review of Lenz’s
suppression motion shows, Lenz did not raise these issues in the
district court. Accordingly, our review is for plain error. See
United States v. Maldonado, 42 F.3d 906, 912 (5th Cir. 1995).
Under FED. R. CRIM. P. 52(b), this court may correct forfeited
errors only when the appellant shows the following factors:
(1) there is an error, (2) that is clear or obvious, and (3) that
affects his substantial rights. United States v. Calverley,
37 F.3d 160, 164 (5th Cir. 1994) (en banc) (citing United States v.
Olano, 507 U.S. 725, 731-37 (1993)). If these factors are
established, the decision to correct the forfeited error is within
the sound discretion of the court, and the court will not exercise
that discretion unless the error seriously affects the fairness,
integrity, or public reputation of judicial proceedings. Olano,
507 U.S. at 735-36.
2
The stop of the truck is properly analyzed under the
reasonable suspicion standard of Terry v. Ohio, 392 U.S. 1 (1968).
See United States v. McLaughlin, 578 F.2d 1180, 1183-84 (5th Cir.
1978); see also Scher v. United States, 305 U.S. 251, 255 (1938).
In view of the information known to surveillance agents regarding
the activities at the Dreibrodt location, which were consistent
with the manufacture of methamphetamine, Lenz has not shown that
the district court plainly erred in determining that the truck was
lawfully stopped. See Terry, 392 U.S. at 30; Calverley, 37 F.3d at
164.
Upon stopping the vehicle on Lenz’s property, agents observed,
in plain view in the bed of the pickup, objects and odors
consistent with methamphetamine manufacture. These observations,
in conjunction with other facts known to the agents, supplied
probable cause for Lenz’s warrantless arrest. See United States v.
Ramirez, 145 F.3d 345, 352 (5th Cir. 1998). Lenz has not
demonstrated plain error. See Calverley, 37 F.3d at 164.
Lenz contends that the stop of the truck was pretextual.
This court has held that “the constitutional reasonableness of the
stop does not depend upon the actual motivations of the officer
involved. An officer may stop a motorist for a traffic violation
even if, subjectively, the officer’s true motive is to investigate
unrelated criminal offenses.” United States v. Sanchez-Pena,
336 F.3d 431, 437 (5th Cir. 2003) (footnote omitted). As discussed
above, the surveillance agents had reasonable suspicion sufficient
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to justify a stop of the truck. Lenz has not shown error.
Lenz briefs the issue whether the “open fields” doctrine
applies, but he admits that the doctrine is “merely academic” in
this matter because the district court did not rely on it. Lenz
fails to show error on the part of the district court.
Lenz challenges the warrantless entry of his house, which took
place prior to the issuance of a search warrant. He argues that
law enforcement officers manufactured the exigent circumstances
that led to the entry of the home. However, as Lenz concedes in
his discussion of the protective sweep of his home, no evidence was
discovered during the warrantless entry, and Lenz does not contest
the district court’s determination that the affidavit in support of
the search warrant was untainted by the warrantless entry. This
court has stated that “(an) appellant( ) cannot complain of
evidence which might have been discovered and introduced, but was
not. . . .” United States v. Poole, 557 F.2d 531, 536 (5th Cir.
1977).
Lenz argues that there was not probable cause to support the
issuance of a search warrant for his house. Because Lenz did not
raise this issue in the district court, we review for plain error.
See Maldonado, 42 F.3d at 912.
This court’s review of the district court’s denial of a motion
to suppress evidence obtained pursuant to a warrant consists of two
steps: “(1) whether the good-faith exception to the exclusionary
rule applies; and (2) whether probable cause supported the
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warrant.” United States v. Satterwhite, 980 F.2d 317, 320 (5th
Cir. 1992). Lenz has not shown that the good-faith exception to
the exclusionary rule does not apply, and, based on the facts known
to surveillance officers, as set forth in the affidavit, the
warrant was supported by probable cause. See id.; United States v.
McKeever, 5 F.3d 863, 865 (5th Cir. 1993). Lenz has not shown
plain error. See Calverley, 37 F.3d at 164.
Lenz also contends that the district court erred in its
determination that the independent source rule was applicable, such
that, even if the protective sweep was invalid, the evidence
obtained pursuant to the search warrant was admissible because it
was not tainted by the sweep. As noted above, Lenz has conceded
that no evidence was obtained during the warrantless entry of his
home, and he has not shown erroneous the district court’s
determination that the warrant was not tainted by the warrantless
entry. Lenz has failed to show that the independent source rule is
inapplicable. See United States v. Runyan, 290 F.3d 223, 235 (5th
Cir. 2002).
Lenz has failed to establish reversible error with respect to
his motion to suppress. Accordingly, his conviction is affirmed.
Lenz, noting that he did not admit to a quantity of
methamphetamine, attacks the 80-month sentence imposed by the
district court, arguing that it was imposed in violation of the
Sixth Amendment because it was based on a quantity of
methamphetamine determined by the district court. The district
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court erred in enhancing Lenz’s sentence based on its determination
of drug quantity and by sentencing Lenz pursuant to mandatory
Sentencing Guidelines. See United States v. Booker, 125 S. Ct.
738, 750, 768-69 (2005).
As the Government points out, however, the district court
stated that it would impose the same sentence if the Sentencing
Guidelines were held unconstitutional. The Government has carried
its burden of establishing that the sentencing errors suffered by
Lenz were harmless beyond a reasonable doubt. See United States v.
Pineiro, 410 F.3d 282, 285 (5th Cir. 2005). Accordingly, Lenz’s
sentence is affirmed.
AFFIRMED.
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