Case: 16-41390 Document: 00514171979 Page: 1 Date Filed: 09/26/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 16-41390
Fifth Circuit
FILED
September 26, 2017
UNITED STATES OF AMERICA, Lyle W. Cayce
Clerk
Plaintiff – Appellee,
v.
GEORGE MARTINEZ,
Defendant – Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:16-CR-292-1
Before JOLLY and ELROD, Circuit Judges, and STARRETT, District Judge. *
KEITH STARRETT, District Judge: **
Appellant, George Martinez, approached a border patrol station in his
truck. A border patrol agent noted several factors that indicated Martinez had
hidden contraband in the spare tire under the truck. He knelt and “smacked”
the spare tire with the palm of his hand. Concluding that the tire contained
something solid, the agent conducted a canine search, and the dog alerted to
* District Judge of the Southern District of Mississippi, sitting by designation.
** Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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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No. 16-41390
the area around the spare tire. Agents removed the tire, cut it open, and
discovered marijuana.
Martinez was indicted for possession with the intent to distribute 13.42
kilograms of marijuana. He filed a motion to suppress the results of the search,
arguing that the agent’s “smacking” the spare tire constituted an illegal search
which tainted everything which followed. The trial court held a suppression
hearing and denied the motion, finding that the “smack” did not constitute a
search under the Fourth Amendment. Martinez entered a conditional guilty
plea and preserved his right to appeal the denial of the motion to suppress.
The parties raised three issues on appeal: 1) whether the agent’s
physically striking a spare tire mounted under a vehicle constitutes a search
under the Fourth Amendment, 2) whether the agent had probable cause for
such a search, and 3) whether Martinez consented to the search. Because we
find that the border patrol agent had probable cause to search the truck, it is
not necessary to address the other issues. Accordingly, we AFFIRM the
decision below.
I.
On March 18, 2016, Appellant, George Martinez, drove his truck into the
border patrol checkpoint in Falfurrias, Texas. Border Patrol Agents Gilbert
Castaneda and Francisco Carriaga were assigned to the primary inspection
lane. Agent Carriaga observed the truck approach. Both Martinez and his
passenger were drinking beer. Because it was unusual for drivers to openly
drink while passing through the checkpoint, Carriaga believed that they were
attempting to divert his attention from the truck. As the truck passed by him
into the primary lane, Carriaga’s dog conducted a “free-air sniff,” but did not
alert.
While Castaneda spoke with Martinez and his passenger, Carriaga
visually inspected the truck’s exterior. The truck had temporary paper tags,
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which indicated to Carriaga that it was a “throw down” vehicle that a smuggler
could abandon if necessary.
Carriaga also noticed that the exterior of the truck—including its tires
and wheels—was clean, but the rear bumper and the visible portion of the
spare tire mounted under the truck were dirty. It appeared to Agent Carriaga
that water and dirt had been thrown onto the rear bumper and spare tire,
because the dirt looked “powdered.” He knelt down near the spare tire and
noticed that it was dirtier than the rest of the truck’s undercarriage. Carriaga
testified that smugglers frequently hide contraband in spare tires, and that
they often try to conceal the odor with mud.
While kneeling behind the truck, Agent Carriaga “smacked” the sidewall
of the spare tire with the palm of his hand. This was an investigative technique
that he had utilized before. According to Carriaga, a normal spare tire would
produce an echo and bounce slightly, but one loaded with contraband would
not echo. Carriaga heard and felt a solid thud when he struck Martinez’s spare
tire, indicating that something was inside it.
In light of these observations, Carriaga signaled to Castaneda that the
truck should be referred to the secondary inspection lane. Castaneda asked
Martinez for his consent to search the vehicle, and Martinez gave it.
In the secondary inspection lane, Carriaga conducted a systematic
canine search of the vehicle. The dog alerted to the area around the rear
bumper and spare tire. The agents removed the spare tire, cut it open, and
found nine bundles of marijuana.
Martinez was indicted for possession with the intent to distribute 13.42
kilograms of marijuana. He filed a motion to suppress the marijuana, arguing
that Agent Carriaga’s “smacking” of the spare tire was an illegal search that
tainted the later-discovered evidence. In response, the Government argued
that the “smack” was not a search because Martinez had no reasonable
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expectation of privacy in the spare tire, and that Carriaga had reasonable
suspicion to believe that the truck contained contraband before he hit the tire.
The district court held a suppression hearing and heard testimony from
Agent Castaneda, Agent Carriaga, and Martinez. It ruled that the “smack”
was not a search under the Fourth Amendment and denied the motion to
suppress. Martinez entered a conditional guilty plea, preserving his right to
appeal the denial of the motion to suppress. The district court sentenced him
to fifteen months of imprisonment and three years of supervised release, and
he filed a timely notice of appeal.
On appeal, Martinez argues that the district court erred in denying his
motion to suppress. He argues that Agent Carriaga’s “smacking” the spare tire
constituted an illegal search under the Fourth Amendment, which tainted
everything that occurred thereafter. He also argues that the search was not
supported by probable cause and that the Government waived any argument
to the contrary by failing to raise it before the district court. We need only
address whether Agent Carriaga had probable cause to search the truck.
II.
When reviewing a district court’s denial of a motion to suppress, the
court reviews “the district court’s findings of fact for clear error and its
conclusions of law de novo.” United States v. Broca-Martinez, 855 F.3d 675, 678
(5th Cir. 2017). “The government bears the burden of showing the
reasonableness of a warrantless search or seizure.” United States v. Monsivais,
848 F.3d 353, 357 (5th Cir. 2017). When reviewing the denial of a motion to
suppress, the court “view[s] the evidence in the light most favorable to the
party that prevailed in the district court.” Id. “Where a district court’s denial
of a suppression motion is based on live oral testimony, the clearly erroneous
standard is particularly strong because the judge had the opportunity to
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observe the demeanor of the witnesses.” United States v. Gibbs, 421 F.3d 352,
357 (5th Cir. 2005).
III.
Martinez contends that the Government waived any argument that
Agent Carriaga had probable cause to search the vehicle by failing to raise it
before the district court. The court “may affirm the district court’s judgment
on any basis supported by the record; however, the general rule of this court is
that arguments not raised before the district court are waived and will not be
considered on appeal.” St. Paul Surplus Lines Ins. Co. v. Settoon Towing, LLC,
720 F.3d 268, 280 (5th Cir. 2013) (citations omitted). “[A]n argument is
preserved when the basis . . . presented below gave the district court the
opportunity to address the gravamen of the argument presented on appeal.”
United States v. Garcia-Perez, 779 F.3d 278, 281–82 (5th Cir. 2015). The
argument “must be sufficiently specific to alert the district court to the nature
of the [argument] and to provide an opportunity” for the court to address it. Id.
at 282.
The Government did not specifically argue to the district court that
Agent Carriaga had probable cause to strike the sidewall of the spare tire. But
in its briefing before the district court the Government mentioned, albeit in
cursory fashion, that “there was reasonable suspicion sufficient to justify the
limited intrusion in this case.” Also, at the suppression hearing, the
Government recited various reasons why Agent Carriaga suspected drugs were
in the spare tire and argued that the alleged search was justified because he
had “reasonable suspicion” to believe the tire contained contraband. Although
the Government did not articulate the correct standard for warrantless
searches of automobiles, see United States v. Ortiz, 781 F.3d 221, 229 (5th Cir.
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2015) (probable cause required for warrantless search of an automobile), its
argument was sufficient to alert the district court to the issue of whether the
warrantless search was justified and preserve the issue for appeal. Cf. United
States v. Ocana, 204 F.3d 585, 589 (5th Cir. 2000) (where appellant made
general objection to PSR, district court had opportunity to address issue
despite no specific reference to sentencing guidelines); United States v. Cortez-
Rocha, 552 F. App’x 322, 324 (5th Cir. 2014) (where appellant did not
specifically cite sentencing guidelines before trial court, objection was still
sufficient to preserve issue on appeal).
IV.
“A warrantless search is presumptively unreasonable unless it falls
within an exception to the Fourth Amendment’s warrant requirement.” United
States v. Guzman, 739 F.3d 241, 245–46 (5th Cir. 2014). “One of those
exceptions is that a warrantless search of an automobile with probable cause
is justified where circumstances make a warranted search impracticable.” Id.
at 246. In other words, “[i]f a car is readily mobile and probable cause exists
to believe it contains contraband, the Fourth Amendment . . . permits police to
search the vehicle without more.” Maryland v. Dyson, 527 U.S. 465, 467 (1999).
In this context, probable cause “consists of trustworthy facts and
circumstances within the officer’s knowledge that would cause a reasonably
prudent man to believe the car contains contraband. Probable cause
determinations are not to be made on the basis of factors considered in
isolation, but rather on the totality of the circumstances.” Guzman, 739 F.3d
at 246. The court must consider “the sum total of layers of information and the
synthesis of what the police have heard, what they know, and what they
observed as trained officers.” United States v. Edwards, 577 F.2d 883, 895 (5th
Cir. 1978). These factors “are not technical ones, but rather factual and
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practical ones of everyday life on which reasonable and prudent persons, not
legal technicians, act.” United States v. Reed, 882 F.2d 147, 149 (5th Cir. 1989).
Agent Carriaga testified that he has been a border patrol agent at the
Falfurrias checkpoint for eight years. He also testified that both Martinez and
his passenger were drinking beer when they approached the checkpoint. He
said this was unusual, and he believed that they intended to divert his
attention from the vehicle. He observed that the exterior of the entire truck,
including the wheels and tires, was clean – except the rear bumper and spare
tire. Agent Carriaga said the dirt was “powdered,” as if water and dirt had
been thrown over the rear bumper and spare tire. When he knelt down, he
observed that the rest of the truck’s undercarriage was cleaner than the area
near the spare tire. Agent Carriaga testified that smugglers sometimes use
mud to conceal the odor of contraband, and that it is a “common practice” to
smuggle narcotics in spare tires.
Carriaga also testified that the vehicle had paper tags, and that
smugglers frequently buy “throw down” vehicles that they can abandon at
need. Although Carriaga admitted on cross-examination that the truck was a
“Platinum Edition” Ford F-150 – a more valuable, higher end truck – he noted
that it was used, rather than new.
Finally, Carriaga testified that his dog conducted a “free air sniff” as the
truck passed him in the primary lane, but she did not alert. On a free air sniff,
the dog searches on its own with minimal commands. But during a systematic
search, the agent commands the dog to search specific areas as they move
around the vehicle. It did not surprise Carriaga that the dog failed to alert
during the free air sniff because she was a new dog and very distracted.
This court has recognized that attempting to mask odor frequently
suggests the presence of contraband. See, e.g., United States v. Pena-Gonzalez,
618 F. App’x 195, 199 (5th Cir. 2015) (listing cases). Also, it has given weight
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to an agent’s observation that a vehicle’s appearance was unusual or atypical.
See, e.g. United States v. Nichols, 142 F.3d 857, 871 (5th Cir. 1998); United
States v. Inocencio, 40 F.3d 716, 723 (5th Cir. 1994). Finally, the court has
credited a border patrol agent’s testimony based on his experience and
familiarity with the geographical area. Inocencio, 40 F.3d at 723. Here, the
agent articulated several observations which, based on his eight years of
experience at this checkpoint, indicated that the truck’s spare tire contained
contraband. Viewing this testimony in the light most favorable to the
Government, and giving due deference to the district court’s assessment of the
evidence, the court finds that Agent Carriaga had probable cause to believe the
truck contained contraband before he “smacked” the spare tire. Therefore,
even if the “smack” was a search, it did not violate the Fourth Amendment.
V.
For these reasons, we AFFIRM the district court’s denial of Appellant’s
motion to suppress.
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