United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT January 18, 2007
Charles R. Fulbruge III
Clerk
No. 06-40540
Summary Calendar
United States of America,
Plaintiff-Appellee,
versus
Three Hundred Sixty-Nine Thousand Nine Hundred Eighty Dollars
($369,980) in United States Currency
Defendant,
Francelia Garcia, Abdiel Garcia Garcia
Claimants-Appellants
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. C-04-315
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Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
This is an appeal of a civil forfeiture action brought by the
United States pursuant to 21 U.S.C. § 881(a)(6) and 18 U.S.C. §
981(a)(1)(A). Claimants, the Garcias, asserted claims to the
$369,800 that was the subject matter of the action and filed a
motion for judgment as a matter of law; additionally, they filed a
motion to suppress evidence. The district court denied their
motion to suppress and motion for judgment as a matter of law. It
issued a judgment in favor of the plaintiff, in accordance with 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this opinion should not be published and is not precedent except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.
jury verdict, that the currency in question was subject to
forfeiture, because it either represented the proceeds of a drug
trafficking offense or was used or intended to be used to
facilitate the commission of an illegal drug offense.
The currency at issue was seized by Trooper Rios of the
Department of Public Safety after he discovered it during a search
of a 2004 pickup truck driven by Abdiel Garcia Garcia (“Garcia”)
and owned by his sister-in-law. Rios stopped Garcia for speeding
on U.S. Highway 77 south of Kingsville, a route commonly used to
smuggle drugs and drug currency. He noticed that Garcia’s hands
were shaking, and Garcia avoided eye contact. Garcia explained
that he was returning from Houston where he had taken his wife to
visit relatives for Christmas (which was later discovered to be
untrue). Based upon Garcia’s conduct, Rios asked Garcia if he
could “check the car.” Garcia assented. During the ensuing
search, Rios noticed that the screws securing the back seat were
shiny, indicating that they had recently been replaced. Rios felt
behind the rear seat by placing his hand where the seat meets the
back and felt a metal plate and a bundle of money, which turned out
to be wrapped in cellophane and secured with duct tape. Initially,
Garcia stated that the money belonged to his brother (which was
later discovered to be untrue).
Garcia was arrested and given his Miranda warning; he
thereafter refused to answer questions. The vehicle was impounded.
Later, Trooper Correa, a certified dog-trained trooper, brought
Nico, a canine trained to detect methamphetamine, heroin, cocaine,
and marijuana, to search the vehicle. Nico alerted on the driver
side rear door and when allowed into the vehicle, alerted upon the
back seat. The troopers disassembled the rear seat and found a
specially-installed compartment containing five more bundles of
cash, wrapped and secured in the same manner as the initial bundle.
Garcia claims that he saved the money in 2001 and 2002 from
selling Mexican-imported vegetables in the United States. However,
he filed no tax returns in 2000, 2001, or 2002; in 2003, his tax
return showed an income of $27,918.00. He further asserts that he
was returning from a trip to Houston, Texas. According to Garcia,
he traveled to Houston to meet a friend, Jesus Melendez, who was to
assist him by taking him to stores to purchase farm equipment.
Garcia avers that upon arrival in Houston, he discovered that
Melendez would not be able to travel to Houston to meet him, so he
headed home with no equipment.
On appeal, the Garcias first argue that there was insufficient
evidence to support the jury verdict that the currency represents
the proceeds of a drug trafficking offense, or that it was used or
intended to be used to facilitate the commission of an illegal drug
offense. We disagree. While we review a trial court’s conclusions
of law de novo, we uphold a jury’s verdict unless it lacks a
legally sufficient basis. Interstate Contracting Corp. v. City of
Dallas, Tex., 407 F.3d 708, 712 (5th Cir. 2005). We review the
evidence and all reasonable inferences in the light most favorable
to the jury’s verdict. Id. In the instant case, when taken
together, the quantity of currency, the method of packaging and
concealment of the currency in a specially-built compartment, the
location of the traffic stop on a known smuggling route, the drug
dog alert, the Garcias’ lack of income, Garcia’s absurd explanation
for the presence of the currency, and his behavior during the
traffic stop is sufficient evidence to support the jury verdict.
The Garcias assert secondly that the district court erred in
denying their motion to suppress all fruits of the search of the
vehicle. The Government argues that this court lacks jurisdiction
to review this issue, as the Garcias appealed only the district
court’s judgment in favor of the plaintiff and order denying the
Garcias’ motion for judgment as a matter of law. We disagree. “An
appeal from a final judgment preserves all prior orders intertwined
with the final judgment. . . .” Cook v. Powell Buick, Inc., 155
F.3d 178 (5th Cir. 1998).
Exercising our jurisdiction to review this issue, we find no
error in the district court’s denial of the Garcias’ motion to
suppress evidence. Trooper Rios did not possess a search warrant
or probable cause to search the interior of the pickup. However,
Garcia consented to the search of the vehicle, and consent is a
well-recognized exception to the usual requirement of a warrant or
probable cause. United States v. Watson, 432 U.S. 411 (1976);
Schneckloth v. Bustamonte, 412 U.S. 218 (1973). Nevertheless, that
consent must be freely and voluntarily given. United States v.
Hurtado, 905 F.2d 74 (5th Cir. 1990)(en banc). Fifth Circuit case
law suggests the following factors for consideration of whether a
search was voluntary: (1) the suspect’s custodial status; (2) the
presence of coercive police procedures; (3) the extent and level of
the suspect’s cooperation with the police; (4) the suspect’s
awareness of his right to refuse to consent; (5) his education and
intelligence; and (6) his belief that no incriminating evidence
will be found. United States v. Ponce, 8 F.3d 989, 997 (5th Cir.
1993). The record shows that Garcia was not in custody at the time
of his consent and that he was not subjected to any coercive
procedures. Garcia was fully cooperating with the police, and
while there is no evidence of his awareness of his right to refuse
to consent, proof of such is not required to show that his consent
was voluntary. Schneckloth, 412 U.S. at 248; Ponce, 8 F.3d at 997.
Further, there is no reason to question Garcia’s intelligence, and
Garcia believed that no incriminating evidence would be found, as
the money in question was concealed in a compartment located
under/behind the back seat.
The Garcias alternatively assert that the search exceeded the
scope of the consent given. In this case, the Trooper Rios asked
if he could “check the car.” Garcia simply replied, “yes.” Under
Fifth Circuit case law, when a defendant chooses not to place any
explicit limitation in his response to an officer’s general request
to search, this is evidence of general consent. See United States
v. Mendoza-Gonzalez, 318 F.l3d 663, 667 (5th Cir. 2003).
The Garcias’ third argument is that the district court erred
in denying a hearing to determine whether drug-detection dog
evidence was sufficiently reliable. We disagree. The Garcias
filed a motion to exclude the dog alert evidence but did not
request any hearing. Nor did their motion to exclude evidence even
mention any Daubert concerns. Regardless, we agree with our sister
circuits that while district courts have a general gate-keeping
duty under Daubert, the obligation does not require the court to
hold a separate hearing. U.S. v. Jawara, 462 F.3d 1173 (9th Cir.
2006); U.S. v. Charley, 189 F.3d 1251 (10th Cir. 1999).
Furthermore, a Daubert hearing is “the wrong procedural tool to
challenge the reliability of a drug detection dog.” U.S. v.
Berrelleza, 90 Fed.Appx. 361 (10th Cir. 2004)(unpublished); United
States v. Outlaw, 134 F.Supp.2d 807 (W.D.Tex.2001).
Finally the Garcias aver that the trial court erred in its
responses to two jury questions. We review for abuse of
discretion. Battle v. Memorial Hospital at Gulfport, 228 F.3d 544,
555 (5th Cir. 2000). We do not find that the trial judge’s
definition of the words “preponderance” or “prejudice” constitute
an abuse of discretion. Likewise, we find no abuse of discretion
in the trial judge’s selection of testimony to be re-read to the
jury, as this testimony was responsive to the jury’s question.
For the foregoing reasons, we AFFIRM.