UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 91-5554
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellant,
versus
LYNDA MARIE KELLY,
Defendant-Appellee.
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Appeal from the United States District Court for the
Western District of Texas
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(May 13, 1992)
Before GARWOOD, HIGGINBOTHAM, and BARKSDALE, Circuit Judges.
GARWOOD, Circuit Judge:
The Government appeals the district court's order granting
defendant-appellee Lynda Marie Kelly's (Kelly) motion to suppress
evidence. Concluding that the district court erred as a matter of
law, we reverse and remand.
Facts and Proceedings Below
At approximately 1:10 a.m. July 19, 1990, Kerr County Deputy
Sheriff James Trolinger (Trolinger) was patrolling on Interstate
Highway 10 in Kerr County, when he spotted a 1990 Nissan with
California license plates that appeared to be speeding. Trolinger
turned on his radar and confirmed that the Nissan was going eighty-
four miles per hour in a sixty-five miles per hour zone. Trolinger
stopped the car. Kelly's codefendant, Donald Craig McCaney
(McCaney), was driving, and Kelly was riding in the passenger seat.
Trolinger radioed his location and the California license plate
number of the Nissan to the sheriff's office dispatcher.
Trolinger then approached the Nissan. McCaney rolled down his
window, and as Trolinger walked forward, he could smell the odor of
burnt marijuana. Trolinger asked McCaney for his license and proof
of insurance; McCaney handed Trolinger a folded piece of paper with
his name, California address, and driver's license number on it.
Kelly handed Trolinger a driver's license with her picture.
Trolinger asked McCaney if he had a valid driver's license.
McCaney answered affirmatively, but that the folded paper was all
that he had with him. Trolinger asked who owned the Nissan. Kelly
responded that it was a rental, but was unable to find the rental
papers.
Trolinger then heard through the ear piece of his portable
radio the sheriff's office advice that the Nissan was reported
stolen. While waiting for confirmation, Trolinger asked McCaney
and Kelly to step out of the car and walk to its rear. McCaney
asked what was wrong, and Trolinger responded that he simply wanted
to make sure that McCaney's driver's license was valid. Both
McCaney and Kelly consented to a pat down, but no weapons were
found. Trolinger then separated McCaney and Kelly and questioned
them individually about their destination. Kelly purportedly
responded that they were going to San Antonio to visit McCaney's
2
sick relatives. McCaney answered that they were headed to San
Antonio to see Kelly's sick friends.
Ten minutes after the initial stop, Deputy Sheriff Philip
Karasek (Karasek) arrived at the scene as backup. Trolinger told
Karasek that he had smelled marijuana emanating from the car and
asked Karasek to check inside the vehicle for weapons or narcotics.
Karasek leaned his head into the car and saw a box of ammunition
lying on top of a sports bag on the back seat. Karasek reported
his discovery to Trolinger. McCaney and Kelly were then arrested,
handcuffed, and read their rights.
After arresting McCaney and Kelly, Trolinger proceeded to
search the passenger compartment of the car. In the back seat, he
saw the open black bag with a box of ammunition lying on top that
Karasek had seen. Trolinger removed the ammunition and reached
inside the bag, where he felt a handgun that he removed. The gun
was loaded. In a compartment on the side of the bag facing the
front seat, Trolinger found a small clear plastic bag containing
numerous other small ziplock bags.1 Continuing his search,
Trolinger found three marijuana cigarette butts in the front
ashtray and marijuana residue all over the floorboard in the front
seat.
Approximately twenty-five minutes after the initial stop,
Trolinger received confirmation that the Nissan was stolen. The
officers seized the vehicle to impound it and informed Kelly and
1
Trolinger testified that Kelly told him that "they" put
marijuana in the bags. Kelly testified that she told Trolinger
that she used the bags to package parts to pagers she used in her
business when she sent them to be repaired.
3
McCaney that they were under arrest for the unauthorized use of a
motor vehicle.2
Pursuant to the Kerr County Sheriff Department's unwritten
policy to inventory all impounded vehicles, Trolinger and Karasek
inventoried the car and its contents. Two pagers were found in the
front seat and were seized. Under the hood, between a firewall and
the quarter panel on the driver's side, Trolinger and Karasek found
a paper bag. Inside the bag was a white plastic package wrapped
with masking tape. They slit the plastic bag and found
approximately 900 grams of cocaine inside. Both McCaney and Kelly
were then transported to Kerrville.
McCaney was indicted for conspiracy to possess with intent to
distribute and aiding and abetting the possession with intent to
distribute in excess of 500 grams of cocaine. Before his bench
trial, McCaney filed a motion to suppress the cocaine, which was
carried with the bench trial. At the close of the evidence, the
district court granted McCaney's motion to suppress as to the
cocaine found under the hood and acquitted him. The district court
noted that the officers had a right to search inside the car and
stated that they had sufficient probable cause to obtain a warrant
to search under the hood. The district court found, however, that
2
Kelly testified at McCaney's bench trial, and her testimony
was introduced as an exhibit at her suppression hearing. Her
version of the events between the time the car was stopped and
the search under the hood is different in some respects from that
heretofore recited in the text. However, given that the district
court credited the testimony of the officers in determining there
was probable cause to search the passenger compartment, we
likewise credit the officers' testimony in establishing the facts
relevant to that determination.
4
the search under the hood was not proper without a warrant as a
valid inventory search because there was not sufficient proof as to
the Kerr County Sheriff's Department's inventory policy.
Kelly was indicted for possession of cocaine with intent to
distribute, and possession of a firearm during, and in relation to,
a narcotics offense. Kelly filed a motion to suppress the evidence
seized from the car and a motion to dismiss the indictment. The
district court held a hearing on the motions on January 14, 1991.
The transcripts of the testimony by Trolinger and Kelly from
McCaney's trial were admitted as exhibits. The transcript of the
district court's oral ruling on the motion to suppress in McCaney's
case was also admitted as an exhibit. The district court granted
the motion to suppress with regard to the cocaine found under the
hood on the basis that it was not a proper inventory search.3 The
3
The district court's comments at the hearing on Kelly's
pretrial motions are somewhat ambiguous:
"THE COURT: . . . .
"The motion to suppress is granted. Okay.
"I want to, I just--I want to make sure that
everybody, that nobody misconstrues this really. In my
opinion, maybe the officers were a little bit too
eager, but you did absolutely correct. I'm not
criticizing anything other than that inventory search.
That's the only thing I'm--I do not, in my own
personal, my own mind, I think there was enough there
to do a total search of the car.
"Had either, had number one, say a dog came around
and sniffed around it and found, and smelled the thing.
Or, number two, a warrant was, in fact, gotten from a
mag to, you know, to search every nook and cranny of
that car.
"There was absolutely no evidence of cocaine, it
seems to me, inside the passenger compartment or in the
5
district court subsequently entered an order granting the motion to
suppress based on the findings of fact and conclusions of law
orally made part of the record in McCaney's trial. The Government
timely filed a notice of appeal.
Discussion
The Government contends that the district court erred in
granting Kelly's motion to suppress on three grounds. First, the
Government argues that Kelly lacked standing to complain that the
search of the engine compartment violated her Fourth Amendment
rights. Second, it contends that the search of the engine was
valid because it was based on probable cause. Finally, the
Government urges that the district court erred in finding that the
search of the engine was not conducted as part of a lawful
inventory search of an impounded car. Because we find that the
search was a proper warrantless automobile search based on probable
cause, we do not reach the first or third issues.
The Government's next argument is that the search was a valid
warrantless automobile search because it was supported by probable
cause. Kelly responds that this issue has been waived because the
Government did not raise it at the suppression hearing. While we
trunk. Now, of course there was those zip, those bags,
those bags. And, see that to me, would have been more
than sufficient to go to a mag and say, hey look, we
got some stuff, we got some stuff that's suspicious,
give me a, give me a search warrant, and we're going to
go through that vehicle completely.
"And, that's the only thing I'm saying. I am not
saying that they're, I'm not saying anything else.
Okay." Hearing on Motion to Suppress at 22-23
(emphasis added).
6
will address the issue of waiver in more detail infra, we simply
note at the outset that the issue of adequate probable cause was at
least partially raised before the district court.4 Furthermore,
the district court explicitly found that sufficient probable cause
existed for the officers to have obtained a search warrant
authorizing the search of the engine compartment. The district
court granted the motion to suppress not because it concluded that
probable cause did not exist on the facts (indeed it found the
exact opposite), but because it erroneously believed that a search
warrant was necessary to search the engine compartment, despite the
existence of probable cause to search the passenger compartment.
With regard to the substance of the Government's argument, it
4
The record reveals that at Kelly's suppression hearing, both
the defense and the district court mentioned the issue of
probable cause, although it was not addressed by the Government.
Defense counsel summarized the district court's ruling in
McCaney's bench trial as follows:
"I think, the court properly ruled at the time
that the search of the passenger compartment of the car
was proper. Once the officer found, in plain view, the
box of ammunition, he had at that point, probable cause
to go on and search the rest of the car, incident to
the arrest of the defendants for unlawful possession.
. . . .
" . . . I think the court properly ruled then that
the gun found in the gym bag was not suppressed, but
that the cocaine found under the hood was suppressed
because the officers did not have probable cause to
open the hood of the car without a warrant." Hearing on
Motion to Suppress at 20-21 (emphasis added).
The district court also alluded to the presence of probable
cause: "See that to me, would have been more than sufficient to
go to a mag and say, hey look, we got some stuff, we got some
stuff that's suspicious, give me a, give me a search warrant, and
we're going to go through that vehicle completely." Id. at 23.
7
is well-established that warrantless searches of automobiles are
permitted by the Fourth Amendment if supported by probable cause.
See United States v. Ross, 102 S.Ct. 2157, 2164-65 (1982). In
Ross, the Supreme Court confronted the issue of the scope of a
warrantless automobile search:
"The scope of a warrantless search based on probable
cause is no narrower--and no broader--than the scope of
a search authorized by a warrant supported by probable
cause. Only the prior approval of the magistrate is
waived; the search otherwise is as the magistrate could
authorize." Id. at 2172.
The Court concluded that "[i]f probable cause justifies the search
of a lawfully stopped vehicle, it justifies the search of every
part of the vehicle and its contents that may conceal the object of
the search." Id. at 2173; see also United States v. Sanchez, 861
F.2d 89, 92 (5th Cir. 1988).
"Probable cause determinations are not to be made on the basis
of factors considered in isolation, but rather on the totality of
the circumstances." United States v. Reed, 882 F.2d 147, 149 (5th
Cir. 1989). "The factors relevant to probable cause are not
technical ones, but rather `factual and practical ones of everyday
life on which reasonable and prudent persons, not legal
technicians, act.'" Id. (quoting United States v. Tarango-Hinojos,
791 F.2d 1174, 1176 (5th Cir. 1986)).
In the present case, Trolinger and Karasek observed numerous
factors that led them to believe that the vehicle contained
contraband. First, Trolinger stopped the car in which Kelly was a
passenger for speeding. McCaney, the driver of the car, did not
have a valid driver's license, and Trolinger discovered that the
8
car was reported stolen. As Trolinger approached the car, he
detected "the distinct odor of burnt marijuana." Id. We have
previously held that this in itself would have justified the
subsequent search of the car, including locked compartments like
the trunk. Id.; see also United States v. Hahn, 849 F.2d 932, 935
(5th Cir. 1988). Furthermore, Karasek saw a box of ammunition
sitting on the sports bag in the back seat. Karasek conveyed this
information to Trolinger. Trolinger then searched the open sports
bag and found a loaded handgun. In the front of the passenger
compartment, he found marijuana residue and three marijuana
cigarette butts. Under the totality of the circumstances, Officers
Trolinger and Karasek had probable cause to believe that the car
contained evidence of illegal drug trafficking, and thus had the
right to search all of the car, including the locked trunk and
engine compartment, and any container within it that could conceal
the object of the search. See United States v. Loucks, 806 F.2d
208 (10th Cir. 1986). Thus, we are forced to conclude that the
district court erred as a matter of law in concluding that a
warrant, in addition to probable cause, was necessary to enable
Officers Trolinger and Karasek to search the engine compartment.
Regardless of the district court's error in finding that the
search of the engine compartment violated the Fourth Amendment
because the officers did not obtain a warrant, the issue of whether
the Government is entitled to the relief it requests remains. At
the suppression hearing, the Government relied solely on the theory
of a valid inventory search to justify the search under the hood of
the car. While the issue of probable cause was raised tangentially
9
by the defense and the district court, it was not raised directly
with respect to the search of the engine compartment, and it was
certainly never advanced by the Government.5 We note, however,
that this is not a typical waiver situation because the evidence
regarding probable cause was fully developed at the hearing and the
district court even made a finding that probable cause did exist.
Our general rule is that "issues raised for the first time on
appeal `are not reviewable by this court unless they involve purely
legal questions and failure to consider them would result in
manifest injustice.'" United States v. Garcia-Pillado, 898 F.2d
36, 39 (5th Cir. 1990) (quoting Self v. Blackburn, 751 F.2d 789,
793 (5th Cir. 1985)). While we have not applied the plain error
standard in the context of an argument that the Government failed
to raise at a suppression hearing, at least one other circuit has.
5
We recognize that there are cases in which federal courts
have held that the Government's failure to raise the issue of
probable cause at the suppression hearing precludes the
Government from raising the issue on appeal. See, e.g., United
States v. Scales, 903 F.2d 765, 770 (10th Cir. 1990); United
States v. Thompson, 710 F.2d 1500, 1503-04 (11th Cir. 1983),
cert. denied, 104 S.Ct. 730 (1984). However, in these cases, not
only did the Government not argue during the suppression hearing
that probable cause existed, the Government conceded that
probable cause did not exist. See Scales, 903 F.2d at 770 ("Not
only did the Government not make this argument below, . . . it
agreed with the court that the facts prior to the dog sniff gave
rise only to a reasonable suspicion of criminal activity. . . .
The district court made no findings to support a conclusion of
probable cause prior to the drug dogs' alerting on the
luggage."); Thompson, 710 F.2d at 1504 ("The record of the
suppression hearing reveals that government counsel not only
failed to argue the existence of reasonable suspicion, but
expressly conceded the issue."). We have not found any cases
holding that the Government is barred from raising the issue of
probable cause on appeal where, as here, the evidence regarding
probable cause has been fully developed and the district court
made findings at the suppression hearing that probable cause
existed.
10
See United States v. McNulty, 729 F.2d 1243, 1264, 1269 (10th Cir.
1984) (on rehearing en banc). We see no reason not to apply the
plain-error standard in this context.
In the instant case, it is clear that what is involved is
purely a legal question. We are also convinced that the failure to
consider it will result in manifest injustice. The result of the
district court's erroneous application of the law is the dismissal
of charges against Kelly. Moreover, where standing is held waived,
this does not lead to suppression unless there has been a Fourth
Amendment violation.6 Here, by contrast, the evidence and findings
demonstrate that the officers' actions were constitutional.
Further, this is not a situation as in Garcia-Pillado where the
Government's failure to raise the issue below resulted merely in a
small reduction in the length of the defendants' sentence.
Instead, the result of the government's delinquency in the instant
case is the dropping of all charges against Kelly. Because it is
apparent that the record is fully developed in this respect, that
probable cause existed to search the engine compartment and that
the district court entered findings to that effect, because the
legality of the search is purely an issue of law, and because
manifest injustice will result if we do not address this issue, we
hold that the search under the hood was proper and the district
court's order suppressing the cocaine found under the hood must be
reversed.
6
See, e.g., United States v. Maestas, 941 F.2d 273, 276 n.2
(5th Cir. 1991), cert. denied, 112 S.Ct. 909 (1992).
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Conclusion
Because the district court erred in holding that the search of
the engine compartment was improper without a warrant, we reverse
the district court's order granting Kelly's motion to suppress and
remand for trial on the merits.
REVERSED and REMANDED
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