IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 92-4742
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ROBERT RYLES, JR.
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Texas
_________________________________________________________________
(March 25, 1993)
Before KING and EMILIO M. GARZA, Circuit Judges, and COBB*,
District Judge.
KING, Circuit Judge:
Robert Ryles appeals the district court's denial of his pre-
trial motion to suppress evidence of drug and weapon possession.
Ryles conditionally pled guilty to possession of cocaine with the
intent to distribute, a violation of 18 U.S.C. § 841(a)(1), but
reserved his right to appeal the district court's denial of the
motion to suppress. Ryles also appeals the district court's
increase of Ryles' offense level pursuant to § 2D1.1(b)(1) of the
United State Sentencing Guidelines. Finding no error, we affirm
*
District Judge of the Eastern District of Texas, sitting
by designation.
both Ryles' conviction and sentence.
I.
The following facts are essentially undisputed. On
September 20, 1991, at approximately 1:30 a.m. on a rural East
Texas highway, Trooper Barry Washington of the Texas Department
of Public Safety noticed that a brown van changed lanes without
signaling. Because the driver, Appellant Ryles, had violated a
Texas traffic regulation, Washington ordered the van, which
carried numerous passengers, to pull over along side the highway.
After pulling over, Ryles immediately exited the van and
approached Washington, who had also exited his patrol car and was
approaching the driver's side of the van.
Washington asked Ryles, the admitted driver of the van, to
produce a driver's license. Ryles responded that he did not have
one, and instead only produced an Illinois identification card.
Washington also asked Ryles whether there was liability insurance
on the van, as required by Texas law. Ryles indicated that he
was not the owner of the van and was unaware whether it was
insured. Because Washington smelled alcohol on Ryles' breath,
Ryles was required to submit to a roadside sobriety test, which
Ryles passed to Washington's satisfaction. Nevertheless, because
Ryles was not a licensed driver, Washington asked Ryles whether
any of the passengers in the van possessed a driver's license.
Ryles responded that he believed that one of the passengers was
licensed. Washington accordingly approached the van. Almost
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immediately after he reached the driver's door, he smelled burnt
marijuana.2 A subsequent warrantless search of the van yielded
cocaine and the weapon that formed the basis of Ryles' conviction
and sentence.3
II.
A. Ryles' Fourth Amendment claim
On appeal, it is disputed whether Trooper Washington
opened the driver's side door or stuck his head inside an open
window before he smelled the marijuana.4 The district court
failed to make a finding regarding whether Washington smelled the
marijuana before he pierced the airspace inside the vehicle.
Ryles argues that we should remand the case to the district court
for further fact-finding. The Government argues that, even if
Washington pierced the airspace inside the van before he smelled
the burnt marijuana, such an act was not an unconstitutional
warrantless "search" within the meaning of the Fourth Amendment.
We disagree with the Government that Washington's action
did not constitute a "search" for Fourth Amendment purposes.
Irrespective of when he smelled the marijuana, Washington,
2
It is undisputed on appeal that Washington's smelling the
marijuana afforded probable cause to engage in a warrantless
search of the van. See United States v. Merryman, 630 F.2d 780,
784 (10th Cir. 1980).
3
Ryles argues that the cocaine and weapon seized should be
suppressed as "fruits from a poisonous tree." See Wong Sung v.
United States, 371 U.S. 471 (1963).
4
At the pre-trial suppression hearing, Washington did not
remember whether he had placed his head inside the vehicle. A
passenger in the vehicle testified that Washington opened the
van's door and stuck his torso inside the vehicle.
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without a search warrant, intruded inside a space that, under
most circumstances, is protected by a legitimate expectation of
privacy. See United States v. Pierre, 958 F.2d 1304 (5th Cir.
1992) (en banc); cf. United States v. Lovell, 849 F.2d 910, 913
(5th Cir. 1988) (airspace around luggage transported on common
carrier not protected zone of privacy under Fourth Amendment).
Although there is generally a diminished privacy interest in an
automobile, as opposed to a residence, see, e.g., Chambers v.
Maroney, 399 U.S. 42 (1970), a driver or car owner does not
abandon all expectations of privacy.
Nevertheless, like any other Fourth Amendment privacy
interest, the expectation of privacy in the inside airspace of an
automobile is not absolute. Rather, if Washington's intrusion
was reasonable, his "search" was not a Fourth Amendment
violation. See Maryland v. Buie, 494 U.S. 325, 331 (1990) ("It
goes without saying that the Fourth Amendment bars only
unreasonable [warrantless] searches and seizures."). As the
Court noted in Buie, "[o]ur cases show that in determining
reasonableness, we have balanced the intrusion of the
individual's Fourth Amendment interests against [the] promotion
of legitimate governmental interests." Id.
In the particular factual context of the instant case, we do
not believe that Trooper Washington would have been unreasonable
either in placing his head inside the interior of the van through
an open window or in opening the driver's door and placing his
torso inside, even assuming he did not smell marijuana before the
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intrusion. Our conclusion is based on the reason behind
Washington's actions. After pulling over a van in the wee hours
of the morning on a relatively deserted Texas highway, Washington
was immediately approached by the driver, who smelled of alcohol
and admitted that he had no driver's license. Even though Ryles
was not intoxicated, he still could not lawfully drive the van.
At the Ryles' own suggestion, Washington approached the van to
inquire whether anyone else in the van was licensed and could
drive the vehicle away. Although he did not say so at the
suppression hearing, we believe that Washington would have
considered it necessary to determine whether the passenger who
would ultimately be driving the van was impaired by alcohol --
since, after all, Ryles had alcohol on his breath. Even assuming
that he walked up to the driver's door and opened it without
knocking, Washington would only have been attempting to assure
that the van would be driven safely. We can hardly say that this
would have been unreasonable. Cf. New York v. Class, 475 U.S.
106 (1986) (police officer's intrusion into interior of vehicle
to remove papers obstructing VIN number not unreasonable
warrantless search).
Ryles further argues that Washington's actions -- again
assuming that he intruded into the interior of the van before
smelling burnt marijuana -- were unreasonable because he did not
pursue the "least intrusive" course in inquiring about whether
any of the van's passengers were licensed. In particular, Ryles
argues that Washington could have asked the passengers to step
5
outside the van. Again, in view of the particular circumstances
facing Washington -- including the fact that it was Ryles himself
who suggested that Washington ask the other passengers if they
were licensed, cf. Illinois v. Rodriguez, 497 U.S. 177 (1990)
(warrantless search valid when police reasonably believe they
have consent to search) -- we cannot say that Washington acted
unreasonably.
In conclusion, we stress the limited nature of our holding.
We do not intend to suggest that a police officer may in all
circumstances constitutionally intrude into the interior of a
vehicle simply because he has temporarily lawfully detained the
vehicle because of a traffic violation. We, therefore, reject
the Government's argument that we should extend the "vehicle
frisk" doctrine to the facts of this case. See Michigan v. Long,
463 U.S. 1032 (1983) (holding that police may engage in
warrantless "frisks" of vehicles when they have reasonable belief
that driver poses danger and that weapon may be inside car).
Rather, we hold only that, in view of the particular
circumstances of this case, Trooper Washington acted reasonably,
even assuming he did intrude into the interior space of the van
before smelling burnt marijuana. Thus, we see no need to remand
for further fact-finding.
B. Ryles' § 2D1.1(b)(1) claim
Ryles also raises a second claim. He argues that the trial
court erred by increasing his offense level by two, pursuant to
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U.S.S.G. § 2D1.1(b)(1). That provision of the Guidelines permits
an increase in a defendant's offense level if a firearm was
possessed during the commission of a drug offense. Ryles argues
that § 2D1.1(b)(1) was inapplicable in his case because the
shotgun found in the van was disassembled. The Government claims
that it was only "disassembled" in that the barrel was removed
from the stock and that it could have been assembled in thirty
seconds or less. The presentence investigation report, which was
adopted by the district court, specifically found that the gun
could have been assembled in thirty seconds. Ryles did not
object to that finding.
Ryles cites cases in which courts implied that "inoperable"
weapons in certain cases would preclude a district court from
imposing a § 2D1.1(b)(1) increase. See United States v. Paulk,
917 F.2d 879, 882 (5th Cir. 1990); United States v. Luster, 896
F.2d 1122 (8th Cir. 1990); United States v. Burke, 888 F.2d 862
(D.C. 1989). In those cases, the courts held that there was no
per se bar to imposing a § 2D1.1(b)(1) increase based on
"inoperable" weapons so long as those weapons "at the time of the
offense did not appear clearly inoperable." In this regard, the
Guidelines defines a "firearm" as "any weapon . . . which will or
is designed to or may readily be converted to expel a projectile
by the action of the explosive. . . " U.S.S.G. § 1B1.1
(Application Note 1(e)) (emphasis added). Because Ryles'
disassembled shotgun could have been "readily converted" to an
operable firearm, the district court properly imposed a §
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2D1.1(b)(1) increase in Ryles' offense level.
III.
For the foregoing reasons, we AFFIRM both Ryles' conviction
and sentence.
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