IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 95-20528
Summary Calendar
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE LEOMAR BORRERO,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court for the
Southern District of Texas
USDC No. 93-CR-292-2
_________________________________________________________________
May 08, 1996
Before JOLLY, JONES, and STEWART, Circuit Judges.
PER CURIAM:*
I
Jose Leomar Borrero, who was an overnight guest at the
searched premises, appeals his convictions for conspiracy to
possess with intent to distribute in excess of 5 kilograms and
possession with intent to distribute 5 kilograms or more of
cocaine. Borrero argues that the district court erred in denying
his motion to suppress those items recovered from his person and
*
Pursuant to Local Rule 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this opinion should not be published and is not precedent except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 Local Rule 47.5.4.
from his briefcase. The district court based its ruling on this
court's decision in United States v. Giwa, 831 F.2d 538, 543-45
(5th Cir. 1987). In that case, although we noted that a casual
visitor may be "outside the scope of the premises search warrant
[that requires] independent probably cause," we further held that
a overnight visitor was not a casual visitor.
II
Borrero has not challenged the validity of the search warrant,
he simply asserts that as a visitor to the residence, a search of
his person and belongings was outside of the scope of the warrant.
To determine whether a visitor and his belongings would be covered
by a premises search warrant is determined by "the relationship
between the person and the place." Giwa, 831 F.2d at 545. Borrero
concedes that he was an overnight guest in the residence and that
he was found in the house in the early morning hours, clad in
sleepwear. These are the same circumstances as those that led the
Giwa Court to conclude that an overnight guest was not a casual
visitor or a mere passerby. Borrero has not shown that the search
was unreasonable.
III
Borrero asserts that Giwa was wrongly decided, because
independent probable cause should be required for all visitors.
However, only an "overriding Supreme Court decision," a change in
statutory law, or this court sitting en banc may overrule a panel
decision. See United States v. Zuniga-Salinas, 952 F.2d 876, 877
-2-
(5th Cir. 1992) (en banc). Borrero has not asserted a statutory
change or a subsequent en banc case affecting Giwa. Borrero
incorrectly asserts that Giwa is inconsistent with the Supreme
Court holding in Minnesota v. Olson, 495 U.S. 91, 97-100 (1990).
For the reasons stated herein, the judgment of conviction of
Jose Leomar Borrero is
A F F I R M E D.
-3-