United States v. Cabello , 92 F. App'x 983 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
March 26, 2004
UNITED STATES COURT OF APPEALS
Charles R. Fulbruge III
FOR THE FIFTH CIRCUIT Clerk
_________________________
No. 03-10413
SUMMARY CALENDAR
_________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CARLOS OLIVO CABELLO,
Defendant - Appellant.
______________________________________________________________________________
On Appeal from the United States District Court for the
Northern District of Texas
(4:02-CR-45-ALL-Y)
______________________________________________________________________________
Before REYNALDO G. GARZA, DAVIS, and BARKSDALE, Circuit Judges.
REYNALDO G. GARZA, Circuit Judge:1
In this appeal, we review the conviction of Defendant - Appellant, Carlos Cabello, for
possession with intent to distribute methamphetamine and possession of a firearm in furtherance
of a drug trafficking crime. For the following reasons, we uphold the conviction.
Cabello argues that the district court erred in denying his motion to suppress physical
1
Pursuant to 5th Cir. R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5th Cir. R.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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evidence, his motion to suppress his oral and written statements, and his challenge pursuant to
Batson v. Kentucky, 476 U.S. 79 (1986). Cabello also argues that, because his oral and written
statements are inadmissible, there is insufficient evidence to support his conviction.
We agree with the district court that both the drugs and firearm found in Cabello’s
possession as a result of the traffic stop are admissible. The initial traffic stop was valid because
the vehicle in which Cabello was riding did not have a properly illuminated license plate as
required by Texas law, thus giving the officer a specific, articulable basis for stopping the vehicle.
See Terry v. Ohio, 392 U.S. 1, 21 (1968). Further, the scope of the detention did not exceed the
scope of the initial stop because the officer was constitutionally permitted to collect identification
from all three adults in the vehicle and to request a computer check thereon. See United States v.
Shabbaz, 993 F.2d 431, 436-37 (5th Cir. 1993). The use of a drug-detecting dog did not extend
the scope of the detention, and allowing the dog to do a “sniff search” of the vehicle did not
violate the Fourth Amendment. See United States v. Williams, 69 F.3d 27, 28 (5th Cir. 1995); see
United States v. Mendez, 27 F.3d 126, 129 n.4 (5th Cir. 1994). The dog’s alert gave the officer a
reasonable suspicion to justify a continued detention and probable cause to search the vehicle and
its contents. See United States v. Valdez, 267 F.3d 395, 398 (5th Cir. 2001); see Williams, 69
F.3d at 28. Thus, the physical evidence is admissible.
Cabello argues that his oral statements are not admissible because he was in custody from
the moment the officer stopped the vehicle. As Cabello failed to raise this argument at the
suppression hearing, we review the admission of his oral statements for plain error. See United
States v. Johnson, 127 F.3d 380, 392 (5th Cir. 1997); FED. R. CRIM. P. 52(b). Cabello’s
statements to the officer were made in response to a question directed to all of the occupants of
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the vehicle, not a direct question from the officer to the Cabello. No one had been arrested, and
no contraband had been found at the time Cabello made the statements. There is no plain error
readily apparent in the record. See United States v. Flores-Chapa, 48 F.3d 156, 161 (5th Cir.
1995). Even assuming there was a plain error, Cabello has not demonstrated that his substantial
rights were affected. See United States v. Olano, 507 U.S. 725, 730-36 (1993). Cabello’s oral
statements are admissible.
Cabello argues that his written statement is inadmissible because it was coerced. Cabello
testified at trial that he signed the written statement in exchange for a promise that his nephews
present in the vehicle would not be charged in the drug case. The investigators who took
Cabello’s statement, however, testified that they did not promise Cabello that his nephews would
not be charged in exchange for Cabello giving a written statement. The investigators also testified
that Cabello was read his rights, that his statement was voluntary, and that his statement was the
product of his free and rational choice. Thus, the record does not support Cabello’s argument
that his written statement was involuntary due to coercion. See United States v. Scurlock, 52
F.3d 531, 536 (5th Cir. 1995). The written statement is admissible.
Cabello also argues that the district court erred in determining that he failed to make a
prima facie showing of racial discrimination in connection with his Batson challenge. The
prosecutor struck the only Hispanic juror on the venire panel, and Cabello argues that the
peremptory strike was racially motivated. Because we accord great deference to the district
court’s decision on the question of discriminatory intent, we find that the district court did not
clearly err in determining that Cabello failed to make a prima facie showing. See United States v.
Perkins, 105 F.3d 976, 978 (5th Cir. 1997).
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Finally, Cabello argues that the evidence is insufficient to support his conviction, based
upon his argument that his statements and the physical evidence are inadmissible. Because we
have found those statements and the physical evidence to be admissible, his challenge to the
sufficiency of the evidence is without merit. Thus, we affirm the conviction.
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