U.S. v. Pierre ( 1992 )

  •                   UNITED STATES COURT OF APPEALS
                           For the Fifth Circuit
                               No. 90-8273
                        UNITED STATES OF AMERICA,
              Appeals from the United States District Court
                    For the Western District of Texas
                             (April 13, 1992)
    DeMOSS, Circuit Judges.
    DAVIS, Circuit Judge:
         Otis Harris and Terry Pierre appeal their convictions for
    possession of cocaine with intent to distribute and for conspiracy
    to commit the same offense.   A panel of this court concluded that
    the district court erred in denying Harris' motion to suppress
    evidence found in a consent search of luggage at a fixed checkpoint
    in Sierra Blanca, Texas.   Based on this determination, the panel
    reversed Harris' convictions. After en banc briefing and argument,
    we conclude that even if the checkpoint agent conducted a search,
    the search was not unreasonable.
         The panel also gave plenary review to Harris' and Pierre's
    arguments that the evidence was insufficient to support their
    convictions. Based on this standard of review, the panel found the
    evidence     sufficient    to   convict      Harris    of   possession     but
    insufficient to convict Pierre of either charge.             Upon rehearing
    and reviewing the sufficiency of the evidence under the proper
    plain error standard, we find the evidence sufficient to convict
    both defendants on both charges.          We also find no merit to Harris'
    argument    that   his   conviction   should    be    reversed   because   the
    prosecutor made an improper argument.          We therefore affirm Harris'
    and Pierre's convictions.
         In early November 1989, Terry Pierre, Derrick Turner and
    Calvin Broadnax drove from New Orleans to Los Angeles in a 1987 GMC
    Jimmy.     During the one-week visit to Los Angeles these three men
    met Otis Harris, a New Orleans resident who had known Broadnax when
    they were children.      He was looking for a ride back to New Orleans.
    Harris, Pierre and Turner stayed in various hotels in Los Angeles
    and Broadnax paid their expenses.
         The day they left Los Angeles, the group stopped at an
    expensive residence where they were met by two men -- Don Tanner
    and "Rob" or "Bob".       Pierre and Turner preceded Harris into the
    residence. Harris heard Tanner tell Broadnax that he was only able
    to get "four of them chickens".           Broadnax replied that it was no
    problem because he had two.           Harris testified that he did not
    realize the significance of the conversation at the time. He later
    remembered that in street talk, "chicken" is a code word for a kilo
    of cocaine.
         Broadnax    and   Tanner   left       the   others   who   waited   in   the
    entertainment room of the house.           Broadnax returned a few minutes
    later carrying a gray Samsonite suitcase.            Broadnax left the house
    and returned about forty minutes later. Broadnax then told Harris,
    Pierre and Turner that he would not be returning to New Orleans
    with them and gave Pierre cash for expenses.               A short time later
    the three men left Los Angeles for New Orleans in the GMC Jimmy.
    Pierre did the bulk of the driving until Harris took over just west
    of the Sierra Blanca checkpoint.
         Border Patrol Agent Lonny Hillin stopped the Jimmy at the
    fixed checkpoint in Sierra Blanca, Texas. The two-door vehicle was
    equipped with tinted fixed rear windows.                  Harris was driving,
    Turner was in the passenger seat, and Pierre was lying down in the
    back seat.    Harris rolled down the driver's window at the stop sign
    next to Agent Hillin.     Hillin asked Harris and Turner about their
    citizenship. They responded that they were United States citizens.
    Hillin, who thought he saw someone in the back seat, asked Harris
    if anyone else was in the back.        Hillin then "ducked [his] head in
    [the window] to get a clear view of the back seat" and to talk to
    Pierre about his citizenship. As he did so, Hillin smelled freshly
    burned marijuana.      Harris and Pierre had rolled and smoked a
    marijuana cigarette in the Jimmy about an hour before arriving at
    the checkpoint.
         Hillin did not indicate to the occupants of the Jimmy that he
    had smelled marijuana.       He asked Harris to pull the vehicle over to
    the secondary inspection area.             Once there, Harris exited the
    vehicle.    Hillin asked Harris if he objected to his searching the
    luggage; Harris said he did not.            Harris opened the back of the
    vehicle and lowered the tailgate.          He then took out and opened each
    piece of luggage for Hillin to inspect.         They reached the Samsonite
    suitcase last. Hillin testified that it was in an upright position
    propped against the rear seat of the vehicle.            In that suitcase,
    Hillin discovered six tape-wrapped bundles that later proved to
    contain 13.8 pounds of cocaine.
         The district court denied Harris' motion to suppress the
    drugs.     A jury convicted Pierre and Harris on one count each of
    conspiracy    to   possess   cocaine   with    intent   to   distribute,   in
    violation of 21 U.S.C. § 846, and one count each of possession of
    cocaine with intent to distribute, in violation of 21 U.S.C. §
    841(a)(1).     The government did not charge its principal witness,
    Turner.    On appeal, both defendants argued that the evidence was
    insufficient to support their convictions.               United States v.
    932 F.2d 377
     (5th Cir. 1991).             The panel held that the
    evidence was sufficient to convict Harris on the possession charge.
    Id. at 381. The panel, however, found the evidence insufficient to
    convict Pierre on either charge and reversed his convictions.              Id.
    at 392, 394.
         Harris also argued on appeal as he had in the district court
    that Agent Hillin conducted an illegal search.           He contended that
    agent Hillin violated rights secured to him by the Fourth Amendment
    when he inserted his head into the vehicle through the driver-side
    window and smelled the marijuana.                  He argued that the court should
    have suppressed the cocaine later discovered as a fruit of this
    illegal      search.         On    this    issue,    the    panel   held   that    Hillin
    conducted a search when he stuck his head into the vehicle and that
    the search was unreasonable.                  The panel concluded further that
    Harris'      consent     to       search    the    luggage    was   not    sufficiently
    attenuated from the illegal search to cure the taint. Id. at 390-
    91.    It determined therefore that the district court should have
    suppressed the evidence and reversed Harris' convictions.
           On the court's own motion, we ordered rehearing en banc
    primarily to address this issue.                  United States v. Pierre, 
    943 F.2d 6
     (5th Cir. 1991).
           The search and arrests at issue took place at the Sierra
    Blanca checkpoint, a fixed checkpoint on Interstate 10 near the
    Texas-Mexico border.              The key case establishing the constitutional
    limits of non-border checkpoint stops at this and other similar
    locations is United States v. Martinez-Fuerte, 
    428 U.S. 543
    In    that    case     the    Supreme       Court    held    that   agents    at    fixed
    checkpoints may stop and briefly question the occupants of any
    vehicle without violating their Fourth Amendment rights. The Court
    agreed that the stops do intrude to some degree "on motorists'
    right to `free passage without interruption.'"                         But the Court
    reasoned      that     the    government      has     a    substantial     interest   in
    conducting routine stops for inquiry at permanent checkpoints near
    the border to interrupt the flow of illegal aliens into the country
    from Mexico.    Id. at 557-58.
           The Court also noted that "while the need to make routine
    checkpoint stops is great, the consequent intrusion on Fourth
    Amendment interests is quite limited." Id. at 557.        In particular,
    "all that is required of the vehicle's occupants is a response to
    a brief question or two and possibly the production of a document
    evidencing a right to be in the United States."             Id. at 558,
    quoting United States v. Brignoni-Ponce, 
    422 U.S. 873
    , 880 (1975).
    The Court recognized that officers may refer cars to the secondary
    inspection area for any or no reason. Martinez-Fuerte, 428 U.S. at
    562;   see also United States v. Price, 
    869 F.2d 801
    , 804 (5th Cir.
    1989) quoting United States v. Garcia, 
    616 F.2d 210
    , 211 (5th Cir.
    1980); United States v. Gonzalez-Basulto, 
    898 F.2d 1011
    , 1012 (5th
    Cir. 1990).    If agents wish to search vehicles or their occupants,
    however, they must have probable cause or consent.          Id. at 567;
    United States v. Jackson, 
    825 F.2d 853
     (5th Cir. 1987) (en banc).
           In Jackson, the en banc court applied the holding in Martinez-
    Fuerte specifically to the Sierra Blanca checkpoint.        We held that
    Sierra Blanca is not the "functional equivalent" of the border;
    consequently full customs and immigration searches are not allowed.
    We also held that Martinez-Fuerte delineates the lawful scope of
    law    enforcement   action   during   stops   at   the   Sierra   Blanca
    checkpoint.    With this background, we turn to Harris' arguments in
    this case that the district court should have suppressed the
    evidence as the product of an illegal search.
             Harris argues that (1) Agent Hillin conducted a search of
    the car when he stuck his head in the vehicle to address the back-
    seat passenger, (2) the search exceeded the limits on checkpoint
    stops    set   in   Martinez-Fuerte      and    Jackson    and   was   therefore
    unreasonable because it was not based on probable cause or consent,
    and (3) his consent to search the luggage given in the secondary
    inspection area was not sufficiently attenuated from the initial
    illegal search to cure the taint.             Assuming without deciding that
    Hillin's actions did constitute a search, we nevertheless conclude
    that based on the particular facts of this stop Agent Hillin's
    conduct was reasonable.           Because this conclusion resolves the
    suppression      issue,    we   need   not     address    Harris'    attenuation
         The Fourth Amendment bars only unreasonable searches and
    seizures.      The reasonableness inquiry is driven by a balancing of
    "'the nature and quality of the intrusion on the individual's
    Fourth    Amendment       interests    against     the    importance    of   the
    governmental interests alleged to justify the intrusion.'"                   New
    York v. Class, 
    475 U.S. 106
    , 118 (1986) (quoting United States v.
    462 U.S. 696
    , 703 (1983)).           See also Delaware v. Prouse, 
    440 U.S. 648
    , 654 (1979); Jackson, 825 F.2d at 860.                     However, the
    intrusivenes of the search is not measured so much by its scope as
    by whether it invades an expectation of privacy that society is
    prepared to recognize as "reasonable."             Katz v. United States, 
    389 U.S. 347
    ,    361    (1967)     (Harlan,    J.   concurring).        For    fixed
    checkpoints, such as the one at Sierra Blanca, the Court has struck
    the balance by limiting the length and nature of questioning
    allowed during the stops.          Martinez-Fuerte.
           The Supreme Court's opinion in New York v. Class, 
    475 U.S. 106
    89 L. Ed. 2d 81
     (1986), provides an applied example of this
    reasonableness analysis.          In Class, officers lawfully stopped a
    vehicle that was speeding and had a cracked windshield -- both
    violations of New York law.         The driver exited the car.            While the
    driver was talking with one officer, the other officer went to the
    car to record the vehicle identification number (VIN) to complete
    the traffic citation.            When he did not find the VIN on the
    doorjamb, he reached into the interior of the car to move some
    papers obscuring the area on the dashboard where the VIN is located
    on later model cars.       As he did so, the officer saw the handle of
    a gun protruding from under the front seat.                The officer arrested
    the driver and charged him with criminal possession of a firearm.
           The Supreme Court agreed with the New York Court of Appeals
    that   the    officer's    intrusion     into     the    interior    of    the   car
    constituted     a    search.     But   the   Court      concluded,   for   several
    reasons, that the search was reasonable.                First, the government's
    interest in requiring and obtaining the VIN is "of the first
    order."      Id. at 118.       Thus the occupants of a car do not have a
    reasonable expectation of          privacy in the VIN when stopped for a
    traffic violation. Second, the officer's actions moving the papers
    on the car's dash to reveal the VIN were specifically focused and
    were no more intrusive than necessary to locate the VIN.              The court
    also concluded that the officer's conduct in moving the papers was
    less intrusive than a formal arrest for the traffic violations or
    ordering the driver to move the papers.                    Finally, the Court
    considered the added risk of danger to the officer if he had
    ordered the driver to return to the car to move the papers.                   Id.
         This leads us to the key inquiry in this case: whether Agent
    Hillin acted reasonably when he put his head in the window of the
    Jimmy.    On the particular facts of this case, we hold that he did.
    First, passengers of vehicles at fixed checkpoints near the border
    of the United States do not have a reasonable expectation of
    privacy    in    not     being    stopped     and     questioned   about     their
    citizenship.       Martinez-Fuerte and Jackson make it clear that
    checkpoint      agents    may    stop   and   query    motorists   about     their
    citizenship and also require them to produce documents showing a
    right to be in the United States.
         The physical features of the Jimmy made it difficult for Agent
    Hillin to speak with Pierre and verify his citizenship.                    The GMC
    Jimmy was a two-door model.             The fixed rear windows were tinted
    obscuring visibility of the interior.               Hillin questioned the front
    seat passengers of the car by peering in the open driver's window.
    But Pierre was lying down in the rear seat.                  From his position
    totally outside the vehicle, Agent Hillin could not clearly see and
    question Pierre.
         We read Martinez-Fuerte and Jackson as giving Agent Hillin the
    right to question Pierre in an effective way about his citizenship.
    This included the right of the officer to have eye contact with
    Pierre during the exchange. Otherwise, Agent Hillin would have had
    little basis to evaluate Pierre's answers even if the officer could
    hear them.   The vehicle owner in Class had no expectation of
    privacy in his vehicle identification number.      Similarly, Pierre
    had no reasonable expectation that he could avoid an effective
    series of questions from the customs agent at a fixed checkpoint
    such as the one at Sierra Blanca.     Thus the occupants of a vehicle
    stopped at a checkpoint have no expectancy that they will not be
    required to look an agent in the eye and answer questions about
    their citizenship.
         Second, Agent Hillin's actions were no more intrusive than
    necessary to accomplish his objective.         The district court's
    finding that "Agent Hillin      . . . stuck his head through the
    driver's side window to ask Pierre and Turner their citizenship" is
    not clearly erroneous. The court did not find and the record does
    not compel a finding that Agent Hillin put his head in the window
    for any other purpose.   The record does not disclose how far Hillin
    extended his head into the window.      Harris points to no evidence
    however that Hillin intruded into the car any further than was
    necessary to see and communicate with Pierre.     The vehicle had no
    rear window which could be rolled down or rear door to open
    allowing access to the passenger area which would have permitted
    Hillin to do his job in a less intrusive manner.      Agent Hillin's
    action in sticking his head in the driver's window was certainly
    less intrusive than requiring Pierre to get out of the vehicle.
    See Class, 475 U.S. at 118.
           Finally, the Court in Class, in evaluating the reasonableness
    of the search, considered the safety of the officer.                  Id. at 116.
    This component also cuts against Harris.              An agent at a checkpoint,
    for his own safety, would have good reason to position himself so
    he could see the person with whom he is speaking.
           We   therefore   conclude   that,       even    assuming      Agent    Hillin
    conducted a search when he stuck his head in the GMC Jimmy, it was
    not unreasonable and thus did not violate the Fourth Amendment.                   We
    emphasize however that our holding is fact specific and based on
    the peculiar facts of this case.          This opinion does not give carte
    blanche authority to checkpoint agents to intrude into vehicles
    during citizenship      inquiries.        We   hold     that   the    agent    acted
    reasonably when he stuck his head in the open window of the GMC
    Jimmy with its particular features to question an occupant he knew
    was present but could not otherwise see from the exterior of the
    car.                                 IV.
           For reasons we explain above, Hillin was lawfully within the
    car when he smelled the burned marijuana. Thus, the evidence falls
    within the plain view (or plain smell) exception to the warrant or
    probable cause requirement. Harris v. United States, 
    390 U.S. 234
    19 L. Ed. 2d 1067
     (1968); United States v. Marshall, 
    878 F.2d 161
     (5th Cir. 1989).      The smell of burned contraband gave Hillin
    probable cause to search the vehicle for suspected contraband.
    Marshall, 878 F.2d at 163.    "If probable cause justifies a 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."    United States v. Ross, 
    456 U.S. 798
    , 825 (1982).
    Hillin properly searched the luggage with or without Harris'
    consent.   The district court therefore did not err in denying
    Harris' motion to suppress the drugs the officers discovered in the
         Both Harris and Pierre also assert on appeal that the evidence
    was insufficient to support their convictions.    Neither Harris nor
    Pierre moved for judgment of acquittal when the government rested
    its case or at the close of all the evidence.    Consequently, this
    Court's review is limited to determining whether the district court
    committed plain error or "`whether there was a manifest miscarriage
    of justice.'   Such a miscarriage would exist only if the record is
    `devoid of evidence pointing to guilt,' or       . . . `because the
    evidence on a key element of the offense was so tenuous that a
    conviction would be shocking.'"     United States v. Ruiz, 
    860 F.2d 615
    , 617 (5th Cir. 1988), quoting United States v. Ivory, 
    468 F.2d 613
    , 614 (5th Cir. 1972) and United States v. Bullock, 
    551 F.2d 1377
    , 1385 (5th Cir. 1977).     We must review the evidence in the
    light most favorable to the jury verdict, including all reasonable
    inferences and credibility choices.    Ruiz, 860 F.2d at 617.   Under
    the plain error standard1 we find that the evidence was sufficient
    to convict Harris and Pierre for both possession and conspiracy to
    possess cocaine.
         First, to convict the defendants of conspiracy under 21 U.S.C.
    § 846, the Government had to prove the existence of an agreement
    between two or more persons to violate the narcotics laws, that
    each conspirator knew of the conspiracy, intended to join it and
    did participate in the conspiracy.     United States v. Magee, 
    821 F.2d 234
    , 238-39 (5th Cir. 1987).     The existence of a conspiracy
    need not be proved by direct evidence, but may be inferred from
    circumstantial evidence indicating a "concert of action" between
    the alleged conspirators.    United States v. Espinoza-Seanez, 
    862 F.2d 526
    , 536 (5th Cir. 1988).
         On the facts of this case, the jury's verdict finding the
    defendants guilty of a conspiracy does not constitute manifest
    injustice.   The record is far from "devoid of evidence" indicating
          The panel cannot be faulted for giving plenary review to the
    appellants' sufficiency arguments. The government did not point
    out the defendants' failure to preserve this error.            The
    government's failure to argue the correct standard of review on
    appeal does not, however, prevent us from measuring the argument
    against the appropriate standard of review.
         As we said recently in United States v. Vonsteen:
         The parties' failure to brief and argue properly the
         appropriate standard may lead the court to choose the wrong
         standard. But no party has the power to control our standard
         of review.    A reviewing court may reject both parties'
         approach to the standard. . . . If neither party suggests the
         appropriate standard, the reviewing court must determine the
         proper standard on its own.
    950 F.2d 1086
    , 1091 (5th Cir. 1992) (en banc) (internal citations
    an agreement between Pierre and Harris to transport the cocaine
    from Los Angeles to New Orleans.       Pierre agreed with Broadnax to go
    with him from New Orleans to Los Angeles and then return to New
    Orleans.     Harris joined them several days before they left Los
    Angeles.     Significantly, Harris and Pierre entered the Tanner home
    at the same time Broadnax and Tanner discussed the acquisition of
    "chickens", a street name for cocaine.           Broadnax      and Tanner made
    no apparent effort to prevent Harris and Pierre from hearing this
    discussion.       Harris and Pierre were together when Harris saw
    Broadnax with the Samsonite suitcase at the Tanner residence.
    Based   on   Agent    Hillin's   description     of   the   location    of    the
    Samsonite suitcase containing the cocaine in the Jimmy, the jury
    could infer that both Harris and Pierre knew it was there.                   This
    inference is reasonable because the suitcase was visible from the
    passenger area of the vehicle and Pierre and Harris had both
    removed jackets from the rear of the Jimmy during the trip.                  They
    also knew that the suitcase did not contain any of their personal
    belongings.       All the passengers of the vehicle had spent several
    nights in     a   hotel   together   before    they   loaded    the   Samsonite
    suitcase.      They were therefore familiar with the luggage that
    contained their personal belongings.
         In addition, Broadnax apparently looked to Pierre as the
    leader of the expedition from Los Angeles to New Orleans because
    Broadnax gave Pierre the expense money for the trip.                   The jury
    could question whether Broadnax would have financed their trip with
    no expectation of a quid pro quo.             The jury could also question
    whether Broadnax would have given these men a valuable cargo of
    cocaine to transport across the country without telling them what
    they were carrying.   On these facts, the jury's verdict finding
    Harris and Pierre guilty of conspiracy is not plain error.
         The essential elements to convict on the possession charge are
    (1) knowing (2) possession of drugs (3) with intent to distribute.
    United States v. Anchondo-Sandoval, 
    910 F.2d 1234
    , 1236 (5th Cir.
    1990). We agree with the panel that the evidence was sufficient to
    convict Harris of possession with intent to distribute even under
    a plenary review standard. Harris' possession conviction therefore
    necessarily withstands review under the plain error standard. For
    reasons stated above, the evidence supports the jury's finding that
    both men agreed to transport cocaine from Los Angeles to New
    Orleans and that a conspiracy existed between Harris and Pierre for
    this purpose.   It follows that the jury was entitled to find that
    Harris and Pierre knew the cocaine was in the vehicle and jointly
    possessed it.   They demonstrated their intent to distribute it by
    sharing the duty of driving it across the country.    The evidence
    therefore supports Pierre's possession conviction.     No manifest
    injustice occurred in the convictions of Harris and Pierre for
    possession with intent to distribute cocaine.
         Finally, Harris argues that a portion of the prosecutor's
    closing argument, in which he referred to Harris' and Pierre's
    criminal records, was improper and resulted in an unfair trial.
    The panel did not consider this argument because they reversed
    Harris' convictions on other grounds.                  Because of our disposition
    of Harris' other arguments, we must now consider this contention.
          Harris' counsel did not object to the prosecutor's statements.
    Therefore, we limit our review to whether the court committed plain
    error.       Stated differently, we must determine whether the argument
    "seriously affected the fairness, integrity, or public reputation
    of   the     judicial      proceeding      and     resulted   in   a    miscarriage    of
    justice."          United States v. Goff, 
    847 F.2d 149
    , 162 (5th Cir.)
    modified on reh'g, cert. denied sub nom., Kuntze v. United States,
    488 U.S. 932
     (1988).                  To merit reversal, the defendant must
    persuade us that the jury would not have found him guilty in the
    absence of the prosecutor's improper argument.                     Id.
          To         determine     the     potential     prejudicial       effect    of   the
    statements, we must consider the context in which the prosecutor
    made them.          United States v. Robinson, 
    485 U.S. 25
    , 33 (1988)
    (citing Lockett v. Ohio, 
    438 U.S. 586
     (1978));                         United States v.
    747 F.2d 930
    , 939 (5th Cir. 1984), cert. denied sub nom.,
    Solis       v.    United     States,    
    473 U.S. 906
       (1985).       Some   of   the
    prosecutor's          challenged        remarks,     standing      alone,    would     be
    considered improper.2                However, when we read the argument as a
    whole and consider the remarks in conjunction with the defense
    counsels' closing arguments to which the prosecutor was responding,
    we find no impropriety particularly under the plain error standard.
          For example, the prosecutor referred to the defendants as
    "multiple felons" and as "well-travelled in the criminal justice
    system". He also stated "Hey, they have been in jail. They know
    what it is like. Hey, they could take it."
         In his initial argument, the prosecutor declared that this was
    a credibility case.     He noted that the credibility contest was
    between two    "multiple   felons"    and   "a   kid",    referring     to    the
    government's witness Derrick Turner.         This was a permissible use
    of prior criminal history to impeach a testifying defendant.                 Fed.
    R. Evid. 609.      When Harris' attorney addressed the jury he re-
    emphasized his client's criminal record and asked the jury to only
    consider the facts of the present case in their deliberations.
    Pierre's attorney then argued that his client did not know the
    cocaine was in the car.    He reasoned that because of his client's
    criminal record, he was too smart to smoke marijuana in a car
    containing    drugs,   especially    just    before      he   arrived    at    a
    checkpoint.     The prosecutor in rebuttal responded that if the
    defendants were smart they would not be so well-travelled in the
    criminal system.    He remarked in substance that the defendants had
    been in jail before, knew what it was like and thus had a strong
    motivation to testify in a manner that would keep them out of jail.
    Even if the prosecutor's arguments were improper, these references
    to the defendants' criminal records did not seriously affect the
    fairness of the judicial proceeding or result in a miscarriage of
         For the reasons stated above, the convictions of Otis Harris,
    III and Terry James Pierre are AFFIRMED.