United States v. Fuentes Rodriguez ( 2021 )

Case: 20-20062 Document: 00515978054 Page: 1 Date Filed: 08/13/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
No. 20-20062 August 13, 2021
Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Christhian Josue Fuentes Rodriguez,
Defendant—Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No.4:19-CR-112-1
Before Jolly, Duncan, and Oldham, Circuit Judges.
Per Curiam:*
This case began with a traffic stop. Deputy Crissmon-Stewart of the
Fort Bend County Constable’s Office pulled over a Dodge Charger that was
going 55mph in a 35mph-zone. Things started to go south when the deputy
discovered that the driver, defendant Christhian Rodriguez, had no license
or insurance. The deputy thus could not allow Rodriguez to drive the vehicle,
*
Pursuant to 5th Circuit 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opinion should not be published and is not precedent except under the limited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 5th Circuit Rule 47.5.4.
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No. 20-20062
but he expressed a willingness to release the car to a friend or family member
who had a valid license. Deputy Crissmon-Stewart then ran the license plate
number and discovered that it did not match the make and model of the
vehicle he had just stopped. He then checked the VIN against the license
plate number and learned that it, too, did not match. In the light of this new
information, he suspected that the Charger was stolen and, accordingly, the
possibility of releasing it to a friend or family member of Rodriguez was off
the table.
After running the plate, Deputy Crissmon-Stewart walked up to the
driver-side window and asked Rodriguez to step out of the vehicle. He
handcuffed Rodriguez and put him in the back of the police car. As this was
going on, Deputy Crissmon-Stewart and Rodriguez went back and forth
about whether the deputy had permission to search the vehicle. Eventually,
in the back of the police car, realizing that the car he was driving was about to
be searched, Rodriguez stated clearly that he did not consent to a search.
Deputy Crissmon-Stewart responded that he had probable cause to search
without consent, which he then proceeded to do.
The police discovered a handgun, six bullets, two scales, and baggies
inside the car. Rodriguez, who is a citizen of Honduras, was indicted in
federal district court for violating 18 U.S.C. § 922(g)(5)(A), which prohibits
aliens unlawfully present in the United States from possessing firearms or
ammunition. Rodriguez moved to suppress the gun and bullets on the ground
that they had been obtained through an unconstitutional search. After the
district court denied his motion, Rodriguez entered a guilty plea, expressly
reserving his right to appeal the denial of the motion to suppress. Now, we
provide a more detailed statement of the facts.
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I.
A.
On January 29, 2019, Deputy Crissmon-Stewart pulled over a white
Dodge Charger in Katy, Texas, for going 55mph in a 35mph-zone. Deputy
Crissmon-Stewart approached the driver-side door and explained that he had
stopped the vehicle because of the speeding violation. The driver and sole
occupant of the vehicle, defendant Christhian Rodriguez, explained that he
was speeding because he was late for work. Deputy Crissmon-Stewart later
testified that, while standing there at the driver-side door talking to
Rodriguez, he smelled the odor of marijuana mixed with that of cologne, but
he did not mention it at the time.
The deputy then asked Rodriguez for his license and proof of
insurance. Rodriguez had neither. He said that he was working on acquiring
insurance, that he had purchased the car from his uncle, and that he was
making payments on it. At this point, the deputy returned to his vehicle and
ran the plates. He discovered that they did not belong to a Dodge Charger.
Deputy Crissmon-Stewart walked back up to the driver-side door of
the Charger. He observed that the registration tags on the Charger were
expired. He then told Rodriguez that, under the circumstances, he could not
let him drive and asked if there was anyone he could call to pick up him and
the car. He also asked if there was anything illegal, like marijuana, in the
vehicle. He asked Rodriguez, “Do you smoke?” Rodriguez responded,
essentially, that, while he did smoke, there was nothing illegal in the car.
The deputy again walked back to his patrol car and checked the license
plate number against the VIN. They did not match. He also checked reports
of stolen vehicles in Fort Bend County. Nothing turned up, though as
Deputy Crissmon-Stewart noted at the suppression hearing, the search was
limited to records from Fort Bend County and the negative result did not
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mean that the car was not stolen. It could have been stolen in another county,
for instance, or stolen but not reported as such.
Deputy Crissmon-Stewart then walked back up to the driver-side door
at third time and asked Rodriguez to step out of the vehicle. Rodriguez
complied. As Rodriguez was exiting the vehicle, Deputy Crissmon-Stewart
asked him once again if there was anything illegal in the car and did Rodriguez
mind if he checked to make sure. It is somewhat difficult to make out, from
the audio recording available to us, exactly what Rodriguez said in response,
but it sounds as though he reiterated that there was nothing illegal in the car
and, somewhat reluctantly, gave the deputy consent to search. Deputy
Crissmon-Stewart then guided Rodriguez toward the back of the car. As they
were walking, the deputy asked, “So you’re giving me consent, right?”
Rodriguez did not respond.
Both parties standing behind the Charger, Deputy Crissmon-Stewart
patted Rodriguez down and then handcuffed him, stating, “I’m going to
detain you.” He told Rodriguez that he was not under arrest, but that he
would be detained until the deputy could “figure out what’s going on.”
Deputy Crissmon-Stewart walked the handcuffed Rodriguez to his patrol car
and put him inside. At this point, Rodriguez presumably realized that the car
was about to be searched and clearly stated that he did not consent. Deputy
Crissmon-Stewart replied, “but I have PC because this car and that tag don’t
go together.” He proceeded to search the vehicle, with the help of another
law enforcement officer who had arrived at the scene.
The search produced two scales, baggies, six 0.38 caliber bullets, and
a 0.38 caliber revolver. According to the government, Rodriguez’s
detainment became an arrest either at the moment the bullets were
discovered or at some unspecified subsequent time. After completing their
search, the officers called a tow truck to come collect the vehicle.
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B.
Rodriguez was indicted in federal district court for violating 18 U.S.C.
§ 922(g)(5)(A), a provision that prohibits aliens unlawfully present in the
United States from possessing firearms or ammunition. Rodriguez is a
citizen of Honduras. According to Immigration and Customs Enforcement
records, Rodriguez illegally entered the United States as a minor in 2005. His
removal was ordered by an immigration judge in 2006, but Rodriguez was not
then in custody and the order was not enforced. Federal agents encountered
Rodriguez in 2018 but declined to enforce the removal order at that time
because Rodriguez qualified for the Deferred Action for Childhood Arrivals
program. The deferral of removal granted to Rodriguez under that program
expired in December 2018. It is thus indisputable that, as of January 2019,
Rodriguez was unlawfully present in the United States.
Following the indictment, Rodriguez moved to suppress the gun and
bullets on the ground that they had been discovered through an unlawful
search. The district court denied the motion, stating, in relevant part:
In my view, the marijuana is simply a red herring. It’s
not a problem at all because I’m not—I’m of the opinion that,
first, the officer had probable cause to detain the vehicle
whether or not Mr. Fuentes was under arrest or not. He could
certainly have still let Mr. Fuentes go, but he was not going to
turn the vehicle over to Mr. Fuentes unless—or turn it over to
anyone unless someone showed up with the appropriate
identification and/or right to drive. And under the
circumstances where the tag and the VIN number did not
match, he certainly had the right to seize the vehicle until the
rightful owner came.
Since Mr. Fuentes was not an owner, Mr. Fuentes
cannot protest the—whether or not he searched the vehicle or
not. I’m not really sure that his—he has the right to give
permission and withdraw it and then say, I didn’t give you
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permission. But at the time in which he, let’s say, withdrew
permission, it’s the Court’s opinion that the officer had full
authority to detain the vehicle and hold it and do an inventory
search of it pursuant to releasing it to the rightful owner. So it
would—what was seized at the moment of the search, in the
Court’s opinion, would have been found or seized at the point
of inventory whether it was at the scene or at some point later
on. In the Court’s opinion, the motion to suppress should be
denied. And that will be my order to be entered in this matter.
Rodriguez subsequently entered a guilty plea, expressly reserving his
right to appeal the district court’s order denying his motion to suppress.
Rodriguez was sentenced to a one-year term of imprisonment to be followed
by a three-year term of supervised release. He timely appealed.
II.
When reviewing an order denying a motion to suppress, this court
reviews factual findings for clear error. Legal determinations are reviewed de
novo. United States v. Hearn, 563 F.3d 95, 101 (5th Cir. 2009). “Factual
findings are clearly erroneous only if a review of the record leaves this Court
with a definite and firm conviction that a mistake has been committed.” Id.(cleaned up). We shall affirm if the judgment of the district court can be
supported on any ground, regardless of whether the district court actually
issued its judgment on that basis. See Bickford v. Int. Speedway Corp., 654 F.2d
1028, 1031 (5th Cir. Unit B Aug. 1981) (“[R]eversal is inappropriate if the
ruling of the district court can be affirmed on any grounds, regardless of
whether those grounds were used by the district court.”).
III.
Although the district court issued its judgment on the basis of the
inevitable discovery doctrine, we find this case more easily resolved by
considering whether probable cause existed to support a search of the vehicle
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at the scene of the arrest. In short, it did. Deputy Crissmon-Stewart testified
that he smelled an odor of marijuana mixed with cologne coming from
Rodriguez or the vehicle. That alone created probable cause to believe there
might be marijuana in the vehicle and justified a search. See United States v.
Lork, 132 F. App’x 34, 35 (5th Cir. 2005) (“[A] detectable odor of marijuana
emanating from a vehicle provides probable cause for the search of a
vehicle.”) (citation omitted); United States v. Moore, 329 F.3d 399, 405 (5th
Cir. 2003) (“Because the police smelled marijuana as they approached the
vehicle, they had probable cause to search the vehicle.”); United States v.
Ibarra-Sanchez, 199 F.3d 753, 760 (5th Cir. 1999) (“This Court has
consistently held that the smell of marihuana alone may constitute probable
cause to search a vehicle.”).
IV.
The district court did not err in denying Rodriguez’s motion to
suppress because the smell of marijuana created probable cause to believe
there was marijuana in vehicle, and that alone justified a search of its
contents. Accordingly, the judgment of the district court is hereby
AFFIRMED.
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