IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
No. 01-20250 Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHRISTOPHER ALMARAZ,
Defendant-Appellant.
Appeals from the United States District Court for the Southern District of Texas USDC No. H-00-CR-557-1
January 31, 2002 Before GARWOOD, JONES, and STEWART, Circuit Judges.
PER CURIAM:*
Christopher Almaraz challenges his conviction for knowingly
possessing a firearm during and in relation to a drug-trafficking
offense, in violation of 18 U.S.C. § 924(c), and for being a felon
in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1).
Almaraz contends that the district court erred in denying his
motion to suppress the results of the warrantless search of his
* 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 R. 47.5 the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. vehicle. In reviewing this claim, we consider the evidence in the
light most favorable to the party prevailing below, here the
government, accept all factual findings that are not clearly
erroneous, and review questions of law de novo. United States v.
Shannon, 21 F.3d 77, 81 (5th Cir. 1994).
Almaraz does not challenge the stop of the vehicle, which was
clearly based on probable cause. He argues that the officers were
not authorized to open a closed container as part of their
inventory search of the vehicle absent a specific, written
departmental policy permitting them to do so. He contends that the
suppression-hearing testimony regarding the policy with respect to
the opening of closed containers was contradictory and that the
written policy submitted said nothing about the subject.
Almaraz’s argument is unavailing.
We have stated that there is no requirement that a law
enforcement agency’s inventory policy must specifically address the
steps that an officer should take upon encountering a closed
container. See United States v. Como, 53 F.3d 87, 92 (5th Cir.
1995). Deputies Clark and Mendez both testified that departmental
policy requires officers to inventory completely a vehicle which is
going to be towed for the purpose of “safekeeping” valuables. It
is clear that the policy behind conducting an inventory search was
for safekeeping, rather than simply searching for evidence. See
id. at 93. Moreover, Deputy Clark stated that he was not looking
2 for or expecting to find any contraband when he lifted the white
shirt lying on the backseat, revealing a gun case. Thus, there is
no indication that the inventory search here was actually a search
for evidence, nor is there any allegation that the officers acted
in bad faith during the inventory search. See United States v.
Gallo, 927 F.3d 815, 819 (5th Cir. 1991).
In any event, as the district court found, it was readily and
reasonably apparent to the officers that the closed container in
question was a gun case and likely contained a gun, and hence the
officers had essentially located the weapon without opening any
closed container. See, e.g., Como, 53 F.3d at 93 n.4.
Finally, and independently of the foregoing, it is clear that
there was probable cause to search the interior of the vehicle in
that the officers noted the smell of marihuana emanating from the
vehicle on approaching its passenger side and before making any
entry into it. “This Court has consistently held that the smell of
marihuana alone may constitute probable cause to search a vehicle.”
United States v. Ibarra-Sanchez, 199 F.3d 753, 760 (5th Cir. 1999)
(citing cases).
The district court thus did not err in denying Almaraz’s
suppression motion.
Almaraz next complains that his attorney was ineffective in
several ways. Because these complaints of ineffective assistance
were not first addressed in the district court, this court will not
3 review them, except for the complaint that counsel failed to move
for judgment of acquittal at the close of the government’s evidence
(no defense evidence was presented). See United States v. Rosalez-
Orozco, 8 F.3d 198, 199-200 (5th Cir. 1993); United States v.
Higdon, 832 F.2d 312, 314 (5th Cir. 1987). With respect to the
failure to move for judgment of acquittal, we hold, as discussed
below, that the evidence is sufficient to support the conviction
even when reviewed under the standard appropriate for instances
where proper motion for judgment of acquittal has been made, and
hence the failure to move for judgment of acquittal did not
prejudice Almaraz and he is not entitled to relief on his claim of
ineffective assistance of counsel in this respect. Rosalez-Orozco
at 199-200.
Almaraz additionally contends, for the first time on appeal,
that the admission of the testimony concerning his use of marihuana
and his prior weapons conviction was irrelevant and/or unduly
prejudicial and should have been excluded under Fed. R. Evid. 404.
Because these arguments were not raised in the district court,
review is for plain error only. United States v. Olano, 507 U.S.
725, 732-36 (1993); United States v. Calverley, 37 F.3d 160, 162-64
(5th Cir. 1994) (en banc).
Almaraz has not demonstrated any plain error in connection
with the admission of the challenged testimony.
The minimal evidence regarding the use of marihuana was
4 elicited from Almaraz’s companion, Cynthia Hinojosa, when
discussing her inability to drive, and related to the stop and
ultimate decision to impound the vehicle, as she and Almaraz were
each too impaired to drive, and inventory search it. Given the
unchallenged evidence of cocaine and marihuana in the vehicle, it
is clear that if there was any error in this respect there is no
showing that it was prejudicial, and certainly it does not
seriously affect the fairness, integrity or public reputation of
judicial proceedings.
Moreover, the fact that Almaraz had a prior felony conviction
was an essential element of the section 922(g) offense with which
he was charged and which thus had to be proved beyond a reasonable
doubt to obtain a conviction. See 18 U.S.C. § 922(g). Rule 404
has no application in such a circumstance.
In his final point of error, Almaraz challenges the
sufficiency of the evidence to support his conviction.
Specifically, Almaraz contends that his conviction under both
counts of the indictment cannot stand because the Government did
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IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
No. 01-20250 Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHRISTOPHER ALMARAZ,
Defendant-Appellant.
Appeals from the United States District Court for the Southern District of Texas USDC No. H-00-CR-557-1
January 31, 2002 Before GARWOOD, JONES, and STEWART, Circuit Judges.
PER CURIAM:*
Christopher Almaraz challenges his conviction for knowingly
possessing a firearm during and in relation to a drug-trafficking
offense, in violation of 18 U.S.C. § 924(c), and for being a felon
in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1).
Almaraz contends that the district court erred in denying his
motion to suppress the results of the warrantless search of his
* 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. vehicle. In reviewing this claim, we consider the evidence in the
light most favorable to the party prevailing below, here the
government, accept all factual findings that are not clearly
erroneous, and review questions of law de novo. United States v.
Shannon, 21 F.3d 77, 81 (5th Cir. 1994).
Almaraz does not challenge the stop of the vehicle, which was
clearly based on probable cause. He argues that the officers were
not authorized to open a closed container as part of their
inventory search of the vehicle absent a specific, written
departmental policy permitting them to do so. He contends that the
suppression-hearing testimony regarding the policy with respect to
the opening of closed containers was contradictory and that the
written policy submitted said nothing about the subject.
Almaraz’s argument is unavailing.
We have stated that there is no requirement that a law
enforcement agency’s inventory policy must specifically address the
steps that an officer should take upon encountering a closed
container. See United States v. Como, 53 F.3d 87, 92 (5th Cir.
1995). Deputies Clark and Mendez both testified that departmental
policy requires officers to inventory completely a vehicle which is
going to be towed for the purpose of “safekeeping” valuables. It
is clear that the policy behind conducting an inventory search was
for safekeeping, rather than simply searching for evidence. See
id. at 93. Moreover, Deputy Clark stated that he was not looking
2 for or expecting to find any contraband when he lifted the white
shirt lying on the backseat, revealing a gun case. Thus, there is
no indication that the inventory search here was actually a search
for evidence, nor is there any allegation that the officers acted
in bad faith during the inventory search. See United States v.
Gallo, 927 F.3d 815, 819 (5th Cir. 1991).
In any event, as the district court found, it was readily and
reasonably apparent to the officers that the closed container in
question was a gun case and likely contained a gun, and hence the
officers had essentially located the weapon without opening any
closed container. See, e.g., Como, 53 F.3d at 93 n.4.
Finally, and independently of the foregoing, it is clear that
there was probable cause to search the interior of the vehicle in
that the officers noted the smell of marihuana emanating from the
vehicle on approaching its passenger side and before making any
entry into it. “This Court has consistently held that the smell of
marihuana alone may constitute probable cause to search a vehicle.”
United States v. Ibarra-Sanchez, 199 F.3d 753, 760 (5th Cir. 1999)
(citing cases).
The district court thus did not err in denying Almaraz’s
suppression motion.
Almaraz next complains that his attorney was ineffective in
several ways. Because these complaints of ineffective assistance
were not first addressed in the district court, this court will not
3 review them, except for the complaint that counsel failed to move
for judgment of acquittal at the close of the government’s evidence
(no defense evidence was presented). See United States v. Rosalez-
Orozco, 8 F.3d 198, 199-200 (5th Cir. 1993); United States v.
Higdon, 832 F.2d 312, 314 (5th Cir. 1987). With respect to the
failure to move for judgment of acquittal, we hold, as discussed
below, that the evidence is sufficient to support the conviction
even when reviewed under the standard appropriate for instances
where proper motion for judgment of acquittal has been made, and
hence the failure to move for judgment of acquittal did not
prejudice Almaraz and he is not entitled to relief on his claim of
ineffective assistance of counsel in this respect. Rosalez-Orozco
at 199-200.
Almaraz additionally contends, for the first time on appeal,
that the admission of the testimony concerning his use of marihuana
and his prior weapons conviction was irrelevant and/or unduly
prejudicial and should have been excluded under Fed. R. Evid. 404.
Because these arguments were not raised in the district court,
review is for plain error only. United States v. Olano, 507 U.S.
725, 732-36 (1993); United States v. Calverley, 37 F.3d 160, 162-64
(5th Cir. 1994) (en banc).
Almaraz has not demonstrated any plain error in connection
with the admission of the challenged testimony.
The minimal evidence regarding the use of marihuana was
4 elicited from Almaraz’s companion, Cynthia Hinojosa, when
discussing her inability to drive, and related to the stop and
ultimate decision to impound the vehicle, as she and Almaraz were
each too impaired to drive, and inventory search it. Given the
unchallenged evidence of cocaine and marihuana in the vehicle, it
is clear that if there was any error in this respect there is no
showing that it was prejudicial, and certainly it does not
seriously affect the fairness, integrity or public reputation of
judicial proceedings.
Moreover, the fact that Almaraz had a prior felony conviction
was an essential element of the section 922(g) offense with which
he was charged and which thus had to be proved beyond a reasonable
doubt to obtain a conviction. See 18 U.S.C. § 922(g). Rule 404
has no application in such a circumstance.
In his final point of error, Almaraz challenges the
sufficiency of the evidence to support his conviction.
Specifically, Almaraz contends that his conviction under both
counts of the indictment cannot stand because the Government did
not prove that he knowingly possessed the firearm in question.
Possession may be actual or constructive and may be proved by
circumstantial evidence. See United States v. Munoz, 150 F.3d 401,
416 (5th Cir. 1999). The government demonstrated Almaraz’s
constructive possession of the gun in question through proof that
Almaraz owned the vehicle in which it was found; that Hinojosa had
5 disavowed any knowledge of the weapon; and that Almaraz had
informed officers that Hinojosa should not be subjected to criminal
charges because she had nothing to do with the items seized from
his car. See, id; United States v. Fields, 72 F.3d 1200, 1212 (5th
Cir. 1996).
The government provided additional proof of Almaraz’s guilty
knowledge by demonstrating that, when Deputy Clark first approached
the vehicle, there was nothing in the backseat; after he removed
Hinojosa from the vehicle, arrested her, and returned to the
vehicle to speak with Almaraz, he discovered that Almaraz was no
longer wearing the shirt he had been wearing when first approached,
only his undershirt, and that the shirt Almaraz had been wearing
had been thrown onto the backseat. The officers later discovered
the gun case and gun under the shirt in the backseat, indicating
that Almaraz had put the gun case on the backseat when officers
were otherwise occupied, then had thrown his shirt over the gun
case to conceal it from the officers. Because Almaraz was the sole
occupant of the vehicle at the time the gun was placed on the
backseat, within his reach and concealed by the shirt he had been
wearing only moments before, the evidence was sufficient to allow
a reasonable trier of fact to find that it established beyond a
reasonable doubt Almaraz’s knowing possession of the gun.1
1 Almaraz argues that it is significant that there is no evidence that his fingerprints were on either the gun or its container. This, however, is not determinative. There is no
6 Almaraz has not demonstrated any error in the district court’s
judgment. Accordingly, the judgment is
AFFIRMED.
evidence of any other person’s prints on either item. The fingerprint expert testified without contradiction that though the container and the gun had marks indicating they had been handled, the “prints” were all too smudged or blurred to form the basis of any comparison, and that such a state of affairs was in no way unusual.