United States v. Borrero

Opinion

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* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4.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.

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