United States v. Garcia

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-51080 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MARTIN GARCIA, JR.,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Western District of Texas USDC No. SA-00-CR-589-ALL - - - - - - - - - - June 6, 2002

Before DAVIS, BENAVIDES and CLEMENT, Circuit Judges.

PER CURIAM:*

Martin Garcia, Jr., convicted of possession with intent to

distribute in excess of 1,000 kilograms of marijuana, in

violation of 21 U.S.C. § 841(a)(1), appeals the district court’s

denial of his motion to suppress evidence obtained during a four-

hour search of his trailer-truck. At issue is the voluntariness

of his consent to the search of the contents of the trailer-

truck.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 01-51080 -2-

Trooper Juan DeLeon conducted a random, regulatory stop of

Garcia’s truck pursuant to Tex. Transp. Code Ann. § 644.103.

Shortly after the initial regulatory inspection, Trooper DeLeon

searched the cab of the truck and found a second bill of lading

with different origination and destination points than the bill

of lading initially presented by Garcia. In light of the second

bill of lading, as well as Garcia’s origination point in McAllen,

Texas, a border town through which narcotics are commonly

smuggled, and Garcia’s indirect route to his destination which

would allow him to avoid a narcotics checkpoint which used

canines for every search, Trooper DeLeon asked to search the

contents of the trailer again, and Garcia reopened the rear of

the trailer for him. However, Trooper DeLeon could not do a

complete inspection due to the way the trailer was loaded and the

packages being covered in cellophane. When Trooper DeLeon asked

Garcia to drive the truck to a nearby grocery store, Garcia

complied. Upon arrival at the grocery store, the manager,

Trooper DeLeon, and back-up Officers Kite and Frederick began

unloading the contents of the trailer. Garcia did not stop them

or withdraw his consent.

Once the unloading began, the extended duration of the

detention was foreseeable. Garcia, knowing the contents of the

vehicle and its various containers at the time he gave his

consent, had the responsibility to limit the scope of the consent

if he deemed it necessary to do so. United States v. Rich, 992 No. 01-51080 -3-

F.2d 502, 507 (5th Cir. 1993). His failure to object to the

breadth or continuation of the search once consent was freely

given was properly considered an indication that the search was

within the scope of the initial consent. Id. at 506-07; United

States v. McSween, 53 F.3d 684, 688 (5th Cir. 1995); United

States v. Petty, 601 F.2d 883, 899-90 (5th Cir. 1979); Mason v.

Pulliam, 557 F.2d 426, 428-29 (5th Cir. 1977); see also United

States v. Gonzalez-Basulto, 898 F.2d 1011, 1012-13 (5th Cir.

1990).

As for Garcia’s objection to the duration of the search, the

four-hour detention is insufficient to show a violation of the

Fourth Amendment because Trooper DeLeon had probable cause for

the search. See McSween, 53 F.3d at 686; Petty, 601 F.2d at 890.

The district court did not err in denying Garcia’s motion to

suppress. The conviction is affirmed.

AFFIRMED.