United States v. Jerry M. Soyland, United States of America v. Mary E. Whitaker

3 F.3d 1312, 93 Cal. Daily Op. Serv. 6635, 93 Daily Journal DAR 11350, 1993 U.S. App. LEXIS 22332, 1993 WL 331243

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 2, 1993
• Docket: 91-50581, 91-50583
• Status: Published

Opinions

BEEZER, Circuit Judge:

Mary E. Whitaker and Jerry M. Soyland appeal their convictions for conspiracy and possession with intent to distribute methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 846. Both defendants appeal their sentences. We have jurisdiction under 28 U.S.C. § 1291. We affirm Whitaker’s convictions and vacate and remand her sentence. We reverse Soyland’s convictions.

I

On October 14, 1990, Whitaker and Soy-land were travelling in a hatchback vehicle that had bags and boxes piled in the back. Whitaker was the driver, Soyland the passenger. When the vehicle reached an immigration checkpoint, agent Van Gorder directed Whitaker to drive to the secondary inspection area. As Whitaker exited the vehicle to open the hatchback door, agent Boubel smelled methamphetamine. He did not smell the drug again. Boubel completed the immigration inspection upon assuring himself that no one was hiding in the hatchback area.

Suspecting the presence of methamphetamine, Boubel requested and received permission from Whitaker to search the automobile. Boubel found vitamin B powder, which can be used to dilute narcotics, and about $4000 in cash. In response to Boubel’s questioning about illegal drags in the vehicle, Whitaker admitted that her cigarette pack held two marijuana cigarettes. Another vehicle search revealed a third marijuana cigarette, about $600 in cash and a pipe containing marijuana residue.

Boubel asked Soyland to empty his pockets, and Soyland produced about forty cents. Boubel patted Soyland down and located approximately 220 grams of methamphetamine. Whitaker and Soyland were arrested, and a search of Whitaker’s purse produced a small electronic scale.

II

Soyland argues the methamphetamine should have been suppressed because he was searched without probable cause. We review de novo whether probable cause supported the search. United States v. Dunn, 946 F.2d 615, 618 (9th Cir.), cert. denied, — U.S. -, 112 S.Ct. 401, 116 L.Ed.2d 350 (1991).

Soyland, the passenger, was searched without probable cause. There was not a sufficient link between Soyland and the odor of methamphetamine or the marijuana cigarettes, and his “mere presence” did not give rise to probable cause to arrest and search him. See United States v. Robertson, 833 F.2d 777, 782 (9th Cir.1987). Suppression of the unlawfully obtained evidence requires reversal of Soyland’s convictions.

Ill

Whitaker argues several bases for reversing her convictions. These contentions lack merit.

A

Whitaker maintains the referral to secondary inspection was improper because it was made without “reasonable suspicion.” Because reasonable suspicion is not necessary, Van Gorder properly referred the vehicle whether or not she suspected an immigration violation. United States v. Barnett, 935 F.2d 178, 180-81 (9th Cir.1991).

Whitaker does not argue and no objective evidence demonstrates Van Gorder, or the Border Patrol in establishing the checkpoint, intended to search for illegal drugs under the pretext of searching for undocumented aliens. Specifically, nothing in our careful review of the record suggests that narcotics training of Border Patrol agents has resulted in anything other than agents who, during the course of a lawful immigration search, have the ability to discern the presence of illegal drags. Here, Boubel smelled methamphetamine while preparing to search a cluttered area of Whitaker’s vehicle for undocumented aliens. After smelling methamphetamine, Boubel properly detained Whitaker and obtained her valid consent to search the vehicle. United States v. Preciado-Robles, 964 F.2d 882, 884 (9th Cir.1992).

Whitaker has never contended that Bou-bel, Van Gorder or anyone else had special incentives to uncover a narcotics violation, and any such notion is utterly without support in the record. No matter how vital, contentious or interesting an issue such a fact pattern might present, the judicial process requires us to abstain from entering into conjectural fact finding. We will not contribute to the chaos created by deciding questions not first presented at trial. We have no occasion to address the issue of whether checkpoint officers routinely overstep their authority by conducting pretextual narcotics searches. See Shelley v. Kraemer, 334 U.S. , 68 S.Ct. 836, 839-40, 92 L.Ed. 1161 (1948) (unless previously raised, constitutional issue not properly before appellate court).

B

Whitaker argues evidence relating to her prior drug arrests should not have been admitted because the evidence is not sufficiently similar to her conduct here. She also contends the district court failed to balance probative value against prejudicial effect before admitting the evidence.

Both prior arrests involved the odor of illicit drugs emanating from Whitaker’s automobile and the finding of methamphetamine in the vehicle together with large amounts of cash. One arrest uncovered a scale and other drug paraphernalia. The record shows the district court weighed the probative value of the evidence against its prejudicial effect. The court did not abuse its discretion by admitting the evidence. United States v. Hill, 963 F.2d 452, 455 (9th Cir.1991).

C

Whitaker argues that insufficient evidence supports her convictions. We disagree.

Viewing the evidence in the light most favorable to the government, the jury not only could have reasonably inferred that Whitaker and Soyland had agreed to distribute methamphetamine, but also that the large sum of cash found in the automobile evidenced purchases or sales incident to the distribution. The circumstances of Whitaker’s prior drug arrests, the similarity of those circumstances to the situation here and that small change was the only money Soy-land possessed further support the inference that Whitaker had control over the methamphetamine Soyland carried. United States v. Disla, 805 F.2d 1340, 1350 (9th Cir.1986). The jury acted rationally by convicting Whitaker. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979).

IV

Whitaker argues that the amounts of methamphetamine involved in her prior drug arrests should not have been considered in determining her base offense level. We review de novo the application of law in our review of Whitaker’s sentence. United States v. Hahn, 960 F.2d 903, 907 (9th Cir.1992).

Before Whitaker’s prior acts can constitute “relevant conduct,” Hahn, which was decided after Whitaker was sentenced, requires that the government show in “sufficient proportions” the similarity, regularity and temporal proximity of the prior acts to her conduct here. U.S.S.G. § 1B1.3(a)(2) (Nov.1990); Hahn, 960 F.2d at 911. Because the record does not contain the required findings, we vacate Whitaker’s sentence. On remand, the district court shall determine whether the prior acts are “relevant conduct” and recompute the imprisonment term.

Whitaker also contends she is unable to pay the assessed $25,000 fine. She refused to provide financial information to the probation officer and thus failed to carry the burden of showing an inability to pay the fine. U.S.S.G. § 5E1.2(f); United States v. Rafferty, 911 F.2d 227, 232-33 (9th Cir.1990). If the relevant conduct determination made on remand produces the same offense level, then Whitaker is not entitled to recomputation of her fine. If a change in the offense level causes her to be at a lower point in the fine table, then her fine should be recomputed.

Whitaker’s convictions are AFFIRMED, and her sentence is VACATED and REMANDED. Soyland’s convictions are REVERSED.