United States v. Rosario

• Court: Court of Appeals for the Fifth Circuit
• Decided: March 2, 2004
• Docket: 99-21138
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-21138 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

LUIS ORLANDO ROSARIO, also known as Luis Landy Rosario,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-99-CR-149-2 -------------------- January 2, 2001

Before REAVLEY, JOLLY and JONES, Circuit Judges.

PER CURIAM:*

Luis Orlando Rosario appeals the district court's denial of

his motion to suppress evidence (marijuana) obtained during a

stop and search of a rental truck driven by Rosario. He contends

that he was stopped and detained or arrested without probable

cause, that his consent to search the truck was not voluntarily

given, that the district court relied on incriminating statements

obtained in violation of his Miranda1 rights, and that the

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 1 Miranda v. Arizona, 384 U.S. 436 (1966). No. 99-21138 -2-

district court erred in considering such statements because they

were not part of the evidence adduced at the suppression hearing.

Rosario has not shown that the district court erred in

determining that there was cause to stop and detain him because

the trailer he was towing had an expired registration sticker.

See United States v. Hernandez, 901 F.2d 1217, 1219 & n.1 (5th

Cir. 1990). He has not shown that the district court erred in

determining that his consent to search the truck was voluntary

under the circumstances. See United States v. Davis, 749 F.2d

292, 294 (5th Cir. 1985); United States v. Kelley, 981 F.2d 1464,

1470 (5th Cir. 1993).

Rosario's suppression motion challenged the

constitutionality of the stop and search but did not raise the

issue of the admissibility of his statement in response to a

canine sniff (prior to receiving Miranda warnings) that the truck

contained marijuana. There was no testimony concerning the

statement at the suppression hearing, but the statement was

referenced elsewhere in the record, and Rosario stipulated that

the statement was made. Rosario did not raise below the issue

whether the district court erred in referring to the statement in

denying the suppression motion, and thus review is for plain

error. See United States v. Calverley, 37 F.3d 160, 162-64 (5th

Cir. 1994) (en banc). Rosario has not shown plain error. Even

if Rosario could show that he was "in custody" at the time he

made the statement for purposes of Miranda, the inevitable

discovery exception would apply to the statement because there

was a reasonable probability that the marijuana would have been No. 99-21138 -3-

discovered absent the statement since he had already consented to

the search and the agents were actively pursuing the search of

the truck at the time he made the statement. See United States

v. Kirk, 111 F.3d 390, 392 (5th Cir. 1997).

AFFIRMED.