NOT RECOMMENDED FOR PUBLICATION File Name: 22a0341n.06
Case No. 21-5859
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Aug 18, 2022 ) DEBORAH S. HUNT, Clerk UNITED STATES OF AMERICA, ) Plaintiff-Appellee, ) ON APPEAL FROM THE ) UNITED STATES DISTRICT v. ) COURT FOR THE WESTERN ) DISTRICT OF KENTUCKY SIRRON MORALEZ, ) Defendant-Appellant. ) OPINION )
Before: DONALD, BUSH, and NALBANDIAN, Circuit Judges.
NALBANDIAN, J., delivered the opinion of the court in which BUSH, J., joined. DONALD, J. (pp. 8–12), delivered a separate dissenting opinion.
NALBANDIAN, Circuit Judge. Sirron Moralez took a cross-country trip from Wyoming
to Tennessee with a backpack full of methamphetamine as his traveling companion. But before he
could cross the Tennessee border, a Kentucky trooper pulled him over for speeding. During the
stop, the trooper observed a box with “THC” written on it and a glass vial of white powder in
Moralez’s car. A subsequent search of the car uncovered almost a kilo of meth. After his
indictment, Moralez moved to suppress this evidence, citing a lack of probable cause. But the
district court, relying on the automobile exception, denied his motion. For the following reasons,
we affirm. Case No. 21-5859, United States v. Moralez
I.
To work off a $2,000 debt owed to his cocaine dealer, Moralez agreed to deliver a package
of methamphetamine from Wyoming to Tennessee. But before he got to Tennessee, Kentucky
State Police Trooper T.J. Williams clocked Moralez going more than ten miles over the speed limit
and pulled him over.
After Williams approached the car, Moralez turned over his driver’s license and explained
that he drove a rental car. Williams followed up by asking for the rental paperwork. As Moralez
rifled through the center console to find it, Williams glimpsed a brown box with the label “THC.”
Williams knew this kind of box typically contained marijuana vape oil, which is illegal in
Kentucky. His suspicions raised, Williams asked Moralez to sit in the front of the squad car while
Williams ran his license. Moralez agreed. As Moralez exited his car, Williams caught another
glimpse of potential contraband. This time, it came in the form of a small glass vial filled with
white powder that looked like cocaine or methamphetamine.
To keep Moralez from running off, Williams stayed mum about the vial and marijuana
paraphernalia. As he ran the driver’s license, Williams chatted with Moralez about the purpose of
his trip. Moralez spun a yarn that Williams had heard before, explaining that he made the long
drive alone just to spend a few days in Nashville. When pressed, Moralez admitted that he didn’t
know where he was staying, only that he would have to call someone when he got there. Based on
his 30-plus years of experience, Williams thought Moralez’s tale sounded like that of a drug
courier. What’s more, as Moralez told his story, he started to sweat profusely despite the air
conditioning in Williams’s cruiser. And as Moralez spoke, he couldn’t stop picking at his fingers
or laughing nervously.
2 Case No. 21-5859, United States v. Moralez
At this point, Williams knew that he had enough evidence to search the car. With the help
of another trooper, he did just that. The troopers found close to a kilo of methamphetamine. And
as it turns out, the vial was filled with cocaine and the THC box contained a marijuana vape pen
Moralez bought in Colorado.
Soon after the search and subsequent arrest, a federal grand jury charged Moralez and two
others with conspiracy to possess methamphetamine with intent to distribute under 21 U.S.C. § 846
and then Moralez alone with possession with intent to distribute under 21 U.S.C. §§ 841(a)(1) and
(b)(1)(A)(viii). Moralez then moved to suppress the evidence from his car. His theory? Williams
didn’t have probable cause for the search because the THC couldn’t qualify as contraband at first
glance. After a suppression hearing, the district court denied Moralez’s motion. Weighing the
totality of the circumstances, the court concluded that “the glass vial alone gave Williams probable
cause,” and when considered with “all [the] other circumstances . . . probable cause is clear.”
United States v. Moralez, No. 5:19-cr-00068, 2020 WL 6492918, at *2 (W.D. Ky. Nov. 4, 2020).
Once the district court denied his motion, Moralez pleaded guilty. But as part of his plea
deal, he preserved the right to appeal the denial of his suppression motion. See Fed. R. Crim. P.
11(a)(2).
Exercising that right, Williams now asks us to reconsider the district court’s decision. But
that’s not all. For the first time on appeal, Moralez objects to the length of the stop, the validity of
his arrest, a late Miranda warning, and more. We consider the argument he preserved first and then
turn to his new claims.
3 Case No. 21-5859, United States v. Moralez
II.
A.
When a district court’s ruling on a motion to suppress comes to us, we review the district
court’s findings of fact for clear error and questions of law de novo. United States v. Gardner, 32
F.4th 504, 514 (6th Cir. 2022). In doing so, we view the evidence “in the light most likely to
support the district court’s decision.” United States v. Hurst, 228 F.3d 751, 756 (6th Cir. 2000)
(quotation omitted). Here, Moralez’s sole challenge is whether Williams have probable cause to
search Moralez’s vehicle. We review the ultimate determination of probable cause de novo. Gerics
v. Trevino, 974 F.3d 798, 805 (6th Cir. 2020); Ornelas v. United States, 517 U.S. 690, 697 (1996).
We begin with the basics. The Fourth Amendment, as a general matter, requires probable
cause and a search warrant before an official may conduct a search. See Carpenter v. United States,
138 S. Ct. 2206, 2213 (2018). There are, of course, exceptions to the warrant requirement. Relevant
here, the automobile exception allows law enforcement to search a vehicle “without a warrant if
they have probable cause . . . that the vehicle contains evidence of a crime.” United States v.
Lumpkin, 159 F.3d 983, 986 (6th Cir. 1998). Probable cause exists when the totality of the
circumstances shows a “fair probability that contraband or evidence of a crime will be found in a
particular place.” Smith v. Thornburg, 136 F.3d 1070, 1074 (6th Cir. 1998) (quoting United States
v. Wright, 16 F.3d 1429, 1437 (6th Cir. 1994)). To conduct this analysis, we don’t look at events
after the search or the subjective intent of the officers. Instead, we look at “the objective facts
known to the officers at the time of the search.” Id. at 1075.
The district court did just this, asking what objective facts Williams knew when he searched
Moralez’s car. Fact one: Williams saw a box—the kind that normally holds marijuana
paraphernalia—in Moralez’s car. Marijuana is illegal in Kentucky. See Ky. Rev. Stat. Ann.
4 Case No. 21-5859, United States v. Moralez
§ 218A.1422. Fact two: When Moralez exited the car, Williams got a glimpse of a glass vial filled
with white powder.1 Fact three: During his chat with Williams, Moralez acted nervous and told a
story consistent with those of other drug couriers that Williams had encountered in his decades of
law enforcement. Taken together, the THC box and the glass vial gave Williams at least a fair
probability that a search of the car would come up with contraband. And then Moralez’s nervous
behavior and dodgy cover story bolstered that belief. So we agree with the district court that these
facts show that “Williams had probable cause to believe the vehicle contained evidence of a
crime.” Moralez, 2020 WL 6492918, at *2.
Moralez’s argument that neither the THC box nor the vial alone provided probable cause
fails to convince us otherwise. For one thing, that argument misunderstands what the totality-of-
the-circumstances analysis does. To start, we look at the entire picture rather than engaging in a
“hypertechnical line-by-line scrutiny.” United States v. Christian, 925 F.3d 305, 311 (6th Cir.
2019) (en banc) (alterations and quotation omitted); see also District of Columbia v. Wesby, 138
S. Ct. 577, 588 (2018) (explaining that the “totality-of-the-circumstances test ‘precludes [a] divide-
and-conquer analysis’” (quoting United States v. Arvizu, 534 U.S. 266, 274 (2002))). So instead
of asking whether the THC box or the vial alone provided probable cause, we ask whether all of
the evidence, taken together, gave Williams probable cause to search the vehicle.
1 The dissent disagrees with the district court’s version of the facts on this point. As the dissent sees it, the dashcam video and Williams’s post-arrest report contradict his testimony that Williams saw the glass vial before the search. We disagree: (1) Williams had a clear view of the front seat when Moralez got out of the car (D.E. 34, 02:17), (2) Williams told the other officer that Moralez “dropped that when he got out,” (Id., 17:07) and (3) Williams asked Moralez about the vial that he dropped when he got out of the car. (Id., 20:23.) True, the post-arrest report mentions the vial after the search. But given the video evidence and Williams’s testimony (that the district court found credible), we cannot say that the district court erred, much less clearly. 5 Case No. 21-5859, United States v. Moralez
Contrary to Moralez’s assertions, the district court gave proper consideration to both the
THC box and the vial. True, the court said that with only the THC box “probable cause may be
debatable.” Moralez, 2020 WL 6492918, at *2. But that was just the first domino to fall. After
seeing the box, Williams then saw the glass vial. And the district court said that the “vial alone
gave Williams probable cause.” Id. We agree. A vial of white powder gave Williams more than a
fair probability that he would uncover illegal contraband. See Texas v. Brown, 460 U.S. 730, 742–
43 (1983) (finding that a balloon tied up in a way often used to carry narcotics gave probable
cause); United States v. Baxter, 69 F.3d 538 (6th Cir. 1995) (unpublished table decision) (per
curiam) (holding that an officer had probable cause to arrest after observing a vial with a white
powder).
All told, the THC box, the vial, Moralez’s nervous behavior, and his suspicious story, gave
Williams probable cause to search his car. The dissent’s conclusion otherwise is an exercise in the
“divide-and-conquer analysis” that the Supreme Court prohibits. Wesby, 138 S. Ct. at 588.
B.
Now we turn to the arguments that Moralez makes for the first time on appeal. Moralez
argues that there was no probable cause for his arrest (as opposed to the search); the stop went on
too long; Williams was not allowed to ask for rental paperwork; Williams was not allowed to ask
Moralez to sit in the squad car; Williams issued the Miranda warning too late; and the inevitable
discovery exception to the warrant requirement doesn’t apply. But Moralez didn’t make any of
those arguments to the district court. And when Moralez pleaded guilty, his Rule 11(a)(2) plea
agreement preserved only the right to “appeal the District Court’s Memorandum Opinion and
Order denying his Motion to Suppress.” (R. 69, Plea Agreement, PageID 199 (emphasis and
6 Case No. 21-5859, United States v. Moralez
brackets omitted).) That order—and Moralez’s motion to suppress—didn’t cover any of the new
issues that Moralez raises.
Under our caselaw, Moralez’s failure to preserve these specific issues is a fatal problem.
“A voluntary and unconditional guilty plea waives all non-jurisdictional defects in the
proceedings.” United States v. Ormsby, 252 F.3d 844, 848 (6th Cir. 2001). But under Rule 11(a)(2),
a defendant may enter a conditional guilty plea preserving the right to appeal specific pre-trial
motions and specific issues on appeal. See United States v. Alexander, 540 F.3d 494, 504–05 (6th
Cir. 2008). When a defendant, as here, fails to preserve a specific issue for appeal in his plea
agreement, that issue is not properly before us. See id. at 505; see also United States v. Napier,
233 F.3d 394, 399 (6th Cir. 2000) (finding that the defendant didn’t preserve an issue not written
in his plea agreement); United States v. Goyer, 567 F. App’x 414, 420 (6th Cir. 2014) (declining
to rule on a jury-instruction issue because it wasn’t preserved on appeal); United States v. Dossie,
188 F. App’x 339, 345 (6th Cir. 2006) (same for other issues when the defendant only preserved
appeal on double jeopardy and collateral estoppel grounds); see also United States v. Anderson,
374 F.3d 955, 957–58 (10th Cir. 2004) (refusing to consider defendant’s new appellate suppression
theory because it was “outside the scope of his reserved appellate rights”). Because Moralez didn’t
preserve his new arguments in his plea agreement, we can’t hear them now.
And even if we construed some of his arguments as going to “suppression” broadly and
thus not precluded by his plea agreement, they would still fail. Because he didn’t raise those
arguments in the district court, we would apply plain error and that standard is not met here.
III.
The arguments Moralez properly preserved for appeal lack merit. We affirm.
7 Case No. 21-5859, United States v. Moralez
BERNICE BOUIE DONALD, Circuit Judge, dissenting. This is a case where a police
officer’s zealous pursuit for an arrest blurred his constitutional obligation to find legitimate
probable cause before searching a vehicle. In a series of arguably intentional missteps, the officer
exploited legal loopholes to arrive at this place–a violation of Moralez’s Fourth Amendment right
against unreasonable searches and seizures. Because I believe that the officer lacked probable
cause to search the vehicle, I dissent.
The majority suggests there are three “objective facts” that Williams knew at the time of
the search that support a finding in favor of probable cause: (1) the glass vial of white powder
found on the driver’s seat, (2) the small THC-labeled box in the center console, and (3) Moralez’s
nervous demeanor and evasive responses. See ante, at 4-5. The majority’s interpretation of these
material facts is a clear departure from the record and leaves out critical moments leading up to
the search. Id. at 1-3. Williams’s testimony of the facts leading up to the search are at odds with
the dashcam footage of the arrest and his own post-arrest complaint. Upon thorough review of the
record and applicable law, the officers lacked probable cause to search Moralez’s vehicle at the
time of the search.
First, the glass vial was not known to Williams at the time that he initiated the search. In
the post-arrest report written by Williams immediately after the search, he stated that probable
cause was established “[d]ue to the fact I observed the THC container” only. Williams further
admitted that he did not see the vial initially, but that the vial was located after the search was
initiated.
The alarming discrepancies surrounding the vial of powder create further cause for concern
upon review of the dashcam footage of Williams’s interaction with Moralez. When video footage
of an incident is available to the court, the facts should be viewed in “the light depicted by the
8 Case No. 21-5859, United States v. Moralez
videotape.” See Scott v. Harris, 550 U.S. 372, 380-81 (2007). Throughout the video footage,
several interactions illustrate discrepancies in Williams’s testimony regarding the vial of white
powder. For example, in the Kentucky Incident-Based Reporting System (“KYIBRS”), Williams
stated that he “observed a small glass vial on the driver’s seat” prior to initiating the search which
would have given him probable cause to search Moralez’s vehicle. However, the video footage
does not show that Williams saw or could have seen the vial of white powder fall out of Moralez’s
pockets. Even when viewing the footage in a light most favorable to the state, it is clear that
Williams had an obstructed view of the driver’s seat from his position at the rear passenger
window. In addition, Williams initially stated that the THC box gave him probable cause to search
the vehicle; he did not, however, mention any glass vial or independent basis to establish probable
cause until months after the arrest. The live video footage is telling of this reality. During the
video, there is absolutely no mention of the vial of white powder by Williams until approximately
seventeen minutes after the stop was initiated. And it was the second officer, not Williams, that
located the vial in the driver’s seat of the car.
Second, I agree with the district court’s assessment that “if Williams had only observed the
brown box, probable cause may [be] debatable.” United States v. Moralez, No. 5:19-cr-00068,
2020 WL 6492918, at *3 (W.D. Ky. Nov. 4, 2020). A container located in a vehicle may amount
to probable cause when the container provides “more than a mere suspicion” or when the search
qualifies as protective in nature. Smith v. Thornburg, 136 F.3d 1070, 1074 (6th Cir. 1998) (quoting
United States v. Bennett, 905 F.2d 931, 934 (6th Cir. 1990)); see United States v. Goodwin, 202
F.3d 270, at *4 (6th Cir. 2000) (Table). Here, the THC box, which was ultimately empty, only
provided a mere suspicion that Kentucky’s marijuana statute, Ky. Rev. Stat. Ann. § 218A.1422,
was being violated.
9 Case No. 21-5859, United States v. Moralez
Our sister circuit has settled this exact issue of containers that provide a mere suspicion of
a violated statute in United States v. Saafir, 754 F.3d 262 (4th Cir. 2014). In Saafir, an officer
observed a “hip flask commonly used to carry alcohol” in a stopped vehicle. Id. at 265. If the
flask contained alcohol, the defendant would have been in violation of a North Carolina statute
regarding the transportation of alcohol in a container other than the manufacturer’s original
container. Id.; see N.C. Gen. Stat. § 2-138.7(a1). The officer used the presence of the flask as
foundation for probable cause to search the entire vehicle. Saafir, 757 F.3d at 265. The court
properly held that the hip flask did not provide the officer probable cause; furthermore, “a search
and seizure is unreasonable and therefore unconstitutional if it is premised on a law enforcement
officer’s misstatement of his or her authority.” Id. at 266 (citing Bumper v. North Carolina, 391
U.S. 543, 547-50 (1968)).
Here, Moralez was in possession of a merely suspicious container which ultimately
contained no evidence of a crime. Williams plainly stated to Moralez that the box warranted a
search of the entire vehicle, and this statement is a plain misstatement of the law. It therefore
follows that we should adopt the same rule put forth in Saafir: an officer may not initiate a search
solely based upon the presence of a merely suspicious container, and the officer may not misstate
their authority when initiating a search.
This circuit has held that probable cause exists when there is a “fair probability that
contraband or evidence of a crime will be found in a particular place.” Smith v. Thornburg, 136
F.3d 1070, 1074-75 (6th Cir. 1998) (emphasis added) (quoting United States v. Wright, 16 F.3d
1429, 1437 (6th Cir. 1994)). Here, Williams railroads through the necessary protection measures
that require a nexus between the search and the particular place that raised his suspicions (the THC
box in the console). When Williams notified Moralez of his intent to search the vehicle, Moralez
10 Case No. 21-5859, United States v. Moralez
told Williams that the THC box was empty of any illegal contents. Not satisfied and exceeding
the scope of his authority, Williams stated “well, I’m gonna look,” and proceeded to search the
entire vehicle without consent. The officers searched everything but the THC box; Williams
searched the trunk, while the second officer searched the passenger side. Notably, even if the box
itself warranted probable cause for a search, the officers would have only had authority to search
the box, not the entire vehicle. See California v. Acevedo, 500 U.S. 565, 580 (1991).
Third, Williams argues that Moralez’s nervous demeanor led him to believe that a crime
was taking place. However, this Court has held that “factors such as a person’s nervousness . . .
while part of the reasonable suspicion analysis, are given little weight.” United States v. Johnson,
482 F. App’x 137, 145 (6th Cir. 2012) (quoting United States v. Samuels, 443 F. App’x 156, 161
(6th Cir. 2011)). Williams stated that he observed Moralez “displaying extreme nervous behavior,
more than what you’d display if you were just stopped for a speeding ticket.” Williams’s
observation of Moralez’s behavior is inconsequential as “[t]ime and again, we have said that
nervousness—even extreme nervousness— ‘is an unreliable indicator’ . . . ‘especially in the
context of a traffic stop.’” See United States v. Noble, 762 F.3d 509, 522-23 (6th Cir. 2014)
(quoting United States v. Richardson, 385 F.3d 625, 630 (6th Cir. 2004)).
An analysis of the record shows that the glass vial of white powder could not have created
probable cause because Williams did not know of the glass vial until after the search began. In
addition, the presence of an empty box labeled “THC” only creates a mere hunch that a crime has
been committed. Even assuming that the box at issue here could be used to establish probable
cause, only the box would be subject to a search, rather than the entire vehicle. Finally, Moralez’s
nervous behavior is an unreliable indicator that a crime is being committed and cannot establish
11 Case No. 21-5859, United States v. Moralez
probable cause alone. Thus, it is eminently clear that the totality of the circumstances show
Williams lacked probable cause to search Moralez’s vehicle. Therefore, I dissent.