UNITED STATES COURT OF APPEALS For the Fifth Circuit
___________________________
No. 90-8273 ___________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
TERRY JAMES PIERRE and OTIS HARRIS, III,
Defendants-Appellants.
___________________________________________________
Appeals from the United States District Court For the Western District of Texas ____________________________________________________ (April 13, 1992)
Before POLITZ, Chief Judge, KING, GARWOOD, JOLLY, HIGGINBOTHAM, DAVIS, JONES, SMITH, DUHE, WIENER, BARKSDALE, EMILIO M. GARZA, and DeMOSS, Circuit Judges.
DAVIS, Circuit Judge:
Otis Harris and Terry Pierre appeal their convictions for
possession of cocaine with intent to distribute and for conspiracy
to commit the same offense. A panel of this court concluded that
the district court erred in denying Harris' motion to suppress
evidence found in a consent search of luggage at a fixed checkpoint
in Sierra Blanca, Texas. Based on this determination, the panel
reversed Harris' convictions. After en banc briefing and argument,
we conclude that even if the checkpoint agent conducted a search,
the search was not unreasonable. The panel also gave plenary review to Harris' and Pierre's
arguments that the evidence was insufficient to support their
convictions. Based on this standard of review, the panel found the
evidence sufficient to convict Harris of possession but
insufficient to convict Pierre of either charge. Upon rehearing
and reviewing the sufficiency of the evidence under the proper
plain error standard, we find the evidence sufficient to convict
both defendants on both charges. We also find no merit to Harris'
argument that his conviction should be reversed because the
prosecutor made an improper argument. We therefore affirm Harris'
and Pierre's convictions.
I.
In early November 1989, Terry Pierre, Derrick Turner and
Calvin Broadnax drove from New Orleans to Los Angeles in a 1987 GMC
Jimmy. During the one-week visit to Los Angeles these three men
met Otis Harris, a New Orleans resident who had known Broadnax when
they were children. He was looking for a ride back to New Orleans.
Harris, Pierre and Turner stayed in various hotels in Los Angeles
and Broadnax paid their expenses.
The day they left Los Angeles, the group stopped at an
expensive residence where they were met by two men -- Don Tanner
and "Rob" or "Bob". Pierre and Turner preceded Harris into the
residence. Harris heard Tanner tell Broadnax that he was only able
to get "four of them chickens". Broadnax replied that it was no
problem because he had two. Harris testified that he did not
realize the significance of the conversation at the time. He later
2 remembered that in street talk, "chicken" is a code word for a kilo
of cocaine.
Broadnax and Tanner left the others who waited in the
entertainment room of the house. Broadnax returned a few minutes
later carrying a gray Samsonite suitcase. Broadnax left the house
and returned about forty minutes later. Broadnax then told Harris,
Pierre and Turner that he would not be returning to New Orleans
with them and gave Pierre cash for expenses. A short time later
the three men left Los Angeles for New Orleans in the GMC Jimmy.
Pierre did the bulk of the driving until Harris took over just west
of the Sierra Blanca checkpoint.
Border Patrol Agent Lonny Hillin stopped the Jimmy at the
fixed checkpoint in Sierra Blanca, Texas. The two-door vehicle was
equipped with tinted fixed rear windows. Harris was driving,
Turner was in the passenger seat, and Pierre was lying down in the
back seat. Harris rolled down the driver's window at the stop sign
next to Agent Hillin. Hillin asked Harris and Turner about their
citizenship. They responded that they were United States citizens.
Hillin, who thought he saw someone in the back seat, asked Harris
if anyone else was in the back. Hillin then "ducked [his] head in
[the window] to get a clear view of the back seat" and to talk to
Pierre about his citizenship. As he did so, Hillin smelled freshly
burned marijuana. Harris and Pierre had rolled and smoked a
marijuana cigarette in the Jimmy about an hour before arriving at
the checkpoint.
3 Hillin did not indicate to the occupants of the Jimmy that he
had smelled marijuana. He asked Harris to pull the vehicle over to
the secondary inspection area. Once there, Harris exited the
vehicle. Hillin asked Harris if he objected to his searching the
luggage; Harris said he did not. Harris opened the back of the
vehicle and lowered the tailgate. He then took out and opened each
piece of luggage for Hillin to inspect. They reached the Samsonite
suitcase last. Hillin testified that it was in an upright position
propped against the rear seat of the vehicle. In that suitcase,
Hillin discovered six tape-wrapped bundles that later proved to
contain 13.8 pounds of cocaine.
The district court denied Harris' motion to suppress the
drugs. A jury convicted Pierre and Harris on one count each of
conspiracy to possess cocaine with intent to distribute, in
violation of 21 U.S.C. § 846, and one count each of possession of
cocaine with intent to distribute, in violation of 21 U.S.C. §
841(a)(1). The government did not charge its principal witness,
Turner. On appeal, both defendants argued that the evidence was
insufficient to support their convictions. United States v.
Pierre, 932 F.2d 377 (5th Cir. 1991). The panel held that the
evidence was sufficient to convict Harris on the possession charge.
Id. at 381. The panel, however, found the evidence insufficient to
convict Pierre on either charge and reversed his convictions. Id.
at 392, 394.
Harris also argued on appeal as he had in the district court
that Agent Hillin conducted an illegal search. He contended that
4 agent Hillin violated rights secured to him by the Fourth Amendment
when he inserted his head into the vehicle through the driver-side
window and smelled the marijuana. He argued that the court should
have suppressed the cocaine later discovered as a fruit of this
illegal search. On this issue, the panel held that Hillin
conducted a search when he stuck his head into the vehicle and that
the search was unreasonable. The panel concluded further that
Harris' consent to search the luggage was not sufficiently
attenuated from the illegal search to cure the taint. Id. at 390-
91. It determined therefore that the district court should have
suppressed the evidence and reversed Harris' convictions.
On the court's own motion, we ordered rehearing en banc
primarily to address this issue. United States v. Pierre, 943 F.2d
6 (5th Cir. 1991).
II.
The search and arrests at issue took place at the Sierra
Blanca checkpoint, a fixed checkpoint on Interstate 10 near the
Texas-Mexico border. The key case establishing the constitutional
limits of non-border checkpoint stops at this and other similar
locations is United States v. Martinez-Fuerte, 428 U.S. 543 (1976).
In that case the Supreme Court held that agents at fixed
checkpoints may stop and briefly question the occupants of any
vehicle without violating their Fourth Amendment rights. The Court
agreed that the stops do intrude to some degree "on motorists'
right to `free passage without interruption.'" But the Court
reasoned that the government has a substantial interest in
5 conducting routine stops for inquiry at permanent checkpoints near
the border to interrupt the flow of illegal aliens into the country
from Mexico. Id. at 557-58.
The Court also noted that "while the need to make routine
checkpoint stops is great, the consequent intrusion on Fourth
Amendment interests is quite limited." Id. at 557. In particular,
"all that is required of the vehicle's occupants is a response to
a brief question or two and possibly the production of a document
evidencing a right to be in the United States." Id. at 558,
quoting United States v. Brignoni-Ponce, 422 U.S. 873, 880 (1975).
The Court recognized that officers may refer cars to the secondary
inspection area for any or no reason. Martinez-Fuerte, 428 U.S. at
562; see also United States v. Price, 869 F.2d 801, 804 (5th Cir.
1989) quoting United States v. Garcia, 616 F.2d 210, 211 (5th Cir.
1980); United States v. Gonzalez-Basulto, 898 F.2d 1011, 1012 (5th
Cir. 1990). If agents wish to search vehicles or their occupants,
however, they must have probable cause or consent. Id. at 567;
United States v. Jackson, 825 F.2d 853 (5th Cir. 1987) (en banc).
In Jackson, the en banc court applied the holding in Martinez-
Fuerte specifically to the Sierra Blanca checkpoint. We held that
Sierra Blanca is not the "functional equivalent" of the border;
consequently full customs and immigration searches are not allowed.
We also held that Martinez-Fuerte delineates the lawful scope of
law enforcement action during stops at the Sierra Blanca
checkpoint. With this background, we turn to Harris' arguments in
6 this case that the district court should have suppressed the
evidence as the product of an illegal search.
III.
Harris argues that (1) Agent Hillin conducted a search of
the car when he stuck his head in the vehicle to address the back-
seat passenger, (2) the search exceeded the limits on checkpoint
stops set in Martinez-Fuerte and Jackson and was therefore
unreasonable because it was not based on probable cause or consent,
and (3) his consent to search the luggage given in the secondary
inspection area was not sufficiently attenuated from the initial
illegal search to cure the taint. Assuming without deciding that
Hillin's actions did constitute a search, we nevertheless conclude
that based on the particular facts of this stop Agent Hillin's
conduct was reasonable. Because this conclusion resolves the
suppression issue, we need not address Harris' attenuation
argument.
The Fourth Amendment bars only unreasonable searches and
seizures. The reasonableness inquiry is driven by a balancing of
"'the nature and quality of the intrusion on the individual's
Fourth Amendment interests against the importance of the
governmental interests alleged to justify the intrusion.'" New
York v. Class, 475 U.S. 106, 118 (1986) (quoting United States v.
Place, 462 U.S. 696, 703 (1983)). See also Delaware v. Prouse, 440
U.S. 648, 654 (1979); Jackson, 825 F.2d at 860. However, the
intrusivenes of the search is not measured so much by its scope as
by whether it invades an expectation of privacy that society is
7 prepared to recognize as "reasonable." Katz v. United States, 389
U.S. 347, 361 (1967) (Harlan, J. concurring). For fixed
checkpoints, such as the one at Sierra Blanca, the Court has struck
the balance by limiting the length and nature of questioning
allowed during the stops. Martinez-Fuerte.
The Supreme Court's opinion in New York v. Class, 475 U.S.
106, 89 L.Ed.2d 81 (1986), provides an applied example of this
reasonableness analysis. In Class, officers lawfully stopped a
vehicle that was speeding and had a cracked windshield -- both
violations of New York law. The driver exited the car. While the
driver was talking with one officer, the other officer went to the
car to record the vehicle identification number (VIN) to complete
the traffic citation. When he did not find the VIN on the
doorjamb, he reached into the interior of the car to move some
papers obscuring the area on the dashboard where the VIN is located
on later model cars. As he did so, the officer saw the handle of
a gun protruding from under the front seat. The officer arrested
the driver and charged him with criminal possession of a firearm.
The Supreme Court agreed with the New York Court of Appeals
that the officer's intrusion into the interior of the car
constituted a search. But the Court concluded, for several
reasons, that the search was reasonable. First, the government's
interest in requiring and obtaining the VIN is "of the first
order." Id. at 118. Thus the occupants of a car do not have a
reasonable expectation of privacy in the VIN when stopped for a
traffic violation. Second, the officer's actions moving the papers
8 on the car's dash to reveal the VIN were specifically focused and
were no more intrusive than necessary to locate the VIN. The court
also concluded that the officer's conduct in moving the papers was
less intrusive than a formal arrest for the traffic violations or
ordering the driver to move the papers. Finally, the Court
considered the added risk of danger to the officer if he had
ordered the driver to return to the car to move the papers. Id.
This leads us to the key inquiry in this case: whether Agent
Hillin acted reasonably when he put his head in the window of the
Jimmy. On the particular facts of this case, we hold that he did.
First, passengers of vehicles at fixed checkpoints near the border
of the United States do not have a reasonable expectation of
privacy in not being stopped and questioned about their
citizenship. Martinez-Fuerte and Jackson make it clear that
checkpoint agents may stop and query motorists about their
citizenship and also require them to produce documents showing a
right to be in the United States.
The physical features of the Jimmy made it difficult for Agent
Hillin to speak with Pierre and verify his citizenship. The GMC
Jimmy was a two-door model. The fixed rear windows were tinted
obscuring visibility of the interior. Hillin questioned the front
seat passengers of the car by peering in the open driver's window.
But Pierre was lying down in the rear seat. From his position
totally outside the vehicle, Agent Hillin could not clearly see and
question Pierre.
9 We read Martinez-Fuerte and Jackson as giving Agent Hillin the
right to question Pierre in an effective way about his citizenship.
This included the right of the officer to have eye contact with
Pierre during the exchange. Otherwise, Agent Hillin would have had
little basis to evaluate Pierre's answers even if the officer could
hear them. The vehicle owner in Class had no expectation of
privacy in his vehicle identification number. Similarly, Pierre
had no reasonable expectation that he could avoid an effective
series of questions from the customs agent at a fixed checkpoint
such as the one at Sierra Blanca. Thus the occupants of a vehicle
stopped at a checkpoint have no expectancy that they will not be
required to look an agent in the eye and answer questions about
their citizenship.
Second, Agent Hillin's actions were no more intrusive than
necessary to accomplish his objective. The district court's
finding that "Agent Hillin . . . stuck his head through the
driver's side window to ask Pierre and Turner their citizenship" is
not clearly erroneous. The court did not find and the record does
not compel a finding that Agent Hillin put his head in the window
for any other purpose. The record does not disclose how far Hillin
extended his head into the window. Harris points to no evidence
however that Hillin intruded into the car any further than was
necessary to see and communicate with Pierre. The vehicle had no
rear window which could be rolled down or rear door to open
allowing access to the passenger area which would have permitted
Hillin to do his job in a less intrusive manner. Agent Hillin's
10 action in sticking his head in the driver's window was certainly
less intrusive than requiring Pierre to get out of the vehicle.
See Class, 475 U.S. at 118.
Finally, the Court in Class, in evaluating the reasonableness
of the search, considered the safety of the officer. Id. at 116.
This component also cuts against Harris. An agent at a checkpoint,
for his own safety, would have good reason to position himself so
he could see the person with whom he is speaking.
We therefore conclude that, even assuming Agent Hillin
conducted a search when he stuck his head in the GMC Jimmy, it was
not unreasonable and thus did not violate the Fourth Amendment. We
emphasize however that our holding is fact specific and based on
the peculiar facts of this case. This opinion does not give carte
blanche authority to checkpoint agents to intrude into vehicles
during citizenship inquiries. We hold that the agent acted
reasonably when he stuck his head in the open window of the GMC
Jimmy with its particular features to question an occupant he knew
was present but could not otherwise see from the exterior of the
car. IV.
For reasons we explain above, Hillin was lawfully within the
car when he smelled the burned marijuana. Thus, the evidence falls
within the plain view (or plain smell) exception to the warrant or
probable cause requirement. Harris v. United States, 390 U.S. 234,
236, 19 L.Ed.2d 1067 (1968); United States v. Marshall, 878 F.2d
161 (5th Cir. 1989). The smell of burned contraband gave Hillin
probable cause to search the vehicle for suspected contraband.
11 Marshall, 878 F.2d at 163. "If probable cause justifies a search
of a lawfully stopped vehicle, it justifies the search of every
part of the vehicle and its contents that may conceal the object of
the search." United States v. Ross, 456 U.S. 798, 825 (1982).
Hillin properly searched the luggage with or without Harris'
consent. The district court therefore did not err in denying
Harris' motion to suppress the drugs the officers discovered in the
search.
V.
Both Harris and Pierre also assert on appeal that the evidence
was insufficient to support their convictions. Neither Harris nor
Pierre moved for judgment of acquittal when the government rested
its case or at the close of all the evidence. Consequently, this
Court's review is limited to determining whether the district court
committed plain error or "`whether there was a manifest miscarriage
of justice.' Such a miscarriage would exist only if the record is
`devoid of evidence pointing to guilt,' or . . . `because the
evidence on a key element of the offense was so tenuous that a
conviction would be shocking.'" United States v. Ruiz, 860 F.2d
615, 617 (5th Cir. 1988), quoting United States v. Ivory, 468 F.2d
613, 614 (5th Cir. 1972) and United States v. Bullock, 551 F.2d
1377, 1385 (5th Cir. 1977). We must review the evidence in the
light most favorable to the jury verdict, including all reasonable
inferences and credibility choices. Ruiz, 860 F.2d at 617. Under
12 the plain error standard1 we find that the evidence was sufficient
to convict Harris and Pierre for both possession and conspiracy to
possess cocaine.
First, to convict the defendants of conspiracy under 21 U.S.C.
§ 846, the Government had to prove the existence of an agreement
between two or more persons to violate the narcotics laws, that
each conspirator knew of the conspiracy, intended to join it and
did participate in the conspiracy. United States v. Magee, 821
F.2d 234, 238-39 (5th Cir. 1987). The existence of a conspiracy
need not be proved by direct evidence, but may be inferred from
circumstantial evidence indicating a "concert of action" between
the alleged conspirators. United States v. Espinoza-Seanez, 862
F.2d 526, 536 (5th Cir. 1988).
On the facts of this case, the jury's verdict finding the
defendants guilty of a conspiracy does not constitute manifest
injustice. The record is far from "devoid of evidence" indicating
1 The panel cannot be faulted for giving plenary review to the appellants' sufficiency arguments. The government did not point out the defendants' failure to preserve this error. The government's failure to argue the correct standard of review on appeal does not, however, prevent us from measuring the argument against the appropriate standard of review.
As we said recently in United States v. Vonsteen:
The parties' failure to brief and argue properly the appropriate standard may lead the court to choose the wrong standard. But no party has the power to control our standard of review. A reviewing court may reject both parties' approach to the standard. . . . If neither party suggests the appropriate standard, the reviewing court must determine the proper standard on its own.
950 F.2d 1086, 1091 (5th Cir. 1992) (en banc) (internal citations omitted).
13 an agreement between Pierre and Harris to transport the cocaine
from Los Angeles to New Orleans. Pierre agreed with Broadnax to go
with him from New Orleans to Los Angeles and then return to New
Orleans. Harris joined them several days before they left Los
Angeles. Significantly, Harris and Pierre entered the Tanner home
at the same time Broadnax and Tanner discussed the acquisition of
"chickens", a street name for cocaine. Broadnax and Tanner made
no apparent effort to prevent Harris and Pierre from hearing this
discussion. Harris and Pierre were together when Harris saw
Broadnax with the Samsonite suitcase at the Tanner residence.
Based on Agent Hillin's description of the location of the
Samsonite suitcase containing the cocaine in the Jimmy, the jury
could infer that both Harris and Pierre knew it was there. This
inference is reasonable because the suitcase was visible from the
passenger area of the vehicle and Pierre and Harris had both
removed jackets from the rear of the Jimmy during the trip. They
also knew that the suitcase did not contain any of their personal
belongings. All the passengers of the vehicle had spent several
nights in a hotel together before they loaded the Samsonite
suitcase. They were therefore familiar with the luggage that
contained their personal belongings.
In addition, Broadnax apparently looked to Pierre as the
leader of the expedition from Los Angeles to New Orleans because
Broadnax gave Pierre the expense money for the trip. The jury
could question whether Broadnax would have financed their trip with
no expectation of a quid pro quo. The jury could also question
14 whether Broadnax would have given these men a valuable cargo of
cocaine to transport across the country without telling them what
they were carrying. On these facts, the jury's verdict finding
Harris and Pierre guilty of conspiracy is not plain error.
The essential elements to convict on the possession charge are
(1) knowing (2) possession of drugs (3) with intent to distribute.
United States v. Anchondo-Sandoval, 910 F.2d 1234, 1236 (5th Cir.
1990). We agree with the panel that the evidence was sufficient to
convict Harris of possession with intent to distribute even under
a plenary review standard. Harris' possession conviction therefore
necessarily withstands review under the plain error standard. For
reasons stated above, the evidence supports the jury's finding that
both men agreed to transport cocaine from Los Angeles to New
Orleans and that a conspiracy existed between Harris and Pierre for
this purpose. It follows that the jury was entitled to find that
Harris and Pierre knew the cocaine was in the vehicle and jointly
possessed it. They demonstrated their intent to distribute it by
sharing the duty of driving it across the country. The evidence
therefore supports Pierre's possession conviction. No manifest
injustice occurred in the convictions of Harris and Pierre for
possession with intent to distribute cocaine.
VI.
Finally, Harris argues that a portion of the prosecutor's
closing argument, in which he referred to Harris' and Pierre's
criminal records, was improper and resulted in an unfair trial.
The panel did not consider this argument because they reversed
15 Harris' convictions on other grounds. Because of our disposition
of Harris' other arguments, we must now consider this contention.
Harris' counsel did not object to the prosecutor's statements.
Therefore, we limit our review to whether the court committed plain
error. Stated differently, we must determine whether the argument
"seriously affected the fairness, integrity, or public reputation
of the judicial proceeding and resulted in a miscarriage of
justice." United States v. Goff, 847 F.2d 149, 162 (5th Cir.)
modified on reh'g, cert. denied sub nom., Kuntze v. United States,
488 U.S. 932 (1988). To merit reversal, the defendant must
persuade us that the jury would not have found him guilty in the
absence of the prosecutor's improper argument. Id.
To determine the potential prejudicial effect of the
statements, we must consider the context in which the prosecutor
made them. United States v. Robinson, 485 U.S. 25, 33 (1988)
(citing Lockett v. Ohio, 438 U.S. 586 (1978)); United States v.
Saenz, 747 F.2d 930, 939 (5th Cir. 1984), cert. denied sub nom.,
Solis v. United States, 473 U.S. 906 (1985). Some of the
prosecutor's challenged remarks, standing alone, would be
considered improper.2 However, when we read the argument as a
whole and consider the remarks in conjunction with the defense
counsels' closing arguments to which the prosecutor was responding,
we find no impropriety particularly under the plain error standard.
2 For example, the prosecutor referred to the defendants as "multiple felons" and as "well-travelled in the criminal justice system". He also stated "Hey, they have been in jail. They know what it is like. Hey, they could take it."
16 In his initial argument, the prosecutor declared that this was
a credibility case. He noted that the credibility contest was
between two "multiple felons" and "a kid", referring to the
government's witness Derrick Turner. This was a permissible use
of prior criminal history to impeach a testifying defendant. Fed.
R. Evid. 609. When Harris' attorney addressed the jury he re-
emphasized his client's criminal record and asked the jury to only
consider the facts of the present case in their deliberations.
Pierre's attorney then argued that his client did not know the
cocaine was in the car. He reasoned that because of his client's
criminal record, he was too smart to smoke marijuana in a car
containing drugs, especially just before he arrived at a
checkpoint. The prosecutor in rebuttal responded that if the
defendants were smart they would not be so well-travelled in the
criminal system. He remarked in substance that the defendants had
been in jail before, knew what it was like and thus had a strong
motivation to testify in a manner that would keep them out of jail.
Even if the prosecutor's arguments were improper, these references
to the defendants' criminal records did not seriously affect the
fairness of the judicial proceeding or result in a miscarriage of
justice.
For the reasons stated above, the convictions of Otis Harris,
III and Terry James Pierre are AFFIRMED.