UNITED STATES COURT OF APPEALS

                      FOR THE FIFTH CIRCUIT

                          __________________

                             No. 95-20498
                           Summary Calendar
                          __________________



     UNITED STATES OF AMERICA,

                                         Appellant,

                                versus

     TOMAS VENTE SINISTERRA,

                                         Appellee.

         ______________________________________________

      Appeal from the United States District Court for the
                    Southern District of Texas
          _____________________________________________

                          (Febuary 21, 1996)


Before GARWOOD, DAVIS and BENAVIDES, Circuit Judges.

GARWOOD, Circuit Judge:

     Appellee Tomas Vente Sinisterra (Sinisterra) is the defendant

in pending criminal proceedings in the district court below in

which he is charged with possession with intent to distribute of

five kilograms or more of cocaine.       The district court granted

Sinisterra’s motion to suppress approximately 200 kilograms of

cocaine seized from an unoccupied van in a shopping center parking

lot, and it denied the Government’s motion for reconsideration.

This case is now before us on the Government’s appeal of the
district court’s suppression order.1

                      Facts and Proceedings Below

     The basic facts relevant to the suppression issue are not

disputed.   Federal agents placed a house located at 7306 Daleview

in Houston, Texas, under surveillance based on information that the

house was   used   for    drug-related   activities.   The   agents   saw

Sinisterra arrive in a green Nissan and enter the house.        Shortly

thereafter, a woman came out of the house and drove the Nissan

around the neighborhood, making brief stops at two houses.            The

agents concluded that the woman was making a "heat run."      The woman

returned to 7306 Daleview and entered the house.        She was inside

the house for approximately one minute; then she left and drove

away in the Nissan.      Sinisterra left the house in a brown Dodge van

and caught up with the woman.       The brown van and the Nissan drove

slowly in tandem for some time; when the Nissan turned off, agents

followed the van.     Sinisterra drove the van to a shopping mall,

Memorial City Mall, parked in the mall’s public parking lot, and

got out of the van with a small dog.        He made a call from a pay

telephone and walked around the mall.           He went into a Sears

Automotive Center and tethered the dog in a service bay.      He walked

to a nearby medical office building and made another telephone

call. After about twenty minutes, he left the medical building and

got on a city bus.        He rode the bus for about one and one-half


       A motions panel of this court denied Sinisterra’s motion to
dismiss the appeal on the grounds that the Government had not
timely complied with the interlocutory appeal certificate
requirements of 18 U.S.C. § 3731. We agree with the decision of
the motions panel as well as with its admonitions to the Government
in regard to the certificate requirements of § 3731.

                                     2
miles, then he got off and began to walk back towards the mall.                  He

stopped at a food store to make a telephone call and then he walked

into a residential neighborhood where the agents "lost" him.

     The unoccupied van was under continuous surveillance, but no

one approached it.       Houston police officers walked a trained

narcotics-detecting     dog   around       the    van,   and   the   dog   alerted

strongly to the van.    An officer then looked into the van’s window

(without entering or opening the van) and saw two large duffle

bags.     Two officers left to obtain a search warrant.                  While the

officers were gone, Sinisterra and the woman returned to the

parking lot in the green Nissan. Sinisterra retrieved his dog, but

he did not go near the van.        He drove the Nissan out of the mall

parking lot and stopped at a pay telephone in a nearby strip

shopping center, about 100 yards away from the van.                          Agents

detained him before he could make a telephone call and asked him to

explain    his   behavior.     A   Spanish-speaking            officer     obtained

Sinisterra's     permission   to   search        the   Nissan,   but   Sinisterra

refused to consent to a search of the van.               Sinisterra was placed

under arrest and the Nissan was searched, but it did not contain

any contraband.

     By this time, it was night.            Andy Fullerton, a U.S. Customs

Agent with over twenty years' experience, looked through the

windows of the van with a flashlight.             Agent Fullerton saw several

kilogram-size, cellophane-wrapped packages.               One of the packages

was marked with a logo and had the name "Lotus" printed on it.

Agent Fullerton testified that it was his experience that packages

marked in this way always contained either cocaine or marihuana.

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When the officers who were charged with obtaining the warrant told

an assistant U.S. Attorney of Agent Fullerton's discovery, the

assistant U.S. Attorney advised that a warrant was unnecessary, and

all efforts to obtain a warrant ceased.             The van was then towed to

the   police    department     where    a    warrantless    search      revealed

approximately 200 kilograms of cocaine.

      After a suppression hearing, the district court held that

Sinisterra had standing to challenge the search of the van, a

holding the Government does not challenge on this appeal.                    The

district court also determined that the officers had probable cause

to arrest Sinisterra, but it held that Sinisterra's relationship to

the van at the time of his arrest was too attenuated for the

evidence to be admissible as seized in a search incident to arrest.

The court      held   that   the   plain-view   exception    to   the    warrant

requirement authorized the officers to seize the van without a

warrant, but that they could not search the vehicle without a

warrant or consent.      Citing United States v. McBee, 

,

1304 (5th Cir. 1981), cert. denied, 

(1982), the court

held that the automobile exception to the warrant requirement

requires both probable cause and exigent circumstances. The court

determined     that    the    search   was    not     justified   by    exigent

circumstances because the police had a valid basis to seize the

vehicle and, thus, could have obtained a warrant at their leisure.2


       In its oral ruling on the motion to suppress, the district
court stated “that is not an [sic] in dispute here, whether or not
the contraband [in the van] was in plain view provides a basis for
the arrest of the defendant. And the answer, I believe, is, yes,
that that would provide a basis for the arrest of the defendant”;
and, “[t]he whole basis of this defendant’s arrest centers, it

                                       4
The court further reasoned that the automobile exception to the

warrant requirement did not apply because the van was parked in a

privately owned parking lot.3       Consequently, the district court

granted the motion to suppress.

                               Discussion

     The Government argues, inter alia, that the evidence is

admissible     under   the   automobile   exception   to   the   warrant

requirement.    We Agree.

     This court reviews the district court's fact-findings on a


seems
to me, on the probable cause to arrest, which obviously, in my
opinion, existed”; and, “[s]o, the evidence . . . does not suggest
that any exigent circumstances existed . . . . the fact that the
vehicle itself was seized and was taken to the police lot gives
rise to the fact that there was no exigent circumstance, because,
in my view, the police had a valid basis for seizing the vehicle
and holding it”; further “I think there was probable cause for the
arrest, I think there was probable cause for seizures [sic] of the
vehicle based upon what they saw and believed to be in the
vehicle”; and finally “[t]hey seized the vehicle, which I think
they were totally entitled to do, they did not have the right to
search it. They were seeking a search warrant, they should have
gotten it, that’s all.”      In its written order granting the
suppression motion, the court recites that the motion was “granted
based on its [the court’s] findings and statements in the record
and those stated here.” The written order further states that “the
police officers had probable cause for a detention and arrest and
possibly a seizure of the vehicle.” It is entirely plain that the
district court found that the officers had probable cause to
believe that the van (when it was seized and searched) contained
narcotics and that that--plus the defendant’s association with the
van--is what constituted probable cause to arrest the defendant.

       The district court also distinguished the result in McBee,
where suppression was denied, on the basis that there “the vehicle
was parked on a public street”, while here “unlike McBee, the
vehicle was not on the public street but on private property”. The
district court recognized that the mall parking lot, where the van
was seized, was open to the public, but felt it was significant
that the parking lot was privately owned. The Government urged
that the parking lot was a “public area”.       The district court
responded “sure. Anything outside the [mall] building is public,
but that’s private property” and not “the public streets”.

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motion   to    suppress    for   clear    error    and   reviews    de   novo   the

"ultimate     determination      of   Fourth      Amendment   reasonableness."

United States v. Seals, 

, 1106 (5th Cir.), cert.

denied, 

(1993).           The district court's determination

that the search of the van was unreasonable under the Fourth

Amendment was based on certain erroneous legal assumptions.

     First, the district court concluded that the officers had

probable cause to arrest Sinisterra and to seize the van, but that

they were prohibited from searching the van without obtaining a

warrant.      There is no constitutional difference between "seizing

and holding a car before presenting the probable cause issue to a

magistrate and on the other hand carrying out an immediate search

without a warrant.        Given probable cause to search, either course

is reasonable under the Fourth Amendment."               Chambers v. Maroney,

, 52 (1970).

     Second, to the extent that McBee and its progeny require, in

a situation such as the present, a finding of exigent circumstances

other than the fact of the automobile's potential mobility, they

are inconsistent with more recent Supreme Court jurisprudence. The

Supreme Court has held that the automobile exception to the warrant

requirement applies when a vehicle is "readily capable" of "being

used on the highways" and it "is found stationary in a place not

regularly used for residential purposes . . . ."                    California v.

Carney, 

, 2070 (1985).                Under these circumstances

"overriding     societal    interests        in   effective   law    enforcement"

justify an immediate warrantless search because (1) "the vehicle is

obviously readily mobile by the turn of an ignition key . . ." and

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(2) it is subject to a "reduced expectation of privacy stemming

from its use as a licensed motor vehicle subject to a range of

police regulation inapplicable to a fixed dwelling."                 

district court attached importance to the fact

that the car was parked in a shopping center parking lot--rather

than on a public street--at the time that it was seized.              For the

reasons discussed below, this fact is not determinative of the

legality of the seizure and subsequent search here.

     In Carney, the Supreme Court upheld the warrantless search of

a motor home parked in a downtown San Diego parking “lot”.             

  Drug Enforcement Agency (DEA) agents had information that

Carney and other persons were engaging in sex in the motor home and

paying their partners with marihuana. They searched the motor home

without a warrant or consent and discovered a quantity of marihuana

and drug paraphernalia.     The California Supreme Court suppressed

the drugs and reversed Carney's conviction for possession of

marihuana.   The Supreme Court granted certiorari and reversed

because it concluded that the automobile exception to the warrant

requirement applied.     

     This court has concluded that, under Carney, "probable cause

alone suffices   to    justify   a   warrantless   search   of   a    vehicle

lawfully parked in a public place, as long as the scope of the

search is reasonable."    United States v. Cooper, 

, 747

(5th Cir. 1991) (quotation omitted; emphasis in original), cert.

denied, 

(1992).         Sinisterra argues that Coolidge v.

New Hampshire, 

, 461-62 (1971), and United States v.

Reed, 

, 530 (5th Cir. 1994), cert. denied, 

1116 (1995), dictate that exigent circumstances were required to

justify a warrantless search of the van.4            Coolidge and Reed are

distinguishable because both cases involved vehicles parked in the

driveways   of   the   residences   of   the    defendants   (who   were   in

custody).   See 

; 

.

Carney controls this case because of the similarity of the factual

situations. Here, the mall parking lot was not related to anyone’s

residence, it was open to the public and available for public use,

and Sinisterra had no more right in it than any member of the

public.   That the lot was owned by the mall--and not by the city--

is irrelevant in these circumstances.5

      This court has applied the automobile exception to admit

evidence seized in warrantless searches of vehicles which were

legally parked in privately-owned motel parking lots where there

was   probable   cause    to   search    but    no   showing   of   exigent

circumstances.    United States v. Buchner, 

, 1150-51,

1154-55 (5th Cir. 1993) (LaQuinta Motel), cert. denied, 

(1994); United States v. Ervin, 

, 1536-39 (5th

Cir. 1990) (Big Bend Motor Inn Motel).         The rule applicable here is

that if, under the totality of the circumstances, officers have

probable cause to believe that a vehicle contains contraband, they

are authorized to search the van without a warrant.             Buchner, 7


       Sinisterra does not suggest that the duffle bags should not
have been searched incident to the search of the van.          See
California v. Acevedo, 

, 580 (1991) (containers in an
automobile may be searched if there is probable cause to believe
that they contain contraband).

      Nothing in Carney indicates that the parking “lot” there was
publicly 

; 

.

     Here, in addition to the dog alert, the officers were also

aware of the informant's tip; Sinisterra's unusual behavior that

afternoon; and the fact that Agent Fullerton had recognized that

the packages in the van contained narcotics.     Probable cause was

thus clearly established.   See United States v. Williams, 

, 28 (5th Cir. 1995); United States v. Mendez, 

, 129-

130 (5th Cir. 1994); United States v. Hernandez, 

, 930

(5th Cir. 1992); United States v. Gonzalez-Basulto, 

,

1013 (5th Cir. 1990); United States v. Davila-Avila, 

,

207 (5th Cir. 1990).

     Because the officers had probable cause to believe that the

van--which was in operational condition and was parked in the mall

parking lot which was open to the public (at least those shopping

at the mall) though not publicly owned--contained narcotics, they

were legally authorized to search it without a warrant, even if the

circumstances were not exigent.6   The district court hence erred in

granting the motion to suppress.

     Accordingly, the district court’s order granting Sinisterra’s

motion to suppress is REVERSED.




       Because of our holding in this respect, we do not determine
whether suppression should have been denied either on the
inevitable discovery doctrine or on the theory that the officers
acted on the reasonable, good faith belief that a warrant was not
required.

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