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United States v. Garcia, 03-40603 (2004)

Court: Court of Appeals for the Fifth Circuit Number: 03-40603 Visitors: 42
Filed: Jul. 13, 2004
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT July 13, 2004 Charles R. Fulbruge III Clerk No. 03-40603 Summary Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus JOSE GARCIA, Defendant-Appellant. Appeal from the United States District Court for the Southern District of Texas USDC No. M-02-CR-789-1 Before JONES, STEWART and CLEMENT, Circuit Judges. PER CURIAM:* Jose Garcia was convicted by a jury of conspiracy to poss
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                                                             United States Court of Appeals
                                                                      Fifth Circuit
                                                                   F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                        July 13, 2004

                                                               Charles R. Fulbruge III
                                                                       Clerk
                               No. 03-40603
                             Summary Calendar



                       UNITED STATES OF AMERICA,

                                                      Plaintiff-Appellee,

                                  versus

                               JOSE GARCIA,

                                                     Defendant-Appellant.



            Appeal from the United States District Court
                 for the Southern District of Texas
                       USDC No. M-02-CR-789-1


Before JONES, STEWART and CLEMENT, Circuit Judges.

PER CURIAM:*

           Jose Garcia was convicted by a jury of conspiracy to

possess with intent to distribute and possession with intent to

distribute more than 100 but less than 1,000 kilograms of marijuana

in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B), and 846.                The

district court sentenced Garcia to concurrent terms of 97 months of

imprisonment and concurrent terms of four years of supervised

release.


     *
            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opinion should not be published and is not precedent except under the limited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.
            Prior to trial, Garcia unsuccessfully moved to suppress

evidence that was discovered as a result of a traffic stop, a

warrantless search of a tractor-trailer that was registered in

Garcia’s name, and a warrantless search of a residence that was

leased to Garcia.       Garcia appeals the district court’s denial of

his motions to suppress.

            We review the denial of a motion to suppress in the light

most favorable to the prevailing party.              United States v. Mendoza-

Gonzalez, 
318 F.3d 663
, 666 (5th Cir.), cert. denied, 
538 U.S. 1049
(2003).    Legal conclusions are reviewed de novo, and findings of

fact are reviewed for clear error.             
Id. Garcia states
    that   the    traffic    stop   was   illegal.

However, he does not brief the issue as is required by FED. R. APP.

P. 28(a)(9).    Garcia also does not brief any issue related to the

search of     his    residence.      Garcia,    therefore,     has   waived   any

challenge to the validity of the traffic stop and the search of his

residence.     United States v. Posada-Rios, 
158 F.3d 832
, 867 (5th

Cir. 1998).

            Garcia concedes that he is not challenging the officer’s

entry to the trailer and the inspection of the outside of the

boxes.    Garcia asserts that he is challenging only the unstacking

and opening of the boxes in the trailer.                  He contends that the

truck driver did not have actual or apparent authority to consent

to a search of the interior of the boxes.



                                         2
           The district court concluded that the driver’s consent

authorized the search of the boxes inside the trailer.                     The

district court concluded alternatively that the police had probable

cause to stop the tractor-trailer and to search it for contraband.

           The Fourth Amendment prohibits the warrantless search of

a vehicle except in the case of valid consent from the owner or

probable cause to believe that the vehicle contains contraband or

other evidence of a crime.         
Mendoza-Gonzalez, 318 F.3d at 666
.

When there is probable cause to justify the search of a lawfully

stopped vehicle, the police may search every part of the vehicle

including containers and passengers’ belongings that may conceal

the object of the search.       Wyoming v. Houghton, 
526 U.S. 295
, 307

(1999); United States v. Ross, 
456 U.S. 798
, 800, 822-23 (1982).

           Garcia, who is represented by counsel, does not challenge

the district court’s probable cause determination.                He does not

attempt to refute the Government’s contention that the police had

probable cause to search the trailer.

           We are “a court of review, not of original error.”

United   States   v.   Brace,   
145 F.3d 247
,    255   (5th   Cir.   1998)

(en banc).    We review “only those issues presented”; we do not

“craft new issues or otherwise search for them in the record.”             
Id. Because Garcia
has not argued that the district court erred in

concluding   that   the   police   had    probable   cause   to   search   the

contents of the trailer, he has waived any challenge to the issue.

See United States v. Fagan, 
821 F.2d 1002
, 1015 n.9 (5th Cir. 1987)

                                      3
(arguments not briefed are deemed waived).   We may affirm on any

grounds supported by record.    United States v. McSween, 
53 F.3d 684
, 687 n.3 (5th Cir. 1995).    Accordingly, the judgment of the

district court is AFFIRMED.




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Source:  CourtListener

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