Filed: Feb. 08, 2007
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 February 8, 2007 _ No. 06-40932 Charles R. Fulbruge III _ Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee, versus GARY LYNN MALLOY, Defendant-Appellant. _ On Appeal from the United States District Court for the Eastern District of Texas, Beaumont Division, No. 1:05-CR-33-2 _ Before SMITH, BARKSDALE, AND DENNIS, Circuit Judges. PER CURIAM:* Having entered a conditional guilty plea
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT February 8, 2007 _ No. 06-40932 Charles R. Fulbruge III _ Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee, versus GARY LYNN MALLOY, Defendant-Appellant. _ On Appeal from the United States District Court for the Eastern District of Texas, Beaumont Division, No. 1:05-CR-33-2 _ Before SMITH, BARKSDALE, AND DENNIS, Circuit Judges. PER CURIAM:* Having entered a conditional guilty plea,..
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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 February 8, 2007
______________________
No. 06-40932 Charles R. Fulbruge III
______________________ Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GARY LYNN MALLOY,
Defendant-Appellant.
____________________________________________________
On Appeal from the United States District Court for the Eastern
District of Texas, Beaumont Division,
No. 1:05-CR-33-2
_____________________________________________________
Before SMITH, BARKSDALE, AND DENNIS, Circuit Judges.
PER CURIAM:*
Having entered a conditional guilty plea, defendant Gary
Malloy appeals the district court’s denial of his motion to
suppress evidence. Because Malloy’s claim is squarely foreclosed
by Supreme Court and Fifth Circuit precedent, we AFFIRM Malloy’s
conviction.
I.
Between October 2004 and February 2005, United States
Immigration and Customs Enforcement (“ICE”) agents conducted an
investigation into certain suspected drug trafficking activities in
*
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this opinion should not be published and is not precedent except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
the Houston, Texas area. As a result of information gathered
during this investigation, the agents believed narcotics were being
transported in a white pickup truck, outfitted with a welding
machine, that the agents observed departing a targeted residence on
the morning of February 16, 2005. ICE agents contacted Sergeant
Tracy Sorge of the Orange County, Texas sheriff’s department and
asked him to attempt to stop the vehicle, identify its occupants,
and investigate the matter at his discretion.
Sorge saw the welding truck traveling on Interstate 10 in
Orange County at about 6:45 a.m. He followed the vehicle for a
short distance, and, after observing three traffic violations, he
stopped the vehicle. Sorge then asked the driver of the truck,
Marcos Santana, to step to the rear of the vehicle. As he issued
Santana a warning citation, Sorge asked Santana a number of
questions. Santana appeared visibly nervous, and he gave
inconsistent and contradictory answers to a number of Sorge’s
questions.
Sorge then approached the passenger side of the vehicle to
speak with the passenger, defendant Gary Malloy, and to obtain the
registration and insurance information for the vehicle. Malloy
provided Sorge with the registration and insurance papers, which
indicated that the vehicle was registered to Malloy. Sorge
proceeded to ask Malloy a number of questions. Some of Malloy’s
responses were inconsistent with statements made earlier by
Santana, and Malloy changed his story on at least one occasion
2
during the course of Sorge’s questioning. Like Santana, Malloy
appeared to be extremely nervous.
Sorge next asked Malloy if he would consent to a search of the
vehicle. Malloy agreed. While searching the bed of the truck,
Sorge found two oxygen tanks, ostensibly for use in welding, that
appeared suspicious to him.1 Sorge noticed that there was fresh
paint sprayed on the caps of the tanks; that the upper portion of
the tanks appeared smooth, while the bottom portion appeared to be
pitted from several layers of paint; that the valves on the tanks
had been installed only recently; that the tanks did not contain
sufficient pressure to be used for welding; that the gas from the
tanks smelled like compressed air, not the pure oxygen that would
be used in welding; that the weight of the tanks was concentrated
at the bottom, rather than distributed evenly throughout the tanks;
and that the outside of one of the tanks was covered in Bondo, an
automotive body filler. Based on these observations, Sorge came to
believe that the oxygen tanks contained hidden compartments that
might house contraband.
Sorge then handcuffed Malloy and Santana and read them the
Miranda warnings. He also obtained Malloy’s consent to x-ray the
1
Sorge, who had worked narcotics for six years, had completed
400 hours of specialized drug interdiction training. Sorge had
also obtained a certificate in welding from the Lamar Institute of
Technology in 2002.
3
oxygen tanks.2 Sorge then scraped away some of the Bondo from the
tanks and discovered that there were welded seams in the tanks.
Another officer transported Santana and Malloy to the Orange County
jail, and Sorge took the oxygen tanks to a mechanic’s shop. Once
there, Sorge confirmed that each tank contained a welded metal
diaphragm that divided the tank into two compartments. Sorge then
cut the tanks open using a metal chop saw and found 13 square,
kilogram-sized packages of cocaine in the bottom compartment of
each tank.
II.
On March 3, 2006, Malloy was charged in a two-count indictment
with conspiracy to possess with the intent to distribute five
kilograms or more of cocaine, in violation of 21 U.S.C. § 846, and
possession with the intent to distribute five kilograms or more of
cocaine, in violation of 21 U.S.C. § 841(a)(1). The government
filed a superseding indictment on April 6, 2005. The superseding
indictment added a notice of intent to seek criminal forfeiture.
Malloy moved to suppress the evidence obtained from the search of
his vehicle on the ground that the search violated his Fourth
Amendment rights. Malloy argued that (i) the search of the oxygen
tanks exceeded the scope of his consent to the search; and (ii) the
search of the oxygen tanks could not be justified under the
2
It is undisputed that the oxygen tanks were never, in fact,
x-rayed.
4
“automobile exception” to the Fourth Amendment’s warrant
requirement because the police had complete control over the
vehicle and its contents at the time that the oxygen tanks were cut
open.
The magistrate judge conducted a hearing on Malloy’s motion to
suppress. On December 5, 2005, the magistrate judge issued a
report and recommendation stating that the motion to suppress
should be denied. Malloy filed objections to the report and
recommendation, but on December 27, 2005, the district court
adopted the magistrate judge’s recommendation and denied the motion
to suppress.
On January 17, 2006, Malloy entered a conditional guilty plea
to count two of the superseding indictment under Federal Rule of
Criminal Procedure 11(a)(2). In his plea, Malloy reserved the
right to appeal the district court’s ruling on his motion to
suppress. On May 24, 2006, the district court sentenced Malloy to
36 months in prison, to be followed by three years on supervised
release.
III.
On an appeal of a motion to suppress evidence, this court
reviews the district court’s legal conclusions de novo and its
findings of fact for clear error. E.g., United States v. Mays, 466
F.3d 335, 342 (5th Cir. 2006); United States v. Jordan,
232 F.3d
447, 338 (5th Cir. 2000). We consider the evidence in the light
5
most favorable to the party who prevailed in the district court.
Jordan, 232 F.3d at 448.
IV.
The sole issue before this court on appeal is whether Sorge’s
warrantless search of the oxygen tanks was justified under the
“automobile exception” to the Fourth Amendment’s warrant
requirement. Malloy does not challenge on appeal either the
legality of Sorge’s initial stop of the vehicle or the district
court’s conclusion that Sorge had probable cause to believe that
the oxygen tanks contained contraband. Rather, Malloy argues only
that the automobile exception to the warrant requirement, which has
its roots in the inherent mobility of automobiles,3 does not permit
the warrantless search of a container located in the vehicle once
the police exercise total control over the vehicle and its
contents. In such situations, Malloy argues, the justification for
the automobile exception no longer applies, and the police should
be required to obtain a warrant.
Both the Supreme Court and this court have, however,
repeatedly held that the automobile exception can justify a
warrantless vehicle search even if the police exercise complete
control over the vehicle and do not conduct the search immediately.
3
See, e.g., Chambers v. Maroney, 399 U.S. 42, 51 (1970)
(“[T]he circumstances that furnish probable cause to search a
particular auto for particular articles are most often
unforeseeable; moreover, the opportunity to search is fleeting
since a car is readily movable.”).
6
See United States v. Johns, 469 U.S. 478, 484 (1985) (“There is no
requirement that the warrantless search of a vehicle occur
contemporaneously with its lawful seizure.”); Michigan v. Thomas,
458 U.S. 258, 260 (1982) (“It is thus clear that the justification
to conduct . . . a warrantless search does not vanish once the car
has been immobilized . . . .”); United States v. Ross,
456 U.S.
798, 807 n.9 (1982) (“[I]f an immediate search on the street is
permissible without a warrant, a search soon thereafter at the
police station is permissible if the vehicle is impounded.”);
United States v. McSween,
53 F.3d 684, 689 (5th Cir. 1995) (“If
probable cause justified a warrantless search on the roadside, it
likewise justified one at the station after the car was
impounded.”); United States v. Harrison,
918 F.2d 469, 473 (5th
Cir. 1990) (“The search need not be done immediately and if begun
at the scene can be continued later at another location.”). In
addition, it is immaterial that the evidence Malloy seeks to
suppress was located in a separate container within the vehicle.
See California v. Acevedo,
500 U.S. 565, 579-80 (1991). Because it
is undisputed that Sorge had probable cause to search the oxygen
tanks that he found in Malloy’s vehicle, it was permissible for him
to conclude the search away from the scene after a brief delay.
Accordingly, we AFFIRM the district court’s ruling and Malloy’s
conviction.
7
