Filed: Jul. 02, 2020
Latest Update: Jul. 02, 2020
Summary: Case: 19-40115 Document: 00515475964 Page: 1 Date Filed: 07/02/2020 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED No. 19-40115 July 2, 2020 Lyle W. Cayce UNITED STATES OF AMERICA, Clerk Plaintiff - Appellee v. MARLO DENISE YOUNG, Defendant - Appellant Appeals from the United States District Court for the Southern District of Texas USDC No. 2:18-CR-1340-1 Before KING, GRAVES, and OLDHAM, Circuit Judges. PER CURIAM:* Marlo Denise You
Summary: Case: 19-40115 Document: 00515475964 Page: 1 Date Filed: 07/02/2020 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED No. 19-40115 July 2, 2020 Lyle W. Cayce UNITED STATES OF AMERICA, Clerk Plaintiff - Appellee v. MARLO DENISE YOUNG, Defendant - Appellant Appeals from the United States District Court for the Southern District of Texas USDC No. 2:18-CR-1340-1 Before KING, GRAVES, and OLDHAM, Circuit Judges. PER CURIAM:* Marlo Denise Youn..
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Case: 19-40115 Document: 00515475964 Page: 1 Date Filed: 07/02/2020
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 19-40115 July 2, 2020
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff - Appellee
v.
MARLO DENISE YOUNG,
Defendant - Appellant
Appeals from the United States District Court
for the Southern District of Texas
USDC No. 2:18-CR-1340-1
Before KING, GRAVES, and OLDHAM, Circuit Judges.
PER CURIAM:*
Marlo Denise Young was convicted of possession with the intent to
distribute heroin. Young appeals the denial of her motion to suppress the drugs
seized during a traffic stop that, according to her, was unlawfully extended and
broader than the Fourth Amendment permits. Because Young has not
established reversible error, we affirm the district court’s judgment.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 19-40115 Document: 00515475964 Page: 2 Date Filed: 07/02/2020
No. 19-40115
I.
A.
On October 30, 2018, Mike Chapman, a special agent in the South Texas
Specialized Crimes Task Force, pulled Young over on a highway in Kleberg
County, Texas. Chapman stopped Young for speeding and for having two
objects—a radar detector and a toll reader—affixed to the vehicle’s windshield,
partially obstructing the driver’s view. In response to questioning, Young
stated that the car was a rental. Chapman later asked Young where she was
coming from, and, according to Chapman, she replied “Manvel or Mandel.”
Young stated that she did not know where Manvel or Mandel was located or
adjacent to, but that she had gone there to help her “good friend and coworker”
with “relationship issues.”
Chapman believed this explanation did not make sense because Young
was driving toward Manvel, Texas, rather than away from it. He testified that
Young was “extremely nervous,” that every answer started with “huh,” that
her voice was quivering, and that her hands “were shaking extremely bad.”
When asked, Young stated that she had no illegal drugs, and she declined
Chapman’s request to search her car.
Following a computer check, Chapman learned that Young had three
prior charges or convictions for marijuana possession, 1 and he then deployed a
drug-sniffing dog. At this point, “eight or ten minutes” had transpired. The dog
alerted to the presence of narcotics, Young admitted that there was marijuana
in her purse, and Chapman found additional marijuana in the passenger door
pocket. Although Young said that she was not carrying a large amount of
currency, Chapman also found $4,820 in cash.
1 Chapman stated that he “couldn’t tell if it was [a] conviction . . . or just a charge.”
2
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Chapman, accompanied by additional responding officers, later opened
the car’s hood and surmised that the car’s battery had been replaced because
“Walmart” was imprinted on it, even though that brand was not typical for this
type of car. Additionally, Chapman noticed that the battery looked older, even
though the rental car was new, and that the battery had been pried open.
Chapman then called the rental car company, which stated that the car’s
battery had not been replaced. 2 Chapman removed the battery, noticed signs
of tampering at the sides, and observed a vinegar smell which he associated
with heroin. 3 The officers transferred the car and battery to the “Kingsville
Sheriff’s Office Service Center,” and subsequently found approximately 10.5
pounds of heroin in the car’s battery.
B.
On November 28, 2018, Young was indicted for possession of heroin with
the intent to distribute. Young filed a motion to suppress the evidence, arguing
that the traffic stop was unlawfully extended in order to perform a canine
search of her vehicle and that her car was unlawfully searched without a
warrant.
The district court denied Young’s motion to suppress, finding that Young
was permissibly stopped for speeding and that Chapman had probable cause
to search the car after the dog detected narcotics. Young was subsequently
convicted following a jury trial and sentenced to 168 months’ imprisonment.
Young timely appealed.
2 Avis, the rental car company, stated at trial that it does not use Walmart batteries,
and there were no reports that the car’s battery had been changed.
3 Chapman also testified that he was trained in narcotics, and that the dog was trained
to locate both marijuana and heroin.
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No. 19-40115
II.
“In considering a district court’s decision on a motion to suppress, this
court reviews findings of facts for clear error and conclusions of law de novo.”
United States v. Massi, 761 F.3d 512, 519 (5th Cir. 2014). “‘[W]e may consider
all of the evidence presented at trial, not just that presented before the ruling
on the suppression motion, in the light most favorable to the prevailing party,’
which in this case is the government.” United States v. Raney,
633 F.3d 385,
389 (5th Cir. 2011) (per curium) (quoting United States v. Ibarra,
493 F.3d 526,
530 (5th Cir. 2007)). Clear-error review is “particularly deferential where
denial of the suppression motion is based on live oral testimony . . . because
the judge had the opportunity to observe the demeanor of the witnesses.”
United States v. Ortiz,
781 F.3d 221, 226 (5th Cir. 2015) (internal quotation
marks omitted).
The district court’s judgment “should be upheld ‘if there is any
reasonable view of the evidence to support it,’” Massi, 761 F.3d at 520 (quoting
United States v. Michelletti,
13 F.3d 838, 841 (5th Cir. 1994) (en banc)), and
this court “may affirm the district court’s decision on any basis established by
the record,” United States v. Pack,
612 F.3d 341, 347 (5th Cir.), modified on
denial of reh’g,
622 F.3d 383 (5th Cir. 2010).
III.
We first evaluate Young’s claim that her traffic stop was unlawfully
extended to conduct a canine search. We then analyze whether there was
probable cause to search under the hood of her car without a warrant.
A.
Traffic stops must be justified by reasonable suspicion under the Fourth
Amendment. United States v. Lopez-Moreno, 420 F.3d 420, 430 (5th Cir. 2005).
The stop must be “(1) ‘justified at its inception’; and (2) ‘reasonably related in
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scope to the circumstances which justified the interference in the first place.’”
Id. (quoting Terry v. Ohio,
392 U.S. 1, 19-20 (1968)).
Under the second prong, the “detention must be temporary and last no
longer than is necessary to effectuate the purpose of the stop.” Id. (quoting
United States v. Brigham,
382 F.3d 500, 507 (5th Cir. 2004) (en banc)). During
a stop, an officer may “examine the driver’s license and registration,” “run a
computer check,” and “ask the driver about the purpose and itinerary of his
trip.”
Id. at 430-31.
Though this “inquiry may be wide-ranging, once all relevant computer
checks have come back clean, there is no more reasonable suspicion,” and the
stop must end unless “additional reasonable suspicion arises . . . before the
initial purpose of the stop has been fulfilled.”
Id. at 431. At this stage, “the
relevant question in assessing whether a detention extends beyond a
reasonable duration is whether the police diligently pursued a means of
investigation that was likely to confirm or dispel their suspicions quickly.”
Brigham, 382 F.3d at 511 (citation omitted). The reasonable suspicion
standard “falls considerably short of satisfying a preponderance of the evidence
standard” and instead looks to whether the “totality of the circumstances”
creates a reasonable suspicion of criminal activity. United States v. Arvizu,
534
U.S. 266, 274 (2002) (citing United States v. Sokolow,
490 U.S. 1, 7 (1989)).
B.
We conclude that the traffic stop was not unreasonably extended because
Chapman had reasonable suspicion to continue the traffic stop. Young was
unsure whether she was coming from “Manvel” or “Mandel,” and she did not
know where it was located. Cf. United States v. Beltran, 650 F. App’x 206, 208
(5th Cir. 2016) (per curium) (that defendant “did not know the address” when
he was “visiting his brother” weighs in favor of probable cause). Though Young
said she was coming from Manvel, Chapman found that this explanation did
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not make sense because Young was driving toward Manvel rather than away
from it. The officer stated that Young’s hands were shaking, that her voice was
quivering, and that she appeared nervous. 4 See Illinois v. Wardlow, 528 U.S.
119, 124 (2000) (“[N]ervous, evasive behavior is a pertinent factor in
determining reasonable suspicion.”). Following the computer check, Chapman
learned that Young had three prior marijuana charges or convictions. Last, the
dog was deployed within approximately “[e]ight or ten minutes” of the traffic
stop’s commencement. Accordingly, the district court could have reasonably
concluded that Chapman had reasonable suspicion to extend the traffic stop to
conduct a canine search.
C.
“Under the automobile exception, police may stop and search a vehicle
without obtaining a warrant if they have probable cause to believe it contains
contraband.” United States v. Beene, 818 F.3d 157, 164 (5th Cir. 2016) (citing
United States v. Ross,
456 U.S. 798, 807-09 (1982)). “Probable cause in this
context consists of trustworthy facts and circumstances within the officer’s
knowledge [that] would cause a reasonably prudent man to believe the car
contains contraband.” United States v. Guzman,
739 F.3d 241, 246 (5th Cir.
2014) (alteration in original) (internal quotation marks omitted). Thus, “an
alert by a drug-detecting dog provides probable cause to search” a vehicle.
United States v. Rodriguez,
702 F.3d 206, 210 (5th Cir. 2012) (quoting United
States v. Sanchez–Pena,
336 F.3d 431, 444 (5th Cir. 2003)). “If . . . officers have
probable cause to believe that contraband is located somewhere in a car, but
they don’t know exactly where, then they can search the entire vehicle.” United
States v. Seals,
987 F.2d 1102, 1107 n.8 (5th Cir. 1993); see also United States
v. McSween,
53 F.3d 684, 687 (5th Cir. 1995) (upholding a search “under the
4 Young admitted to being nervous, in response to Chapman’s questioning.
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hood” as part of the “entire vehicle” in a search justified by an odor of
marijuana).
The district court’s judgment that there was probable cause to search
under the hood of the car was supported by a reasonable view of the evidence.
Chapman located two separate items of marijuana, neither of which Young
originally disclosed when asked, which provided probable cause to search the
whole car, including under the hood, for additional drugs. See Seals, 987 F.2d
at 1107 n.8;
McSween, 53 F.3d at 687. Moreover, the drug-sniffing dog detected
narcotics, which provided probable cause to search the vehicle. See
Rodriguez,
702 F.3d at 210. Last, the battery appeared tampered with, not original to the
rental car, and smelled like vinegar, which offered trustworthy facts and
circumstances to believe the battery contained contraband. See
Guzman, 739
F.3d at 246.
IV.
For the foregoing reasons, the judgment of the district court is
AFFIRMED.
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