Revised February 12, 1999

UNITED STATES COURT OF APPEALS For the Fifth Circuit

No. 96-40687

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

EDGAR CASTRO,

Defendant-Appellant.

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______________________________

No. 96-40694 ______________________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

SUSANA GOMEZ,

Defendant-Appellant.

Appeals from the United States District Court for the Eastern District of Texas

January 28, 1999 Before KING,* Chief Judge, POLITZ,* JOLLY, HIGGINBOTHAM, DAVIS, JONES, SMITH, DUHÉ, WIENER, BARKSDALE, EMILIO M. GARZA, DeMOSS, BENAVIDES, STEWART, PARKER, and DENNIS, Circuit Judges.

PER CURIAM:

On November 9, 1995, an officer of the Polk County Sheriff’s

Department stopped a Chevrolet Suburban traveling north on Highway

59, in Texas, for speeding and seat belt violations. He

subsequently arrested two of the three occupants for seat belt

violations, and impounded the Suburban. At the sheriff’s

department a search of the Suburban revealed over 900 pounds of

cocaine hidden in the back of the vehicle. Edgar Castro, the

driver, and Susana Gomez, the back seat passenger, were then

charged with conspiracy to possess with intent to distribute

cocaine, in violation of

, and possession with

intent to distribute cocaine, in violation of

(a)(1).2 When the district court denied their motions to

suppress evidence found during the search, Castro and Gomez pleaded

* At the time of submission and oral argument Judge Politz was Chief Judge. Judge King became Chief Judge on January 16, 1999. 2 Muriel Cristina Vicencio, the front seat passenger, was charged for the same crimes. She is not a party to this appeal, however.

2 guilty to the charges and appealed.3 In that appeal we were asked

to decide whether the district court erred in not suppressing the

evidence. A panel of this Court answered that question in the

affirmative, holding that the officer violated the Fourth Amendment

rights of Castro and Gomez by impounding the Suburban and searching

the vehicle. United States v. Castro,

(5th Cir.

1997). We granted rehearing en banc, United States v. Castro,

(5th Cir. 1998), and now hold that Castro and Gomez did

not suffer a violation of their Fourth Amendment rights.

I.

On the afternoon of November 9, 1995, several officers of a

joint state and federal task force were conducting surveillance of

Javier Vallejo, a suspected narcotics trafficker, at a mall in

Houston, Texas. In the course of their surveillance the officers

noticed that Vallejo was accompanied by Gomez and an unidentified

Hispanic male. Shortly after, the agents observed Gomez and the

unidentified male leaving the mall in a grey van. Gomez was

subsequently dropped off at a K-Mart, where she made a telephone

call and bought some insignificant items, while her companion

detoured to a known stash house. The unidentified male eventually

returned to K-Mart -- after engaging in several evasive maneuvers

3 Castro and Gomez reserved their right to appeal the district court’s denial of their suppression motions.

3 aimed at losing any possible surveillance -- and retrieved Gomez.

The agents then followed the pair to a local motel, where Gomez was

joined by Castro and Muriel Cristina Vicencio.

From the motel Castro drove a blue Chevrolet Suburban to the

mall, while Gomez and Vicencio followed in two separate vehicles.

After going inside the mall for roughly fifteen minutes, the trio

left the mall in the Suburban and began to travel north on Highway

59. Castro was driving, Vicencio occupied the front seat, and

Gomez occupied the rear seat. Several members of the task force

followed the Suburban for approximately 115 miles through Harris,

Montgomery and San Jacinto Counties, and into Polk County. After

the Texas Department of Public Safety informed the officers that it

did not have an available unit to stop the vehicle, officers of the

task force contacted the Polk County Sheriff’s Department for

assistance.

In a brief conversation, Lieutenant Mike Nettles of the Polk

County Sheriff’s Department was given a description of the Suburban

and informed that it was “involved in a narcotics investigation.”

He was also instructed that he would have to “develop his own

probable cause” for stopping the vehicle. Officer Nettles, who had

positioned his patrol car in the median of Highway 59, watched the

Suburban as it passed and noticed that Castro, the driver, was not

wearing his seat belt, and that the Suburban seemed to be traveling

at an excessive rate of speed. Officer Nettles then followed the

Suburban for several miles and with his speedometer paced the

4 Suburban at 67 m.p.h. in a 55 m.p.h. zone. While following the

vehicle Officer Nettles also observed that Vicencio, the front seat

passenger, was not wearing her seat belt, and that the vehicle

appeared to have a heavy rear load which was causing it to sway

sightly.

Officer Nettles then stopped the Suburban for speeding and

seat belt violations. On approaching the vehicle Officer Nettles

again observed that Castro and Vicencio were not wearing their seat

belts. In the ensuing conversation, Castro produced a valid

Maryland driver’s license and explained that all three of the

occupants were from out of state. Officer Nettles ran a check on

Castro’s license, which revealed no outstanding warrants.

Nonetheless, after receiving several conflicting statements from

the occupants, and based on their nervous demeanor, Nettles decided

to arrest Castro and Vicencio for the seat belt violations.

Officer Nettles also requested Castro’s consent to search the

Suburban, which was denied. Castro and Vicencio were then taken

into custody; the Suburban was impounded and brought to the

sheriff’s department.4

There, Castro again refused to consent to a search of the

Suburban. A trained narcotics detection dog was subsequently

4 The sheriff’s department was a building and facility located about six miles away from the place on Highway 59 where the Suburban was initially stopped. Gomez, the back seat passenger, was not taken into custody. She was taken to the sheriff’s department, however, because she was not an authorized driver on the Suburban’s rental agreement.

5 brought to the sheriff’s department and walked around the Suburban.

After the dog alerted to the rear of the Suburban, the vehicle was

entered and searched, uncovering almost 900 pounds of powder

cocaine, packaged in two-kilogram bricks contained in several large

trash bags.

On December 7, 1995, the three occupants were indicted by a

federal grand jury on one count of conspiring to possess with

intent to distribute cocaine, in violation of

, and

one count of possession with the intent to distribute cocaine, in

violation of

(a)(1). Castro and Gomez subsequently

filed motions to suppress the cocaine as evidence based on the

contention that Officer Nettles had violated their rights under the

Fourth Amendment. A suppression hearing was held over the course

of two days, in which the district court heard testimony from

roughly a dozen witnesses. On March 15, 1996, the district court

denied the motions to suppress in a lengthy and detailed memorandum

order. Castro and Gomez then pleaded guilty to the two charges,

reserving their right to appeal the district court’s ruling on the

suppression issue. Castro and Gomez were sentenced to 135 months

of imprisonment for each count, to run concurrently, and a five

year term of supervised release. Gomez and Castro (“appellants”)

each filed timely notices of appeal.

II.

The sole issue we must decide in this appeal is whether the

6 district court correctly found that Officer Nettles’ conduct did

not violate the Fourth Amendment. In reviewing a district court's

ruling on a motion to suppress, we review questions of law de novo,

and accept the trial court's factual findings unless they are

clearly erroneous. United States v. Carrillo-Morales,

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

(1995).

We also view the relevant evidence in a light most favorable to the

party that prevailed; in this case, the government. United States

v. Nichols,

(5th Cir. 1998).

In this appeal the appellants contend that Officer Nettles

exceeded the scope of his authority under the Fourth Amendment by

arresting Castro and Vicencio for seat belt violations, and by

later searching the Suburban at the sheriff’s department. The

appellants rest that contention on three separate theories. We

review each in turn.

A.

The appellants first argue that the arrests of Castro and

Vicencio for seat belt violations were unlawful because Texas is a

party to the Nonresident Violator Compact (“NVC”),

(Vernon Pamph. 1998). That compact, the

appellants insist, requires a police officer to issue a nonresident

motorist a citation in lieu of arrest on the motorist’s promise to

7 appear.5 The appellants conclude that, because the arrests

violated the NVC, the subsequently discovered cocaine is

inadmissible as “fruit of the poisonous tree.” See Segura v.

United States,

(1984) (observing that

exclusionary rule reaches not only primary evidence obtained as

direct result of illegal search or seizure, but also evidence later

discovered and found to be derivative of illegality, or "fruit of

the poisonous tree"). We note, as an initial matter, that our

consideration of this issue is colored by the fact that the

appellants never raised this issue below. Accordingly, we review

their argument under the plain error standard.

To prevail on a claim raised for the first time on appeal, an

appellant must show (1) the existence of actual error; (2) that the

error was plain; and (3) that it affects substantial rights.

United States v. Calverley,

(5th Cir. 1994) (en

banc), cert. denied,

(1995). When these elements are

satisfied, a court has the discretion to correct forfeited errors

if they "seriously affect the fairness, integrity, or public

5 The NVC provides in pertinent part:

(a) When issuing a citation for a traffic violation, a police officer shall issue the citation to a motorist who possesses a driver’s license issued by a party jurisdiction and shall not . . . require the motorist to post collateral to secure appearance.

(Vernon Pamph. 1998).

8 reputation of judicial proceedings.” United States v. Calverley,

(5th Cir. 1994) (en banc), cert. denied,

(1995). In Calverley we explained plain error in the

following terms: “[p]lain is synonymous with ‘clear’ or ‘obvious,’

and ‘[a]t a minimum,’ contemplates an error which was ‘clear under

current law’ at the time of trial." Id. at 162-63 (quoting United

States v. Olano,

(1993)). Applying this

stringent standard to the facts of this case, we cannot conclude

that plain error resulted from the district court’s denial of the

motions to suppress.

Though the NVC was adopted by the Texas legislature more than

twenty years ago, there are no published decisions in the Texas

courts, in the federal courts comprising the Fifth Circuit, or in

the other state courts within this Circuit, construing the NVC as

limiting the authority of a state police officer to make an arrest

of a nonresident. The absence of clear law on the NVC existed at

the time of the suppression hearing, and persists now as we decide

this appeal.

In sharp contrast, from the time of the suppression hearing

until present, Texas statutes have expressly allowed police

officers to arrest a person for failure to wear a seat belt.6

6 The Texas Transportation Code provides that "[a] peace officer may arrest without a warrant a person found committing a [traffic] violation."

(Vernon Pamph. 1998). The Transportation Code allows for only two exceptions to the above rule: speeding and open container

9 Similarly, the Texas courts have recognized that motorists may be

arrested for seat belt violations. See Valencia v. State,

(Tex. App.--Houston [14th Dist.] 1991, pet. ref’d)

(holding that passenger of a van was subject to arrest for a seat

belt offense); Madison v. State,

(Tex. App.--

Texarkana 1996, pet. ref’d) (stating that a peace officer may

arrest a driver for failure to wear a seat belt).

Thus, even if we assume for the sake of argument that error

resulted with regard to the NVC, it would be impossible to conclude

that any such error was plain at the time of the suppression

hearing. We reject the appellants’ claim that the arrests were

unlawful in light of the NVC.

B.

The appellants next argue that Officer Nettles violated the

Fourth Amendment because the actions he took after stopping the

Suburban exceeded the scope of permissible governmental intrusion

allowed under Terry v. Ohio,

(1968). In particular, the

appellants contend that by arresting Castro and Vicencio, and

seizing the Suburban, Officer Nettles elevated what was otherwise

violations.

(a)(1) (Vernon Pamph. 1998) (stating that an officer shall issue a written notice to appear if the offense charged is speeding or a violation of the open container law). Therefore, a violation of the state seat belt law is not an offense which requires a citation; a motorist can be arrested for the violation.

(Vernon Pamph. 1998).

10 an ordinary Terry stop into full-blown arrests that required

probable cause. That point is critical to the appellants’ argument

because in their view there was no probable cause supporting the

arrests of Castro and Vicencio.7

It is well established that under the Fourth Amendment a

warrantless arrest must be based on probable cause. United States

v. Shugart,

(5th Cir.), cert. denied,

(1997). Probable cause exists when the totality of facts and

circumstances within a police officer's knowledge at the moment of

arrest are sufficient for a reasonable person to conclude that the

suspect had committed, or was in the process of committing, an

offense. Id. (quotations and citations omitted). The presence of

probable cause is a mixed question of fact and law. United States

v. Wadley,

(5th Cir. 1995), cert. denied,

(1996). We will not disturb the factual findings of the

district court absent clear error, although the ultimate

determination of whether there is probable cause for the arrest is

a question of law we review de novo. Id.

In the present case, the district court took testimony from

nearly a dozen witnesses during a suppression hearing that lasted

7 A defendant normally bears the burden of proving by a preponderance of the evidence that the challenged search or seizure was unconstitutional. United States v. Roch,

(5th Cir. 1993). In a case like the present, however, in which the officer acted without a warrant, the government bears the ultimate burden of proving that the officer had probable cause.

11 roughly two days. At that hearing Officer Nettles testified that

Castro was not wearing his seat belt when the Suburban passed his

patrol car which was stationed on the highway median. He also

stated that he noticed that Vicencio was not wearing her seat belt

while he was pacing the Suburban. Finally, Officer Nettles

testified that he again observed that Castro and Vicencio were not

wearing their seat belts when he approached the stopped Suburban.

Although the appellants took the stand at the suppression hearing

and contradicted Officer Nettles’ testimony, the district court did

not accept their version of events. In its written memorandum

order the district court found that Officer Nettles’ testimony was

more credible, and found that Castro and Vicencio were in fact not

wearing their seat belts.

Similarly, at the suppression hearing Officer Nettles

testified that from the median he could see that the Suburban was

traveling at a high rate of speed. He further stated that he paced

the Suburban traveling 67 m.p.h. in a 55 m.p.h. zone, and watched

the Suburban pass several vehicles. The appellants contested those

findings by questioning the accuracy of the speedometer in Officer

Nettles’ patrol car, and by testifying that the speedometer in the

Suburban never registered above the legal limit. Faced with this

conflicting testimony, the district court chose to credit Officer

Nettles’ account. In its memorandum order the district court

expressly found that the Suburban was in fact speeding.

To justify a reversal of the district court’s factual

12 findings, the record would need to clearly demonstrate that those

findings were in fact wrong. But as the Supreme Court has

observed, "when a trial judge's finding is based on his decision to

credit the testimony of one of two or more witnesses, each of whom

has told a coherent and facially plausible story that is not

contradicted by extrinsic evidence, that finding, if not internally

inconsistent, can virtually never be clear error." Anderson v.

City of Bessemer City,

(1984). Here, the

district court observed the witnesses, weighed conflicting

testimony, and made a determination that Officer Nettles’ version

of events was more credible. On the record of this case we are not

prepared to say that the district court's credibility

determinations and ensuing factual findings were clearly erroneous.

Accordingly, as there is no reasonable basis for challenging

the district court’s findings that the Suburban was speeding, and

that Castro and Vicencio were not wearing their seat belts, we

conclude that Officer Nettles had reasonable suspicion to stop the

Suburban, and probable cause to arrest Castro and Vicencio for

violating the seat belt law. We affirm the district court on this

issue.

We likewise reject the appellants' vague claim that the

impoundment and search of the Suburban exceeded the scope of

permissible intrusion under the Fourth Amendment. As we have

concluded that the Suburban was lawfully stopped, and that Castro

13 and Vicencio were lawfully under arrest, the impoundment of the

Suburban was permissible so long as it was carried out in

furtherance of a community caretaking function. South Dakota v.

Opperman,

(1976); United States v. Ponce,

(5th Cir. 1993). The evidence supports the conclusion

that the Suburban was impounded in accordance with Officer Nettles'

community caretaking function. Following the impoundment, an

inventory search was authorized, was interrupted only temporarily

by the alert of a drug-sniffing dog on the vehicle, and inevitably

would have led to the discovery of the drugs.

C.

The appellants’ final argument relates to the issue of

pretext. Specifically, the appellants contend that their Fourth

Amendment rights were violated because Officer Nettles’ actions

were motivated by his suspicion that the appellants were engaged

in drug trafficking when there was no probable cause to that

effect. Although conceding that under United States v. Whren,

(1996), Officer Nettles’ subjective beliefs have no

bearing on the legality of the initial stop of the Suburban, the

appellants insist that his motives transformed the subsequent

impoundment into an unreasonable seizure under the Fourth

Amendment. Notably, it was on this basis that the panel majority

reversed the district court. See Castro, 129 F.2d at 758 (“We

14 perforce must conclude that taking possession of the Suburban for

purposes of an inventory search was nothing more than a ruse to

perform an unauthorized search”). We now reject that contention.

The thrust of the appellants’ contention is that the

impoundment was unreasonable based on the subjective motives of

Officer Nettles. That argument, however, is intrinsically flawed.

It is well settled that the reasonableness inquiry under the Fourth

Amendment is an objective one, Ohio v. Robinette,

(1996), wholly divorced from the subjective beliefs of police

officers. United States v. Causey,

(5th Cir.

1987). “[S]o long as police do no more than they are objectively

authorized and legally permitted to do, their motives in doing so

are irrelevant and hence not subject to inquiry.”

.

Accordingly, we reject the appellants’ contention that Officer

Nettles’ hidden motives invalidated what was an otherwise lawful

impoundment carried out in accordance with the standard procedures

of the Polk County Sheriff’s Department.

III.

For the foregoing reasons, the judgment of the district court

is AFFIRMED.

15 POLITZ, Circuit Judge, dissenting:

I view the fourth amendment as an invaluable part of the constitutional framework of our

American society. I am persuaded beyond peradventure that the pretextual arrest, vehicle

impoundment, and search in the instant case are constitutionally offensive. The evidence

gathered from the search of the vehicle should be suppressed for the facts as noted and the

reasons set forth in the panel opinion, United States v. Castro,

(5th Cir. 1997).

This case presents the unique situation of an admittedly pretextual stop and arrest,

followed by a pretextual impoundment, to obtain a pretextual inventory search for drugs the

agents suspected were in the vehicle. These agents, state and federal, admittedly did not have

probable cause to make an arrest, and stood by as mere observers when the deputy made the stop

and arrest for the failure to wear seat belts. While each of the actions could be upheld if some

other lawful basis existed, as the majority is quick to note, there must be a point where the

combination of pretext and continuing bad faith cannot be tolerated if the fourth amendment

protections are to have any meaning whatsoever. In my opinion, the facts and circumstances of

this case, viewed clearly and objectively, present just such a situation.

It is my perception that technical distortions and expansion of exclusionary rule

exceptions threaten to make the fourth amendment a hollow shell of its former self. The

treatment accorded by the majority opinion belies the very essence of the fourth amendment.

Accordingly, I must dissent therefrom.

g:\opin\96-40687.ebr g:\opin\96-40687.ebr 17 DENNIS, Circuit Judge, dissenting.

I respectfully dissent from the majority opinion. I agree

fully with the conclusions and sentiments of Judge Politz’s

dissenting opinion. As he points out, this is not a typical

automobile inventory case but a “unique situation of an admittedly

pretextual stop and arrest, followed by a pretextual impoundment,

to obtain a pretextual inventory search for drugs”--“[a]

combination of pretext and continuing bad faith [that] cannot be

tolerated [under] the Fourth Amendment[].” Indeed, the evidence

demonstrates beyond any doubt that from the very beginning it was

the investigatory motive of the Houston Police-DEA-FBI law

enforcement unit to search defendants’ vehicle for illegal drugs

that instigated and orchestrated all of the federal, state and

local law officers’ actions towards the defendants. Toward this

investigatory end, the law enforcement officers in bad faith

attempted to use a pretextual traffic offense arrest, a pretextual

impoundment of the defendants’ vehicle and a pretextual inventory

of the vehicle as a ruse for a warrantless drug search. Because a

bad faith, pretextual automobile inventory does not create any

exception to the warrant requirement, the planned inventory search

in this case would have been unconstitutional had it been carried

out. Therefore, the prophesied inventory can not serve as a “lawful

g:\opin\96-40687.ebr 18 means” by which the drugs could have been discovered under the

ultimate or inevitable discovery exception to the exclusionary

rule. While I join in Judge Politz’s dissenting opinion, I add

this brief opinion to point out specifically how the Supreme

Court’s decisions clearly support our conclusions and indicate that

the panel opinion was correct and should be reinstated and

affirmed.

An ultimate or inevitable discovery exception to the

exclusionary rule was recognized by the Supreme Court in Nix v.

Williams,

(1984). In that case, the evidence

supported a finding that a search party ultimately or inevitably

would have discovered the victim’s body even had the defendant,

whose statement directing police to the site was the result of a

postarrest interrogation in violation of his right to counsel, not

been questioned by the police. The Court succinctly defined the

exception: “If the prosecution can establish by a preponderance of

the evidence that the information ultimately or inevitably would

have been discovered by lawful means--here the volunteers’ search--

then the deterrence rationale has so little basis that the evidence

should be received.”

(emphasis added). Accordingly, in

the present case the prosecution, in order to avail itself of the

inevitable discovery exception, would have had to establish by a

preponderance of the evidence that the drugs in the defendant’s

vehicle would have been ultimately or inevitably discovered by the

lawful means of a lawful inventory had the police not conducted an

g:\opin\96-40687.ebr 19 unconstitutional warrantless search in the absence of exigent

circumstances.8

The inventory of the defendants’ vehicle that the majority

opinion hypothesizes that officer Nettles would have conducted (had

the unlawful warrantless drug dog assisted search not occurred)

would not have been a lawful means of discovery because it would

have been a bad faith, pretextual inventory. It is true that the

Supreme Court has “never held, outside the context of inventory

search or administrative inspection..., that an officer’s motive

invalidates objectively justifiable behavior under the Fourth

Amendment[.]” Whren v. United States,

(1996).

But the Court has repeatedly indicated for discerning readers that

improper ulterior motives will invalidate police conduct in the

context of inventory searches. In Whren,

, the Court

acknowledged that in Florida v. Wells,

(1990), it

stated that “an inventory search must not be used as a ruse for a

general rummaging in order to discover incriminating evidence”;

that in Colorado v. Bertine,

(1987), in approving

8 Because the officers did not have probable cause to search the defendants’ vehicle for drugs at the time of the arrest, the fact that such probable cause arose after the vehicle was removed from the highway and impounded did not on its own, in the absence of demonstrated exigent circumstances, provide a constitutional basis for a search of the vehicle without a search warrant. See Chambers v. Maroney,

(1970) (“Only in exigent circumstances will the judgment of the police as to probable cause serve as a sufficient authorization for a search.”

, citing Carroll v. United States,

(1925)). Accordingly, that theory cannot be used to support the judgment herein.

g:\opin\96-40687.ebr 20 an inventory search, the Court thought it significant that there

had been “no showing that the police, who were following standard

procedures, acted in bad faith or for the sole purpose of

investigation”; and that in New York v. Burger,

, 716-

717, n. 27 (1987) the Court observed, in upholding the

constitutionality of a warrantless administrative inspection, that

the search did not appear to be “a ‘pretext’ for obtaining evidence

of...violation of...penal laws.” Significantly, the Supreme Court

in South Dakota v. Opperman,

(1976), setting

forth the high court’s first full articulation of the inventory

exception, in approving an inventory after impoundment of a car

left illegally parked for an extended period, expressed the

following caveat: “[T]here is no suggestion whatever that this

standard procedure, essentially like that followed throughout the

country, was a pretext concealing an investigatory police motive.”

(Footnotes omitted).

The evidence overwhelmingly demonstrates that everything the

police did in the present case was a pretext or ruse that was meant

to conceal the Houston-DEA-FBI unit’s investigatory police motive

and actions to search the defendants’ vehicle for evidence of

suspected illegal drug activity. The district court either

committed an error of law by assuming that the police officers’ bad

faith, pretextual motives and pretextual conduct cannot invalidate

an inventory search under the Fourth Amendment or made clearly

erroneous factual findings by ignoring the clear and convincing

g:\opin\96-40687.ebr 21 proof of such ulterior motives and bad faith conduct. Because the

majority has repeated the same constitutional errors, I

respectfully dissent.

g:\opin\96-40687.ebr 22