IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-20250 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

CHRISTOPHER ALMARAZ,

Defendant-Appellant.

Appeals from the United States District Court for the Southern District of Texas USDC No. H-00-CR-557-1

January 31, 2002 Before GARWOOD, JONES, and STEWART, Circuit Judges.

PER CURIAM:*

Christopher Almaraz challenges his conviction for knowingly

possessing a firearm during and in relation to a drug-trafficking

offense, in violation of

(c), and for being a felon

in possession of a firearm, in violation of

(g)(1).

Almaraz contends that the district court erred in denying his

motion to suppress the results of the warrantless search of his

* 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 R. 47.5 the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. vehicle. In reviewing this claim, we consider the evidence in the

light most favorable to the party prevailing below, here the

government, accept all factual findings that are not clearly

erroneous, and review questions of law de novo. United States v.

Shannon,

(5th Cir. 1994).

Almaraz does not challenge the stop of the vehicle, which was

clearly based on probable cause. He argues that the officers were

not authorized to open a closed container as part of their

inventory search of the vehicle absent a specific, written

departmental policy permitting them to do so. He contends that the

suppression-hearing testimony regarding the policy with respect to

the opening of closed containers was contradictory and that the

written policy submitted said nothing about the subject.

Almaraz’s argument is unavailing.

We have stated that there is no requirement that a law

enforcement agency’s inventory policy must specifically address the

steps that an officer should take upon encountering a closed

container. See United States v. Como,

(5th Cir.

1995). Deputies Clark and Mendez both testified that departmental

policy requires officers to inventory completely a vehicle which is

going to be towed for the purpose of “safekeeping” valuables. It

is clear that the policy behind conducting an inventory search was

for safekeeping, rather than simply searching for evidence. See

. Moreover, Deputy Clark stated that he was not looking

2 for or expecting to find any contraband when he lifted the white

shirt lying on the backseat, revealing a gun case. Thus, there is

no indication that the inventory search here was actually a search

for evidence, nor is there any allegation that the officers acted

in bad faith during the inventory search. See United States v.

Gallo,

, 819 (5th Cir. 1991).

In any event, as the district court found, it was readily and

reasonably apparent to the officers that the closed container in

question was a gun case and likely contained a gun, and hence the

officers had essentially located the weapon without opening any

closed container. See, e.g., Como,

n.4.

Finally, and independently of the foregoing, it is clear that

there was probable cause to search the interior of the vehicle in

that the officers noted the smell of marihuana emanating from the

vehicle on approaching its passenger side and before making any

entry into it. “This Court has consistently held that the smell of

marihuana alone may constitute probable cause to search a vehicle.”

United States v. Ibarra-Sanchez,

(5th Cir. 1999)

(citing cases).

The district court thus did not err in denying Almaraz’s

suppression motion.

Almaraz next complains that his attorney was ineffective in

several ways. Because these complaints of ineffective assistance

were not first addressed in the district court, this court will not

3 review them, except for the complaint that counsel failed to move

for judgment of acquittal at the close of the government’s evidence

(no defense evidence was presented). See United States v. Rosalez-

Orozco,

(5th Cir. 1993); United States v.

Higdon,

(5th Cir. 1987). With respect to the

failure to move for judgment of acquittal, we hold, as discussed

below, that the evidence is sufficient to support the conviction

even when reviewed under the standard appropriate for instances

where proper motion for judgment of acquittal has been made, and

hence the failure to move for judgment of acquittal did not

prejudice Almaraz and he is not entitled to relief on his claim of

ineffective assistance of counsel in this respect. Rosalez-Orozco

at 199-200.

Almaraz additionally contends, for the first time on appeal,

that the admission of the testimony concerning his use of marihuana

and his prior weapons conviction was irrelevant and/or unduly

prejudicial and should have been excluded under Fed. R. Evid. 404.

Because these arguments were not raised in the district court,

review is for plain error only. United States v. Olano,

(1993); United States v. Calverley,

(5th Cir. 1994) (en banc).

Almaraz has not demonstrated any plain error in connection

with the admission of the challenged testimony.

The minimal evidence regarding the use of marihuana was

4 elicited from Almaraz’s companion, Cynthia Hinojosa, when

discussing her inability to drive, and related to the stop and

ultimate decision to impound the vehicle, as she and Almaraz were

each too impaired to drive, and inventory search it. Given the

unchallenged evidence of cocaine and marihuana in the vehicle, it

is clear that if there was any error in this respect there is no

showing that it was prejudicial, and certainly it does not

seriously affect the fairness, integrity or public reputation of

judicial proceedings.

Moreover, the fact that Almaraz had a prior felony conviction

was an essential element of the section 922(g) offense with which

he was charged and which thus had to be proved beyond a reasonable

doubt to obtain a conviction. See

(g). Rule 404

has no application in such a circumstance.

In his final point of error, Almaraz challenges the

sufficiency of the evidence to support his conviction.

Specifically, Almaraz contends that his conviction under both

counts of the indictment cannot stand because the Government did

not prove that he knowingly possessed the firearm in question.

Possession may be actual or constructive and may be proved by

circumstantial evidence. See United States v. Munoz,

(5th Cir. 1999). The government demonstrated Almaraz’s

constructive possession of the gun in question through proof that

Almaraz owned the vehicle in which it was found; that Hinojosa had

5 disavowed any knowledge of the weapon; and that Almaraz had

informed officers that Hinojosa should not be subjected to criminal

charges because she had nothing to do with the items seized from

his car. See, id; United States v. Fields,

(5th

Cir. 1996).

The government provided additional proof of Almaraz’s guilty

knowledge by demonstrating that, when Deputy Clark first approached

the vehicle, there was nothing in the backseat; after he removed

Hinojosa from the vehicle, arrested her, and returned to the

vehicle to speak with Almaraz, he discovered that Almaraz was no

longer wearing the shirt he had been wearing when first approached,

only his undershirt, and that the shirt Almaraz had been wearing

had been thrown onto the backseat. The officers later discovered

the gun case and gun under the shirt in the backseat, indicating

that Almaraz had put the gun case on the backseat when officers

were otherwise occupied, then had thrown his shirt over the gun

case to conceal it from the officers. Because Almaraz was the sole

occupant of the vehicle at the time the gun was placed on the

backseat, within his reach and concealed by the shirt he had been

wearing only moments before, the evidence was sufficient to allow

a reasonable trier of fact to find that it established beyond a

reasonable doubt Almaraz’s knowing possession of the gun.1

1 Almaraz argues that it is significant that there is no evidence that his fingerprints were on either the gun or its container. This, however, is not determinative. There is no

6 Almaraz has not demonstrated any error in the district court’s

judgment. Accordingly, the judgment is

AFFIRMED.

evidence of any other person’s prints on either item. The fingerprint expert testified without contradiction that though the container and the gun had marks indicating they had been handled, the “prints” were all too smudged or blurred to form the basis of any comparison, and that such a state of affairs was in no way unusual.

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