849 F.2d 935 | 5th Cir. | 1988
Jose Jaquez, III, entered a conditional guilty plea to both counts of an indictment charging him, in Count One, with unlawfully possessing marijuana with the intent to distribute and, in Count Two, with traveling in interstate commerce to facilitate an unlawful activity involving controlled substances. On appeal, Jaquez challenges the district court’s denial of his motion to suppress evidence. Finding no merit in Ja-quez’s arguments with respect to the suppression motion, we affirm the judgment and sentence on Count One. The government concedes, however, that Jaquez’s conviction on Count Two should be vacated. Therefore, we reverse the judgment of conviction and vacate the sentence on that count. The sentence on the reversed count having been concurrent with the sentence on the affirmed count, we need not remand for resentencing.
I.
On March 25,1987, United States Border Patrol agent Joe Castillo (“Castillo”) was assigned to duty at the El Paso International Airport.
At that point, Castillo and another agent proceeded to the American Airlines baggage area. In the baggage area, the agents compressed the sides of Jaquez’s suitcases; one of the suitcases emitted odors of marijuana, shaving lotion or cologne, and coffee. That suitcase was a maroon soft-sided vinyl bag which, according to the attached baggage check, had been checked to LaGuardia Airport in New York City. Castillo could also feel two large solid bundles inside the suitcase. No odor of marijuana could be detected prior to the agents’ compression of the suitcase. Castillo took the maroon suitcase to the Border Patrol office at the airport. Castillo returned to the main lobby of the terminal to find Jaquez. There, Castillo encountered Border Patrol agent Francisco Chava-ría (“Chavaría”) and advised him that Ja-quez was almost certainly carrying a controlled substance. As Castillo and Chava-ría spoke, Jaquez proceeded to run through the main lobby and up to the American Airlines security check point upstairs.
The agents aproached Jaquez and Chava-ría identified himself as a Border Patrol
On April 17, 1987, a federal grand jury returned a two-count indictment charging Jaquez with several violations of federal narcotics laws. Count One alleged that Jaquez “unlawfully, knowingly, and intentionally did possess with intent to distribute a quantity of marijuana, a Schedule I Controlled Substance, in violation of Title 21, United States Code, Section 841(a)(1).” Count Two charged Jaquez with using an interstate carrier — a facility in interstate commerce — “with the intent to promote, carry on and facilitate the promotion and carrying on of an unlawful activity involving controlled substance offenses” in violation of the Travel Act, Title 18, United States Code, section 1952. On July 1, Ja-quez filed a motion to suppress all evidence seized and statements made during the airport episode. On July 17, the district court denied Jaquez’s motion. Later, pursuant to a plea agreement, Jaquez entered a conditional plea of guilty to both counts in the indictment, reserving his right to appeal the district court’s adverse judgment on his suppression motion. The district court sentenced Jaquez to a three year term of imprisonment, to be followed by a five year special parole term, on Count One. On Count Two, the district court sentenced Jaquez to a three year term of imprisonment, the sentence to run concurrently with that imposed on Count One. In addition, pursuant to Title 18, United States Code, section 3013(a), the district court ordered Jaquez to pay a $50 assessment as to each count, for a total of $100. Jaquez filed timely notice of appeal.
II.
Jaquez’s sole contention on appeal is that the agents’ squeeze and sniff of his suitcase constituted an illegal “search.” We have recently held, however, that a Border Patrol agent’s removal of a suspect’s bag from an airport baggage area conveyor belt, his squeeze of the bag to procure a scent, and his subsequent sniff of that bag constituted neither a search nor a seizure. United States v. Lovell, 849 F.2d 910, 912-13 (5th Cir.1988). Lovell disposes of Jaquez’s argument. We agree with the district court that the agents’ detection of a marijuana odor, along with the other facts present, supplied the agents with the requisite probable cause to arrest Jaquez. Moreover, Jaquez does not contend that his consent to the agents’ search of his suitcase was not freely given. Therefore, we find no error in the district court’s denial of his suppression motion.
While Jaquez does not raise the argument on appeal, the government concedes that under our recent decision in United States v. Hernandez-Palacios, 838 F.2d 1346 (5th Cir.1988), Jaquez’ conviction on Count Two for violating the Travel Act, Title 18, United States Code, section 1952, must be vacated. Therefore, while we affirm the district court’s judgment as to Count One, we must reverse the judgment and vacate the three year term of imprisonment and $50 assessment imposed on Count Two. As the sentence imposed on Count Two was to run concurrently with the sentence imposed on Count One, resen-tencing is not necessary. A copy of this opinion is, however, to be attached to the judgment so that prison authorities and the parole board will have accurate information
III.
For the foregoing reasons, the judgment is AFFIRMED IN PART and REVERSED AND RENDERED IN PART.
. In reviewing a district court’s ruling on a motion to suppress based on testimony at a suppression hearing, we must accept the district court's factual findings unless they are clearly erroneous or are influenced by an incorrect view of the law. United States v. Maldonado, 735 F.2d 809, 814 (5th Cir.1984). Further, we must view the evidence in the light most favorable to the party that prevailed below. Id. Therefore, this opinion will reflect, in large measure, the factual findings of the district court below. Those findings are supported by the testimony at the suppression hearing and are, for the most part, undisputed.
. During this time, Border Patrol agent King had picked up the surveillance of Jaquez. According to Castillo, even though Jaquez’s flight was scheduled to depart at 3:36 a.m., Jaquez had not appeared to be in any great hurry to make his flight prior to bolting for the departure gate; rather, he appeared just to be wasting time.
. The other two tickets belonged to Jaquez’s mother and his young child. Those two were taken into custody but were released shortly thereafter.