*1 comment, (n. 7). 2L1.2, Quinonez Having does not commentary § reviewed the to both sections, dispute prior conviction was for a we find no irreconcilable inconsis- two, Rather, tency Quinonez between the of violence. con- conclude that it crime entirely proper §§ to an to use 4A1.1-2 in that because was sentenced deter- tends mining whether an years’ indeterminate sentence of four to ten sentence indeterminate qualifies aggravated felony pur- as an for imprisonment, he was sentenced “at § poses of commentary 2L1.2. The years” purposes imprisonment for least five merely § 4A1.2 restates the common law def- upper § end of an 2L1.2. Whether sentence, inition of an indeterminate and we indeterminate sentence should be used to prior believe that it is reasonable to treat length pur- of a determine sentence indeterminate sentence in the same manner § poses impres- 2L1.2 is an issue of first purpose calculating for the the offense circuit. sion this § purpose level under 2L1.2 as for the begin by noting We indeter determining history criminal category as, minate sentence is defined “A sentence to § under 4A1.1. See United States v. Ortiz- imprisonment period for the maximum de Gutierrez, Cir.1994) (con- 36 F.3d law, subject termination ... fined cluding that it prior makes sense to treat any peri time after service of the minimum sentences in the same manner under both Dictionary Law od.” Black’s ed. they sections because both “determine the 1979); States, Baughman see also v. United extent to which convictions affect a (8th Cir.1971) (“Indeter defendant’s sentence for the current of- long minate sentences have been held sen fense”).1 Accordingly, we conclude that the for the maximum term for which tences determining district court did not err in (internal might imprisoned.”) defendant Quinonez’s prior conviction for an indetermi- omitted), quotation marks years’ nate sentence of four to ten imprison- 32 L.Ed.2d aggravated felony ment was an under (1972). This definition is consistent § U.S.S.G. 2L1.2. computing instructions a defendant’s reasons, foregoing For the we AFFIRM. history category, pursuant criminal commentary § U.S.S.G. 4A1.1. The § 4A1.2
U.S.S.G. states: 4Al.l(a), (b), § purposes applying
For (c), length imprison- of a sentence of (e.g.,
ment is the stated maximum ... of an for a the case indeterminate sentence America, UNITED STATES of years, term not to exceed five the stated Plaintiff-Appellee, ...). years maximum is five comment, (n. 2). 4A1.2, Quino- § U.S.S.G. JARAS, Defendant-Appellant. Jose commentary’s nez contends that the intro- No. 95-40113. ductory specifically applica- clause limits it Quinonez urges § tion to 4A1.1. also us not Appeals, United States Court of apply commentary § this 2L1.2 be- Fifth Circuit. Ap- cause there are “inconsistencies between June Ap- § plication Note 7 to 2L1.2 and U.S.S.G. plication § 2Note to U.S.S.G. 4A1.1 which they inherently
demonstrate that are incom-
patible.” Reyes-Castro, (concluding permissi-
1. See also United States v. that it was reasonable and (10th Cir.1993) upper (applying 379-80 end "by ble to measure an indeterminate sentence purposes of indeterminate state conviction for possible imprisonment” maximum term of determining aggravated felony under 8 U.S.C. 1101(a)(43), purposes § of 8 U.S.C. and not- 1101(a)(43), aggravated felony § which defines ing that this was consistent with U.S.S.G. 2L1.2); Ngu- § in the same manner as U.S.S.G. 4A1.2(b)(l)). § INS, (10th Cir.1995) yen v. *2 Henderson, Jr., Assistant
David Haskell Attorney, Office of the United States TX, Beaumont, Attorney, plaintiff-appel- lee. *3 Polland, Houston, TX, Stephen
Gary M. S. Houston, TX, Moss, Morris, Roger Neil Luf- kin, TX, defendant-appellant. DENNIS, Circuit Before DeMOSS DUPLANTIER, Judges, and District Judge.*
DENNIS, Judge: Circuit trial, jury Following a Jose Jaras was con- marijuana victed of with intent possession distribute, of 21 in violation U.S.C. 841(a)(1), § to 51 months im- and sentenced years supervised prisonment and three appeal, In this he raises the follow- release. (1) ing that the trial court erred errors: (2) evidence; suppress denying his motion to to convict that there was insufficient evidence (3) possession charge; with intent him of the engaged prosecutor in misconduct material, failing impeachment fail- to disclose bring perjury to the attention of the manner, timely vouching court a (4) credibility perjurer; of a known misapplied Sentencing district court calculating base offense Guidelines (5) level; that the district court failed right of allocution. Because afford Jaras his requiring reversal of Jaras’s we find error conviction, sentencing we do not reach the presented this case. issues I. FACTS AND PROCEDURAL HISTORY 1,1994, police Don Mitch- April officer On swerving on stopped a car he observed ell Corrigan, to determine Highway 59 in Texas driver, Salazar, Ap- drunk. if Ramon Jaras, riding in the car as pellant, Jose exit Mitchell passenger. Officer question him. proceeded to vehicle and officer that he had explained to the * ana, sitting by designation. Judge Louisi- Eastern District of District distribute, staying in the lane because he was with trouble intent in violation of 21 explanation § eating hotdog, possession corroborated U.S.C. partially hotdog distribute, consumed he finished with intent in violation of 21 841(a)(1). stop. § eating during the Salazar informed U.S.C. The district court denied and, traveling suppress that he was following jury Officer Mitchell Ohio motion to friend, trial, appellant acquitted conspiracy to visit a sick and identified Jaras was on the “Cheeto,” count, stating only guilty as that he had known but found possession on the couple waiting charge. for a of weeks. While Cheeto The district court sentenced him to car, computer imprisonment, for a check of the Officer 51 months the minimum sen- Jaras, (based approached sitting who was tence under the Guidelines on an of- seat, passenger question in the front him. history fense level of 24 and a criminal cate- *4 I), supplied a alien gory years supervised Jaras resident card and stat- and 3 release. traveling timely ed that he and Salazar were appeal Jaras filed an in this court. Illinois to uncle. visit Salazar’s
Officer Mitchell testified that he became II. THE SUFFICIENCY OF EVIDENCE suspicious that Salazar and Jaras were trans- We first review Jaras’s claim that the porting conflicting narcotics based on the Government failed to adduce sufficient evi received, age stories he difference dence at trial to posses convict him on the two,1 and the unlikelihood that Salazar charge, sion with intent because a trip would make an extended with a relative appellant’s favor on prevents this issue fur Salazar, stranger. He asked who was stand- prosecution ther charge of this under the ear,2 in front of the if there were jeopardy double clause. See Burks v. United any drugs in the vehicle. When Salazar States, 1, 11, 2141, 2147, 437 U.S. 98 S.Ct. 57 responded, of,” “not that I know (1978); L.Ed.2d 1 Lynaugh, Cordova v. 838 car, Mitchell asked if he could look in the 764, F.2d 1 766 n. 486 gave permission him to do so. Noth- 1061, 2832, 108 S.Ct. ing in the record indicates that who Jaras* (1988). In order to convict Jaras of the passenger had remained in the seat of the possession marijuana offense of in car, exchange. heard this The officer found distribute, tent the Government was re no evidence from a search of the car’s interi- (1) (2) quired prove knowingly that he pos trunk, however, or. In the gar- he found a (3) marijuana sessed with-intent to distribute bag ment and two suitcases. Salazar claimed Diaz-Carreon, it. See United States v. 915 ownership garment and stated (5th 951, Cir.1990). F.2d 953 Jaras claims Jaras, belonged that the suitcases to Jaras. the Government adequately did not who had come to the rear of the at vehicle prove offense, knowledge element instruction, Officer Mitchell’s did not re- Salazar, arguing that the sole witness called spond, and Officer Mitchell informed him knowledge, the Government to establish given permission Salazar had him specifically did not testify that Jaras was search the car. The officer searched the purpose aware of trip of the or that garment bag and incriminating found no evi- marijuana vehicle, was in the trunk of the picked up dence. He then testimony and that Salazar’s was “incredible” they heavy, noted that and asked Jaras clearly as he had lied on the witness stand. what was inside them. Jaras said that he didn’t opened know. The officer the suitcas- Our sufficiency review for of the large es and quantity discovered of what he evidence is a narrow one. We must affirm if marijuana. believed was He arrested both a rational trier of fact could have found that Jaras, Salazar and and seized the suitcases. the evidence established the essential ele charged by grand
Jaras was jury beyond indict- ments of the offense a reasonable conspiracy possess ment with marijuana 307, Virginia, doubt. Jackson v. 443 U.S. arrest, 1. At the time of the parked Jaras was nineteen 2. Officer Mitchell’s car was several feet old, years Highway behind Salazar's car on the shoulder of early while Salazar was in his fifties.
387
1,
April
2781, 2789,
marijuana
for the
he received
61
Salazar,
1994, trip3
payment.
Re-
(1979);
66
details for
States v.
Cir.1995).
involvement,
consider
thus
testified
garding
We
evidence,
drawn
accompanied
all reasonable inferences
him on a
that Jaras
therefrom,
credibility
2, 1994,
pounds
and all
determinations
trip, on March
to deliver 50
prosecution.
Lima,
light
Ohio;4
most favorable to
marijuana
in the
had to
States,
315 U.S.
v. United
payment
Glasser
out
he received
pay Jaras
$500
Salazar,
(1942);
L.Ed.
trip;
knew on the March
for the
728;
Resio-Trejo,
F.3d at
car;
and that
in the
trip that
(5th Cir.1995);
910-11
presence
not have to
he did
discuss
Casel,
trips
of the two
drugs with Jaras
either
-,
Cir.),
cert. denied-U.S.
already
already.”
it
“because he
knew about
role does
126 L.Ed.2d
Our
or as
weighing the evidence
extend to
argues
that Salazar’s testimo
Glasser,
credibility
sessing
of witnesses.
had knowl
ny failed to demonstrate that he
Casel,
469;
62 S.Ct. at
marijuana being transported on
edge of the
not exclude
The evidence need
F.2d at 1303.
testimony,
April
1994. Review of that
hypothesis
innocence
every
however, clearly
reveals sufficient indicia
*5
every conclusion
wholly inconsistent with
be
support
jury’s
knowledge to
the
verdict. A
jury
guilt,
is free
except that of
and the
may be
uncorrob
conviction
based on the
of
among
constructions
choose
testimony
accomplice
of
if the
orated
one
Salazar,
728;
at
Re
66 F.3d
the evidence.
testimony
face.
is not
insubstantial on its
sio-Trejo,
(quoting
at
United
45 F.3d
911
Gibson,
173,
v.
181
States
(5th
Bell,
678
549
Cir.
v.
F.2d
States
Gadison,
Cir.1995);
8
United States
1982) (en banc),
462
grounds,
on other
aff'd
(5th Cir.1993).
real
190
Jaras’s
L.Ed.2d 638
76
U.S.
testimony
of his co-
complaint
the
(1983)).
“in
inherently
was
unreliable or
defendant
credible,”
basis for
wit
and thus cannot form the
produced three
The Government
knowledge,
establishing
Mitchell
because Salazar de
Officer
in its case
chief.
nesses
Dur
monstrably lied on
witness stand.
stop
vehi
regarding
of Salazar’s
testified
attorney,
search,
by
cle,
ing
of the two
cross examination
Jaras’s
and his seizure
repeatedly
that he had en
and Jaras.
denied
and arrest of Salazar
Salazar
suitcases
plea agreement
chemist-toxicologist work
with
Government.
Ramsey, a
tered
Dennis
Although
true.
the Govern
Department
Public Safe That was
ing
the Texas
of
for
attorney
call this
improperly failed to
in the two ment’s
ty,
substance
testified
to the
of the defense and
by
was mari
untruth
attention
seized Officer Mitchell
court,
itself, during
the trial court
weighed slightly
one hundred
the trial
juana that
over
Salazar,
co-defendant,
following the close of the Govern
testi
recess
pounds.
ease,
plea
of the
marijuana
two
informed the defense
delivering
ment’s
that he was
fied
Garza,
wife,
op
Johnny
agreement and
the defense
offered
nephews of his
Aleas and
Jaras,
purposes of
to recall
portunity
to whom he
that he had known
this,
Garza,
agreed to
impeachment.
The
defense
introduced
Aleas
had been
sole wit-
as his
explained how called Salazar
stand
year. Salazar further
about a
Ohio,”
quantity
and added this amount to the
of
instructed to drive
testified
he was
3. Salazar
wait there.
April
Street in
marijuana
to Deerfield
Houston
from
seized
the defendants
either Azilo
he waited next door with
While
pounds
at a
of 200
of
1994 to arrive
total amount
brothers, "Big Ray” took his
or the Garza
Garza
purposes
determin-
drugs
Jaras for
attributed
Ray
marijuana. Big
returned
car to obtain
level
The district court
his base
offense.
later,
thirty
the car about
minutes
sentencing
Al-
adopted
Jaras.
this
trip.
subsequently left on the
and Jaras
sentencing
though
issues in
we do not reach the
case,
we note that Salazar testified
trial
this
report
presentence investigation
states that
4. The
marijuana transported
quantity of
defendant, along
with co-
March
"on
Lima,
pounds.
trip
fifty
2
was
Ohio on March
defendant,
transported
Ramon Salazar
Houston,
pounds
Texas
from
ness,
illegal
Mm
of an
The
de-
on the de
district court
and “cross examined”
motion, finding
and Ms
plea agreement
pertment part
of the
failure to med Jaras’s
tails
testifying.
previously
to it
Con
reasonably
admit
when
both that
be-
plea agreement,
with the written
Sa
scope
fronted
lieved the
mcluded the srnt-
it,
signing
although he
impliedly
lazar admitted to
to a
cases and that Jaras
consented
unfamiliar with its details.
Specifically,
claimed
search of Ms suitcases.
fully
jury
informed of the
The
was thus
court observed:
unreliability
testimony
Salazar’s
potential
case,
this
the record establishes
testimony
against
gave
Jaras and
his
whatev
luggage,
to the search
Jaras
weight
appropriate.5
may
it
er
deemed
We
informed that
driver had consent-
jury’s
province
substitutmg
mvade the
ed to a search of
veMele. Jaras stood
credibility
own
determinations
for those
our
objection
by and made no
when the officer
Lopez,
jury.
Indeed,
luggage.
searched
his
(5th Cir.1996).
testimony
equivocated
ownersMp
about Ms
somewhat
“mcredibility”
does not rise to the level
he indicated to
when
the officer
testimony
respect
of Ms
because
false
that he
know
did not
what was rnside.
Casel,
See United States v.
plea.
Considering
conjunction,
these facts in
—
denied,
cert.
Court
is convmced that Officer Mitchell
-,
U.S.
S.Ct.
L.Ed.2d
objectively
believing
reasonable m
(“To
(1998)
be found ‘incredible’ as a matter
consent mcluded the
law,
testimony
witness’
must be factu
suitcases.
Court
further
finds
(citing United States v.
ally impossible.”)
impliedly
consented to the search.
Lindell,
Cir.1989),
926, 110
It is well established that warrant-
(1990)
Sil
less searches violate the Fourth Amendment
*6
va,
262,
(5th Cir.1984)).
266
As the
they
specific exception
unless
fall withm a
to
jury
reasonably
could
credit Salazar’s testi
United
v.
States
requirement,
the warrant
mony regardmg
Karo,
Jaras’s involvement m
717, 104
3304,
705,
3296,
468 U.S.
despite
offense
initial failure
Salazar’s
to ad
(1984),
III. 1995). government concedes that Offi trial, to suppress probable Prior Jaras moved to cer to lacked cause contents; found m smtcases as the car consequently, the fruit or its chief, following during We trip note that Salazar’s second to its case in Jaras had to recall Sala- stand, the witness Jaras did not renew his motion purpose impeaching zar for the sole of with him judgment acquittal. a We do not think his Giglio supplied material that had not been in to renew waived failure the motion his sufficien- during time for him to cross examine Salazar cy claim. Where a defendant rests without intro- prosecution's Jaras’s entire case. case consisted evidence, ducing new he does not need to renew testimony, of Salazar’s after which the defense acquittal preserve motion his in order to his Thus, only presented rested. evidence Jaras objection sufficiency to the of the evidence. jury entirely consisted evidence 907, Resio-Trejo, States v. 910 n. should have and would have been introduced (5th 1995) States, (citing Cir. 6 v. United Clark 293 during prosecu- the Government’s case had the Cir.1961; (5th F.2d 448 2 Charles A. produce impeachment tion not failed to evi- Wright, § 463 Federal Practice Procedure and, constitutionally dence it was under a discov- case, (1994)). judg- In this Jaras moved for a order, ery compelled judicially provide prior to acquittal prosecution ment of after the rested its to Jaras's cross-examination of Salazar. Under following testimony against case Salazar’s Jaras. circumstances, these to had find that Because Salazar had less been than truthful re- sufficiency argument simply garding waived his would existence of a deal with the Govern- ment, point penalize and the Government this out Jaras for the Government's misconduct.
389
government
joint
no evidence of
entirely
presented
turns
validity of the search
suppression
given
hearing.
access or control at the
effectiveness of
consent,
govern
The fact
con
to demonstrate
order
preponderance
a
tained
the trunk of a car which he was a
ment must establish
voluntary,
id. at
passenger
that consent
insufficient to show
evidence
Hurtado,
451;
F.2d
mutually
joint
v.
905
control
used and had
over the
(en
(5th Cir.1990)
banc),
Welch,
and must show
76
4
suitcases. See United States
Cir.1993)
consented
the defendant himself
(boyfriend’s
either
F.3d
ac
that consent was obtained
to
or
the search
to search of
authority
tual
to consent
rental
ability
had
to
party who
girlfriend’s
from a third
car did
extend to search
United States v. Mat-
trunk);
Suazo,
valid consent.
furnish
purse located
its
State
lock,
988, 993,
94 S.Ct.
(N.J.1993)
415 U.S.
1074, 1077
133 N.J.
627 A.2d
Jenkins,
(1974);
at 451.
(“in
F.3d
L.Ed.2d
joint access
absence
evidence of
to
vehicle,
property
control over
found
driv
finding
that the
As one basis for
apparent authority
consent to a
er’s
firm,
constitutionally
the district
search was
authority
car
does not include the
objec
Mitchell was
court found
permit
personal belongings
a search of the
believing
reasonably in
that the
tively
State,
passengers”);
other
Ledda v.
564 A.2d
There
suitcases.
of consent extended
(Del.1989)
1125, 1129
(driver
authority
lacked
here that Salazar’s consent
question
is no
passenger’s
to consent
to search
suitcas
validly
voluntary
vehicle was
search the
Zachodni,
es);
State v.
466 N.W.2d
of the vehicle itself and
to a search
extended
(driver’s
(S.D.1991)
search pickup
consent to
However,
bag.
as the dis
garment
purse).
passenger’s
truck did
not extend
addressing
issue
recognized
trict court
expecta
standing,
Jaras had
Nor did the Government demon
respect to the contents of
privacy
tion
apparent authority
strate
had
Buchner,
suitcases.
the search of the
Cir.1993),
de
cert.
proof that
require
would
—
-,
nied,
searching
“reasonably (though erro
officers
(1994);
Kelley,
United States v.
person who
neously)
has
believe[d]
n. 1
authority
consented to
their”
denied
*7
186,
at
Rodriguez, 497 U.S.
do so. Illinois v.
(1993). For the
to be
search
Here,
110 S.Ct. at
Officer
did
consent, the Gov
pursuant to Salazar’s
valid
that,
mistakenly rely
information
if
not
had
to
that Salazar
ernment had
demonstrate
true,
justified a belief that
would have
Sala
authority to
to a
apparent
consent
actual or
authority
consent
zar had
to
to a
actual
luggage.
v. Rodri
See Illinois
search
luggage putatively belonging
of
to
186-87,
2793,
177,
guez,
497 U.S.
Rather,
clearly informed Of
Jaras.
Matlock,
(1990);
2800-01,
148
111 L.Ed.2d
Mitchell that the two suitcases did
ficer
169-70, S.Ct. at 992.
415
at
94
U.S.
they belonged
belong to
to
him and that
that the
authority
appellant.
statement
suit
finding of actual
re
Salazar’s
A
placed
Mitchell on
cases were not his
quires
consenting party
proof that
“mutually notice that
consent to search
challenging the search
his
party
statement
joint
luggage.
extend to
The
estab
property searched and had
used
authority
that
did not have
to
purposes,
of it for
lished
and control
most
access to
any
to
of the suitcases and
recognize
to
that
consent
a search
so
it is reasonable
that
reliance on
consent
therefore
right
permit inspection
to
Salazar’s
had the
either user
unreasonable. See United States
complaining
co-
property
Infante-
Cir.1994)
(1st
Ruiz,
498,
(holding
13
505
the risk
the consent
user had assumed
objectively
it was not
ing
might permit
search.” Unit
co-user
consent to
Rizk,
111,
officer to
that driver’s
112-13
believe
ed
842
States v.
ear
to closed briefcase be
Cir.)
curiam),
extended
(per
belong-
it as
had identified
66
cause
driver
L.Ed.2d
S.Ct.
Welch,
object
to
ing
passenger);
police
F.3d at 765
home
when
to
failure
(officers
reasonably
followed him
The court
believe that
inside.
observed:
could not
boyfriend’s
ease,
car
consent to search
extended to
no affirmative acts
Shaibu’s
purse located in
place.
opened
search of defendant’s
took
the door not to let
He
enter,
Salinas-
vehicle);
police
only
but
himself to
trunk
(10th Cir.1992)
Cano,
step
apartment
out of
to
959 F.2d
865-66
meet visitors
(officer
reasonably
outside rather
inside.
no
girl
believe
than
There is
could not
police expressly
contention that
or im-
authority
consent to search of
friend had
to
pliedly asked consent
to enter nor that
simply on the basis of its
defendant’s suitcase
home).
expressly granted
entry.
Shaibu
or refused
Moreover, it
presence
girlfriend’s
It
thing
is one
infer consent from ac-
to
rights
pa
to define
was within Salazar’s
police
responding
request.
tions
to
It is
search, and his remark that
rameters of the
quite
another to sanction the
walk-
Jaras, regardless
belonged
to
person’s
stopping
in to a
home without
truth,
scope
clearly limited the
of his
permission____
at
the door to ask
To
Jimeno,
consent. See
at
U.S.
only
conjec-
infer
case
consent
this
is
(“A suspect may
course
any
ture and
would exceed
scope of
delimit as he chooses the
the search
recognized
exception
Fourth
consents.”).
which he
We thus conclude
entry
Amendment’s bar to warrantless
justified
the search was not
on the basis
the home.
general
consent
search the
Most,
Id. at 1427.
See also
States v.
vehicle.
(D.C.Cir.1989) (store
em
court
The district
also found that
ployees’ cooperation did not
im
amount
ground
on the
the search was valid
plied
consent
defendant’s
“impliedly consented”
proof
when there
was no
officers had
The district court relied on the
facts
requested permission
bag);
to search the
that Jaras was informed
Salazar had
Meyer,
State v.
Or.App.
852 P.2d
consented to a search of the car
(1993) (en banc) (husband’s
failure to
objection
no
stood
made
when
object
car
search of
when informed of
officer
searched his
as well as
implied
curing
wife’s consent was not
“equivocated
its belief that Jaras
somewhat”
involuntary
wife’s
where
officers did
ownership
about
when
indicated he did
search).
not ask defendant
consent to
It
not know what was inside the suitcases.
is well established that a defendant’s mere
Typically,
determining
when
whether consent
acquiescence
authority
to a
of lawful
is
show
voluntary,
totality
the court
looks
voluntary
insufficient
to establish
consent.
circumstances to
whether
assess
the defen
Carolina,
Bumper
See
v. North
391 consent. United States
freely given
has
dant
548-49,
Jenkins,
Cir.1995).
v. Cooper,
(1968);
*8
instance,
this
In
Officer Mitchell did not ask
(5th Cir.1995)
United States
(citing
145 n.
whether
search
luggage,
he could
the
Most,
v.
(D.C.Cir.1989));
present
gave
Jaras was not
when Salazar
his
Gonzales,
United States v.
vehicle,
consent to search the
and
(5th
there is no
Cir.1988),
grounds by
overruled on other
in
evidence
the record that Jaras even heard
Hurtado,
(5th
United States v.
After
trunk,
ger
were
the
searching
Officer Mitchell
defendants
aware of
driver’s
prior to
the
prior
luggage.
consent
to the search of their
to the rear
the ear
escorted defendant
It
Mitchell
in-
cannot matter
defendant
Jaras
where
was. Officer
learned of
few
had consented to
the driver’s consent a
minutes
formed
that Salazar
Jaras
given,
long
after it was
so
he knew it
the search
the car.
suitcases and a
as
Two
garment
trunk.
bag were in the
Officer before the search
his suitcases.
luggage
to whom the
be-
asked
majority
points
The
also
out that Varo-
garment
longed.
said that the
na
the vehicle owner did not limit the
belonged
was his
that the suitcases
to
general
of his
consent to search the vehicle
did not claim that the
Jaras.
Jaras
suitcases
Salazar,
driver,
as did defendant Jaras’
who
his;
After
he remained silent.
search-
told
search of
Officer Mitchell before the
the
bag,
picked
garment
the
Officer Mitchell
they
suitcases that
were not his. This dis-
up
they
the
noted that
seemed
strengthens
tinction
rather
weakens
than
the
heavy, and asked Jaras
was in
what
the
impliedly
conclusion that Jaras
consented to
replied
suitcases.
Jaras
did not
the search of the suitcases. Salazar’s state-
know what was
the suitcases. Officer ment,
presence,
the
Jaras’
suitcases
opened
Mitchell then
the suitcases and found
Jaras,
belonged
strongly supports
the con-
subject
which was the
of the
by remaining
clusion that
silent thereafter
suppress.
time
motion to
At no
did Jaras
impliedly
consented to
object
search of
the suitcases.
A
upon by
third factual distinction relied
denying
suppress,
In
the motion to
majority
finding by
is
there was no
upon
district court relied
States
United
the district court
the defendant was
Varona-Algos,
an of the defendant which the interest designed protect.”
Fourth Amendment Illinois, 128, 140,
Ra kas objectively
concluding that he did not need Jaras’ con
sent, implied express, to search the suit
cases. America,
UNITED STATES of
Plaintiff-Appellee, GARCIA, Hugo Alegria,
Walter Victor Agustin
Carlos Camacho Vivas-
Garcia, Defendants-Appellants.
No. 95-20170. Appeals,
United States Court of
Fifth Circuit.
June 1996. Denying Rehearing Remanding
Order Resentencing July 1996. McCann, F.2d 147 contents of the car and of a briefcase therein to Cir.1972), support proba- its conclusion that the officer had (1973), the court relied ble cause to search the and the automobile brief- upon knowledge similar disclaimer of case. occupant respect of an automobile