UNITED STATES COURT OF APPEALS

For the Fifth Circuit

___________________________

No. 90-8273

___________________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

TERRY JAMES PIERRE and OTIS HARRIS, III,

Defendants-Appellants.

___________________________________________________

Appeals from the United States District Court

For the Western District of Texas

____________________________________________________ (April 13, 1992)

Before POLITZ, Ch ief Judge, KING, GARWOOD, JOLLY, HIGGINBOTHAM,

DAVIS, JONES, SMITH, DUHE, WIENER, BARKSDALE, EMILIO M. GARZA, and

DeMOSS, Circuit Judges.

DAVIS, Circuit Judge:

Otis Harris and Terry Pierre appeal their convictions for

possession of cocaine with intent to distribute and for conspiracy

to commit the same offense. A panel of this court concluded that

the district court erred in denying Harris' motion to suppress

evidence found in a consent search of luggage at a fixed checkpoint

in Sierra Blanca, Texas. Based on this determination, the panel

reversed Harris' convictions. After en banc briefing and argument,

we conclude that even if the checkpoint agent conducted a search,

the search was not unreasonable.2

The panel also gave plenary review to Harris' and Pierre's

arguments that the evidence was insufficient to support their

convictions. Based on this standard of review, the panel found the

evidence sufficient to convict Harris of possession but

insuffici ent to convict Pierre of either charge. Upon rehearing

and reviewing the sufficiency of the evidence under the proper

plain error stand ard, we find the evidence sufficient to convict

both defendants on both charges. We also find no merit to Harris'

argument that his conviction should be reversed because the

prosecutor made an improper argument. We therefore affirm Harris'

and Pierre's convictions.

I.

In early November 1989, Terry Pierre, Derrick Turner and

Calvin Broadnax drove from New Orleans to Los Angeles in a 1987 GMC

Jimmy. During the one-week visit to Los Angeles these three men

met Otis Harris, a New Orleans resident who had known Broadnax when

they were children. He was looking for a ride back to New Orleans.

Harris, Pierre and Turner stayed in various hotels in Los Angeles

and Broadnax paid their expenses.

The day they left Los Angeles, the group stopped at an

expensive residence where they were met by two men -- Don Tanner

and "Rob" or "Bob". Pierre and Turner preceded Harris into the

residence. Harris heard Tanner tell Broadnax that he was only able

to get "four of them chickens". Broadnax replied that it was no

problem because he had two. Harris testified that he did not

realize the significance of the conversation at the time. He later3

remembered that in street talk, "chicken" is a code word for a kilo

of cocaine.

Broadnax and Tanner left the others wh o waited in the

entertainment room of the house. Broadnax returned a few minutes

later carrying a gray Samsonite suitcase. Broadnax left the house

and returned about forty minutes later. Broadnax then told Harris,

Pierre and Turner that he would not be returning to New Orleans

with them and gave Pierre cash for expenses. A short time later

the three men left Los An geles for New Orleans in the GMC Jimmy.

Pierre did the bulk of the driving until Harris took over just west

of the Sierra Blanca checkpoint.

Border Patrol Agent Lonny Hillin stopped the Jimmy at the

fixed checkpoint in Sierra Blanca, Texas. The two-door vehicle was

equipped with tinted fixed rear windows. Harris was driving,

Turner was in the passenger seat, and Pierre was lying down in the

back seat. Harris rolled down the driver's window at the stop sign

next to Agent Hillin. Hillin asked Harris and Turner about their

citizenship. They responded that they were United States citizens.

Hillin, who thought he saw someone in the back seat, asked Harris

if anyone else was in the back. Hillin then "ducked [his] head in

[the window] to get a clear view of the back seat" and to talk to

Pierre about his citizenship. As he did so, Hillin smelled freshly

burned marijuana. Harris and Pierre had rolled and smoked a

marijuana cigarette in the Jimmy about an hour before arriving at

the checkpoint.4

Hillin did not indicate to the occupants of the Jimmy that he

had smelled marijuana. He asked Harris to pull the vehicle over to

the secondary inspection area. Once there, Harris exited the

vehicle. Hillin asked Harris if he objected to his searching the

luggage; Harris said he did not. Harris opened the back of the

vehicle and lowered the tailgate. He then took out and opened each

piece of luggage for Hillin to inspect. They reached the Samsonite

suitcase last. Hillin testified that it was in an upright position

propped against the rear seat of the vehicle. In that suitcase,

Hillin discovered six tape-wrapped bundles that later proved to

contain 13.8 pounds of cocaine.

The district court denied Harris' motion to suppress the

drugs. A jury convicted Pierre and Harris on one count each of

conspiracy to possess cocaine with intent to distribute, in

violation of 21 U.S.C. § 846, and one count each of possession of

cocaine with intent to distribute, in violation of 21 U.S.C. §

841(a)(1). The government did not charge its principal witness,

Turner. On appeal, both defendants argued that the evidence was

insufficient to support their con victions. U nited States v.

Pierre

, 932 F.2d 377 (5th Cir. 1991). The panel held that the

evidence was sufficient to convict Harris on the possession charge.

Id. at 381. The panel, however, found the evidence insufficient to

convict Pierre on either charge and reversed his convictions. I d.

at 392, 394.

Harris also argued on appeal as he had in the district court

that Agent Hillin conducted an illegal search. He contended that5

agent Hillin violated rights secured to him by the Fourth Amendment

when he inserted his head into the vehicle through the driver-side

window and smelled the marijuana. He argued that the court should

have suppressed the cocaine later discovered as a fruit of this

illegal search. On this issue, the panel held that Hillin

conducted a search when he stuck his head into the vehicle and that

the search was unreasonable. The panel concluded further that

H arris' consent to search the luggage was not sufficientl y

attenuated from the illegal search to cure the taint. Id. at 390-

91. It determined therefore that the district court should have

suppressed the evidence and reversed Harris' convictions.

On the court's own motion, w e ordered rehearing en banc

primarily to address this issue. U nited States v. Pierre

, 943 F.2d

6 (5th Cir. 1991).

II.

The search and arrests at issue took place at the Sierra

Blanca checkpoint, a fixed c heckpoint on Interstate 10 near the

Texas-Mexico border. The key case establishing the constitutional

limits of non-border checkpoint stops a t this and other similar

locations is United States v. Martinez-Fuerte, 428 U.S. 543 (1976).

In that case the Supreme Court held that agents at fixed

checkpoints may stop and briefly question the occupants of any

vehicle without violating their Fourth Amendment rights. The Court

agreed that the stops do intrude to some degree "on motorists'

right to `free passage without interruption. '" But the Court

r easoned that the government has a substantial interest in6

conducting routine stops for inquiry at permanent checkpoints near

the border to interrupt the flow of illegal aliens into the country

from Mexico. Id. at 557-58.

The Court also noted that "while the need to make routine

checkpoint stops is great, the consequent intrusion on Fourth

Amendment interests is quite limited." I d. at 557. In particular,

"all that is required of the vehicle's occupants is a response to

a brief question or two and possibly the production of a document

evidencing a right to be in the United States." I d. at 558,

quoting United States v. Brignoni-Ponce

, 422 U.S. 873, 880 (1975).

The Court recognized that officers may refer cars to the secondary

inspection area for any or no reason. M artinez-Fuerte

, 428 U.S. at

562; s ee also United States v. Price

, 869 F.2d 801, 804 (5th Cir.

1989) quoting United States v. Garcia

, 616 F.2d 210, 211 (5th Cir.

1980); U nited States v. Gonzalez-Basulto

, 898 F.2d 1011, 1012 (5th

Cir. 1990). If agents wish to search vehicles or their occupants,

however, they must have prob able cause or consent. I d. at 567;

United States v. Jackson , 825 F.2d 853 (5th Cir. 1987) (en banc).

In Jackson

, the en banc court applied the holding in MartinezFuerte specifically to the Sierra Blanca checkpoint. We held that

Sierra Blanca is not the "functional equivalent" o f the border;

consequently full customs and immigration searches are not allowed.

We also held that Martinez-Fuerte delineates the lawful scope of

law enforcement actio n during stops at the Sierra Blanca

checkpoint. With this background, we turn to Harris' arguments in7

this case that the district court should have suppressed the

evidence as the product of an illegal search.

III.

Harris argues that (1) Agent Hillin conducted a search of

the car when he stuck his head in the vehicle to address the backseat passenger, (2) the search exceeded the l imits on checkpoint

stops set in Ma rtinez-Fuerte and Jackson and was therefore

unreasonable because it was not based on probable cause or consent,

and (3) his consent to se arch the luggage given in the secondary

inspection area was not sufficiently attenuated from the initial

illegal search to cure the taint. Assuming without deciding that

Hillin's actions did constitute a search, we nevertheless conclude

that based on the particular facts of this stop Agent Hillin's

conduct was reasonable. Because this conclusion resolves the

suppression issue, we need not address Harris' attenuation

argument.

The Fourth Amendment bars only unreasonable searc h es and

seizures. The reasonableness inquiry is driven by a balancing of

"'the nature and quality of the intrusion on the indiv idual's

Fourth Amendm ent interests against the importance of the

governmental interests alleged to justify the intr usion.'" N ew

York v. Class , 475 U.S. 106, 118 (1986) (quoting United States v.

Place

, 462 U.S. 696, 703 (1983)). S ee also Delaware v. Prouse

, 440

U.S. 648, 654 (1979); J ackson

, 825 F.2d at 860. However, the

intrusivenes of the search is not measured so much by its scope as

by whether it invades an expectation of privacy that society is8

prepared to recognize as "reasonable." K atz v. United States

, 389

U.S. 347, 361 (1967) (Harlan, J. concurring). For fixed

checkpoints, such as the one at Sierra Blanca, the Court has struck

the balance by limiting the lengt h and nature of questioning

allowed during the stops. Martinez-Fuerte

.

The Supreme Court's opinion in New York v. Class

, 475 U.S.

106, 89 L.Ed.2d 81 (1986), provides an applied example of this

reasonable ness analysis. In C lass

, officers lawfully stopped a

vehicle that was speeding and had a cracked windshield

-- both

violations of New York law. The driver exited the car. While the

driver was talking with one officer, the other officer went to the

car to record the vehicle identification number (VIN) to complete

the traffic citation. When he did not find the VIN on the

doorjamb, h e reached into the interior of the car to move some

papers obscuring the area on the dashboard where the VIN is located

on later model cars. As he did so, the officer saw the handle of

a gun protruding from under the front seat. The officer arrested

the driver and charged him with criminal possession of a firearm.

The Supreme Court agreed with the New York Court of Appeals

that the officer's intrus ion into the interior of the car

constituted a search. But the Court concluded, for several

reasons, that the search was reasonable. First, the government's

interest in requiring and obtaining the VIN is "of the first

order." I d. at 118. Thus the occupants of a car do not have a

reasonable expectation of privacy in the VIN when stopped for a

traffic violation. Second, the officer's actions moving the papers9

on the car's dash to reveal the VIN were specifically focused and

were no more intrusive than necessary to locate the VIN. T he court

also concluded that the officer's conduct in moving the papers was

less intrusive than a formal arrest for the traffic violations or

ordering the driver to move the papers. Finally, the Court

c onsidered the added risk of danger to the officer if he had

ordered the driver to return to the car to move the papers. Id.

This leads us to the key inquiry in this case: whether Agent

Hillin acted reasonably when he put his head in the window of the

Jimmy. On the particular facts of this case, we hold that he did.

First, passengers of vehicles at fixed checkpoints near the border

of the United States do not have a reasonable expectation of

privacy in not bei ng stopped and questioned about their

citizenship. Martinez-Fuerte and Jackson make it clear that

che ckpoint agents may stop and query motorists about their

citizenship and also require them to produce documents showing a

right to be in the United States.

The physical features of the Jimmy made it difficult for Agent

H illin to speak with Pierre and verify his citizenship. The GMC

Jimmy was a t wo-door model. The fixed rear windows were tinted

obscuring visibility of the interior. Hillin questioned the front

seat passengers of the car by peering in the open driver's window.

But Pierre was lying down in the rear seat. From his position

totally outside the vehicle, Agent Hillin could not clearly see and

question Pierre.10

We read Martinez-Fuerte and Jackson as giving Agent Hillin the

right to question Pierre in an effective way about his citizenship.

This included the right of the officer to have eye contact with

Pierre during the exchange. Otherwise, Agent Hillin would have had

little basis to evaluate Pierre's answers even if the officer could

h ear them. The vehicle owner in C lass had no expecta tion of

privacy in his ve hicle identification number. Similarly, Pierre

had no reasonable expectation that he could avoid an effective

series of questions from the customs agent at a fixed checkpoint

such as the one at Sierra Blanca. Thus the occupants of a vehicle

stopped at a checkpoint have no e xpectancy that they will not be

required to look an agent in the eye and answer questions about

their citizenship.

Second, Agent Hilli n's actions were no more intrusive than

necessary to accomplish his objective. The district court's

finding that "Agent Hillin . . . stuck his head through the

driver's side window to ask Pierre and Turner their citizenship" is

not clearly erroneous. The court did not find and the record does

not compel a finding that Agent Hillin put his head in the window

for any other purpose. The record does not disclose how far Hillin

extended his head into the window. Harris points to no evidence

however that Hillin intruded into the car any further than was

necessary to see and communicate with Pierre. The vehicle had no

rear window which could be rolled down or rear door to open

allowing access to the pa ssenger area which would have permitted

Hillin to do his job in a less intrusive manner. Agent Hillin's11

action in sticking his head in the driver's window was certainly

less intrusive than requiring Pierre to get out of the vehicle.

See Class , 475 U.S. at 118.

Finally, the Court in Class

, in evaluating the reasonableness

of the search, considered the safety of the officer. Id. at 116.

This component also cuts against Harris. An agent at a checkpoint,

for his own safety, would have good reason to position himself so

he could see the person with whom he is speaking.

We therefore conclude that, e ven assuming Agent Hillin

conducted a search when he stuck his head in the GMC Jimmy, it was

not unreasonable and thus did not violate the Fourth Amendment. We

emphasize however that our holding is fact specific and based on

the peculiar facts of this case. This opinion does not give carte

blanche authority to checkpoint agents to i ntrude into vehicles

during citizenship inquiries. We hold that the agent acted

reasonably when he stuck his head in the open window of the GMC

Jimmy with its particular features to question an occupant he knew

was present but could not oth erwise see from the exterior of the

car. IV.

For reasons we explain above, Hillin was lawfully within the

car when he smelled the burned marijuana. Thus, the evidence falls

within the plain view (or plain smell) exception to the warrant or

probable cause requirement. Harris v. United States

, 390 U.S. 234,

236, 19 L.Ed.2d 1067 (1968); United States v. Marshall

, 878 F.2d

161 (5th Cir. 1989). The smell of burned contraband gave Hillin

probable cause to search the vehi cle for suspected contraband.12

Marshall , 878 F.2d at 163. "If probable cause justifies a search

of a lawfully stopped vehicle, it justifies the search of every

part of the vehicle and its contents that may conceal the object of

the search." U nited States v. Ross

, 456 U.S. 798, 825 (1982).

Hillin proper ly searched the luggage with or without Harris'

consent. The district court therefore did not err in denying

Harris' motion to suppress the drugs the officers discovered in the

search.

V.

Both Harris and Pierre also assert on appeal that the evidence

was insufficient to support their convictions. Neither Harris nor

Pierre moved for judgment of acquittal when the government rested

its case or at the close of all the evidence. Consequently, this

Court's review is limited to determining whether the district court

committed plain error or "`whether there was a manifest miscarriage

of justice.' Such a miscarriage would exist only if the record is

` devoid of evidence pointing to guilt,' or . . . `because the

evidence on a key element of the offens e was so tenuous that a

conviction would be shocking.'" U nited States v. Ruiz

, 860 F.2d

615, 617 (5th Cir. 1988), quoting United States v. Ivory

, 468 F.2d

613, 614 (5th Cir. 1972) and United States v. Bull ock , 551 F.2d

1377, 1385 (5th Cir. 1977). We must review the evidence in the

light most favorable to the jury verdict, including all reasonable

inferences and credibility choices. R uiz

, 860 F.2d at 617. Under1 The panel cannot be faulted for giving plenary review to the

appellants' sufficiency argum ents. The government did not point

out the defendants' failure to preserve this error. The

government's failure to argue the corre ct standard of review on

appeal does not, however, prevent us from measuring the argument

against the appropriate standard of review.

As we said recently in United States v. Vonsteen :

The parties' failure to brief and argue properly the

appropriate standard may lead the court to choose the wrong

standard. But no party has the power to c ontrol our standard

of review. A reviewing court may reject both parties'

approach to the standard.

. . . If neither party suggests the

appropriate standard, the reviewing court must determine the

proper standard on its own.

950 F.2d 1086, 1091 (5th Cir. 1992) (en banc) (internal citations

omitted).

13 the plain error standard 1 we find that the evidence was sufficient

to convict Harris and Pierre for both possession and conspiracy to

possess cocaine.

First, to convict the defendants of conspiracy under 21 U.S.C.

§ 846, th e Government had to prove the existence of an agreement

between two or more persons to violate the narcotics laws, that

each conspirator knew of the conspiracy, intended to join it and

did participate in the conspiracy. U nited States v. Magee

, 821

F.2d 234, 238-39 (5th Cir . 1987). The existence of a conspiracy

need not be proved by direct evidence, but may be inferred from

circumstantial evidence indicatin g a "concert of action" between

the a lleged conspirators. U nited States v. Espinoza-Seanez

, 862

F.2d 526, 536 (5th Cir. 1988).

On the facts of this case, the jury's verdict finding the

defendants guilty of a conspiracy does not consti tute manifest

injustice. The record is far from "devoid of evidence" indicating14

an agreement between Pierre and Harris to transport the cocaine

from Los Angeles to New Orleans. Pierre agreed with Broadnax to go

with him from New Orleans to Los Angeles and then return to New

Orleans. Harris joined them several days before they left Los

Angeles. Significantly, Harris and Pierre entered the Tanner home

at the same time Broadnax and Tanner discussed the acquisition of

"chickens", a street name for cocaine. Broadnax and Tanner made

no apparent effort to prevent Harris and Pierre from hearing this

discussion. Harris and Pierre were together when Harris saw

Broadnax with the Samsonite suitcase at the Tanner residence.

Based on Agent Hillin's description of the location of the

Samso nite suitcase containing the cocaine in the Jimmy, the jury

could infer that both Harris and Pierre k new it was there. This

inference is reasonable because the suitcase was visible from the

passenger area of the vehicle and Pierre and Harris had both

removed jackets from the rear of the Jimmy during the trip. They

also knew that the suitcase did not contain any of their personal

belongings. All the passengers of the vehicle had spent several

nights in a hotel together before they loaded the Samsonite

suitcase. They were therefore familiar with the luggage that

contained their personal belongings.

In addition, Broadnax apparently looked to Pierre as the

leader of the expedition from Los Angeles to New Orleans because

Broadnax gave Pierr e the expense money for the trip. The jury

could question whether Broadnax would have financed their trip with

no expectation of a quid pro quo. The jury could also question15

whether Broadnax would have given these men a valuable cargo of

cocaine to transport across the country without telling them what

they were carrying. On these facts, the jury's verdict finding

Harris and Pierre guilty of conspiracy is not plain error.

The essential elements to convict on the possession charge are

(1) knowing (2) possession of drugs (3) with intent to distribute.

United States v. Anchondo-Sandoval , 910 F.2d 1234, 1236 (5th Cir.

1990). We agree with the panel that the evidence was sufficient to

convict Harris of possession with intent to distribute even under

a plenary review standard. Harris' possession conviction therefore

necessarily withstands review under the plain error standard. For

reasons stated above, the evidence supports the jury's finding that

both men agreed to transport cocaine from Los Angeles to New

Orleans and that a conspiracy existed between Harris and Pierre for

this purpose. It follows that the jury was entitled to find that

Harris and Pierre knew the cocaine was in the vehicle and jointly

possessed it. They demonstrated their intent to distribute it by

sharing the duty of driving i t across the country. The evidence

therefore supports Pierre's possession conviction. No manifest

injustice occurred in the convictions of Harris and Pierre for

possession with intent to distribute cocaine.

VI.

Finally, Harris argues that a portion of the prosecutor's

closing argument, in which he referred to Harris' and Pierre's

criminal records, was improper and resulted in an unfair trial.

The panel did not consider this argument because they reversed2 For example, the prosecutor referred to the defendants as

"multiple f elons" and as "well-travelled in the criminal justice

system". He also stated "Hey, they have been in jail. They know

what it is like. Hey, they could take it."

16 Harris' convictions on other grounds. Because of our disposition

of Harris' other arguments, we must now consider this contention.

Harris' counsel did not object to the prosecutor's statements.

Therefore, we limit our review to whether the court committed plain

error. Stated differently, we must determine whether the argument

"seriously affected the fairness, integrity, or public reputation

of the judicial proceeding and resulted in a miscarriage of

justice." U nited States v. Gof f , 847 F.2d 149, 162 (5th Cir.)

modified on reh'g

, cert. denied sub nom

., Kuntze v. United States

,

488 U.S. 932 (1988). To merit reversal, the defendant must

persuade us that the jury would n ot have found him guilty in the

absence of the prosecutor's improper argument. Id.

To determine the potential prejudicial effect of the

statements, w e must consider the context in which the prosecutor

made them. U nited S tates v. Robinson , 485 U.S. 25, 33 (1988)

( citing Lockett v. Oh io , 438 U.S. 586 (1978)); U nited States v.

Saenz , 747 F.2d 930, 939 (5th Cir. 1984), c ert. denied su b nom.

,

Solis v. United States , 473 U.S. 906 (1985). Some of the

prosecutor's challenged remarks, standing alone, would be

considered improper. 2 However, when we read the argument as a

whole and consider the remarks in conjunction with the defense

counsels' closing arguments to which the prosecutor was responding,

we find no impropriety particularly under the plain error standard.17

In his initial argument, the prosecutor declared that this was

a credibility case. He noted that the credibility contest was

between two "multiple felons" and "a kid", referring to the

government's witness Derrick Turner. This was a permissible use

of prior criminal history to impeach a testifying defendant. Fed.

R. Evid. 609. When Harris' attorney addressed the jury he reemphasized his client's criminal record and asked the jury to only

consider the facts of the present case in their deliberations.

Pierre's attorney then argued that his client did not know the

cocaine was in the car. He reasoned that because of his client's

criminal record, he was too smart to smoke mari juana in a car

containing drugs, especially just before he arrived at a

che ckpoint. The prosecutor in rebuttal responded that if the

defendants were smart they would not be so well-travelled in the

criminal system. He remarked in substance that the defendants had

been in jail before, knew what it was like and thus had a strong

motivation to testify in a manner that would keep them out of jail.

Even if the prosecutor's arguments were improper, these references

t o the defendants' criminal records did not seriously affect the

fairness of the judicial proceeding or result in a miscarriage of

justice.

For the reasons stated above, the convictions of Otis Harris,

III and Terry James Pierre are AFFIRMED.