United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 04-2308

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United States of America, *

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Appellee, *

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v. *

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Teodoro Orozco-Castillo, *

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Appellant. *

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Appeals from the United States

No. 04-2393 District Court for the Western

__________ District of Missouri.

United States of America, *

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Appellee, *

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v. *

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Carlos Alaniz-Montano, *

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Appellant. *

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Submitted: January 10, 2005

Filed: April 22, 2005

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The Honorable Fernando J. Gaitan, Jr., United States District Judge for the

Western District of Missouri.

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Before LOKEN, Chief Judge, and MORRIS SHEPPARD ARNOLD and MURPHY,

Circuit Judges.

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MORRIS SHEPPARD ARNOLD, Circuit Judge.

Teodoro Orozco-Castillo and Carlos Alaniz-Montano were each charged with

one count of conspiring to distribute 50 grams or more of methamphetamine, see 21

U.S.C. §§ 841(a)(1), (b)(1)(A), 846, and one count of aiding and abetting the

possession of 50 grams or more of methamphetamine with the intent to distribute it,

see 21 U.S.C. § 841(a)(1), (b)(1)(A); 18 U.S.C. § 2. After a jury convicted

Messrs. Orozco-Castillo and Alaniz-Montano on both counts, the district court1

sentenced each of them to concurrent sentences of 240 months in prison and 10-year

terms of supervised release on each count and ordered them each to pay a $200

special assessment. On appeal, Mr. Alaniz-Montano maintains that the district court

erred in failing to suppress physical evidence and statements that he asserts were the

product of an unlawful search and seizure. Mr. Orozco-Castillo contends that his

sentence was based on an unconstitutional application of the United States

Sentencing Guidelines.

Late one evening, Officer Gideon Cody of the Kansas City Police Department

observed a vehicle traveling at a high rate of speed that failed to stop at two stop

signs. He followed the vehicle and observed that there were two people in it; one,

later identified as Mr. Alaniz-Montano, was driving, and the other, later identified as

Mr. Orozco-Castillo, was in the front passenger's seat. Officer Cody observed

Mr. Orozco-Castillo's shoulders drop as if he were reaching for something on the

floor. Based on the way that Mr. Alaniz-Montano was driving, Officer Cody believed
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that he was a flight risk. He called for assistance and refrained from activating his

emergency lights or siren. 

When Mr. Alaniz-Montano parked and exited his vehicle, Officer Cody

immediately ordered him to stop and placed him under arrest for careless driving.

Mr. Orozco-Castillo remained in the vehicle but refused to identify himself. As a

result, he too was arrested because his failure to provide the requested information

required him to post a bond on the traffic ticket that he was issued for failing to wear

a seatbelt. Because Mr. Alaniz-Montano had failed to provide proof of insurance and

Officer Cody felt that his vehicle would be susceptible to theft if it remained where

it was parked, he decided to have it towed. Officer Cody conducted an inventory

search of the vehicle before the towing. He did not have consent from Mr. AlanizMontano nor did he obtain a warrant before the search. While searching the vehicle,

Officer Cody discovered methamphetamine under the front passenger's seat.

I.

Although his arguments are not entirely clear, it appears that Mr. AlanizMontano is contending that the district court erred in refusing to suppress physical

evidence and statements that he asserts were the product of an unlawful search and

seizure. We hold that both Mr. Alaniz-Montano's arrest and the subsequent search

of his vehicle comported with the requirements of the fourth amendment.

"If an officer has probable cause to believe that an individual has committed

even a very minor criminal offense in his presence, he may, without violating the

Fourth Amendment, arrest the offender." Atwater v. City of Lago Vista, 532 U.S. 318,

354 (2001); see also Mo. Ann. Stat. § 479.110. We conclude that Officer Cody had

probable cause to believe that Mr. Alaniz-Montano committed a crime in his

presence. Officer Cody believed that Mr. Alaniz-Montano was exceeding the posted

speed limit and observed him failing to stop at stop signs. Speeding and failure to

obey a stop sign are both violations of Missouri law. See Mo. Ann. Stat. §§ 304.010,
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300.270 (2004). Under New York v. Belton, 453 U.S. 454, 460 (1981), moreover,

"when a policeman has made a lawful custodial arrest of the occupant of an

automobile, he may, as a contemporaneous incident of that arrest, search the

passenger compartment of that automobile." See alsoKnowles v. Iowa, 525 U.S. 113,

117-18 (1998). The fact that Mr. Alaniz-Montano had stepped out of the vehicle just

before Officer Cody arrived does not alter his status as an occupant of the vehicle.

United States v. Poggemiller, 375 F.3d 686, 687 (8th Cir. 2004), cert. denied, 125 S.

Ct. 1614 (2005). Therefore the search was properly conducted incident to

Mr. Alaniz-Montano's arrest.

II.

Mr. Orozco-Castillo's only argument on appeal is that his sentence violated the

sixth amendment. See United States v. Booker, 125 S. Ct. 738 (2005). This argument

is meritless. The jury found that he conspired to distribute and possessed with intent

to distribute at least 50 grams of methamphetamine. When coupled with his prior

conviction for a felony drug offense, this finding itself required the imposition of a

minimum sentence of 240 months in prison and ten years of supervised release.

21 U.S.C. §§ 841(a)(1), (b)(1)(A)(viii), 846, 851. The sentencing guidelines are

simply out of this case.

Affirmed.

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