UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 95-20498

Summary Calendar

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UNITED STATES OF AMERICA,

Appellant,

versus

TOMAS VENTE SINISTERRA,

Appellee.

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Appeal from the United States District Court for the

Southern District of Texas

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(Febuary 21, 1996)

Before GARWOOD, DAVIS and BENAVIDES, Circuit Judges.

GARWOOD, Circuit Judge:

Appellee Tomas Vente Sinisterra (Sinisterra) is the defendant

in pending criminal proceedings in the district court below in

which he is charged with possession with intent to distribute of

five kilograms or more of cocaine. The district court granted

Sinisterra’s motion to suppress approximately 200 kilograms of

cocaine seized from an unoccupied van in a shopping center parking

l ot, and it denied the Government’s motion for reconsiderat ion.

Thi s case is now before us on the Government’s appeal of theA motions panel of this court denied Sinisterra’s motion to

dismiss the appeal on the grounds that the Government had not

timely complied with the interlocutory appeal certificate

requirements of 18 U.S.C. § 3731. We agree with the decision of

the motions panel as well as with its admonitions to the Government

in regard to the certificate requirements of § 3731.

2 district court’s suppression order. 1

Facts and Proceedings Below

The basic facts relevant to the suppression issue are not

disputed. Federal agents placed a house located at 7306 Daleview

in Houston, Texas, under surveillance based on information that the

house was used for drug-related activities. The agents saw

Sinisterra arrive in a green Nissan and enter the house. Shortly

thereafter, a woman came out of the house and drove the Nissan

around the neighborhood, making brief stops at two houses. The

agents concluded that the woman was making a "heat run." The woman

returned to 7306 Daleview and ent ered the house. She was inside

the house for approximately one minute; then she left and drove

away in the Nissan. Sinisterra left the house in a brown Dodge van

and caught up with the woman. The brown van and the Nissan drove

slowly in tandem for some time; when the Nissan turned off, agents

followed the van. Sinisterra drove the van to a shopping mall,

Memorial City Mall, parked in the mall’s public parking lot, and

go t out of the van with a small dog. He made a call from a pay

telephone and walked around the mall. He went into a Sears

Automotive Center and tethered the dog in a service bay. He walked

to a nearby medical office building and made another telephone

call. After about twenty minutes, he left the medical building and

got on a city bus. He rode the bus for about one and one-half3

miles, then he got off and began to walk back towards the mall. He

stopped at a food store to make a telephone call and then he walked

into a residential neighborhood where the agents "lost" him.

The unoccupied van was under continuous surveillance, but no

one approache d it. Houston police officers walked a trained

narcotics-de tecting dog around the van, and the dog alerted

strongly to the van. An officer then looked into the van’s window

(without entering or opening the van) and saw two large duffle

bags. Two officers left to obtain a search warrant. While the

officers were gone, Sinisterra an d the woman returned to the

parking lot in the green Nissan. Sinisterra retrieved his dog, but

he did not go near the van. He drove the Nissan out of the mall

parking lot and stopped at a pay telephone in a nearby strip

shopping center, about 100 yards away from the van. Agents

detained him before he could make a telephone call and asked him to

explain his behavior. A Spanish-speaking officer obtained

Sinisterra's permission to search the Nissan, but Sinisterra

refused to consent to a search of the van. Sinisterra was placed

u nder arrest and the Nissan was searched, but it did not contain

any contraband.

By this time, it was night. Andy Fullerton, a U.S. Customs

Agent with over twenty years' exp erience, looked through the

windows of the van with a flashlight. Agent Fullerton saw several

kilogram-size, cellophane-wrapped packages. One of the packages

was marked with a logo and had the name "Lotus" printed on it.

Agent Fullerton testified that it was his experience that packages

marked in this way always contain ed either cocaine or marihuana.In its oral ruling on the motion to suppress, the district

court stated “that is not an [sic] in dispute here, whether or not

the contraband [in the van] was in plain view provides a basis for

the arrest of the defendant. And the answer, I believe, is, yes,

that that would provide a basis for the arrest of the defendant”;

and, “[t]he whole basis of this defendant’s arrest centers, it

4 When the officers who were charged with obtaining the warrant told

an assistant U.S. Attorney of Agent Fullerton's dis covery, the

assistant U.S. Attorney advised that a warrant was unnecessary, and

all efforts to obtain a warrant ceased. The van was then towed to

the pol ice department where a warrantless search revealed

approximately 200 kilograms of cocaine.

After a suppression hearing, the dis trict court held that

Sinisterra had standing to challenge the search of the van, a

holding the Government does not challenge on this appeal. The

district court also determined that the officers had probable cause

to arrest Sinisterra, but it held that Sinisterra's relationship to

the van at the time of his arrest was too attenuated for the

evidence to be admissible as seized in a search incident to arrest.

The court held that the plain-view exception to the warrant

requirement authorized the officers to seize the van without a

warrant, but that they could not search the vehicle without a

warrant or consent. Citing U nited States v. McBee

, 659 F.2d 1302,

1304 (5th Cir. 1981), cert. denied

, 456 U.S. 949 (1982), the court

held that the automobile exception to the warrant requirement

requires both probable cause and exigent circumstances. The court

determined that the search was not justified by exigent

circumstances because the police had a valid basis to seize the

vehicle and, thus, could have obtained a warrant at their leisure. 2seems

t o me, on the probable cause to arrest, which obviously, in m y opinion, existed”; and, “[s]o, the evidence

. . . does not suggest

that any exigent circumstances existed

. . . . the fact that the

vehicle itself was seized and was taken to the police lot gives

rise to the fact that there was no exigent circumstance, because,

in my view, the police had a valid basis for seizing the vehicle

and holding it”; further “I think there was probable cause for the

arrest, I think there was probable cause for seizures [sic] of the

vehicle based upon what they saw and believ e d to be in the

vehicle”; and finally “[t]hey seized the veh icle, which I think

they were totally entitled to do, they did not have the right to

search it. They were seeking a search warrant, they should have

gotten it, that’s all.” In its written order granting the

suppression motion, the court recites that the motion was “granted

based on its [the court’s] findings and statements in the record

and those stated here.” The written order further states that “the

police officers had probable cause for a detention and arrest and

possibly a seizure of the vehicle.” It is entirely plain that the

district court found that the officers had probable c ause to

believe that the van (when it was seized and searched) contained

narcotics and that that --plus the defendant’s association with the

van--is what constituted probable cause to arrest the defendant.

The district court also distinguished the result in McBee

, where suppression was denied, on the basis that there “the vehicle

was parked on a public street”, while here “unlike McBee

, the

vehicle was not on the public street but on private property”. The

district court recognized that the mall parking lot, where the van

was seized, was open to the public, but felt it w as significant

that the parking lot was privately owned. The Government urged

t hat the parking lot was a “public area”. The district court

responded “sure. Anything outside the [mall] building is public,

but that’s private property” and not “the public streets”.

5 The court further reasoned that the automobile exception to the

warrant requirement did not apply because the van was parked in a

privately owned parking lot. 3 Consequently, the district court

granted the motion to suppress.

Discussion

The Government argues, inter alia , that the evidence is

a dmissible under the automobile exception to the warrant

requirement. We Agree.

This court reviews the district court's f act-findings on a6

motion to suppress for clear error and reviews de novo the

"ultimate determination of Fourth Amendment reasonableness."

United States v. Seals

, 987 F.2d 1102, 1106 (5th Cir.), cert.

denied

, 114 S. Ct. 155 (1993). The district court's determination

that the search of the van was unreasonable under the Fourth

Amendment was based on certain erroneous legal assumptions.

First, the district court concluded that the officers had

probable cause to arrest Sinisterra and to seize the van, but that

they were prohibited from searching the van wit hout obtaining a

warrant. There is no constitutional difference between "seizing

and holding a car before presenting the probable cause issue to a

magistrate and on the other hand carrying out an immediate search

without a warrant. Given probable cause to search, either course

is reasonable under the Fourth Amendment." C hambers v. Maroney

,

399 U.S. 42, 52 (1970).

Second, to the extent that McBee and its progeny require, in

a situation such as the present, a finding of exigent circumstances

other than the fact of the au tomobile's potential mobility, they

are inconsistent with more recent Supreme Court jurisprudence. The

Supreme Court has held that the automobile exception to the warrant

requirement applies when a vehicle is "readily capable" of "being

used on the highways" and it "is found statio nary in a place not

regularly used for residential purposes . . . ." C alifornia v.

Carney

, 105 S.Ct. 2066, 2070 (1985) . Under these circumstances

"overriding societal interests in effective law enforcement"

justify an immediate warrantless search because (1) "the vehicle is

obviously readily mobile by the turn of an ignition key

. . ." and7

(2) it is subject to a "reduced expectation of privacy stemming

from its use as a licensed motor vehicle subject to a range of

police regulation inapplicable to a fixed dwelling." I d

.

Finally, the district court attached importance to the fact

that the car was parked in a shopping center parking lot--rather

than on a public street--at the time that it was seized. For the

reasons discussed below, this fact is not determinative of the

legality of the seizure and subsequent search here.

In Carney

, the Supreme Court upheld the warrantless search of

a motor home parked in a downtown San Diego parking “lot”. I d. at

2067. Drug Enforcement Agency (DEA) agents had information that

Carney and other persons were engaging in sex in the motor home and

paying their partners with marihuana. They searched the motor home

without a warrant or consent and discovered a quantity of marihuana

and drug paraphernalia. The California Supreme Court suppressed

the drugs and reversed Carney's c onviction for possession of

marihuana. The Supreme Court granted certiorari and reversed

because it concluded that the automobile exception to the warrant

requirement applied. Id . at 2070.

This court has concluded that, under Carney , "probable cause

alone suffices to justify a warrantless search of a vehicle

lawfu lly parked in a public place, as long as the scope of the

search is reasonable." U nited States v. Cooper

, 949 F.2d 737, 747

(5th Cir. 1991) (quotation omitted; emphasis in origi nal), c ert.

denied

, 504 U.S. 975 (1992). Sinisterra argues that C oolidge v.

New Hampshire

, 403 U.S. 443, 461-62 (1971), and United States v.

Reed

, 26 F.3d 523, 530 (5th Cir. 1994), c ert. denied

, 115 S. Ct.Sinisterra does not suggest that the duffle bags should not

have been searc h ed incident to the search of the van. S ee

California v. Acevedo , 500 U.S. 565, 580 (1991) (containers in an

automobile may be searched if there is probable cause to believe

that they contain contraband).

Nothing in C arney indicates that the parking “lot” there was publicly owned.

8 1116 (1995), dictate that exigent circumstances were requ ired to

justify a warrantless search of the van. 4 C oolidge and Reed are

distinguishable because both cases involved vehicles parked in the

drive ways of the residences of the defendants (who were in

custody). S ee Coolidge

, 403 U.S. at 447; Reed

, 26 F.3d at 525.

Carney controls this case because of the similarity of the factual

situations. Here, the mall parking lot was not related to anyone’s

residence, it was open to the public and available for public use,

and Sinisterra had no more right in it than any member of the

public. That the lot was owned by the mall--and not by the city--

is irrelevant in these circumstances. 5

This court has applied the automobile exception to admit

evidence seized in warrantless sear ches of vehicles which were

legally parke d in privately-owned motel parking lots where there

was probable cause to search but no showing of exigent

circumstances. U nited States v. Buchner

, 7 F.3d 1149, 1150-51,

1154-55 (5th Cir. 1993) (LaQuinta Motel), cert. denied

, 114 S. Ct.

1331 (1994); United States v. Ervin

, 907 F.2d 1534, 1536-39 (5th

Cir. 1990) (Big Bend Motor Inn Motel). The rule applicable here is

that if, unde r the totality of the circumstances, officers have

probable cause to believe that a vehicle contains contraband, they

are authorized to search the van without a warrant. B uchner

, 7Because of our holding in this respect, we do not determine

whether suppression should have been denied either on the

inevitable discovery doctrine or on t he theory that the officers

acted on the reasonable, good faith belief that a warrant was not

required.

9 F.3d at 1154-55; Seals , 987 F.2d at 1107.

Here, in addition to the dog alert, the officers were also

a ware of the informant's tip; Sinisterra's unusual behavior that

afternoon; and the fact that Agent Fu llerton had recognized that

the packages in the van contained narcotics. Probable cause was

thus clearly established. See United States v. Williams , 69 F.3d

27, 28 (5th Cir. 1995); United States v. Mendez

, 27 F.3d 126, 129-

130 (5th Cir. 1994); United States v. Hernandez

, 976 F.2d 929, 930

(5th Cir. 1992); United States v. Gonzalez-Basulto

, 898 F.2d 1011,

1013 (5th Cir. 1990); United States v. Davila-Avila

, 895 F.2d 206,

207 (5th Cir. 1990).

Because the officers h ad probable cause to believe that the

van--which was in operational condition and was parked in the mall

parking lot which was open to the public (at least those shopping

at the mall) though not publicly owned--contained narcotics, they

were legally authorized to search it without a warrant, even if the

circumstances were not exigent. 6 The district court hence erred in

granting the motion to suppress.

Accordingly, the district court’s order granting Sinisterra’s

motion to suppress is REVERSED.