1 Senior Judge of the Western District of Louisiana,

sitting by designation.

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 92-4753

 

UNITED STATES OF AMERICA,

 PlaintiffAppellee,

versus

JOSEPH NOEL SEALS,

 DefendantAppellant.

 

Appeal from the United States District Court 

for the Western District of Louisiana

 

(March 24, 1993)

Before DUHE' and BARKSDALE, Circuit Judges and HUNTER1, District

Judge.

EDWIN F. HUNTER, JR., District Judge:

On April 20, 1991, Joseph Seals was stopped pursuant to a

routine traffic violation. A search of the vehicle revealed the

presence of cocaine and a firearm. This precipitated the

criminal proceedings below. After trial by jury, defendant was

found guilty on all charges. He now appeals. Finding no

reversible error, we affirm. 

Factual Background and Proceedings

On April 20, 1991, Officer Scott of the Shreveport Police

Department was engaged in traffic surveillance on Interstate 20.

Shortly before 1:00 P.M., a vehicle with broken tail lamps and a
 

2 Louisiana Revised Statutes 32:304, 32:411, and 32:863.1

(1993).

2

worn, temporary license tag passed him on the interstate. Since

the vehicle, a '78 Buick Regal, was in violation of the state

traffic code,2 Officer Scott signalled for the driver to stop. As

Officer Scott approached the auto, its operator, Joseph Seals,

climbed out of the vehicle through the driver's side window. Scott

asked the operator for his driver's license and registration. He

was unable to produce either. The policeman next inquired about

the driver's itinerary. Seals responded that he had left Houston

at 10:00 P.M. the previous evening, and was heading for an unknown

destination in Arkansas. Officer Scott noted that the temporary

tag was issued that day, subsequent to Seals' alleged departure

from Houston.

Scott's suspicions were aroused. He radioed for a back-up.

Scott advised Seals that he was not under arrest, but asked whether

he would consider signing a consent to search form. Seals

responded that he would not sign a written consent to search, but

after a little prodding, granted verbal consent to search his

vehicle. Sensing that Seals was not overly enthusiastic about the

search, Scott asked again whether Seals really wanted to permit the

search. Apparently Seals did have second thoughts. He responded

that he did not wish for the officer to search the car.

Meanwhile, a check was run through the police computers,

revealing that Seals had been issued a Texas driver's license,

which had expired. The check also uncovered that Seals had
 

3 The driver's side window remained partially open. The

officers rolled up the window as far as possible from the

outside, since the car door would not open.

3

previous convictions for aggravated sexual battery and theft,

despite the driver's assurances that his criminal history was

limited to traffic citations. As a result of the defendant's

inability to produce a valid driver's license, Seals was placed

under arrest, and advised of his Miranda rights. He was brought to

the police station by the back-up officer. 

Approximately thirty minutes after Seals was removed from the

scene, Officer McClure arrived with her K-9 unit, "Axel". Officer

Scott had requested a K-9 officer due to the suspicious

circumstances surrounding Seals' vehicle, and his inconsistent

responses to questioning. 

 The K-9 unit sniffed the exterior of the car, but did not

alert. However, the dog jumped up on the driver's side window;3

and this was interpreted as an alert on the interior of the vehicle

by Officer McClure. The K-9 unit was then placed into the

passenger compartment, where he alerted on the ashtray and an area

between the front seats. Pursuant to this additional alert,

Officer McClure located and retrieved a glass pipe containing

cocaine residue. 

Once in the passenger compartment, the officer noticed that

the back seat had been modified, so that a piece of plywood could

be raised allowing access to the trunk area. Officer McClure

raised the plywood permitting her to peer into the trunk, where she

discovered a loaded .22 caliber, Marlin rifle. Next, the K-9 unit
 

4 Including the motion to suppress.

4

was placed in the trunk. He alerted upon a liquor box. McClure

opened the box, and found a plastic bag containing 14 smaller

plastic bags of crack cocaine. 

A grand jury indicted Seals on three charges: (1) possession

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

841(a)(1); (2) carrying a firearm, a Marlin, model 60, .22 caliber

rifle, during and in relation to a drug trafficking crime, in

violation of 18 U.S.C. § 924(c)(1); and (3) possession of a firearm

by a previously convicted felon, 18 U.S.C. § 922(g)(1). 

On February 3, 1992, the charges against defendant were

dismissed for violation of the speedy trial act. However, the

identical indictment was simply refiled against the defendant, and

all motions argued under the first indictment were carried over

into the second.4 On March 30 and 31, 1992, the defendant was

tried by jury. However, a mistrial was granted after the jury was

unable to reach a verdict. On April 20, 1992, the defendant was

retried and found guilty on all three charges. He was sentenced to

250 months in prison. 

On appeal, the defendant raises several issues for

consideration: (1) that the search of his vehicle violated his

Fourth Amendment rights, and consequently, any evidence found

should have been suppressed; (2) that two potential jurors were

peremptorily challenged by the prosecution on the basis of race in

violation of Batson; (3) that the trial judge should have granted

a mistrial after a witness referred to defendant's prior trial and
 

5 These findings are not disputed.

5

motion to suppress hearing; (4) the trial judge erred in refusing

to issue a proposed jury instruction that in order for a firearm to

be "carried" pursuant to a drug trafficking crime, the weapon had

to be within "easy reach"; and (5) it was necessary for the

prosecution to "point out" or identify the defendant in the

courtroom as an indispensable element of its case. 

I. THE MOTION TO SUPPRESS

On October 21, 1991, the magistrate conducted a hearing on

defendant's motion to suppress the evidence found in the vehicle.

The magistrate heard testimony from Officer Scott, the arresting

officer, Officer Fletcher, and Officer McClure, the K-9 officer.

He ruled that Scott had reasonable suspicion to initially stop

defendant, and then upon learning that the defendant had no

driver's license, probable cause existed to arrest the defendant.5

The magistrate further held that the "sniff" by the K-9 unit was

justified as a search incident to arrest. Moreover, the magistrate

specifically found that the K-9 unit's attempt to jump into the

vehicle constituted an alert, which in turn provided probable cause

that narcotics were within the vehicle. The magistrate concluded

that under California v. Acevedo, 111 S.Ct. 1982 (1991), once an

officer obtains probable cause to search a vehicle, then probable

cause exists to search all compartments of the vehicle and all

containers. 

Finally, as an independent ground for admitting the evidence,
6

the magistrate concluded that the evidence would have been

inevitably discovered pursuant to a valid inventory search of the

vehicle. The magistrate's findings were adopted by the trial

judge. We review a district court's findings of fact on a motion

to suppress under the clearly erroneous standard, and will review

the court's ultimate determination of Fourth Amendment

reasonableness de novo. United States v. Colin, 928 F.2d 676 (5th

Cir. 1991); United States v. Harrison, 918 F.2d 469 (5th Cir.

1990). 

While we review questions of law de novo `[i]n

reviewing a trial court's

ruling on a motion to

suppress based on live

testimony at a

suppression hearing, the

trial court's purely

factual findings must be

accepted unless clearly

erroneous, or influenced

by an incorrect view of

the law, and the evidence

must be viewed most

favorabl[y] to the party

prevailing below.' 

United States v. Ibarra, 965 F.2d 1354, 1356 (5th Cir.); reversed

on other grounds, 966 F.2d 1447 (5th Cir. 1992) (citations

omitted).

The magistrate stated that the original "sniff" conducted by

the K-9 unit was permissible under the search incident to an arrest

exception to the warrant cause. We express certain misgivings as

to whether the "sniff" could be considered a search incident to an

arrest in light of the fact that the defendant had already been

arrested, handcuffed, and removed from the scene at least thirty
 

6 See Belton, where the Supreme Court held that, "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." New

York v. Belton, 453 U.S. 454 (1981). In United States v. Vasey,

where defendant was arrested and placed in the rear of a squad

car for thirty to forty-five minutes before the search of the

vehicle, the Ninth Circuit concluded that the search was not

conducted contemporaneously with arrest. United States v. Vasey,

834 F.2d 782 (9th Cir. 1987); But see, United States v. White,

871 F.2d 41 (6th Cir.); affirmed after remand, 892 F.2d 1044 (6th

Cir. 1989).

7

minutes before the search took place.6 In any event, it is

unnecessary to justify the search as one conducted incident to an

arrest. A dog "sniff" is not a search. United States v.

Hernandez, 976 F.2d 929 (5th Cir. 1992); United States v. GonzalezBasulto, 898 F.2d 1011, 1013 (5th Cir. 1990); United States v.

Place, 462 U.S. 696 (1983). Furthermore, the officers did not need

reasonable suspicion as a prerequisite to the dog sniff. United

States v. Goldstein, 635 F.2d 356 (5th Cir.), cert. denied, 452

U.S. 962 (1981). 

We hold that the dog sniff, under these

circumstances, is not a `search' within the

meaning of the Fourth Amendment and therefore

an individualized reasonable suspicion of

drug-related criminal activity is not required

when the dog sniff is employed during a lawful

seizure of the vehicle. 

United States v. Morales-Zamora, 914 F.2d 200 (10th Cir. 1990),

reversed on other grounds after remand, 974 F.2d 149 (10th Cir.

1992). 

In the case sub judice, the dog, "Axel", was led around the

car, but did not alert on the exterior of the vehicle. Instead,

Axel jumped up on the driver's side window. The dog's handler,
 

7 During the motion to suppress hearing, a discrepancy was

noted between Officer McClure's oral testimony and her written

report filled out shortly after the incident. In Officer

McClure's written report, she stated that Axel did not alert on

the exterior of the vehicle, but attempted to jump inside. At

the hearing, she testified that the dog alerted when he jumped up

on the driver's side of the vehicle. The magistrate questioned

her concerning this inconsistency. She responded that when she

wrote that the dog did not alert, she meant that he did not alert

on the exterior of the vehicle, but he did alert on the interior

when he jumped up on the driver's side window. The magistrate

accepted this explanation and, was in the best position to assess

its credibility. We do not find this determination clearly

erroneous. 

 

8 The Supreme Court has made a distinction between probable

cause to believe that drugs are in a particular section of the

car, and probable cause to believe that drugs are generally

within the car. In Ross, the Court stated, "probable cause to

believe that a container placed in the trunk of a taxi contains

contraband or evidence does not justify a search of the entire

cab." United States v. Ross, 456 U.S. 798, 824 (1982). Whereas

on the next page, the Court states, "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." Id. Thus, if officers have probable

cause to believe that contraband is in only one part of a car,

then they are limited to that area. If, on the other hand,

officers have probable cause to believe that contraband is

located somewhere in a car, but they don't know exactly where,

then they can search the entire vehicle. Since it was never

explained whether the initial alert by the dog encompassed the

entire area of the car including the trunk, we will consider that

the alert only applied to the passenger compartment. 

Subsequently, when the glass pipe with cocaine was discovered,

the officer had probable cause to search the entire car. (See

discussion infra.)

8

interpreted this as an alert.7 The trial court held that once the

dog alerted that there were drugs present, this gave the officers

probable cause to search inside.8 

 It is well established that warrantless searches of automobiles

are permitted by the Fourth Amendment if supported by probable

cause. See United States v. Ross, 456 U.S. 798 (1982). 

"`Probable cause determinations are not to be
 

9 "A warrantless search of an automobile is permissible

where . . . officers have probable cause to believe the vehicle

contains contraband." United States v. Bustamante-Saenz, 894

F.2d 114, 117 (5th Cir. 1990), (citation omitted).

9

made on the basis of factors considered in

isolation, but rather on the totality of the

circumstances.' United States v. Reed, 882

F.2d 147, 149 (5th Cir. 1989). `The factors

relevant to probable cause are not technical

ones, but rather factual and practical ones of

everyday life on which reasonable and prudent

persons, not legal technicians, act.' Id.

(quoting United States v. Tarango-Hinojos, 791

F.2d 1174, 1176 (5th Cir. 1986))"

United States v. Kelly, 961 F.2d 524 (5th Cir. 1992),9

Upon entering the passenger compartment, Axel alerted on an

area in between the front seats, which revealed a glass pipe with

cocaine residue. Officer McClure noticed that the rear seat area

had been modified to allow access to the trunk. The discovery of

cocaine residue, in conjunction with the defendant's nervousness

and false answers, coupled with the modification of the rear seat,

provided the officers with probable cause to believe that

additional drugs were contained within the vehicle. Since they did

not know exactly where in the car the drugs were located, the

officers had probable cause to search the entire vehicle. Ross,

supra; United States v. Reed, 882 F.2d 147, 149 (5th Cir. 1989).

Finally, the officers were justified in opening the liquor box

containing cocaine, due to their probable cause to believe that

drugs were located in the car, which extended to the entire vehicle

and all containers found therein. Ross, supra; California v.

Acevedo, 111 S.Ct. 1982 (1991). 

Moreover, the record conclusively reveals that the evidence
10

would have been discovered pursuant to an authorized inventory

search. An inventory search is valid, provided it is conducted

under an established police department inventory policy. United

States v. Walker, 931 F.2d 1066 (5th Cir. 1991).

An inventory search is a routine

administrative procedure designed to effect

three distinct purposes: protection of the

owner's property which may be stored in the

vehicle; protection of the police against

claims of lost, stolen or vandalized property;

and protection of the police from potential

danger. South Dakota v. Opperman, 428 U.S.

364 (1975). When the police acquire temporary

custody of a vehicle, a warrantless search of

the vehicle does not offend Fourth Amendment

principles so long as the search is made

pursuant to `standard police procedures' and

for the purpose of `protecting the car and its

contents'. Id. at 372, 373.

United States v. Lugo, 978 F.2d 631 (10th Cir. 1992).

This circuit and several other circuits recognize that

evidence which was originally obtained improperly should not be

suppressed, provided that it would have been legitimately uncovered

pursuant to normal police practices. United States v. Namer, 835

F.2d 1084 (5th Cir.), cert. denied, 86 U.S. 1006 (1988); United

States v. Brookins, 614 F.2d 1037 (5th Cir. 1980); United States v.

George, 971 F.2d 1113 (4th Cir. 1992); United States v. Horn, 970

F.2d 728 (10th Cir. 1992). This exception is known as the

"inevitable discovery" doctrine. Namer, supra. 

The record reveals that prior to the search conducted by

Officer McClure and the K-9 unit, Officer Scott had already decided

to impound the vehicle, and had begun the necessary paperwork. A

copy of the Shreveport Police Department's inventory procedure was

placed into evidence at the motion to suppress hearing. The
 

10 The procedures provide in part:

 "F. The member shall conduct an inventory of the 

 impounded vehicle. In doing so, the officer shall:

1. completely inventory the contents of the

vehicle, including the trunk, in order to

determine the presence and location of

valuable property in the vehicle at the time

it comes under the control of the

Department."

Shreveport Police Department Procedure Number 502.1.

11

inventory procedures require the officer to search an impounded

vehicle, including the trunk, in order to locate and identify

valuable property.10 We also note that to comply with the

department's policy of locating valuable property, it is necessary

for the officer to open any containers found inside the vehicle.

We conclude that the rifle and crack cocaine would have been

inevitably discovered during the normal inventory procedures of the

Shreveport Police Department. Defendant's motion to suppress was

properly denied not only as a result of the officers' probable

cause to search the vehicle, but also under the inevitable

discovery rule. 

II. THE BATSON CHALLENGE

During voir-dire, the government exercised two of its seven

peremptory challenges to remove two black potential jurors from the

jury pool. Immediately following jury selection, the defendant, a

black male, argued that the prosecution's peremptory challenges

were racially motivated and deprived him of equal protection rights

as articulated in Batson v. Kentucky, 476 U.S. 79 (1986).

The prosecution justified its actions on the grounds that the
12

primary activities of one of the challenged jurors consisted of

reading the Bible and watching television; whereas the other juror

worked with the mentally retarded. The Assistant U.S. Attorney, a

black male himself, stated that he felt that the challenged jurors'

emphasis on reading the Bible and helping the handicapped would

make them more lenient and sympathetic towards the defendant.

Although, there were other white jurors with similar religious and

community-oriented activities, the prosecutor, when questioned,

felt that those jurors would not have been reached in the selection

process.

The district judge bluntly asked the prosecutor, "As an

officer of the court, as a representative of all the citizens of

this country and of the government, I'm asking you, did you

challenge these two because they were black?" The prosecutor

answered, "No, I did not, your Honor". He added, "As a matter of

fact, when the defense counsel raised the issue, I couldn't

remember which jurors were black." The district judge made a

specific ruling based upon his past experience with the U.S.

Attorney's Office, and in particular, his previous contact with

this prosecutor. He stated: "I'm going to in view of past history,

and dealing with the United States Attorney's Office and in dealing

with Mr. Smith, I accept his explanation and find that the strikes

were non-racially motivated."

At trial, proof of a Batson claim is a three-step process.

First, the defendant must make a prima facie showing that the

prosecution exercised peremptory challenges on the basis of a
 

11 The Supreme Court noted,

Deference to trial court findings on the

issue of discriminatory intent makes

particular sense in this context because, as

we noted in Batson, the finding will `largely

turn on evaluation of credibility.' 476 U.S.

at 98, n.21. In the typical peremptory

challenge inquiry, the decisive question will

be whether counsel's race-neutral explanation

for a peremptory challenge should be

believed. There will seldom be much evidence

bearing on that issue, and the best evidence

often will be the demeanor of the attorney

who exercises the challenge. As with the

state of mind of a juror, evaluation of the

prosecutor's state of mind based on demeanor

and credibility lies `peculiarly within a

trial judge's province.'

Hernandez v. New York, 111 S.Ct. at 1869. (citations omitted).

 

12 In United States v. Lance and United States v. Mixon, we

found no Batson violation despite the presence of white jurors

with similar disqualifying characteristics as the challenged

black jurors. United States v. Lance, 853 F.2d 1177 (5th Cir.

1988); United States v. Mixon, 977 F.2d 921 (5th Cir. 1992). The

13

juror's cognizable racial background. Second, the burden shifts to

the prosecution to articulate a race-neutral explanation for

removing the juror in question. Finally, the trial court must

determine whether the defendant has met his burden of proving

purposeful discrimination. Hernandez v. New York, 111 S.Ct. 1859,

1866 (1991); Polk v. Dixie Ins. Co., 972 F.2d 83 (5th Cir. 1992);

cert. denied, 113 S.Ct. 982 (1993). The determination of the trial

judge is accorded great deference, and is reviewed under a "clearly

erroneous" standard. Hernandez v. New York, 111 S.Ct. at 1869;

Polk v. Dixie Ins. Co., 972 F.2d 83, 85 (5th Cir. 1992); United

States v. Lance, 853 F.2d 1177 (5th Cir. 1988).11

The trial judge had dealt previously with this prosecutor, and

was in the best position to gauge his credibility.12 In this
result was reached in each of these cases as a consequence of

additional factors which were peculiarly suited to the judge's

credibility assessment. 

 

13 The alleged prejudicial reference surfaced during an

exchange between the prosecutor and Officer Scott in furtherance

of the government's effort to establish the chain of custody of

the seized cocaine. The interplay provided in part,

Q. And did there come a time when you retrieved

them from the crime lab?

A. Yes, sir, I did. I picked them up at the

crime lab for the motion to suppress hearing

and did bring them to court and then turned

them back into the police property room after

that hearing.

Q. And did there come a time when you turned

these items over to the U.S. Attorney's

office?

14

regard, not only did the trial judge investigate the prosecutor's

race-neutral explanations, he also stated his personal knowledge

and experience concerning the prosecutor's honesty and integrity.

Under these facts, we cannot say that the trial judge was clearly

erroneous in his determination that there was no violation of the

defendant's equal protection rights. Seals' Batson challenge is

rejected. 

 

III. REMAINING ISSUES

A. Reference to Prior Trial

Appellant alleges that he was prejudiced at trial when a

government witness briefly and inadvertently referred to the

defendant's previous trial and a prior motion to suppress

hearing.13 The allegedly prejudicial references were responses
A. Yes, sir I turned them over to the U.S.

Attorney's office on the last trial date.

Q. Would that have been March 30?

A. Yes, sir, that is correct.

(emphasis added) 

 

14 The same counsel which now effectuates this appeal.

15

by Officer Scott made pursuant to a valid evidentiary function - to

establish the chain of custody of the seized cocaine. Officer

Scott's responses were merely an attempt to account for the

evidence while it remained in his possession. United States v.

Wilson, 922 F.2d 1336 (7th Cir.), cert. denied, 112 S.Ct. 155

(1991). 

Moreover, we emphasize that the trial judge offered to

instruct the jury to disregard the reference. Potentially

prejudicial evidence may be cured, or admitted for a narrowly drawn

purpose, through the issuance of appropriate limiting instructions.

United States v. Gordon, 780 F.2d 1165, 1174 (5th Cir. 1986).

Counsel for the defendant14 refused the offer, undoubtedly under the

belief that any further emphasis would only serve to heighten the

jury's awareness of the potentially prejudicial reference. Having

chosen to refuse a jury instruction addressing the inadvertent

utterance, defendant cannot now complain that one should have been

given. 

B. Inadequate Jury Charge

Defendant contends that in order to be convicted of using and

carrying a firearm during a drug offense in violation of 18 U.S.C.
16

§ 924(c), the firearm must have been within the defendant's

immediate reach at the time of the offense. U.S. v. Feliz-Cordero,

859 F.2d 250 (2d Cir. 1988). The standard Fifth Circuit jury

instruction was given. Defendant's additional instruction would

impose an additional burden on the government, not recognized by

this Circuit. See U.S. v. Pineda-Ortuno, 952 F.2d 98 (5th Cir.

1992), cert. denied, by Ramirez-Carranza v. U.S., 112 S.Ct. 1990

(1992). Our decisions uniformly hold that it is not necessary for

the defendant to actually brandish or "use" the firearm at the time

of arrest, merely that the firearm is available for "use", or is in

position to provide protection in connection with a drug

trafficking crime. U.S. v. Cannon, 981 F.2d 785, 790 (5th Cir.

1993); U.S. v. Beverly, 921 F.2d 559, 562-563 (5th Cir. 1991),

cert. denied, by Brown v. United States, 111 S.Ct. 2869 (1991);

U.S. v. Molinar-Apodaca, 889 F.2d 1417, 1424 (5th Cir. 1989). 

The district court properly instructed the jury.

 C. Failure to "Point Out" Defendant

Defendant argues that as an indispensable element of the

government's case, it was necessary for a witness to actually

"point out" the defendant in the courtroom. The short answer to

this contention is that it has no merit whatsoever. The case law

is that it suffices to establish identity by "inference and

circumstantial evidence." U.S. v. Royals, 777 F.2d 1089 (5th Cir.

1985); Delegal v. U.S., 329 F.2d 494 (5th Cir.), cert. denied, 379

U.S. 821 (1964). 

No one argues that Seals was not the perpetrator of the
17

offenses. His identity was never questioned during the trial.

Nevertheless, we do note that: 1) Seals was charged as a

previously convicted felon, and stipulated to this fact; 2) many

references were made to Joseph Noel Seals and the "defendant"

interchangeably throughout the trial, without objection; 3) a

forty-five minute video tape of the defendant's arrest was shown to

the jury; and 4) defendant's counsel stated, "the defendant, Mr.

Seals," when referring to a scene in the video tape. As the trial

judge stated to defense counsel after denying his motion on this

issue - "Nice Try"! 

The judgment of the trial court is AFFIRMED.