*

 District Judge of the Western District of Louisiana, sitting by designation.

REVISED

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 96-40687

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

EDGAR CASTRO,

Defendant-Appellant.

consolidated with

________________________________

96-40694

________________________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

SUSAN GOMEZ,

Defendant-Appellant.

Appeals from the United States District Court

for the Eastern District of Texas

November 19, 1997

Before POLITZ, Chief Judge, DeMOSS, Circuit Judge, and DOHERTY,* District

Judge.
 

1Agents from the Houston Police Department, the U. S. Drug Enforcement

Agency, and the Federal Bureau of Investigation cooperated in the surveillance.

2

POLITZ, Chief Judge:

Edgar Castro and Susan Gomez were convicted on guilty pleas of conspiracy

to possess with the intent to distribute and possession with the intent to distribute

cocaine after a search of their rented Chevrolet Suburban revealed approximately

900 pounds of cocaine. Concluding that the cocaine should have been suppressed

as evidence obtained in violation of the fourth amendment to the United States

Constitution, we vacate the convictions and remand to the district court.

BACKGROUND

On November 9, 1996 numerous agents from various federal and state law

enforcement agencies conducted surveillance of Javier Vallaho in the Memorial

City Mall in Houston, Texas.1 During the course of the surveillance the agents

observed Vallaho talking to Gomez and an unidentified male Hispanic. Gomez and

the man then left the Mall in a grey van and drove to a convenience store located

several miles distant. Upon arrival at the convenience store, the man exited the

grey van and made a call from a public telephone. The man then drove to a nearby

K-Mart and dropped off Gomez. Between ten and fifteen agents followed the van

to the convenience store and then to K-Mart.

Gomez entered the K-Mart, purchased several innocuous items, and then

used a nearby public telephone. Unbeknownst to Gomez, one of the agents

overheard the entire content of this telephone call. During the course of this call

Gomez made no reference to any illegal activity. Meanwhile, the van exited the
 

2The agents unsuccessfully attempted to secure the aid of the Texas Department

of Public Safety as they trailed the vehicle.

3

K-Mart parking lot and was driven to a nearby residence. Ten agents in vehicles

and a helicopter followed the van but the agents observed no illegal activity. After

stopping briefly at the residence, the van returned to the K-Mart parking lot, the

man exited and handed the keys to Gomez, and left in another car. Gomez then

drove the van from the parking lot to a local motel.

At the motel, Gomez met Castro and Muriel Cristina Vicencio, and the three

of them unloaded full grey trash bags from the van. Gomez, Castro, and Vicencio

thereafter departed the motel in separate cars and drove back to the Mall. After

spending approximately fifteen to twenty minutes inside, the three left the Mall in

a rented blue Suburban and began traveling north on U. S. Highway 59. Castro

drove the Suburban, Vicencio sat in the front seat, and Gomez occupied the back

seat. The agents followed the Suburban for approximately 115 miles as it traveled

through the Texas counties of Harris, Montgomery, and San Jacinto, finally

entering Polk County. Because the agents following the Suburban did not have

probable cause -- or even reasonable suspicion -- for stopping the Suburban, they

determined to enlist the aid of the Polk County Sheriff’s Department.2

The agents contacted the Polk County Sheriff’s Department and informed

Deputy Sheriff Mike Nettles that a rented blue Suburban “involved in a narcotics

transaction” was driving through his county and needed to be stopped. The agents

instructed Nettlesthat he had to “develop his own probable cause” for stopping the

Suburban. Nettles positioned his patrol car prominently in the median of Highway
 

3Nettles testified at the suppression hearing that he did not use his radar unit to

clock the speed of the Suburban because he was afraid that to do so would “tip off”

the driver of the Suburban about his presence. Nettles did not explain, however,

why using the radar unit would be any more conspicuous than his presence in a

marked patrol car on the median and then on Highway 59. In addition, Nettles

conceded that his speedometer had not been calibrated in over three years.

 

4DEA agents were present on the roadside when Nettles stopped the Suburban.

4

59. As the Suburban approached, Nettles claims to have observed that the driver

was not wearing a seat belt and that the Suburban appeared to be exceeding the

posted speed limit. Nettles followed the Suburban for several miles and, while

doing so, used his speedometer to calculate its speed. Nettles did not use the radar

unit in his patrol car to determine the speed of the Suburban.3

Finally, Nettles turned on the flashing lights on his patrol car and pulled the

Suburban over.4 Nettles ordered Castro to exit the Suburban, informed him that he

was being stopped for speeding and failure to wear a seat belt, and asked for a

driver’slicense and carregistration. Castro produced a valid Maryland license, and

Nettles ran a check. The check revealed no outstanding warrants. Nettles then

questioned Castro about his presence in Texas. Castro explained that he had flown

to Houston with his wife, Vicencio, to attend a construction conference, and that

they were on their way home. Castro further explained that Gomez was a family

friend. Nettles then questioned Gomez and Vicencio, and Gomez explained that

she had been in Houston with Castro and Vicencio to purchase winter clothing.

Characterizing the responses he received from Gomez, Castro, and Vincencio

about the reason they had been in Houston and their destination as being somewhat

inconsistent, Nettles decided to arrest Gomez and Vicencio for failure to wear a
 

5A question is presented, one which we do not now answer, whether Nettles was legally

authorized to arrest a nonresident for a seat belt violation. As a general rule, minor traffic

violations are arrestable offenses under Texas law. The Nonresident Violator Compact

(NVC), however, carves out an exception to that general rule. The NVC expressly

recognizesthat the practice of arrestingnonresidentviolators and requiringthemto post bond

to secure their appearance “causes unnecessary inconvenience and, at times, a hardship for

the motorist who is unable at the time to post collateral, furnish a bond, stand trial, or pay

the fine, and thus is compelled to remain in custody until some arrangement can be made.”

TEX. TRANSP. CODE ANN. § 703.002 art.

I(a)(5) (Vernon 1997). To remedy this problem, Texas adopted the NVC which specifically

provides:

(a) When issuing a citation for a traffic violation, a police officer shall issue the

citation to a motorist who possesses a driver’s license issued by a party jurisdiction

and shall not, subject to the exceptions noted in paragraph (b) of this article, require

the motorist to post collateral to secure appearance, if the officer receives the

motorist’s personal recognizance that he or she will comply with the terms of the

citation.

Id. § 703.002 art. III(a). The only exception to this mandatory procedure involves situations

where Texaslaw requires the police to arrest for a particular traffic violation. Id. § 703.002

art. III(b). It would appear that a seat belt violation is not such an offense and that Maryland

is a “party jurisdiction” to the NVC.

 

6Castro disputes that the decision to arrest was made prior to his refusal to allow

Nettles to search the Suburban.

 

7The government maintains that Gomez was not placed under arrest at this time.

Rather, she was transported to the Sheriff’s Department so that she could use the

restroom.

5

seat belt.5 He placed the two under arrest and sought permission to search the

Suburban. Castro declined to consent.6 Nettles then impounded the Suburban and

transported it and Castro, Gomez, and Vicencio to the Polk County Sheriff’s

Department.7 The Suburban was taken to the Polk County sally port purportedly

for an inventory search. Upon arrival, when Castro again refused to consent to a

search, a drug dog was brought over. The drug dog alerted in the cargo area of the

vehicle and the ensuing search uncovered approximately 900 pounds of cocaine.

Castro, Gomez, and Vicencio were arrested on drug charges. Neither Castro nor
 

8Vicencio is not a party to this appeal.

 

9United States v. Chavez-Villarreal, 3 F.3d 124 (5th Cir. 1993).

6

Vicencio were cited or ticketed for the seat belt violation. No inventory search of

the Suburban was conducted by the Polk County Sheriff’s personnel.

Castro, Vicencio, and Gomez were indicted by a federal grand jury on one

count of conspiracy to possess cocaine with the intent to distribute, in violation of

21 U.S.C. § 846, and one count of possession with the intent to distribute cocaine,

in violation of 21 U.S.C. § 841(a)(1). Both Castro and Gomez filed motions to

suppress the cocaine as illegally seized evidence. After a suppression hearing the

district court denied the motions. Castro and Gomez pled guilty to both charges,

reserving their right to appeal the denial of the motions to suppress. The district

court sentenced Castro and Gomez to concurrent terms of 135 months

imprisonment, and a five year term of supervised release. Both timely appealed.8

ANALYSIS

We employ a two-tiered standard in reviewing the denial of a motion to

suppress. We first review the factual findings for clear error and then review the

trial court’s ultimate conclusion as to the constitutionality of the law enforcement

action de novo.

9

 Our holding today turns on the latter.

The admissibility of the cocaine hinges on the validity of taking possession

of the Suburban for purposes of an inventory search. An inventory search is a welldefined exception to the warrant requirement of the fourth amendment to the
 

10Colorado v. Bertine, 479 U.S. 367 (1987); South Dakota v. Opperman, 428

U.S. 364 (1976).

 

11Opperman, 428 U.S. at 369.

 

12Bertine, 479 U.S. at 374 n.6 (“Our decisions have always adhered to the

requirement that inventories be conducted according to standardized criteria.”).

 

13Florida v. Wells, 110 S.Ct. 1632 (1990).

 

14Id. at 1635.

7

United StatesConstitution.10 It is a search of property lawfully seized and detained.

Such searches are conducted in order to protect the property that has been lawfully

seized, to protect the police against claims of lost or stolen property, and to protect

the police from potential danger.11

An inventory search is permitted and is deemed reasonable only if conducted

according to standardized procedures.12 More importantly, an inventory search is

reasonable and lawful only if conducted for purposes of an inventory and not as an

investigatory tool to produce or discover incriminating evidence.13 An inventory

search may not be used by police as a “ruse for a general rummaging.”14 If police

use an inventory search in such a manner, any evidence discovered during the

course of that search is subject to suppression.

Applying these rubrics to the taking into possession and search of the

Suburban convinces us that the cocaine discovered must be suppressed. The

Constitution clearly mandates such a result. We entertain no doubt that the search

of the Suburban was conducted for investigatory rather than protective

administrative purposes. We can reach no other reasonable legal conclusion on the
 

15A pretextual traffic stop does not violate the fourth amendment. See Whren

v. United States, 116 S.Ct. 1769 (1996).

 

16As discussed supra in footnote 5, the legality of this arrest remains to be

determined.

8

record before us. The Polk County search was not a lawful search.

Castro and Gomez were the focus of a massive effort by numerous federal

and local drug enforcement agentsto uncover evidence ofillegal drug activity. The

agents conducting the surveillance of Castro and Gomez followed them first

through the City of Houston and, finally, through several Texas counties. At no

time did either Castro or Gomez do anything that conceivably could have served

as the basis for a finding of probable cause of a drug violation. Consequently the

agents obviously concluded that they were not able to make a legal stop or arrest

of Castro or Gomez for any drug related violation. If these numerous federal and

state law enforcement agents had, or believed that they had, probable cause to

arrest, it defies all logic and reason to believe they would not have done so during

the early surveillance or at some time in the 100-plus miles of trailing through

several Texas counties.

Instead, the agents orchestrated a routine traffic stop,15 contacting a local

deputy sheriff and instructing him to “create his own probable cause.” The deputy

sheriff did as instructed and, while the agents stood by and watched, ostensibly

arrested Castro and Vicencio for a seat belt violation.16 When Castro refused to

consent to a search of the Suburban, the deputy sheriff took possession of it,

presumably to safeguard its contents while Castro and Vicencio were in custody on
9

the seat belt violation. None of the occupants of the Suburban was cited for that

traffic violation -- no ticket was issued and no charges were filed.

Further, no inventory search was ever undertaken at the Polk County sally

port. Prior to any deputy sheriff commencing an inventory search, a drug dog was

summoned. The drug dog alerted, a search was made as a consequence thereof,

and the cocaine was discovered. The occupants of the Suburban and the Suburban

then were taken from Polk County to Houston. The contents of the Suburban

ultimately were inventoried in Houston.

We are persuaded that a routine inventory search -- conducted for the sole

purpose of legitimately creating an accurate inventory of the contents of a vehicle

-- would not immediately be preceded by such an obvious attempt to discover the

incriminating evidence of which the deputy sheriff initially had been advised. We

perforce must conclude that taking possession of the Suburban for purposes of an

inventory search was nothing more than a ruse to perform an unauthorized search

and the officers, particularly the federal officers, were fully aware of such. The

cocaine discovered as a result of the search of the Suburban must be and is

suppressed.

For the foregoing reasons, we VACATE the convictions of Castro and

Gomez, suppress the evidence obtained in the illegal search of the Suburban, and

REMAND to the district court for further proceedings consistent herewith.

ENDRECORD 
DeMOSS, Circuit Judge, dissenting:

 I cannot agree with my distinguished colleagues that the 900 pounds of

cocaine seized in this case must be suppressed under the Fourth Amendment. I

write to express the reasons for my disagree-ment.

As an initial matter, the majority failsto give proper deference to the findings

of fact made by the district court in the 48-page memorandum explaining its

decision to deny the motion to suppress. This is evident throughout the majority’s

opinion, where time and time again the facts of this case are characterized in a

manner that contravenes the express findings of the district judge. In its

memorandum opinion, the district court found that the Suburban exceeded the

posted speed limit. Yet, the majority examines anew the accuracy and credibility

of that determination:

Nettlestestified at the suppression hearing that he did not

use his radar unit to clock the speed of the Suburban

because he was afraid that to do so would “tip off” the

driver of the Suburban about his presence. Nettles did

not explain, however, why using the radar unit would be

any more conspicuous than his presence in a marked

patrol car on the median. In addition, Nettles conceded

that hisspeedometer had not been calibrated in over three

years.

(Majority Opinion at 4 n.3.) Similarly, without any justification the majority casts

doubt on the factual basis for the district judge’s finding that the stop and arrest

were lawful: “As the Suburban approached, Nettles claims to have observed that

the driver was not wearing a seat belt and that the Suburban appeared to be

exceeding the speed limit.” (Emphasis added.) In what is perhaps the most telling

example of the majority’s disregard for the findings of the district court, the
11

majority states without explanation that “the legality of the arrest remains to be

determined.” (Majority Opinion at 10 n.16.)

The district court’sfindingsin this case clearly warrantsthe deference which

we are required to give them under our Rules. It is evident from the length of the

suppression hearing (almost two days), and the comprehensiveness of the district

court’s memorandum opinion (48 pages), that the district judge’s decision was not

a hip shot made without full and adequate consideration of the record. Indeed, the

district judge viewed the witnesses at the suppression hearing and, after assessing

"their demeanor, forthrightness, candor or lack thereof, the conflicts and apparent

conflicts in their testimony," made the following findings:

I conclude and find that on November 9, 1996, at 5:40

p.m., defendant Castro was exceeding the posted speed limit,

was not wearing a seat belt, and that Vicencio, the front seat

passenger, was not wearing a seat belt. I find the stop was

lawful, the arrest of Castro and Vicencio were lawful, that Mrs.

Gomez was not under arrest until after the discovery of the

cocaine in Castro’s vehicle.

In questioning these findings, the majority makes no attempt to show that they are

"clearly erroneous,” or otherwise unworthy of deference. Overlooked as well are

two Texas cases that squarely hold that drivers and passengers are subject to arrest

for seatbelt offenses. Valencia v. State, 820 S.W.2d 397, 399 (Tex. App.-Houston

[14th Dist.] 1991, writ ref’d); Madison v. State, 922 S.W.2d 610, 612 (Tex. App.-

Texarkana 1996, writ ref’d).

I. The Stop & Arrest
12

Throughout its opinion, the majority places a great deal of emphasis on the

events that preceded the stop and arrest of the defendants. 

Castro and Gomez were the focus of a massive

effort by numerous federal and local drug enforcement

agents to uncover evidence of illegal drug activity. The

agents conducting the surveillance of Castro and Gomez

followed them first through the City of Houston and,

finally, through several Texas counties. At no time did

either Castro or Gomez do anything that conceivably

could have served as the basis for finding probable cause

of a drug violation . . . . If these numerous federal and

state law enforcement agents had, or believed that they

had, probable cause to arrest, it defies all logic and reason

to believe they would not have done so during the early

surveillance or at some time in the 100-plus miles of

trailing through several Texas counties.

Instead, the agents orchestrated a routine traffic

stop, contacting a local deputy sheriff and instructing him

to “create his own probable cause.” The deputy sheriff

did as instructed and, while the agents stood by and

watched, ostensibly arrested Castro and Vicencio for a

seat belt violation.

In so doing, the majority implicitly suggests that the lawfulness of the stop and

arrest are somehow dependent on the motives of the federal agents and Deputy

Nettles. However, the Supreme Court has made clear that the subjective intentions

of police officers “play no role in ordinary, probable-cause Fourth Amendment

analysis.” Whren v. United States, 116 S. Ct. 1769, 1774 (1996). Consequently,

the suspicions ofthe federal officers who followed the Suburban, and the subjective

beliefs of Deputy Nettles, have no bearing on the lawfulness of the stop and arrest.

Absent compelling evidence to the contrary (which is not present in this case), we

are bound by the district judge’sfindingsthat the stop and arrest were lawful under
13

the Fourth Amendment.

II. The Impoundment of the Suburban

Given that the Suburban was lawfully stopped, with Castro and Vicencio

lawfully under arrest at the side of the highway, the issue becomes what, if

anything, transpired after the stop and arrest that violated the Fourth Amendment.

The majority states that “[t]he admissibility of the cocaine hinges on the

validity of taking possession of the Suburban for purposes of an inventory search.”

(Majority Opinion at 7.) Assuming arguendo this to be true, the record in this case

does not demonstrate that the defendants carried their burden of showing that the

impoundment of the Suburban was pretextual. See United States v.Kelley, 981 F.2d

1464, 1467 (5th Cir.), cert. denied, 508 U.S. 944 (1993) (holding that the proponent

of a motion to suppress has the burden of proving, by a preponderance of the

evidence, that the evidence in question was obtained in violation of the Fourth

Amendment).

In Colorado v. Bertine, 479 U.S. 367 (1987), the

Supreme Court addressed the discretionary power of the

police to impound a suspect’s car pursuant to the

inventory search exception. The Supreme Court explained

that:

Nothing . . . prohibits the exercise of

police discretion so long as that

discretion is exercised according to

standard criteria and on the basis of
14

something other than suspicion of

evidence of criminal activity. Here,

the discretion afforded the [] police

was exercised in light of standardized

criteria, related to the feasibility and

appropriateness of parking and locking

a vehicle rather that impounding it. 

Id. at 375.

In the present case, the majority places great weight

on the fact that the federal agents who trailed the

Suburban were suspicious of illicit drug activity, but

did not have probable cause to stop the vehicle

themselves. The majority seems particularly concerned

with the fact that the federal agents advised Deputy

Nettles that he would have to "develop" his own probable

cause. 

But the critical issue is not whether the facts of

this case give rise to a vague notion that the suspicions

of the federal agents influenced Deputy Nettles’ decision

to stop and arrest the defendants. As discussed earlier,

pretext cannot be used to challenge the lawfulness of a

stop or arrest that is otherwise supported by probable

cause. The question for decision, as framed by the

majority, is whether the decision to impound the Suburban

was pretextual, or made in bad faith. As to that precise
15

inquiry, the majority opinion is conspicuously silent.

Nowhere in the majority opinion is there mention of

evidence that the impoundment of the Suburban violated

“standardized criteria” of the Polk County Sheriff’s

Department. Also absent is any mention as to who

directed Officer Reeves to drive the vehicle to the

impound lot, or why that decision was made. Indeed,

there is nothing to indicate whether this issue was even

raised in the district court. Nevertheless, the majority

leaps to the conclusion that the impoundment was

pretextual without any specific evidence to that effect.

III. The Sniff & Search

Once we accept that the stop and arrest were lawful,

and that there is insufficient evidence to reasonably

question the legality of the impoundment, the next fact

finding by the district judge becomes critical to a

proper resolution of this case:

There was no search or entry made into

Castro’s vehicle until Trooper Pitts’

narcotics dog alerted on the rear and side

door of the Suburban, and that the search

was lawful, both as to the inventory
16

requirement and that probable cause existed

before Castro’s vehicle was searched.

This finding is important because our Court has clearly

held that a drug-sniffing dog’s sniff does not constitute

a search under the Fourth Amendment. United States v.

Seals, 987 F.2d 1102, 1106 (5th Cir.), cert. denied, 510

U.S. 853 (1993). Thus, no constitutional violation

occurred in this case when the deputy sheriff and DPS

officer decided to "smell test" the exterior of the

Suburban. Furthermore, our Court has held that a drugsniffing dog’s alert to the possible presence of

narcotics constitutes sufficient probable cause to

suspect that a vehicle contains contraband to permit a

warrantless search. United States v. Williams, 69 F.3d

27, 28 (5th Cir. 1995), cert. denied, 116 S. Ct. 1284

(1996). Therefore, once the drug-sniffing dog alerted in

our case, the police had probable cause to believe that

the Suburban contained drugs and, therefore, had

sufficient cause to search the vehicle without a warrant

under the automobile exception. United States v. Zucco,

71 F.3d 188, 191-92 (5th Cir. 1995), cert. denied, 117 S.

Ct. 91 (1996).

Accordingly, the critical issue in this case is not
17

"the validity of taking possession of the Suburban for

purposes of an inventory search" as the majority frames

it; but whether Castro’s and Gomez’s Fourth Amendment

rights were violated when (1) the deputy sheriff used the

drug-sniffing dog to sniff the exterior of the vehicle,

or (2) the officers searched the Suburban on the dog’s

alert. Clearly, both questions must be answered in the

negative.

It is important to note that the search that produced

the 900 pounds of cocaine was based upon probable cause

resulting from the alert of the drug-sniffing dog. That

search was not an "inventory search" and, therefore, the

majority’s extended discussion of what is, or is not, an

appropriate inventory search is not determinative of the

critical issue in this case. Surely, if Trooper Pitts

and his dog had been able to come to the scene of the

highway stop, and had the dog alerted there to the

presence of drugs, the validity of the search and seizure

would be unquestionable. Likewise, if Officer Nettles

had decided to conduct an inventory search of the

Suburban on the side of the highway, which he certainly

would have been authorized to do, that search also would
18

have revealed the contraband. But the side of a heavily

trafficked highway is not a safe or appropriate place to

conduct an inventory search of any vehicle. Officer

Nettles’ decision to take the Suburban into custody by

moving it to the Polk County sheriff’s compound before

performing the inventory search was a reasonable exercise

of police discretion. This is especially true given the

fact that the Suburban was a rental car that obviously

belonged to another party, and contained a substantial

amount of luggage and cargo that would have to be removed

to be properly inventoried.

IV. The Nonresident Violator Compact

Finally, I must take issue with the majority’s

discussion of the Nonresident Violator Compact ("NVC").

The NVC issue was not raised in the suppression hearing

before the district court. Castro and Gomez raised the

applicability of the NVC to their arrests for the first

time on appeal. Therefore, any error resulting from the

district court’s failure to apply the NVC must be

reviewed for plain error only. See Fed. R. Crim. P.

52(b).
19

The NVC, which was adopted by the Texas Legislature

in 1977, has never been cited by any Texas court; nor by

any court from the States of Louisiana or Mississippi

that have passed similar NVC statutes; nor by any United

States District Court in the States of Texas, Louisiana

or Mississippi; nor by any decision of this Court.

Consequently, there are no published decisions of any

court construing the NVC as limiting the authority of a

state police officer to make an arrest of a nonresident.

That was true at the time of trial, and is equally true

now, as the case is pending before us on appeal. Under

my reading of the NVC, I would conclude that there was no

error with regard to the seatbelt violation arrests.

Even assuming, however, that such arrests were error, it

is impossible to say that such error was clear at the

time of the suppression hearing or at the time of this

appeal. 

The majority, however, makes no attempt to satisfy

the elements of our plain error rule and professes in

footnote 5 that it does not "now answer" the question as

to the applicability of the NVC. But in footnote 16 the

majority clearly indicates that the legality of the
20

arrest in this case "remains to be determined.” In

effect the majority is implying that there may be a

problem with the validity of the arrest in this case. As

I indicated earlier, however, the Texas law is very clear

that a citizen of Texas may be arrested for not complying

with the seatbelt law. See Valencia and Madison, supra,

at 2-3. And no case exists which interprets the NVC as

requiring that a non-resident be given different

treatment.

For the foregoing reasons, I would affirm the

district court’s decision to deny Castro’s and Gomez’s

motion to suppress the evidence seized in the Suburban.