*Local Rule 47.5 provides: "The publication of opinions

that have no precedential value and merely decide particular

cases on the basis of well-settled principles of law imposes

needless expense on the public and burdens on the legal

profession." Pursuant to that Rule, the Court has determined

that this opinion should not be published.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 95-40159 

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

versus

LARRY LEE MARTIN, a/k/a Larry Simpson

Defendant-Appellee.

 

Appeal from the United States District Court

for the Eastern District of Texas

(4:94 CR 49 2)

 

September 11, 1995

Before HIGGINBOTHAM, DUHÉ, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

A jury convicted Larry Martin of conspiracy to possess with

intent to distribute crack cocaine, of possession with intent to

distribute a controlled substance, and of carrying a firearm

during the commission of a drug-trafficking crime. Martin

appeals, stating that the trial court should have suppressed a

pistol and several rocks of crack found in a car, as well as
2

certain statements made to a police officer at the scene. We

affirm. We examine Martin's arguments in the order of the

factual chain of events forming the basis for his conviction.

I. Initial Terry-stop

Martin argues that his initial encounter with police

officers violated the Fourth Amendment because the encounter was

either an arrest without probable cause or a seizure under Terry

v. Ohio, 392 U.S. 1 (1968), without reasonable suspicion. We

disagree.

Initially, we must decide whether Martin's initial encounter

with law enforcement officers constituted a Terry-stop or if,

either initially or as questioning progressed, the incident

became a full-scale arrest. The Fourth Amendment prohibits

officers from arresting a suspect without probable cause, but

under Terry, police may seize a suspect for brief questioning if

they meet the lesser burden of establishing reasonable suspicion. 

An encounter constitutes a Terry-stop or a seizure, as opposed to

an arrest, if the detention is "temporary and lasts no longer

than is necessary to effectuate the purpose of the stop." 

Florida v. Royer, 460 U.S. 491, 500 (1983) (plurality opinion). 

In such a seizure, "the investigative methods employed should be

the least intrusive means reasonably available to verify or

dispel the officer's suspicion in a short period of time." Id.

at 500. The state bears the burden of proof. Id. In deciding

whether a particular encounter constitutes a seizure or an
3

arrest, courts consider, among other factors, the duration of the

detention, the coerciveness of the surrounding environment, and

whether law enforcement officials acted in an intimidating

manner. United States v. Berry, 670 F.2d 583, 601-03 (5th Cir.

1982) (en banc).

The factors stated above suggest that the encounter among

Officer Young, Detective Sardone, and Martin was a Terry-stop,

not an arrest. The encounter took place in a non-coercive

setting, a public parking lot. Martin was within a short

distance of his companions, not alone. Initially, the duration

of the encounter was short, no longer than necessary to ask

Martin for identification and to run a drivers license check. 

The length of the encounter stretched longer only as suspicion

increased that Martin had given a false name. The officers took

no threatening action; all they did was ask for identification. 

While the officers did have pistols in hand, "[a]n investigatory

stop is not automatically an arrest simply because an officer

draws his gun." United States v. Worthington, 544 F.2d 1275,

1280 n.3 (5th Cir.), cert. denied, 434 U.S. 817 (1977). Given

the non-coercive nature of the rest of the encounter, we find the

presence of drawn guns insufficient to transform the initial

encounter from a Terry-stop to an arrest. See id. at 1279-80 &

n.3 (holding that an officer's approach in the night with a

flashlight and a drawn gun constituted a seizure, not an arrest). 

Furthermore, given the non-threatening way in which the encounter

developed, we hold that no arrest took place until Officer Young
 

1 We have also considered Martin's contention that the

initial Terry-stop was based on pretext. We deem this argument

meritless.

4

returned from his second computer check and formally arrested

Martin.

We now turn to the requirement of reasonable suspicion, and

hold that the officers had sufficient grounds to stop Martin. To

justify a Terry-stop, law enforcement officers must have an

"articulable suspicion that a person has committed or is about to

commit a crime." Royer, 460 U.S. at 498. At the time they

stopped Martin, Officer Young and Detective Sardone knew that a

drug transaction between Detective Cogwell and Black was to take

place at the Fina Mart, that Black had told Cogwell that 3-4

other owners of the crack were likely to be present, and that

Black dealt drugs only with African-Americans. They knew that

shortly after Black arrived, a Mitsubishi Gallant with 3 black

men pulled into the Fina Mart, stopped, then drove slowly through

the lot to park in front of a nearby restaurant. They knew that

one of the persons in the car went initially into the restaurant,

then left to observe the Fina Mart parking lot. They knew that

this same man then walked toward the Fina Mart. We agree that

the officers had an articulable suspicion, founded on known

facts, that the occupants of the car were the 3-4 crack owners

that Black had mentioned, and that the occupants were involved in

the drug transaction.1
5

II. Probable Cause for Arrest

Martin argues that no probable cause existed to support his

arrest, even if the encounter first became an arrest when Officer

Young formally arrested Martin. We disagree. At the time of the

arrest, Officer Young had verified the existence of several

outstanding arrest warrants against Martin. Martin does not

challenge the legality of these warrants. The outstanding

warrants constituted probable cause to arrest.

III. Miranda Claim

The trial court denied Martin's motion to suppress his

response to questions after his arrest but before he was informed

of his rights under Miranda v. Arizona, 384 U.S. 436 (1966). 

Martin appears to appeal this ruling. We do not reach the issue

of whether a Miranda violation occurred because we find that any

such violation was harmless beyond a reasonable doubt.

When Officer Young placed Martin under arrest, Martin stood

up and keys fell from his person to the ground. Officer Heaton

asked Martin if the keys were his, and Martin responded in the

negative. The prosecution subsequently used this denial at

closing argument. After recounting the incident, the prosecution

argued that Martin was "distancing himself from that car, as far

as possible. Why? Because he knows there's crack in there and

he knows there's a firearm in there."

Nevertheless, this error was harmless beyond a reasonable

doubt. See Chapman v. California, 386 U.S. 18, 24 (1967). One
6

of the officers at the scene testified that Martin was the driver

of the car. The keys to the Mitsubishi were in Martin's

possession. A search of the car revealed the gun and the crack

cocaine. We may properly consider this physical evidence, even

if a Miranda violation occurred, because the fruits of the

poisonous tree doctrine does not apply to violations of the

Miranda rule. United States v. Mendez, 27 F.3d 126, 130 (5th

Cir. 1994). This evidence, together with other testimony already

discussed connecting Martin to the ongoing crack transaction, was

"`not only sufficient to support the verdict but so overwhelming

as to establish the guilt of the accused beyond a reasonable

doubt.'" United States v. Baldwin, 691 F.2d 718, 723-24 (5th

Cir. 1982) (quoting Harryman v. Estelle, 616 F.2d 870, 876 (5th

Cir.) (en banc), cert. denied, 449 U.S. 860 (1980)).

IV. Search of the Car

The trial court held that Martin lacked standing to

challenge the search of the Mitsubishi that produced the gun and

crack cocaine. We agree.

A defendant seeking to suppress evidence on Fourth Amendment

grounds bears the burden of showing that he has standing to

invoke the exclusionary rule. United States v. Wilson, 36 F.3d

1298, 1302 (5th Cir. 1994). "`It is settled law that one has no

standing to complain of a search or seizure of property he has

voluntarily abandoned." United States v. Alvarez, 6 F.3d 287,

289 (5th Cir. 1993) (quoting United States v. Colbert, 474 F.2d
7

174, 176 (5th Cir. 1973) (en banc)), cert. denied, 114 S. Ct.

1384 (1994). This rule stems from the requirement that those

seeking to invoke the Fourth Amendment must exhibit "an actual,

subjective expectation of privacy with respect to the place being

searched or items being seized." Wilson, 36 F.3d at 1303.

Martin voluntarily disavowed any privacy claim to the

Mitsubishi. Although the car keys were found on his person

shortly after the arrest, Martin denied that the keys were his. 

In a later interview, Martin denied owning the car and refused

to state whether he was the driver of the car. Martin did not

testify at the motion to suppress; in fact, he called no

witnesses and introduced no evidence at the hearing on this

motion. Finally, at the hearing, Martin's attorney stated that

he "wouldn't argue" with the trial judge's assertion that Martin

had no "standing to complain about the -- what was obtained from

the automobile" because Martin "had no expectation of privacy in

there." Although it appears that the court below raised the

issue of standing sua sponte, Martin has not argued that he was

surprised by the court's questions and holding, nor that he was

prevented from presenting evidence on the standing issue, nor

that the manner in which the court raised this issue constituted

error. Cf. United States v. Boruff, 909 F.2d 111, 116 (5th Cir.

1990) (holding that a defendant was entitled to an opportunity to

present evidence of standing when the government did not raise

the issue until after the suppression hearing), cert. denied, 499

U.S. 975 (1991). We agree with the trial court that Martin
8

disavowed any subjective expectation of privacy over the contents

of the car and therefore lacked standing to challenge the search.