* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-60400

UNITED STATES OF AMERICA,

Plaintiff–Appellee,

v.

ANTHONY CABANISS,

Defendant–Appellant.

Appeal from the United States District Court 

for the Northern District of Mississippi

USDC No. 1:05-CR-80-1

Before JOLLY, CLEMENT, and OWEN, Circuit Judges.

PER CURIAM:*

Anthony Cabaniss pled guilty to conspiracy to possess marijuana with

intent to distribute, in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(C),

but reserved the right to appeal the district court’s denial of three motions to

suppress. We affirm.

I

Captain Palmer of the Mississippi Bureau of Narcotics received a tip from

a confidential informant that Jeremy Emerson was dealing marijuana and

United States Court of Appeals

Fifth Circuit

F I L E D

August 7, 2008

Charles R. Fulbruge III

Clerk
No. 07-60400

2

storing marijuana in a camper on a relative’s property. The informant further

stated that Emerson’s supplier, Cabaniss, was soon going to deliver drugs in a

white truck with Oklahoma license plates. Palmer commenced surveillance of

Emerson’s apartment, and a truck matching this description soon arrived. 

After the truck left, Palmer alerted Mississippi Highway Patrol Trooper

George that a white truck with Oklahoma plates was in the area and was

suspected oftransporting marijuana. Palmer instructed George to stop the truck

if it violated any traffic laws. George spotted the truck and initiated a stop for

the stated purpose of issuing a citation for traveling 70 miles per hour in a 55

mile-per-hour zone. George noticed that the driver, Cabaniss, smelled of alcohol.

George did not have a portable intoxylizer test with him, and because it was

raining, George could not administer a field sobriety test. He decided to take

Cabaniss to the police station for an intoxylizer test. 

Because neither of Cabaniss’s passengers had driver’s licenses, George

called for the truck to be towed. A tow truck arrived and transported the truck

to a nearby service station. While at the station, two officers brought drugsniffing dogs to test the truck, and a third officer performed an inventory

search—all without a search warrant. The inventory search revealed a small

amount of marijuana in the truck’s cab.

Meanwhile atthe sheriff’s office, Cabaniss passed the intoxylizer test. But

when Palmer began asking Cabaniss about his affairs that day, Cabaniss

provided some responses that were inconsistent and suspicious, and others that

corroborated information a confidential informant had given Palmer about

Cabaniss. Palmer secured and executed a search warrant for Emerson’s camper.

The search uncovered approximately 35 pounds of marijuana. Four days later,

officers received a confidential tip that additional drugs were located in

Cabaniss’s impounded truck. They performed a warrantless search and found

methamphetamine in a plastic container inside the truck’s breather.
No. 07-60400

1 See United States v. Muniz-Melchor, 894 F.2d 1430, 1433-34 (5th Cir. 1990).

3

Cabaniss was charged with conspiracy to possess marijuana with intent

to distribute, in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841 (b)(1)(C);

conspiracy to possess cocaine hydrochloride with intent to distribute, in violation

of 21 U.S.C. §§ 846, 841(a)(1), and (b)(1)(C); and possession of methamphetamine

with intent to distribute, in violation of 21 U.S.C. § 841(a)(1) and 841 (b)(1)(A).

He filed three motions to suppress. The district court held a suppression hearing

and denied each motion. Thereafter, Cabaniss pled guilty to Count 1 but

reserved the right to appeal the denial of his suppression motions. The district

court sentenced Cabaniss to 84 months’ imprisonment and three years’

supervised release. Cabaniss pursues this appeal, claiming that the district

court erred in denying his suppression motions.

II

Cabaniss’s motions to suppress related to three allegedly unconstitutional

acts by the police. The first motion claimed that the initial stop was

unconstitutional. Cabaniss argued in the second motion that he was

unconstitutionally detained after the stop. In the third motion, Cabaniss

claimed that the second truck search was unconstitutional. For the first and

second motions, Cabaniss claims the district court should have suppressed three

pieces of evidence: (1) the small amount of marijuana found in the cab of his

truck, (2) the methamphetamine found in the breather of his truck, and (3) the

approximately 35 pounds of marijuana found in Emerson’s camper. For the

third motion, he argues that the court should have suppressed only the drugs

found in his truck.

When a district court denies a motion to suppress evidence, we review its

factual findings for clear error and its conclusions of law de novo.

1 We may
No. 07-60400

2 See FED. R. CRIM. P. 52(a).

3 United States v. Willingham, 310 F.3d 367, 372 (5th Cir. 2002) (quoting United States

v. Aucoin, 964 F.2d 1492, 1499 (5th Cir. 1992) (internal quotation marks and alterations

omitted)).

4 See FED. R. APP. P. 28(a)(9)(A) (stating that the appellant’s brief must contain

“citations to the authorities . . . on which the appellant relies”).

4

correct an error unless it is harmless.2“‘In the context of suppression of

evidence, the test for harmless error is whether the trier of fact would have

found the defendant guilty beyond a reasonable doubt if the evidence had been

suppressed.’”3

The count to which Cabaniss pled guilty only involved the 35 pounds of

marijuana found in Emerson’s camper. If the district court had suppressed the

other drugs, Cabaniss’s guilty plea and the marijuana found in the camper

would have demonstrated his guilt on Count 1 beyond a reasonable doubt. Thus,

any error in failing to suppress the other drugs was harmless. We therefore

affirm the district court with regard to that evidence.

Furthermore, assuming for the sake of argumentthat Cabaniss’s stop and

detention were unconstitutional, Cabaniss inadequately briefed his claim that,

as a result, the district court should have suppressed the marijuana found in

Emerson’s camper. Cabaniss conceded at oral argument that he lacks standing

to challenge the camper search. His only complaint is that “Captain Jeff

Palmer . . . made the facts surrounding the initial stop and the information

gained there-from a major portion” of the affidavit he used to secure the search

warrant for the camper. Cabaniss does not cite any law or facts to support this

claim. It is therefore waived.4

Even if we were to consider this argument, our case law and the record do

not support Cabaniss’s suppression argument. Under our “independent source”

jurisprudence, a lawful search supported by a warrant is deemed to result from

a source independent of a prior Fourth Amendment violation if (1) the police
No. 07-60400

5 See United States v. Runyan, 290 F.3d 223, 235 (5th Cir. 2002).

5

would have sought a warrant even without the violation, and (2) the warrant

would have been supported by probable cause if the supporting affidavit had not

contained information obtained from the prior violation.5 The search warrant

was primarily supported by a confidential informant’s tip that Emerson was

storing drugs in the camper. The tip predated the allegedly unconstitutional

seizure and detention. The affidavit used to obtain the warrant indicated that

the informant had been reliable in the past and explained that the police had

corroborated numerous details of this particular tip apart from any fruit of the

allegedly unconstitutional seizure and detention. Hence, even if we were to

reach this issue, we would conclude that the search was based on an

independent source.

* * *

Cabaniss’s conviction is AFFIRMED.