* Senior District Judge of the Eastern District of Louisiana, sitting by designation. IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 95-40113

_____________________

UNITED STATES OF AMERICA,

Plaintiff - Appellee

versus

JOSE JARAS,

Defendant - Appellant

_____________________

Appeal from the United States District Court

for the Eastern District of Texas

_____________________

June 11, 1996

Before: DeMOSS, DENNIS, Circuit Judges, and DUPLANTIER, District Judge. *

DENNIS, Circuit Judge:

Following a jury trial, Jose Jaras was convicted of possession of marijuana with

i ntent to distribute, in violation of 21 U.S.C. § 841(a)(1), and sentenced to 51 months

imprisonment and three years of supervised release. In this appeal, he raises the

following errors: (1) that the trial court erred in denying his motion to suppress evidence;

(2) that there was insufficient evidence to convict him of the possession with intent charge;

(3) that the prosecutor engaged in misconduct in failing to disclose impeachment material,

failing to bring perjury to the attention of the court in a timely manner, and vouching for the

credibility of a known perj urer; (4) that the district court misapplied the Sentencing

Guidelines in calculating the base offense level; and (5) that the district court failed to2

afford Jaras his right of allocution. Because we find error requiring reversal of Jaras's

conviction, we do not reach the sentencing issues presented in this case.

I. FACTS AND PROCEDURAL HISTORY

On April 1, 1994, police officer Don Mitchell stopped a car he observed swerving

on Highway 59 in Corrigan, Texas to determine if its driver, Ramon Salazar, was drunk.

Appellant, Jose Jaras, was riding in the car as a passenger. Officer Mitchell had Salazar

exit the vehicle and proceeded to question him. Salazar explained to the officer that he

had trouble staying in the lane because he was eating a hotdo g, an explanation

corroborated by the partially consumed hotdog he finished eating during the stop. Salazar

informed Officer Mitchell that he was traveling to Ohio to visit a sick friend, and identified

appellant as "Cheeto," stat ing that he had only known Cheeto for a couple of weeks.

While waiting for a computer check of the car, Officer Mitchell approached Jaras, who was

sitting in the front passenger seat, to question him. Jaras supplied a resident alien card

and stated that he and Salazar were traveling to Illinois to visit Salazar's uncle.1 At the time of the arrest, Jaras was nineteen years old, while Salazar was in his early

fifties.

2 Officer Mitchell's car was parked several feet behind Salazar's car on the shoulder

of Highway 59.

3 Officer Mitchell testified that he became suspicious that Salazar and Jaras were

transporting narcotics based on the conflicting stories he received, the difference in age

of the two, 1 and the unlikelihood that Salazar would make an extended trip with a relative

stranger. He asked Salazar, who was standing in front of the police car, 2 if there were any

drugs in the vehicle. W hen Salazar responded, "not that I know of," Officer Mitchell asked

if he could look in the car, and Salazar gave him permission to do so. Nothing in the

record indicates that Jaras, who had remained in the passenger seat of the car, heard this

exchange. The officer found no evidence from a search of the car's interior. In the trunk,

however, he found a garment bag and two suitcases. Salazar claimed ownership of the

garment bag and stated that the suitcases belonged to Jaras. Jaras, who had come to the

rear of the vehicle at Officer Mitchell's instruction, did not respond, and Officer Mitchell

informed him th at Salazar had given him permission to search the car. The officer

searched the garment bag and found no incriminating evidence. He then picked up the

suitcases, noted that they were heavy, and asked Jaras what was inside them. Jaras said

that he didn't know. The officer opened the suitcases and discovered a large quantity of

what he believed was marijuana. He arrested both Salazar and Jaras, and seized the

suitcases.

Jaras was charged by grand jury indictment with conspiracy to possess marijuana

with intent to distribute, in violation of 21 U.S.C. § 846, and possession of marijuana with

intent to distribute, in violation of 21 U.S.C. § 841(a)(1). The district court denied his

motion to suppress and, following a jury trial, Jaras was acquitted on the conspiracy count,

but found guilty on the possession charge. The district court sentenced him to 51 months

imprisonment, the minimum sentence under the Guidelines (based on an offense level of4

24 and a criminal history category of I), and 3 years of supervised release. Jaras timely

filed an appeal in this court.

II. SUFFICIENCY OF THE EVIDENCE

We first review Jaras's claim that the Government failed to add uce sufficient

evidence at trial to convict him on the possession with intent charge, because a finding in

appellant's favor on this issue prevents further prosecution of this charge under the double

jeopardy clause. S ee Burks v. United States

, 437 U.S. 1, 11, 98 S. Ct. 2141, 2147, 57

L.Ed.2d 1 (1978); Cordova v. Lynaugh

, 838 F.2d 764, 766 n.1 (5th Cir.), cert. denied

, 486

U.S. 1061, 108 S. Ct. 2832, 100 L.Ed.2d 93 2 (1988). In order to convict Jaras of the

offense of possession of marijuana with intent to distribute, the Government was required

prove that he (1) knowingly (2) possessed marijuana (3) with intent to distribute it. S ee

United States v. Diaz-Carreon

, 915 F.2d 951, 953 (5th Cir. 1990). Jaras claims that the

Government did not adequately prove the knowledge element of the offense, arguing that

Salazar, the sole w itness called by the Government to establish knowledge, did not

specifically testify that Jaras was aware of the purpose of the trip or that marijuana was in

the trunk of the vehicle, and that Salazar's testimony was "incredible" as he had clearly lied

on the witness stand.5

Our review for sufficiency of the evidence is a narrow one. W e must affirm if a

rational trier of fact could have found that the evidence established the essential elements

of the offense beyond a reasonable doubt. J ackson v. Virginia

, 443 U.S. 307, 319, 99 S.

Ct. 2781, 1789, 61 L.Ed.2d 560 (1979); United States v. Salazar

, 66 F.3d 723, 728 (5th Cir.

1995). W e thus consider the evidence, all reasonable inferences drawn therefrom, and

all credibility determinations in the light most favorabl e to the prosecution. G lasser v.

United States

, 315 U.S. 60, 80, 62 S. Ct. 457, 469 (86 L.Ed. 680 (1942); Salazar

, 66 F.3d

at 728; United States v. Resio-Trejo , 45 F.3d 907, 910-11 (5th Cir. 1995); United States

v. Casel

, 995 F.2d 1299, 1303 (5th Cir.), cer t. denied U.S. , 114 S.Ct. 472, 126

L.Ed.2d 424 (1993). Our role does not extend to weighing the evidence or assessing the

credibility of witnesses. G lasser

, 315 U.S. at 80, 62 S. Ct. at 469; Casel

, 995 F.3d at 1303.

The evidence need not exclude every reasonable hypothesis of innocence or be wholly

inconsistent with every conclusion except that of guilt, and the jury is free to choose among

reasonable constructions of the evidence. S alazar

, 66 F.3d at 728; Resio-Trejo

, 45 F.3d

at 911 (quoting United States v. Bell

, 678 F.2d 547, 549 (5th Cir. 1982)(en banc), aff'd on

other grounds , 462 U.S. 356, 103 S. Ct. 2398, 76 L.Ed.2d 638 (1983)).

The Government produced t hree witnesses in its case in chief. Officer Mitchell

testified regarding the stop of Salazar's vehicle, its search, and his seizure of the two

suitcases and arrest of Salazar and Jaras. Dennis Ramsey, a chemist-toxicologist working

for the Texas Department of Public Safety, testified that the substance in the two suitcases

seized by Officer Mitchell was marijuana that weighed slightly over one hundred pounds.

Jaras's co-defendant, Salazar, testified that he was delivering marijuana for two nephews

of his wife, Aleas and Johnny Garza, and that he had known Jaras, to whom he had been

introduced by Aleas Garza, for about a year. Salazar further explained how he received3 Salazar testified that he was instructed to drive to Deerfield Street in Houston and

wait there. W hile he waited next door with either Azilo Garza or the Garza brothers, "Big

Ray" took his car to obtain the marijuana. Big Ray returned the car about thirty minutes

later, and Salazar and Jaras subsequently left on the trip.

4 The presentence investigation report states that "on March 2, 1994, the defendant,

along with co-defendant, Ramon Salazar tran sported 100 pounds of marijuana from

Houston, Texas to Ohio," and added this amount to the quantity of marijuana seized from

the defendants on April 1, 1994 to arrive at a total amount of 200 pounds of drugs

attributed Jaras for purposes of determining his base level offense. The district court

adopted this finding in sentencing Jaras. Although we do not reach the sentencing issues

in this case, we note that Salazar testified at trial that the quantity of marijuana transported

to Lima, Ohio on the March 2 trip was fifty pounds.

6 the marijuana for the April 1, 1994, trip 3 and the details for payment. Regarding Jaras's

involvement, Salazar testified that Jaras had accompanied him on a prior trip, on March

2, 1994, to deliver 50 pounds of marijuana to Lima, Ohio; 4 that he had to pay Jaras $500

out the payment he received for the trip; that Jaras knew on the March 2 trip that marijuana

was in the car; and that he did not have to discuss the presence of the drugs with Jaras

on either of the two trips "because he already knew about it already."

Jaras argues that Salazar's testimony failed to demonstrate that he had knowledge

of the marijuana being transported on April 1, 1994. Review of that testimony, however,

clearly reveals sufficient indicia of knowledge to suppor t the jury's verdict. A conviction

may be based on the uncorroborated testimony of one accomplice if the testimony is not

insubstantial on its face. U nited States v. Gibson

, 55 F.3d 173, 181 (5th Cir. 1995); United

States v. Gadison , 8 F.3d 186, 190 (5th Cir. 1993). Jaras's real complaint is that the

testimony of his co-defendant was inherently unreliable or "incredible," and thus cannot

form the basis for establish ing knowledge, because Salazar demonstrably lied on the

witness stand. During cross examination by Jaras's attorney, Salazar repeatedly denied

that he had entered a plea agreement with the Government. That was not true. Although

the Government's attorney improperly failed to call this untruth to the attention of the

defense and the trial court, the trial court itself, during a recess following the close of the

Government's case, informed the defense of the plea agreement and offered the defense5 W e note that following Salazar's second trip to the witness stand, Jaras did not renew

his motion for a judgment of acquittal. W e do not think his failure to renew the motion

waived his sufficiency claim. W here a defendant rests without introducing new evidence,

he does not need to renew his motion for acquittal in order to preserve his objection to the

sufficiency of the evidence. United States v. Resio-Trejo

, 45 F.3d 907, 910 n. 6 (5th Cir.

1995)(citing Clark v. United States

, 293 F.2d 445, 448 (5th Cir. 1961; 2 Charles A. W right,

F EDERAL P RACTICE AND P ROCEDURE § 463 (1994)). In this case, Jaras moved for a

judgme nt of acquittal after the prosecution rested its case following Salazar's testimony

against Jaras. Because Salazar had been less than

truthful regarding the existence of a deal with the Government, and the Government did

not point this out during its case in chief, Jaras had to recall Salazar for the sole

purpose of impeaching him with the Giglio material that had not been supplied in time for

him to cross examine Salazar during the prosecution's case. Jaras's entire case consisted

of Salazar's testimony, after which the defense r ested. Thus, the only evidence Jaras

presented to the jury consisted entirely of evidence that should have and would have been

introduced d uring the Government's case had the prosecution not failed to produce the

impeachment evidence it was constitutionally and, under a discovery order, judicially

compelled to provide prior to Jaras's cross-exa mination of Salazar. Under these

circumstances, to fin d that Jaras had waived his sufficiency argument would simply

penalize Jaras for the Government's misconduct.

7 the opportunity to recall Salazar for purp o ses of impeachment. The defense agreed to

this, called Salazar to the stand as his sole wit ness, and "cross examined" him on the

details of the plea agreement and his failure to admit to it when previously testifying.

Confronted with the written plea agreement, Salazar admitted to sig ning it, although he

claimed to be unfamiliar with its details. The jury was thus fully informed of the potential

unreliability of Salazar's testimony against Jaras and gave his testimony whatever weight

it deemed appropriate. 5 W e may not invade the jury's province by substituting our own

credibility determinations for those of the jury. United States v. Lopez , 74 F.3d 575, 578

(5th Cir. 1996). Salazar's testimony does not rise to the level of "incredibility" because of

his false testimony with respect to his plea. See United States v. Casel , 995 F.2d 1299,

1304 (5th Cir.), cert. denied

, U.S. , 114 S. Ct. 472, 126 L.Ed.2d 424 (1993)("To be

found 'incredible' as a matter of law, the witness' testimony must be factually

impossible.")(citing United States v. Lindell

, 881 F.2d 1 313, 1322 (5th Cir. 1989), c ert.

denied

, 496 U.S. 926, 110 S. Ct. 2621, 110 L.Ed.2d 642 (1990) and United States v. Silva

,

748 F.2d 262, 266 (5th Cir. 1984)). As the jury could reasonably credit Salazar's testimony8

regarding Jaras's involvement in the offense despite Salazar's initial failure to admit the

existence of a plea agreement, we find th at sufficient evidence was adduced at trial to

support the jury's finding that Jaras was gui lty of possession with intent to distribute

marijuana.9 III. ILLEGALITY OF THE SEARCH

Prior to trial, Jaras moved to suppress the marijuana found in the suitcases as the

fruit of an illegal search. The district court denied Jaras's motion, finding in pertinent part

both that Officer Mitchell reasonably believed the scope of consent included the suitcases

and that Jaras impliedly consented to a search of his suit cases. Specifically, the court

observed:

In this case, the record establishes that prior to the search of the

luggage, Jaras was informed that the driver had consented to a search of the

vehicle. Jaras stood by and made no objection when the officer searched

his luggage. Indeed, Jaras equivocated somewhat about his ownership of

the bag when he indicated to the officer that h e did not know what was

inside. Considering these facts in conjunction, the Court is convinced that

Officer Mitchell was objectively reasonable in believing that the scope of the

consent included the suitcases. The Court further finds that Jaras impliedly

consented to the search.

It is well established that warrantless sea rches violate the Fourth Amendment

unless they fall within a specific exception to the warra nt requirem ent, U nited States v.

Karo

, 468 U.S. 705, 717, 104 S. Ct. 3296, 3304, 82 L.Ed.2d 530 (1984), and that consent

is "one of the specifically established exceptions to the requirements of both a warrant and

probable cause." S chneckloth v. Bustamonte

, 412 U.S. 218, 219, 93 S. Ct. 2041, 2043-44,

36 L.Ed.2d 854 (1973); United States v. Jenkins , 46 F.3d 447, 451 (5th Cir. 1995). The

government concedes that Officer Mitchell lacked probable cause to search the car or its

contents; consequently, the validi ty of the search turns entirely on the effectiveness of

consent given for the search. In order to demonstrate consent, the government must

establish by a preponderance of evidence that consent was voluntary, id. at 451; United

States v. Hurtado

, 905 F.2d 74, 76 (5th Cir. 1990)(en banc), and must show that either the

defendant himself consented to the search or that consent was obtained from a third party

who had the ability to furnish valid consent. U nited States v. Matlock

, 415 U.S. 164, 171,

94 S. Ct. 988, 993, 39 L.Ed.2d 242 (1974); Jenkins , 46 F.3d at 451.

As one basis for its finding that the search was constitutionally firm, the district court10

found that Officer Mitchell was objectivel y reasonably in believing that the scope of

consent extended to the suitcases. There is no question here that Salazar's consent to

search the vehicle was voluntary and validly extended to a search of the vehicle itself and

Salazar's garment bag. However, as the district court recognized in addressing the issue

of standing, Jaras had a reasonable expectation of privacy with respect to the contents of

his suitcases. U

nited States v. Buchner

, 7 F.3d 1149, 1154 (5th Cir. 1993), cert. denied

,

U.S. , 114 S. Ct. 1331, 127 L.Ed.2d 378 (1994); U nited States v. Kelley

, 981 F.2d

1464, 1467 n. 1 (5th Cir.), cert. denied 113 S. Ct. 2427, 124 L.Ed.2d 647 (1993). For the

search to be valid pursuant to Salazar's consent, the Government had to demonstrate that

Salazar had actual or apparent authority to consent to a search of the luggage. S ee Illinois

v. Rodriguez

, 497 U.S. 177, 186-87, 110 S. Ct. 2793, 111 L.Ed.2d 148 (1990); Matlock,

415 U.S. at 169-70, 94 S. Ct. at 922.

A finding of actual authority requires proof that the consenting party and the party

challenging the search "mutually used the property searched and had joint access to and

control of it for most purposes, so that it is reasonable to recognize that either user had the

right to permit inspection of the property and that the complaining co-user had assumed

the risk that the consenting co-user might permit the search." United States v. Rizk , 842

F.2d 111, 112-13 (5th Cir.)(per curiam), cert. denied

, 480 U.S. 832, 109 S. Ct. 90, 102

L.Ed.2d 66 (1988). The government presented no evidence of joint access or control at

the suppression hearing. The fact that Jaras's suitcases were contained in the trunk of a

car in which he was a passenger is insufficient to show that Salazar mutually used and had

joint con trol over the suitcases. S ee United States v. Welch

, 4 F.3d 761, 764 (9th Cir.

1993)(boyfriend's actual authority to consent to sear ch of rental car did not extend to

search of girlfriend's purse located in its trunk); State v. Suazo

, 627 A.2d 1074, 1077 (N.J.

1993)("in absence of evidence of joint access to or control over property found in vehicle,

a driver's apparent authority to consent to a search of the car does not include the11

authority to permit a search of the personal belongings of other passengers"); L edda v.

State

, 564 A.2d 1125, 1129 (Del. 1989)(driver lacked authority to consent to search of

passeng er's suitcases); S tate v. Zachodni

, 466 N.W .2d 624, 628 (S.D. 1991)(driver's

consent to search pickup truck did not extend to passenger's purse).

Nor did the Government demonstrate that Salazar had apparent auth ority to consent

to the search of the suitcases, a finding that would require proof that the searching officers

"reasonably (though erroneously) believe[d] that the person who has consented to their"

search had authority to do so. I llinois v. Rodriguez

, 497 U.S. at 186, 110 S. Ct at 2800.

Here, Officer Mitchell did not mistakenly rel y on information that, if true, would have

justifi ed a belief that Salazar had actual authority to consent to a search of the luggage

putatively belonging to Jaras. Rather, Salazar clearly informed Officer Mitchell that the two

suitcases did not belong to him and that they belonged to appellant. Salazar's statement

that the suitcases were not his placed Officer Mitchell on notice that his consent to search

did not extend to the luggag e. The statement established that Salazar did not have

authority to consent to a search of the suitcases and any reliance on Salazar's consent

was therefore unreasonable. S ee United States v. Infante-Ruiz

, 13 F.3d 498, 505 (1st Cir.

1994)(holdin g that it was not objectively reasonable for officer to believe that driver's

consent to search car extended to closed briefcase because the driver had identified it as

belonging to passenger); Welch

, 4 F.3d at 765 (officers could not reasonably believe that

boyfriend's consent to search car extended to a search of defendant's purse located in

trunk of vehicle); United S tates v. Salinas-Cano , 959 F.2d 861, 865-66 (10th Cir. 1992)

(officer could not reasonably believe gi rlfriend had authority to consent to search of

defendant's suitcase simply on the basis of its presence in girlfriend's home). Moreover,

it was within Salazar's rights to define the parameters of the search, and his remark that

the suitcases belonged to Jaras, regardless of its truth, clearly l imited the scope of his

consent. S ee Jimeno

, 500 U.S. at 252, 111 S. Ct. at 1804 ("A susp ect may of course12

delimit as he chooses the scope of the search to which he consents."). W e thus conclude

that the search was not justified on the basis of Salazar's general consent to search the

vehicle.

The district court also found that the search was valid on the ground that Jaras had

"impliedly consented" to the search. The district court relied on the facts that Jaras was

informed that Salazar had consented to a search of the car and that Jaras stood by and

made no objection when the officer searched his suitcases, as well as its belief that Jaras

"equivocated somewhat" about ownership when he indicated he did not know what was

inside the suitcases. Typically, when determining whether consent is voluntary, the court

looks to the totality of circumstances to assess whether t he defendant has freely given

consent. U

nited States v. Jenkins

, 46 F.3d 447, 451 (5th Cir. 1995). In this instance,

Officer Mitchell did not ask Jaras wh e ther he could search the luggage, Jaras was not

present when Salazar gave his consent to search the vehicle, and there is no evidence in

the record that Jaras even heard Officer Mitchell ask Salazar for permission to search the

car. W e do not think that consent may reasonably be implied from Jaras’s silence or

failure to object because Officer Mitchell did not expressly or impliedly ask for his consent

to search. In United States v. Shaibu

, 920 F.2d 1423 (9th Cir. 1990), opinion amended by

912 F.2d 1193 (9th Cir. 1990), the Ninth Circuit held that a defendant had not impliedly

consented to a search of his home by his failure to object when police followed him inside.

The court observed:

In Shaibu's case, no affirmative acts took place. He opened the door

not to let the police enter, but only for himself to step out of the apartment to

m eet visitors outside rather than inside. There is no contention that the

police expres sly or impliedly asked consent to enter nor that Shaibu

expressly granted or refuse d entry. It is one thing to infer consent from

actions responding to a police request. It is quite another to sanction the

p olice walking in to a person's home without stopping at the do or to ask

permission.

. . . To infer consent in this case is only a conjecture and would

exceed the scope of any recognized exception to the Fourth Amendment's

bar to warrantless entry of the home.

Id. a t 1427. S ee also United States v. Most

, 876 F.2d 191, 199 (D.C. Cir. 1989)(store6 In finding otherwise, the district court relied on United States v. Varona-Algos , 819

F.2d 81, (5th Cir.), cert. denied

, 484 U.S. 929, 108 U.S. 296, 98 L.Ed.2d 255 (1987), in

which a panel of this court approved a search of the defendant's luggage both pursuant

to the driver's general consent to search his vehicle and the defendant's "implied consent,"

where the passenger purportedly “equivocated” about his ownership of the bag and did not

object to the officer's search. W e find that V arona is not dispositive for two reasons. First,

the case is factually distinguishable. In

Varona

, the state trooper conducting the search was evidently acting on an informant’s tip

that the occupants of a “maroon-colored Datsun with Florida license tags” were carrying

illegal drugs, id. at 82, both the driver and defendant-passenger were present when the

driver was asked to and did sign a written consent to search both t he vehicle and its

contents, and during the search the driver did not clearly limit the scope of his consent by

indicat ing that the luggage did not belong to him. Further, in finding that the defendant

had impliedly consented to the search by his failure to object, the trial court in V arona specifically found that the defendant was aware of his rights at the time of the search.

Second, Varona was decided in 1987, prior to the Supreme Court's decisions in Illinois v. Rodriguez

, 497 U.S. 177, 110 S. Ct. 2793, 111 L.Ed.2d 148 (1990), and Florida v. Jimeno

, 500 U.S. 248, 111 S. Ct. 1801, 114 L.Ed.2d 297 (1991), which made clear that the fourth

amendment requires the government to show that police conduct was " objectively

13 employees' cooperation did not amount to implied consent to search of defendant's bag

when there was no proof that officers had requested permission to search the bag); State

v. Meyer

, 852 P.2d 879, 886 (Or. Ct. App. 1993)(en banc) (husband's failure to object to

search of car when infor med of wife's consent was not implied consent curing wife's

involuntary consent where officers did not ask defendant for consent to search). It is well

est ablished that a defendant's mere acquiescence to a show of lawful authority is

insufficient to establish voluntary consent. See Bumper v. North Carolina , 391 U.S 543,

548-49, 88 S. Ct. 1788, 1792, 20 L.Ed.2d 797 (1968); United St a tes v. Cooper

, 43 F.3d

140, 145 n.2 (5th Cir. 1995)(citing United States v. Most

, 87 6 F.2d 191, 199 (D.C.Cir.

1989); United States v. Gonzales , 842 F.2d 748, 754 (5th Cir. 1988), overruled on other

grounds by United Stat e s v. Hurtado

, 905 F.2d 74 (5th Cir. 1990)(en banc). Under the

circumstances of the present case, Jaras’s consent to a search of the suitcases cannot be

inferred from Jaras’s silence a nd failure to object because the police officer did not

expressly or implicitly request Jaras’s consent prior to the search. As Officer Mitchell did

not have consent to search the suitcases, the marijuana he seized was the fruit of an

illeg al search and should have been suppressed by the trial court. 6 The case mustreasonable." As the V arona court did not analyze the search under this standard, its

decision provides virtually no guidance in determining the validity of the search here.

7 Given our disposition of the case, it is unnecessary to reach the rem aining errors

complained of by Jaras, including that the Government attorney engaged in prosecutorial

miscon duct by failing to disclose impeachment material, failing to bring perjury to the

attention of the court in a timely manner, and vouching for the credi bility of a known

perjurer.

DUPLANTIER, DISTRICT JUDGE, dissenting:

I respectfully dissent from the majority's conclusion that

Officer Mitchell did not have consent to search the suitcases. I

would affirm the denial of the motion to suppress for essentially

the same reasons assigned by the district judge and also because

under the circumstances the sea r ching officer was objectively

reasonable in concluding that he did not need defendant's consent.

A brief recitation of the circumstances faced by Officer

Mitchell when he conducted the search in question is helpful in

determining whether he was "objectively reasonable"

in deciding

that he had the right to search the defendant's suitcases.

Defendant Jose Jaras was a passenger in an automobile owned and operated by

Ramon Salazar when Officer Don Mitchell stopped the vehicle because he suspected

the driver was intoxicated. At Mitchell's direction, Salazar got out of the car and stood

in front of Mitchell's automobile, which was parked behind Salazar's car. In response to

questioning by Officer Mitchell, Salazar stated that he was driving to Ohio to visit a sick

friend, that his passenger's name was "Cheeto", and that he had known the passenger

for "a week or two." Officer Mitchell then spoke to defendant, who had remained

seated in the front passenger seat. W hen asked for identification, defendant produced

a resident alien card, and in response to questions by Officer Mitchell, stated that he

was accompanying Salazar to Illinois to visit Salazar's uncle. Officer Mitchell's

suspicions were sparked by several facts: Salazar and Jaras told conflicting stories,

Salazar knew only defendant's nickname, and Salazar had known the defendant only a

brief period of time. Officer Mitchell was also suspicious because of the considerable

14 therefore be remanded for further proceedings. 7

. F lorida v. Jimeno

, 500 U.S.

2 48, 251, 111 S.Ct. 1801, 1804, 114 L.Ed.2d 297 (1991). 8

. it isage difference between Salazar and Jaras.

Officer Mitchell returned to Salazar and asked him whether there were any narcotics

or illegal contraband in the car; Salazar responded, "not that I know of." This further

spurred Officer Mitchell's suspicions. Thereafter he asked Salazar for consent to

search the vehicle and its contents, which was granted.

After searching the interior of the car, but prior to

searching the trunk, Officer Mitchell escorted defendant to the rear of the car where

Salazar was. Officer Mitchell informed Jaras that Salazar had consented to the search

of the car. Two suitcases and a garment bag were in the trunk. Officer Mitchell asked

to whom the luggage belonged. Salazar said that the garment bag was his and that the

suitcases belonged to Jaras. Jaras did not claim that the suitcases were his; he

remained silent. After searching the garment bag, Officer Mitchell picked up the

suitcases, noted that they seemed heavy, and asked Jaras what was in the suitcases.

Jaras replied that he did not know what was in the suitcases. Officer Mitchell then

opened the suitcases and found the marijuana which was the subject of the motion to

suppress. At no time did Jaras object to the search of the suitcases.

In denying the motion to suppress, the district court relied upon United States v.

Varona-Algos , 819 F.2d 81 (5th Cir.), cert. denied 484 U.S. 929, 108 S.Ct. 296, 98

L.Ed.2d 255 (1987). In Varona , a passenger in an automobile which had been stopped

by a state trooper was held to have impliedly consented to the search of his luggage in

the trunk of the car when he failed to object to the search, which was conducted after

the trooper had obtained the consent of the driver of the vehicle to search the vehicle

and its contents. I agree with the district court that Varona is dispositive of the issues

involved herein.

Although the facts in Varona and the instant case are remarkably similar, the

majority points to several factual

distinctions in support of the conclusion that Varona is not dispositive. Needless to

say, no two cases will involve precisely the same facts. The factual differences

between Varona and the instant case are of little consequence and certainly do not

justify us not applying that decision here. One of the majority's factual distinctions is

that, unlike the defendant in Varona , defendant Jaras was not present when the

consent to search the vehicle and its contents was obtained from the driver. But Jaras

was told before the search of his suitcases that the driver had consented to the search.

Thus in both cases the passenger defendants were aware of the driver's consent prior

to the search of their luggage. It cannot matter that defendant Jaras learned of the

driver's consent a few minutes after it was given, so long as he knew of it before the

search of his suitcases.

The majority also points out that in Varona the vehicle owner did not limit the scope

of his general consent to search the vehicle as did defendant Jaras' driver, Salazar,

who told Officer Mitchell before the search of the suitcases that they were not his. This

distinction strengthens rather than weakens the conclusion that Jaras impliedly

consented to the search of the suitcases. Salazar's statement, in Jaras' presence, that

the suitcases belonged to Jaras, strongly supports the conclusion that by remaining

silent thereafter Jaras impliedly consented to the search.

A third factual distinction relied upon by the majority is

that there was no finding by the district court that the defendant was aware of his rights

at the time of the search as there was in Varona . There is no absolute requirement that

the government establish that the defendant knew that he had the right to refuse

consent to search his property. United States v. Gonzales , 79 F.3d 413, 421 (5th Cir.

1996). Thus the fact that the district court made no specific finding on that issue is not

15dispositive. In any event, the fact that prior to the search defendant Jaras was told by

the officer that Salazar had consented to the search would put any reasonable person

on notice that consent was a pre-requisite to search.

The majority introduces a new requirement for implied consent: it must be preceded

by "an express or implied request" to search by the police officer. The Ninth Circuit

case relied upon, United States v. Shaibu , 920 F.2d 1423 (1990), involves facts very

different from this one. The majority concludes that "Jaras's consent to a search of the

suitcases cannot be inferred from Jaras's silence and failure to object because the

police officer did not expressly or implicitly request Jaras's consent prior to the search."

Varona , upon which the district court relied, makes no mention of a requirement that

the police officer "expressly or impliedly request" consent as a prerequisite for implied

consent to search. The majority offers no analysis of what would constitute an "implied

request" to search. I am unable to understand how a police officer could "impliedly

request" consent to search; I am

convinced that there is no such thing. Indeed, the concept of implied consent involves

situations in which because of the circumstances the police officer need not request

consent.

The majority also concludes in effect that Varona is not binding precedent because

in Varona the court did not analyze the search using the "objectively reasonable"

standard enunciated later in Illinois v. Rodriguez , 497 U.S. 177, 110 S.Ct. 2793, 111

L.Ed.2d 148 (1990) and Florida v. Jimeno , 500 U.S. 248, 111 S.Ct. 1801, 114 L.Ed.2d

297 (1991)

In Rodriguez

, consent to enter an apartment was given by the girl friend of the

apartment's occupant, who used her key to the apartment to obtain entry. She referred

to the apartment as "our" apartment and told police that she had clothes and furniture

in the apartment; in fact, she had previously moved out of the apartment. The lower

courts concluded that because the woman did not have common authority over the

premises at the time she allowed police to enter, her consent to enter the apartment

was invalid. The Supreme Court reversed, despite the fact that entry was provided by

someone who did not have common authority over the premises. The determination of

validity of the consent to enter is judged against an objective standard: given the facts

available to the officer at time, a peace officer of reasonable caution would conclude

that the consenting party had authority over the premises. Illinois v. Rodriguez , 497

U.S. at 188, 110 S.Ct. at 2801.

In Jimeno , the Supreme Court applied the objectively

reasonable standard in analyzing whether the search of a paper bag located in a

vehicle conducted pursuant to the vehicle owner's consent was valid. The lower courts

invalidated the search because the police officer failed to obtain specific consent to

search the paper bag. The Supreme Court reversed; the search was valid because it

was objectively reasonable for the officer to believe that the scope of the consent

permitted him to open the paper bag.

Under Rodriguez

and Jimeno , a search is valid if, considering the circumstances

known to the officer at the time of the search, the officer was objectively reasonable in

concluding that he had consent to search.

The "objectively reasonable" standard is less stringent than that applied in Varona

. In upholding the validity of the search in Varona , the court affirmed the district court's

conclusion that the defendant had impliedly consented to the search. Under Rodriguez

and Jimeno , a search can be upheld if it was objectively reasonable for the officer to

conclude that there was implied consent for the search, even if the officer's conclusion

was erroneous. Intervening Supreme Court cases rejecting a more restrictive

16application of the exclusionary rule can hardly be the basis for concluding that an

earlier Fifth Circuit decision validating a search is no longer binding precedent.

The effect of the majority's decision is to jettison the principle of implied consent.

W hile the doctrine of implied consent has not been applied often,

it nonetheless remains valid

especially in light of the less stringent "objectively reasonable" standard articulated by

the Supreme Court in Rodriguez and Jimeno

. In addition to the implied consent relied upon by the district judge, I conclude that

the search was valid because at the time the search of the suitcases was executed

Jaras no longer had a right of privacy in the contents of the suitcases. Considering

Officer Mitchell's statement to defendant that Salazar had consented to the search,

Salazar's statement in defendant's presence that the suitcases were defendant's

suitcases, defendant's failure to claim the suitcases, defendant's failure to object to the

search, and his statement that he did not know what was in the suitcases,

the "search and seizure did not infringe an interest of the defendant which the Fourth

Amendment was designed to protect." Rakas v. Illinois , 439 U.S. 128, 140, 99 S.Ct.

421, 429, 58 L.Ed.2d 387 (1978). Officer Mitchell was objectively reasonable in

concluding that he did not need Jaras' consent, implied or express, to search the

suitcases.

17 worth noting that Varona has been cited with approval. S ee United

States v. Eldridge

, 984 F.2d 943, 948 (8th Cir. 1993). 9

. In United

States v. McCann, 465 F.2d 147 (5th Cir. 1972), cert. denied , 412

U.S. 927, 93 S. Ct. 2747, 37 L.Ed.2d 154 (1973), the court relied

upon a similar disclaimer of knowledge by an occupant of an automobile with respect to the contents of the car and of a

briefcase therein to support its conc lusion that the officer had

probable cause to search the automobile and the briefcase. 10

DECREE

For the foregoing reaso ns, the conviction and sentence are

re versed and the case is remanded for further proceedings not

inconsistent with this opinion.