IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

S))))))))))))))Q

No. 94-40368

S))))))))))))))Q

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JEROME ARTHUR CHAVIS,

Defendant-Appellant.

S))))))))))))))))))))))))Q

Appeal from the United States District Court for the

Eastern District of Texas

S))))))))))))))))))))))))Q

(March 17, 1995)

Before KING, GARWOOD and BENAVIDES, Circuit Judges.

PER CURIAM:

Defendant-appellant Jerome Arthur Chavis (Chavis) was

convicted, following a jury trial, of possession on August 26,

1992, of cocaine with intent to distribute it, contrary to 21

U.S.C. § 841(a)(1), and was sentenced therefor to seventy months'

imprisonment and a five-year term of supervised release. About

11:00 p.m. on the evening of August 26, 1992, Chavis was the driver

and sole occupant of a car headed east on Interstate 10 in Orange

County, Texas, and was stopped by a Texas Department of Public

Safety Officer who observed him change lanes without a signal,

contrary to Texas law. The vehicle was subsequently searched by2

the officer at the site of the stop, and a piece of luggage in its

trunk was found to contain so me 2.5 pounds of cocaine. This was

the basis of the prosecution. Chavis moved to suppress the fruits

of the search, contending that it violated his Four th Amendment

rights. Following a pretrial evidentiary hearing, the district

court overruled the motion. United States v. Chavis , 841 F.Supp.

780 (E.D. Tex. 1993). Chavis now appeals his conviction and

sentence, complaining only of this ruling.

As Chavis correct ly points out, the district court erred in

placing the burden of proof on hi m. Id . at 782. Chavis had

established, and it was always undisputed, that the stop and search

were without a warrant. He had also adequately shown standing, and

that, too, was never contested. In these circumstances, "'the

burden shifts to th e government to justify the warrantless

search.'" United States v. Roch , 5 F.3d 894, 897 (5th Cir. 1993)

(quoting United States v. De La Fuente , 548 F.2d 528, 533 (5th

Cir.), cert. denied , 97 S.Ct. 2640 (1977)). The district court's

findings hence may have been influenced by an erroneous view of the

law.

We accordingly vacate Cha vis' conviction and sentence and

remand to the district court to redetermine the suppression issue

under the correct burden of proof . If in doing so the court

o verrules the motion, it shall reinstate the conviction and

sentence, and Chavis may again appeal (if the court grants the

motion, the government may appeal). S ee United States v. Robinson

,

625 F.2d 1211, 1220-21 (5th Cir. 1980); United States v. Karman

,

849 F.2d 928, 932 (5th Cir. 1988) . On remand the district court1 We note that Officer Davis who stopped Chavis testified that

he radioed for information on Chavis personally and on his vehicle,

and that when, not long after the stop, he asked , and Chavis

declined, permission to search the vehicle , he had received back

information on Chavis himself but not on the vehicle. Several

minutes therea fter, at the call of Davis, other officers arrived

with a narcotics-sniffing dog who ultimately alerted to the

vehicle. Davis was never asked S Q and never stated SQ whether by this

time he had heard back concerning the vehicle. Cf. United States

v. Shabazz

, 993 F.2d 431, 437 (5th Cir. 1993). As the district

court observed, "the record does not specify when the computer

check on the car's registration was completed." Chavis at 783.

3 may SQ indeed, should SQ reopen the s uppression hearing to allow

additional evidence. 1 It should also address the "good faith" rule

of United States v. DeLeon-Reyna

, 930 F.2d 396, 401 (5th Cir.

1991), particularly as it might relate to the length of the

detention.

The conviction and sentence are VACATED, and the cause is

REMANDED for further proceedings consistent herewith.