USA v. Leroy Luckey

Filing

UNPUBLISHED OPINION FILED. [10-50068 Affirmed ] Judge: WED , Judge: JES , Judge: LHS Mandate pull date is 12/09/2010 for Appellant Leroy Herschel Luckey [10-50068]

USA v. Leroy Luckey ase: 10-50068 C

Document: 00511298196 Page: 1 Date Filed: 11/18/2010

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 10-50068 S u m m a r y Calendar November 18, 2010 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t if f -A p p e lle e , versu s L E R O Y HERSCHEL LUCKEY, Also Known as Trey, Also Known as Trey Luckey, D e fe n d a n t -A p p e lla n t .

A p p e a l from the United States District Court fo r the Western District of Texas N o . 7:09-CR-228-3

B e fo r e DAVIS, SMITH, and SOUTHWICK, Circuit Judges. P E R CURIAM:*

L e r o y Luckey appeals his conviction of aiding and abetting the possession w it h intent to distribute a quantity of a mixture and substance containing methPursuant 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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Case: 10-50068 Document: 00511298196 Page: 2 Date Filed: 11/18/2010 No. 10-50068 a m p h e ta m in e , in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C), and 18 U.S.C. § 2. Luckey argues that the district court erred in denying his motion to supp r e s s evidence that was obtained from the search of a vehicle in which he was a passenger. He contends that the traffic stop violated the Fourth Amendment b e c a u s e the stop was performed by an officer who did not personally witness the t r a ffic violation but rather performed the stop based on the observations of ano t h e r officer. " T h is Circuit's standard of review for a motion to suppress based on live t e s t im o n y at a suppression hearing is to accept the trial court's factual findings u n le s s clearly erroneous or influenced by an incorrect view of the law." United S ta te s v. Alvarez, 6 F.3d 287, 289 (5th Cir. 1993). Questions of law, including w h e t h e r the district court's ultimate conclusions of Fourth Amendment reasonab le n e s s are correct, are reviewed de novo. United States v. Paige, 136 F.3d 1012, 1 0 1 7 (5th Cir. 1998). The facts are viewed in the light most favorable to the prev a ilin g party. Id. Traffic stops are seizures within the meaning of the Fourth Amendment. United States v. Grant, 349 F.3d 192, 196 (5th Cir. 2003). Although Luckey, as a passenger, lacks standing to challenge the search of the car, he has "standing t o challenge the seizure of his person as unconstitutional." Id. The legality of t r a f fic stops is analyzed under the reasonable suspicion standard of Terry v. O h io , 392 U.S. 1 (1968), which looks to "whether the officer's action was justified a t its inception" and "whether the search or seizure was reasonably related in s c o p e to the circumstances that justified the stop in the first place." Grant, 349 F .3 d at 196. R e g a r d in g whether the search was justified at its inception, Luckey does n o t challenge that a traffic violation occurred. His argument that the search was u n r e a s o n a b le because the officer who initiated the traffic stop did not personally o b s e r v e the traffic violation is without merit. According to the "collective knowle d g e doctrine," an officer may rely on information supplied by other officers that 2

Case: 10-50068 Document: 00511298196 Page: 3 Date Filed: 11/18/2010 No. 10-50068 in d ic a t e s that an offense has occurred. United States v. Ibarra-Sanchez, 199 F .3 d 753, 759 (5th Cir. 1999). Regarding the scope of the search, the officer who initiated the stop was c o n s t it u t io n a lly permitted to order the driver to step out of the automobile. United States v. Shabazz, 993 F.2d 431, 437 n.7 (5th Cir. 1993). When the driver d id so, the officer observed a drug pipe, in the compartment of the door, that prov id e d additional reasonable suspicion of criminal activity and a basis for continu e d detention. See Grant, 349 F.3d at 198; United States v. Gonzalez, 328 F.3d 7 5 5 , 758 (5th Cir. 2003). T h e officer then requested permission to search the vehicle, and the driver c o n s e n te d . Luckey does not challenge the consensual nature of the search, see S h a b a z z , 993 F.2d at 438, or contend that it exceeded the scope of the consent, s e e United States v. Solis, 299 F.3d 420, 436 (5th Cir. 2002). A search conducted p u r s u a n t to consent is excepted from the Fourth Amendment's warrant and p r o b a b le cause requirements. Id. Also, a voluntary consent to search cures "any e a r lie r ostensibly illegal detention." United States v. Navarro, 169 F.3d 228, 232 (5 t h Cir. 1999). Finally, Luckey's reliance on Knowles v. Iowa, 525 U.S. 113, 1 1 4 -1 5 (1998), is misplaced, because this case, unlike Knowles, involves a cons e n s u a l search. T h e judgment is AFFIRMED.

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