              IN THE UNITED STATES COURT OF APPEALS

                         FOR THE FIFTH CIRCUIT

                         _____________________

                              No. 92-4742
                         _____________________


     UNITED STATES OF AMERICA,

               Plaintiff-Appellee,

     v.

     ROBERT RYLES, JR.

               Defendant-Appellant.

_________________________________________________________________

           Appeal from the United States District Court
               for the Eastern District of Texas
_________________________________________________________________
                         (March 25, 1993)

Before KING and EMILIO M. GARZA, Circuit Judges, and COBB*,
District Judge.

KING, Circuit Judge:

     Robert Ryles appeals the district court's denial of his pre-

trial motion to suppress evidence of drug and weapon possession.

Ryles conditionally pled guilty to possession of cocaine with the

intent to distribute, a violation of 18 U.S.C. § 841(a)(1), but

reserved his right to appeal the district court's denial of the

motion to suppress.    Ryles also appeals the district court's

increase of Ryles' offense level pursuant to § 2D1.1(b)(1) of the

United State Sentencing Guidelines.    Finding no error, we affirm


     *
       District Judge of the Eastern District of Texas, sitting
by designation.
both Ryles' conviction and sentence.



                               I.

     The following facts are essentially undisputed.      On

September 20, 1991, at approximately 1:30 a.m. on a rural East

Texas highway, Trooper Barry Washington of the Texas Department

of Public Safety noticed that a brown van changed lanes without

signaling.    Because the driver, Appellant Ryles, had violated a

Texas traffic regulation, Washington ordered the van, which

carried numerous passengers, to pull over along side the highway.

After pulling over, Ryles immediately exited the van and

approached Washington, who had also exited his patrol car and was

approaching the driver's side of the van.

     Washington asked Ryles, the admitted driver of the van, to

produce a driver's license.    Ryles responded that he did not have

one, and instead only produced an Illinois identification card.

Washington also asked Ryles whether there was liability insurance

on the van, as required by Texas law.    Ryles indicated that he

was not the owner of the van and was unaware whether it was

insured.    Because Washington smelled alcohol on Ryles' breath,

Ryles was required to submit to a roadside sobriety test, which

Ryles passed to Washington's satisfaction.    Nevertheless, because

Ryles was not a licensed driver, Washington asked Ryles whether

any of the passengers in the van possessed a driver's license.

Ryles responded that he believed that one of the passengers was

licensed.    Washington accordingly approached the van.    Almost


                                    2
immediately after he reached the driver's door, he smelled burnt

marijuana.2    A subsequent warrantless search of the van yielded

cocaine and the weapon that formed the basis of Ryles' conviction

and sentence.3

                                  II.

A. Ryles' Fourth Amendment claim

          On appeal, it is disputed whether Trooper Washington

opened the driver's side door or stuck his head inside an open

window before he smelled the marijuana.4    The district court

failed to make a finding regarding whether Washington smelled the

marijuana before he pierced the airspace inside the vehicle.

Ryles argues that we should remand the case to the district court

for further fact-finding.     The Government argues that, even if

Washington pierced the airspace inside the van before he smelled

the burnt marijuana, such an act was not an unconstitutional

warrantless "search" within the meaning of the Fourth Amendment.

         We disagree with the Government that Washington's action

did not constitute a "search" for Fourth Amendment purposes.

Irrespective of when he smelled the marijuana, Washington,

     2
       It   is undisputed on appeal that Washington's smelling the
marijuana   afforded probable cause to engage in a warrantless
search of   the van. See United States v. Merryman, 630 F.2d 780,
784 (10th   Cir. 1980).
     3
       Ryles argues that the cocaine and weapon seized should be
suppressed as "fruits from a poisonous tree." See Wong Sung v.
United States, 371 U.S. 471 (1963).
     4
       At the pre-trial suppression hearing, Washington did not
remember whether he had placed his head inside the vehicle. A
passenger in the vehicle testified that Washington opened the
van's door and stuck his torso inside the vehicle.

                                   3
without a search warrant, intruded inside a space that, under

most circumstances, is protected by a legitimate expectation of

privacy.   See United States v. Pierre, 958 F.2d 1304 (5th Cir.

1992) (en banc); cf. United States v. Lovell, 849 F.2d 910, 913

(5th Cir. 1988) (airspace around luggage transported on common

carrier not protected zone of privacy under Fourth Amendment).

Although there is generally a diminished privacy interest in an

automobile, as opposed to a residence, see, e.g., Chambers v.

Maroney, 399 U.S. 42 (1970), a driver or car owner does not

abandon all expectations of privacy.

     Nevertheless, like any other Fourth Amendment privacy

interest, the expectation of privacy in the inside airspace of an

automobile is not absolute.   Rather, if Washington's intrusion

was reasonable, his "search" was not a Fourth Amendment

violation.   See Maryland v. Buie, 494 U.S. 325, 331 (1990) ("It

goes without saying that the Fourth Amendment bars only

unreasonable [warrantless] searches and seizures.").    As the

Court noted in Buie, "[o]ur cases show that in determining

reasonableness, we have balanced the intrusion of the

individual's Fourth Amendment interests against [the] promotion

of legitimate governmental interests."   Id.

     In the particular factual context of the instant case, we do

not believe that Trooper Washington would have been unreasonable

either in placing his head inside the interior of the van through

an open window or in opening the driver's door and placing his

torso inside, even assuming he did not smell marijuana before the


                                 4
intrusion.   Our conclusion is based on the reason behind

Washington's actions.   After pulling over a van in the wee hours

of the morning on a relatively deserted Texas highway, Washington

was immediately approached by the driver, who smelled of alcohol

and admitted that he had no driver's license.   Even though Ryles

was not intoxicated, he still could not lawfully drive the van.

At the Ryles' own suggestion, Washington approached the van to

inquire whether anyone else in the van was licensed and could

drive the vehicle away.   Although he did not say so at the

suppression hearing, we believe that Washington would have

considered it necessary to determine whether the passenger who

would ultimately be driving the van was impaired by alcohol --

since, after all, Ryles had alcohol on his breath.   Even assuming

that he walked up to the driver's door and opened it without

knocking, Washington would only have been attempting to assure

that the van would be driven safely.   We can hardly say that this

would have been unreasonable.   Cf. New York v. Class, 475 U.S.

106 (1986) (police officer's intrusion into interior of vehicle

to remove papers obstructing VIN number not unreasonable

warrantless search).

     Ryles further argues that Washington's actions -- again

assuming that he intruded into the interior of the van before

smelling burnt marijuana -- were unreasonable because he did not

pursue the "least intrusive" course in inquiring about whether

any of the van's passengers were licensed.   In particular, Ryles

argues that Washington could have asked the passengers to step


                                 5
outside the van.   Again, in view of the particular circumstances

facing Washington -- including the fact that it was Ryles himself

who suggested that Washington ask the other passengers if they

were licensed, cf. Illinois v. Rodriguez, 497 U.S. 177 (1990)

(warrantless search valid when police reasonably believe they

have consent to search) -- we cannot say that Washington acted

unreasonably.

     In conclusion, we stress the limited nature of our holding.

We do not intend to suggest that a police officer may in all

circumstances constitutionally intrude into the interior of a

vehicle simply because he has temporarily lawfully detained the

vehicle because of a traffic violation.      We, therefore, reject

the Government's argument that we should extend the "vehicle

frisk" doctrine to the facts of this case.       See Michigan v. Long,

463 U.S. 1032 (1983) (holding that police may engage in

warrantless "frisks" of vehicles when they have reasonable belief

that driver poses danger and that weapon may be inside car).

Rather, we hold only that, in view of the particular

circumstances of this case, Trooper Washington acted reasonably,

even assuming he did intrude into the interior space of the van

before smelling burnt marijuana.       Thus, we see no need to remand

for further fact-finding.



B. Ryles' § 2D1.1(b)(1) claim

     Ryles also raises a second claim.      He argues that the trial

court erred by increasing his offense level by two, pursuant to


                                   6
U.S.S.G. § 2D1.1(b)(1).   That provision of the Guidelines permits

an increase in a defendant's offense level if a firearm was

possessed during the commission of a drug offense.    Ryles argues

that § 2D1.1(b)(1) was inapplicable in his case because the

shotgun found in the van was disassembled.    The Government claims

that it was only "disassembled" in that the barrel was removed

from the stock and that it could have been assembled in thirty

seconds or less.   The presentence investigation report, which was

adopted by the district court, specifically found that the gun

could have been assembled in thirty seconds.    Ryles did not

object to that finding.

      Ryles cites cases in which courts implied that "inoperable"

weapons in certain cases would preclude a district court from

imposing a § 2D1.1(b)(1) increase.   See    United States v. Paulk,

917 F.2d 879, 882 (5th Cir. 1990); United States v. Luster, 896

F.2d 1122 (8th Cir. 1990); United States v. Burke, 888 F.2d 862

(D.C. 1989).   In those cases, the courts held that there was no

per se bar to imposing a § 2D1.1(b)(1) increase based on

"inoperable" weapons so long as those weapons "at the time of the

offense did not appear clearly inoperable."     In this regard, the

Guidelines defines a "firearm" as "any weapon . . . which will or

is designed to or may readily be converted to expel a projectile

by the action of the explosive. . . "   U.S.S.G. § 1B1.1

(Application Note 1(e)) (emphasis added).     Because Ryles'

disassembled shotgun could have been "readily converted" to an

operable firearm, the district court properly imposed a §


                                 7
2D1.1(b)(1) increase in Ryles' offense level.

                               III.

     For the foregoing reasons, we AFFIRM both Ryles' conviction

and sentence.




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