                                                                              United States Court of Appeals
                                                                                       Fifth Circuit
                                                                                     F I L E D
                          UNITED STATES COURT OF APPEALS
                                                                                     August 19, 2004
                                 FOR THE FIFTH CIRCUIT
                                                                                 Charles R. Fulbruge III
                              _________________________                                  Clerk

                                    No. 03 - 41578
                                   SUMMARY CALENDAR
                              _________________________

UNITED STATES OF AMERICA,

                      Plaintiff - Appellee,

       v.

SERGIO CHAVEZ,

                      Defendant - Appellant.

_________________________________________________________________

     On Appeal from the United States District Court for the
                    Southern District of Texas
                          (C-03-CR-196-1)
_________________________________________________________________

Before REYNALDO G. GARZA, JONES, and SMITH, Circuit Judges.

PER CURIAM:1

       In this appeal, we review Sergio Chavez’s conviction for

possession with intent to distribute 18 kilograms of cocaine.

Chavez argues that the district court should have suppressed

evidence of the cocaine seized from his vehicle at the Sarita

Border Patrol Checkpoint because he claims that the search of the

back seat of his vehicle by border patrol agents was involuntary.



       1
        Pursuant to 5th Cir. R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5th Cir. R.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.

                                               -1-
     When Chavez was stopped at the checkpoint, the border patrol

agent smelled BenGay, a common odor-masking agent, and noticed

that Chavez was nervously avoiding eye contact.   The agent then

asked Chavez if he could open the back door of his vehicle.

Chavez testified that he assented to the agent’s request to open

the back door.   Chavez argues that by assenting he did not,

however, grant the agent permission to actually look inside the

vehicle.   Regardless, upon opening the back door of the vehicle,

the officer saw that the carpet was loose and that a nut was

missing from one of the back seats.    The officer also noticed an

anomaly on the vehicle’s rear tires.   The officer then asked

Chavez if he could perform a free-air canine search.    When the

canine alerted to the rear wheel section of the vehicle, a

further examination was conducted and 18 kilograms of cocaine

were found.

     After conducting a hearing on Chavez’s motion to suppress,

the district court held that even if the initial search of

Chavez’s vehicle was prohibited, the cocaine was nevertheless

admissible under the inevitable discovery exception to the

exclusionary rule.   We review the evidence in the light most

favorable to the Government, the prevailing party.     United States

v. Foy, 28 F.3d 464, 474 (5th Cir. 1994).

     Under the inevitable discovery exception to the exclusionary

rule, evidence that is otherwise suppressible is admitted if it


                                -2-
would inevitably have been discovered without the aid of the

illegally obtained evidence.   United States v. Singh, 261 F.3d

530, 535 (5th Cir. 2001).   The border patrol agent testified that

had Chavez refused the agent’s request to open his vehicle’s back

door, the agent would have sent the vehicle to secondary

inspection for a free-air canine search.    Chavez’s consent was

not necessary to perform a free-air canine search at secondary

inspection.   United States v. Duffaut, 314 F.3d 203, 208 (5th

Cir. 2002).

     Thus, the district court correctly held the fruits of the

canine search, the 18 kilograms of cocaine, admissible under the

inevitable discovery exception.     Chavez’s conviction is therefore

AFFIRMED.




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