     Case: 11-10423     Document: 00511747038         Page: 1     Date Filed: 02/03/2012




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                         February 3, 2012
                                     No. 11-10423
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

BENJAMIN A. POTTS,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:10-CR-57-1


Before WIENER, STEWART, and HAYNES, Circuit Judges.
PER CURIAM:*
        A jury convicted Defendant-Appellant Benjamin A. Potts of bank robbery,
armed bank robbery, and brandishing a firearm in furtherance of a bank
robbery. He was sentenced to a total of 780 months of imprisonment and six
years of supervised release. On appeal, he contends that the district court erred
in denying his motion to suppress evidence obtained from a warrantless search
of a duffel bag inside his vehicle.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                  No. 11-10423

      On appeal of a denial of a motion to suppress, we review the district court’s
conclusions of law de novo and its findings of facts, including credibility
determinations, for clear error, viewing the evidence in the light most favorable
to the government. United States v. Montes, 602 F.3d 381, 384-85 (5th Cir.), cert.
denied, 131 S. Ct. 177 (2010).
      “Under the ‘automobile exception’ to the warrant requirement, officers
may conduct a search if they have probable cause to believe that the vehicle
contains contraband or evidence of a crime.” United States v. Ned, 637 F.3d 562,
567 (5th Cir.), cert. denied, 132 S. Ct. 276 (2011). As in this case, the exception
applies to an unoccupied vehicle parked in an apartment parking lot. See Mack
v. City of Abilene, 461 F.3d 547, 553 n.2 (5th Cir. 2006). It also applies to a
container in a vehicle if there is probable cause to believe that the container
contains evidence or contraband. California v. Acevedo, 500 U.S. 565, 580
(1991).
      Contrary to Potts’s assertion, “the Supreme Court’s recent ruling in
[Arizona v. Gant, 556 U.S. 332, 129 S. Ct. 1710 (2009)] is inapplicable to the
present case as the Court specifically limited its ruling to searches pursuant to
an arrest, and the Court did not modify the standards regarding searches
pursuant to the automobile exception.” United States v. Steele, 353 F. App’x 908,
910 (5th Cir. 2009) (citing Gant, 129 S. Ct. at 1721). Therefore, the automobile
exception applies in this case.
      Based on the totality of the circumstances, the officer had probable cause
to believe that the duffel bag contained evidence of a bank robbery. See United
States v. Carrillo-Morales, 27 F.3d 1054, 1062 (5th Cir. 1994); United States v.
Buchner, 7 F.3d 1149, 1154 (5th Cir. 1993). He was an experienced police officer
with prior experience investigating bank robberies. The officer knew that Potts’s
vehicle was outside the apartment where he was arrested and that a large
quantity of the stolen currency had not yet been recovered.           The officer
recognized the duffel bag, cap, sunglasses, and gloves inside Potts’s vehicle as

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                                  No. 11-10423

being similar to the items used and worn by the perpetrator during the
commission of the bank robberies. Based on his experience, observations, and
knowledge of these particular bank robberies, it was objectively reasonable for
the officer to conclude that the duffel bag contained stolen currency. See
Buchner, 7 F.3d at 1154-55. It is immaterial that the officer testified that the
duffel bag “appeared” to be and was “possibly” the same bag Potts used in the
robberies, and that it was “possible” that the bag contained stolen currency,
because probable cause is based on objective factors, and the subjective belief of
the officer is irrelevant to the determination. See Whren v. United States, 517
U.S. 806, 813 (1996). As the search of the duffel bag was authorized under the
automobile exception, we need not determine whether it was authorized for any
other reason.
      The judgment of the district court is AFFIRMED.




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