     Case: 11-41020   Document: 00512076824     Page: 1   Date Filed: 12/07/2012




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

                                                                   FILED
                                                              December 7, 2012

                                 No. 11-41020                     Lyle W. Cayce
                                                                       Clerk

UNITED STATES OF AMERICA,

                                           Plaintiff - Appellee
v.

YOSBEL RODRIGUEZ; NORBIEL IZQUIERDO,

                                           Defendants - Appellants



                Appeals from the United States District Court
                     for the Southern District of Texas



Before HIGGINBOTHAM, CLEMENT, and HAYNES, Circuit Judges.
EDITH BROWN CLEMENT, Circuit Judge:
      Yosbel Rodriguez and Norbiel Izquierdo appeal their convictions and
sentences for drug offenses. We AFFIRM.
                       FACTS AND PROCEEDINGS
      Rodriguez and Izquierdo were arrested at a Border Patrol checkpoint
outside of Falfurrias, Texas, after the cab of the tractor-trailer in which they
were stopped by Border Patrol agents was found to contain over 45 kilograms of
marijuana in a concealed compartment. The stop was prompted in part by a
Border Patrol dog, who alerted while being walked around the truck. Rodriguez
and Izquierdo were each charged by grand jury indictment with one count of
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                                  No. 11-41020

conspiracy to possess with intent to distribute marijuana, in violation of 21
U.S.C. § 846, and with one count of possession with intent to distribute
marijuana, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(D).
      Rodriguez and Izquierdo then filed various motions to suppress evidence
in which they argued that the Fourth Amendment was violated by their
warrantless arrests and a warrantless search after their arrests of the contents
of Rodriguez’s cell phone, during which pictures of the concealed marijuana were
discovered. The district court held a suppression hearing at which it denied the
motions from the bench. After a jury trial, Rodriguez and Izquierdo were found
guilty of both counts of the indictment. The district court then issued a written
opinion explaining its denial of the defendants’ motions to suppress, before
sentencing both Rodriguez and Izquierdo to concurrent 51-month terms of
imprisonment on each count of conviction. They now appeal on various grounds.
                          STANDARD OF REVIEW
      “When the district court denies a motion to suppress, we review factual
findings for clear error and conclusions of law de novo.” United States v. Payne,
341 F.3d 393, 399 (5th Cir. 2003). “For our review, we may consider all of the
evidence presented at trial, not just that presented before the ruling on the
suppression motion,” United States v. Ibarra, 493 F.3d 526, 530 (5th Cir. 2007),
and “[w]e view the evidence in the light most favorable to the party that
prevailed in the district court,” United States v. Solis, 299 F.3d 420, 435-36 (5th
Cir. 2002) (quoting United States v. Hunt, 253 F.3d 227, 230 (5th Cir. 2001)).
                                 DISCUSSION
      On appeal, Rodriguez contends that the district court erred in denying his
motion to suppress because (1) his warrantless arrest was made without
probable cause and therefore violated the Fourth Amendment, and (2) the
warrantless search of the contents of his cell phone constituted an unlawful
search incident to his arrest. Izquierdo argues only that the district court erred

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                                  No. 11-41020

in considering the fact that the Border Patrol dog alerted while sniffing the truck
because the Government failed to introduce any evidence regarding the training
and reliability of the dog.
      1. Rodriguez
      Rodriguez’s first argument is that his mere presence in the truck was not
sufficient probable cause to justify his warrantless arrest. The Supreme Court,
however, has previously allowed the warrantless arrest of all the passengers in
a car in which drugs were found when none of them would claim ownership of
the drugs in question. Maryland v. Pringle, 540 U.S. 366, 372 (2003). Similarly,
in this case, after the discovery of the marijuana, neither Rodriguez nor
Izquierdo acknowledged ownership of it, and it was therefore “an entirely
reasonable inference . . . that any or [both] of the [truck’s] occupants had
knowledge of, and exercised dominion and control over, the [marijuana]” that
was found. Id. Rodriguez’s warrantless arrest was thus amply supported by
probable cause.
      Rodriguez’s second argument is that the search of the contents of his cell
phone without a warrant violated his Fourth Amendment rights in light of
Arizona v. Gant, 556 U.S. 332 (2009). Rodriguez has maintained at every stage
of this case that his cell phone was discovered in the truck and not on his person.
As a result, in his view, the search of the cell phone after he had already been
arrested exceeded the allowable scope of such vehicular searches in light of Gant.
But see id. at 343-44 (holding that a search of “the passenger compartment of an
arrestee’s vehicle and any containers therein” is justified “when it is ‘reasonable
to believe evidence relevant to the crime of arrest might be found in the vehicle’”
(quoting Thornton v. United States, 541 U.S. 615, 632 (2004))).
      However, the district court held that Rodriguez’s cell phone was seized
from his person. We review such factual findings for clear error only, see Payne,
341 F.3d at 399, and the evidence supporting the district court’s view, while not

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overwhelming, was certainly ample. Border Patrol Agent Brandon Copenhaver
testified that Rodriguez was taken inside the checkpoint office after his arrest,
that his personal possessions were placed in a plastic bag, and that the bag was
numbered and marked with Rodriguez’s name. Although Copenhaver did not
conduct this search of Rodriguez’s person, he saw the bag after the search had
been completed and observed that it contained a cell phone. Agent Marvin
Williams, who inventoried the evidence found in the truck, testified that there
was no cell phone amongst that evidence. In light of this testimony, the district
court’s holding that the phone was found on Rodriguez’s person was not clearly
erroneous. See Solis, 299 F.3d at 435-36.
      Rodriguez argues, though, that, even if the cell phone was found on his
person, the warrantless search of its contents exceeded the permissible scope of
a search incident to arrest under Gant. We disagree. In United States v. Finley,
we held that a search incident to arrest of the contents of a cell phone found on
an arrestee’s person for evidence of the arrestee’s crime was allowable,
analogizing it to a search of a container found on an arrestee’s person. 477 F.3d
250, 259-60 (5th Cir. 2007). We have not previously held that Gant applies
beyond the vehicular context, but even were we to apply it here, in light of that
case’s authorization of searches of a vehicle’s passenger compartment “and any
containers therein” for evidence of the offense of arrest, we fail to see how Gant
disturbs our holding in Finley as it relates to this case. See Gant, 556 U.S. at
343-44. As a result, we are bound by Finley, and we therefore conclude that the
search of the contents of Rodriguez’s cell phone was permissible.
      2. Izquierdo
      Izquierdo argues that, since the Government failed to introduce any
evidence as to the reliability of the dog used to sniff the truck, the district court
erred in considering the dog’s alert in assessing probable cause. Because
Izquierdo failed to raise this specific argument before the district court, it is

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waived. See United States v. Cano, 519 F.3d 512, 515 (5th Cir. 2008) (“We
review only those arguments that were specifically raised at the pre-trial
suppression hearings. Arguments not raised are waived.” (citation omitted)).
Even were we to consider Izquierdo’s waived argument “for good measure,” see
United States v. Scroggins, 599 F.3d 433, 448 (5th Cir. 2010) (“[O]ur cases
identifying such waiver have often proceeded to evaluate the issues under a
plain error standard for good measure.”), we have previously held that “an alert
by a drug-detecting dog provides probable cause to search [a vehicle],” United
States v. Sanchez-Pena, 336 F.3d 431, 444 (5th Cir. 2003), and that “a showing
of the dog’s training and reliability is not required if probable cause is developed
on site as a result of a dog sniff of a vehicle,” id. In his brief, Izquierdo concedes
that this argument is foreclosed in our circuit but states that he raises it in light
of the Supreme Court’s grant of certiorari in Florida v. Harris, 132 S. Ct. 1796
(2012).
                                  CONCLUSION
      For the foregoing reasons, we AFFIRM.




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