United States v. Burks

* 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that this opinion should not be published and is not precedent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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-31086
Conference Calendar
UNITED STATES OF AMERICA, Plaintiff-Appellee,
versus
FREDERICK BURKS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 00-CR-50068-1
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April 10, 2002
Before SMITH, DeMOSS, and PARKER, Circuit Judges.
PER CURIAM:*
Frederick Burks appeals his convictions for conspiracy to
possess with intent to distribute marijuana and possession with
intent to distribute marijuana. He seeks to raise for the first
time on appeal several arguments related to the constitutionality
of the stop and search of his commercial vehicle. Burks filed a
motion to suppress the marijuana seized from the commercial
vehicle he was driving, arguing that his consent to the search
had been coerced. Burks withdrew his motion to suppress and
waived his arguments set out in the motion to suppress subject to

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No. 01-31086
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a proposed plea agreement. Burks did not reurge his motion to
suppress when plea negotiations were unsuccessful.
Burks argues on appeal that his due process rights were
violated by the state trooper who stopped his truck at random
pursuant to a Louisiana administrative regulation that allows
random stops for administrative searches of commercial vehicles.
He argues that the regulation is unconstitutional on its face
because it dispenses with the Fourth Amendment’s requirement of
probable cause or at least articulable suspicion. He argues that
Supreme Court jurisprudence requires limitations in the language
of state regulations on a police officer’s discretion to stop a
commercial vehicle, and that the absence of background
information as in United States v. Fort, 248 F.3d 475 (5th Cir.
2001) renders the state trooper’s decision to stop his vehicle
arbitrary and unconstitutional.
Burks has waived his right to challenge the stop and search
of his vehicle. Burks withdrew the motion to suppress, with
counsel specifically stating that he was going to “waive” the
motion. Burks’ failure to pursue the motion to suppress
forecloses him from raising the suppression issue on appeal.
United States v. Chavez-Valencia, 116 F.3d 127, 129-33 (5th Cir.
1997); see also United States v. Lampton, 158 F.3d 251, 259 (5th
Cir. 1998)(applying Chavez-Valencia). We, therefore, decline to
consider his arguments.
AFFIRMED.

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