     Case: 15-10915      Document: 00513930959         Page: 1    Date Filed: 03/29/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit
                                      No. 15-10915                              FILED
                                                                          March 29, 2017

UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk

                                                 Plaintiff-Appellee

v.

CHRISTINE NICHOLE ESTRADA,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 2:15-CR-45-1


Before WIENER, DENNIS, and HAYNES, Circuit Judges.
PER CURIAM: *
       Pursuant to a conditional guilty plea, Christine Nichole Estrada pleaded
guilty to one count of possession with intent to distribute 500 grams or more of
methamphetamine and aiding and abetting. She was sentenced to a statutory
minimum sentence of 120 months of imprisonment and five years of supervised
release. In her plea agreement, Estrada reserved the right to appeal the
district court’s decision denying her motion to suppress in part. She argues on
appeal that all evidence seized from a stash house should be deemed


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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inadmissible as fruits of an illegal mobile tracking device investigators
attached to her vehicle. For the following reasons, we AFFIRM.
                                       I.
      In the Spring of 2013, Tommy Lindley, a narcotics investigator for the
Texas Department of Public Safety, received information from a cooperating
individual that “Christine and Joel” were selling methamphetamine. Lindley,
however, did not pursue an investigation at that particular time.            He
ultimately gathered further information regarding sales by Estrada and
learned that she lived on North LaSalle Street and possessed two vehicles, one
of which, a black Cadillac Escalade, was her primary vehicle.
      Ultimately, Lindley submitted an affidavit in support of an application
for the issuance of a mobile tracking device for that vehicle. TEX. CRIM. PROC.
CODE art. 18.21 § 14(c)(5). Finding that the facts set forth in the affidavit
established reasonable suspicion, a state court judge granted Lindley’s
application for the mobile tracking device. Lindley later testified that, if the
judge had denied the application, he would have continued his investigation
into Estrada via “physical surveillance as a team.”
      On November 8, 2013, Lindley placed the mobile tracking device on
Estrada’s Escalade and gathered information regarding a pattern of travel to
North Lake Street addresses in Amarillo. On November 18, 2013, Lindley
began conducting physical surveillance of Estrada without the use of the
mobile tracking device. On that day, Lindley observed Estrada leave her
residence on North LaSalle and travel to a residence located at 2407 North
Lake Street. Lindley noticed that Estrada left the Escalade running while she
visited the residence for approximately ten to fifteen minutes. After Estrada
left the residence on North Lake Street, Lindley followed her to a restaurant




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parking lot where she interacted with a man through her driver’s side window
in what Lindley believed was a drug transaction.
      After further physical surveillance of Estrada without the aid of the
mobile tracking device, Lindley followed Estrada to a store parking lot.
Estrada was met in the parking lot by Jerry Thorn. After Estrada left the
parking lot, Lindley approached Thorn, who was standing in the parking lot
with his driver’s door open. Lindley confronted Thorn about purchasing drugs,
at which point Thorn retrieved a plastic bag containing approximately a
quarter-ounce of methamphetamine from his console and confirmed that he
had just purchased the methamphetamine from Estrada.
      While Lindley questioned Thorn, other members of the surveillance team
followed Estrada to a service station. When Lindley arrived at the service
station, he confronted Estrada about selling methamphetamine to Thorn.
Estrada denied selling Thorn methamphetamine, but did admit to having
marijuana in her purse. Upon discovery of the marijuana, Lindley placed
Estrada under arrest and transported her to the district police station. At the
station, Lindley advised Estrada of her Miranda rights and conducted an
interview, during which Estrada confessed to selling methamphetamine to
Thorn that evening and two days prior, on November 18. Estrada advised
Lindley that the methamphetamine was part of a larger amount left over when
her husband went to prison. Lindley also recovered a phone that Estrada
denied owning. Lindley conducted a warrantless search of the phone and
discovered “numerous text messages with dope talk, setting up meet locations
and negotiations for purchases of methamphetamine.”             Following the
interview, Estrada was booked into jail on the marijuana charge.
      Thereafter, Lindley and another officer decided to “conduct a knock-and-
talk” at the North Lake residence.        The resident there, Patricia Khweis



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(Estrada’s grandmother-in-law), allowed the officers to enter the residence. In
response to an inquiry about a closed door, Khweis responded that she had
some personal property in the room. When the investigators later passed the
same door, Khweis again stated that the room contained some personal
property and “a little bit of money.”        When the officer opened the door,
investigators observed stacks of money, gun safes, and a plate wrapped in
aluminum foil believed to contain methamphetamine. Ultimately, Lindley
obtained a search warrant that did not reference any information gleaned from
use of the mobile tracking device. A search of the gun safes revealed 600 grams
of methamphetamine, tablets of LSD, numerous weapons, and approximately
$1,500 and an inculpatory notebook. Estrada moved to suppress this evidence,
which the district court, adopting the report and recommendations of the
magistrate judge, denied in part and granted in part.
                                       II.
      “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.
Rodriguez, 702 F.3d 206, 208 (5th Cir. 2012) (quoting United States v. Payne,
341 F.3d 393, 399 (5th Cir. 2003)). We view the facts in the light most favorable
to the prevailing party, which, here, is the Government. United States v.
Howard, 106 F.3d 70, 73 (5th Cir. 1997).
                                      III.
      On appeal, the Government does not contend that the installation of the
tracking device, based solely upon reasonable suspicion, was permissible. See
United States v. Jones, 565 U.S. 400, 404 (2012) (addressing whether such
devices constitute a “search”). However, even assuming that this conduct was
impermissible, not all violations of the Fourth Amendment lead to a
suppression of evidence. See United States v. Hernandez, 670 F.3d 616, 620



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(5th Cir. 2012). Evidence that would otherwise be suppressible is purged of
the primary taint if it derives from an independent source, if the link to the
illegally secured evidence is attenuated, or if it would inevitably have been
discovered without the aid of the illegally obtained evidence. United States v.
Runyan, 275 F.3d 449, 466 (5th Cir. 2001).
      The district court accepted the Government’s argument that, despite the
Fourth Amendment violation, the evidence seized from the stash house was
admissible under the independent source doctrine. Under that doctrine, “even
if police engage in unconstitutional activities . . . evidence discovered during
such illegal activities is nonetheless admissible if it is also discovered through
an independent source.” United States v. Restrepo, 966 F.2d 964, 969 (5th Cir.
1992). To determine whether the independent source doctrine applies,
            [t]he district court must perform a two-part
            analysis . . . : (1) does the warrant affidavit, when
            purged of tainted information gained through the
            initial illegal entry, contain sufficient remaining facts
            to constitute probable cause (“probable cause”); and (2)
            did the illegal search affect or motivate the officers’
            decision to procure the search warrant (“effect of the
            illegal entry”).
United States v. Hassan, 83 F.3d 693, 697 (5th Cir. 1996). On appeal, we
review the first prong de novo and the second prong for clear error. Id.
      The district court determined there was an independent source for the
evidence discovered at the North Lake residence, given the evidence obtained
through the physical surveillance (unaided by the tracking reports) coupled




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with Estrada’s own admissions. 1 We agree that, as a matter of law, the first
prong of the independent source doctrine is satisfied. 2
       Estrada maintains that the magistrate judge failed to address the second
prong of the independent source doctrine. See United States v. Grosenheider,
200 F.3d 321, 328 (5th Cir. 2000) (noting that the district court must “find that
the agents would have sought the warrant even if [the illegal conduct] had
never taken place.”); Restrepo, 966 F.2d at 971 (“[T]he trial court [must]
determine . . . whether information gained through the illegal search
influenced or motivated the officers’ decision to procure a warrant.” (footnote
omitted)). But Estrada failed to object to the report and recommendation on
this basis, so we review for plain error. See Starns v. Andrews, 524 F.3d 612,
617 (5th Cir. 2008) (“[I]f a party did not object to a Magistrate Judge’s Report
and Recommendation, that party may not attack the proposed factual findings
or legal conclusions except upon the grounds of plain error.”). Plain error
review involves four parts, including that there was an error that was “clear or
obvious.” United States v. Escalante-Reyes, 689 F.3d 415, 419 (5th Cir. 2012)
(en banc).
       As relevant to prong two of the independent source doctrine, the
magistrate judge stated:
              Although never directly asked whether he initiated
              the “knock and talk” at [the North Lake residence]
              based upon the tracking device information or based
              upon the surveillance conducted November 18 and 20,

       1 Estrada makes much of the magistrate judge’s use of the phrase “sufficiently
independent.” But when considering the entirety of the magistrate judge’s report and
recommendations, the use of the phrase “sufficiently independent” simply reiterates the point
previously made: that the surveillance was unaided by the tracking device reports.
       2For the first time on appeal, Estrada argues that there was no independent source
because the officers used the illegal tracking reports to gain Khweis’s consent to search her
residence during the knock-and-talk. We review such a challenge for plain error, and we find
none. See Starns v. Andrews, 524 F.3d 612, 617 (5th Cir. 2008).


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             2013, there is sufficient evidence before the Court to
             conclude there was an independent and distinct source
             of information that led Agent Lindley to go to [the
             North Lake residence] for the “knock and talk.”
By this statement, the court appears to have inferred from the evidence that
the illegal tracking reports did not motivate Lindley to engage in the knock-
and-talk and obtain the subsequent search warrant. Indeed, the magistrate
judge credited Lindley’s testimony that, without the tracking device, Lindley
would have put together a team to conduct visual surveillance of Estrada. See
Restrepo, 966 F.2d at 971 (determining that the second prong “inquiry is
answered in the negative if the district court finds that ‘the agents would have
sought a warrant if they had not earlier entered’ the Regency residence”); see
also United States v. Mays, 466 F.3d 335, 342 (5th Cir. 2006) (noting that we
defer to factual findings regarding credibility assessments).
      That Lindley would have taken this approach indicates that his
surveillance and subsequent knock-and-talk were not motivated by the
tracking reports. Such a finding has additional support in the record. Thus,
there was no clear or obvious error. However, even assuming the court erred
in failing to make explicit findings regarding the second prong of the
independent source doctrine, given the evidence supporting the finding,
Estrada has not established any harm to her substantial rights, as required
under plain error review. Escalante-Reyes, 689 F.3d at 419. 3
             AFFIRMED.




      3  To the extent that Estrada seeks to challenge the validity of Khweis’s consent on
appeal, that argument is deemed waived. See United States v. Scroggins, 599 F.3d 433, 448
(5th Cir. 2010). Although Estrada mentions the district court’s ruling regarding her cell
phone, she does not challenge the ruling on appeal. Accordingly, this issue is deemed
abandoned. See id. at 446–47.


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