     Case: 11-50907      Document: 00512693697         Page: 1    Date Filed: 07/10/2014




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

                                      No. 11-50907                                  FILED
                                                                                July 10, 2014
                                                                               Lyle W. Cayce
UNITED STATES OF AMERICA,                                                           Clerk

                                                 Plaintiff - Appellee

v.

VICTOR ESQUIVEL, also known as Youngster,

                                                 Defendant - Appellant




                  Appeals from the United States District Court
                        for the Western District of Texas
                            USDC No. 2:09-CR-820-5


Before JOLLY, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
       Victor Esquivel was convicted of conspiracy to conduct the affairs of an
enterprise through a pattern of racketeering in violation of 18 U.S.C. § 1962(d)
and two counts of violent crimes in aid of racketeering in violation of 18 U.S.C.
§ 1959. He appeals the district court’s denial of his motion to suppress a police
interview and a cellular telephone number. We AFFIRM.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 11-50907
                                       I.
      In connection with a homicide investigation, Sergeant Cabrera of the
Texas Department of Public Safety (“DPS”) enlisted Sergeants Whitton and
Lozano to conduct surveillance on the residence of a known gang member,
Esquivel. On the date in question, Esquivel went in and out of the residence
talking on a cell phone, eventually emerging with a small bag in his hand and
started looking around.
      Sergeant Whitton contacted Sergeant Cabrera and informed him that
Esquivel had been located.     Sergeant Cabrera noted that more than one
weapon may have been used in the homicide and that Esquivel may be in
possession of the murder weapons. Eventually, a vehicle appeared carrying
three individuals, Esquivel got in, and the vehicle drove away. After following
the vehicle and observing numerous traffic violations, the agents pulled it over.
      The agents approached the vehicle with their weapons drawn, ordered
the occupants to exit, frisked them for weapons, and told them to lie on the
ground. The driver consented to a search of the vehicle, but no weapons or
contraband were discovered.      The agents then permitted the driver and
occupants to leave. Sergeant Whitton asked Esquivel if he would voluntarily
consent to an interview regarding his whereabouts over the previous 24 hours.
Esquivel denied any wrongdoing, but consented to be interviewed.
      Esquivel, handcuffed pursuant to DPS policy, rode with Sergeants
Whitton and Lozano to the DPS station. When they arrived at the DPS station,
the handcuffs were removed and Esquivel was led to a training room.
Sergeants Whitton and Lozano waited with Esquivel until Sergeant Cabrera
and another DPS agent arrived. The four agents interviewed Esquivel for an
hour and a half.     Following the interview, Esquivel provided his cellular
telephone number and left the DPS station.


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                                    No. 11-50907
      Esquivel moved to suppress his statements during the interview and the
cellular telephone number he provided.        After a suppression hearing, the
district court denied his motion. Esquivel was convicted and now appeals the
denial of his motion to suppress.
                                        II.
   A. Standard of Review
      When evaluating a denial of a motion to suppress, we review a district
court’s conclusions of law de novo and its findings of fact for clear error. United
States v. Santiago, 410 F.3d 193, 197 (5th Cir. 2005). We view the evidence in
the light most favorable to the prevailing party, which in this case is the
Government. See id.
   B. Valid Terry Stop
      Esquivel essentially argues that his statements during the interview and
the cellular telephone number he provided should be suppressed because they
are fruits of a warrantless traffic stop in violation of his Fourth Amendment
rights. It is well established that “warrantless searches and seizures are per
se unreasonable unless they fall within a few narrowly defined exceptions.”
United States v. Cardenas, 9 F.3d 1139, 1147 (5th Cir. 1993). The Terry stop
is one of these exceptions, and the Terry analysis provides the framework for
evaluating the reasonableness of such a traffic stop. United States v. Jaquez,
421 F.3d 338, 340 (5th Cir. 2005) (citing Terry v. Ohio, 392 U.S. 1 (1968)).
      Terry provides that police officers may briefly detain an individual,
despite a lack of probable cause to arrest, when they have an objectively
reasonable suspicion that criminal activity is afoot. United States v. Baker, 47
F.3d 691, 693 (5th Cir. 1995). The reasonable suspicion supporting the stop
must be based on “specific and articulable facts and rational inferences[] that
justifies the intrusion.” United States v. Abdo, 733 F.3d 562, 565 (5th Cir.
2013) (citing Terry, 392 U.S. at 21), cert. denied, 134 S. Ct. 1760 (2014). It
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                                  No. 11-50907
cannot be established by an officer’s “mere hunch or unparticularized
suspicion.” Jaquez, 421 F.3d at 341. During the stop, the officers may perform
a pat down to ensure the individual is not armed. United States v. Scroggins,
599 F.3d 433, 441 (5th Cir. 2010) (“In order to ensure their safety during the
stop, police may frisk the subject for weapons that they reasonably suspect he
may carry.”).
      After finding Sergeant Whitton’s testimony credible, the district court
concluded the agents’ initial stop of the vehicle was a valid Terry stop. Esquivel
was a murder suspect who had been pacing outside of his residence carrying a
bag that may have contained one or more of the murder weapons. Once the
agents started following the vehicle carrying Esquivel, they observed the driver
commit several traffic violations, such as speeding and failing to signal a turn.
At one point, the vehicle came to a stop at an intersection for an extended
period of time despite the absence of any conflicting traffic. It was at this point
the agents also observed the occupants trying to figure out who was following
them and making furtive movements. Taken as a whole, the facts found by the
district court give rise to an objectively reasonable suspicion sufficient to
justify stopping the vehicle. See Baker, 47 F.3d at 693.
      Further, the agents’ actions during the stop were reasonably related in
scope to the circumstances that led to the stop. See Terry, 392 U.S. at 19–20
(“[I]n determining whether the seizure and search were ‘unreasonable’ our
inquiry is a dual one—whether the officer’s action was justified at its inception,
and whether it was reasonably related in scope to the circumstances which
justified the interference in the first place.”). The agents’ decision to approach
the vehicle with their weapons drawn, order the occupants to exit the vehicle,
and subsequently pat down the occupants was objectively reasonable given the
circumstances surrounding the stop, especially in light of Esquivel’s criminal
history and the fact that he was suspected of being involved in Garza’s murder.
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                                 No. 11-50907
United States v. Sanders, 994 F.2d 200, 206 (5th Cir. 1993) (“Clearly, using
some force on a suspect, pointing a weapon at a suspect, ordering a suspect to
lie on the ground, and handcuffing a suspect—whether singly or in
combination—do not automatically convert an investigatory detention into an
arrest requiring probable cause.”). Moreover, even if Esquivel was handcuffed
during the stop—a finding the district court declined to make—the stop would
still be reasonable. See, e.g., Abdo, 733 F.3d at 565 (holding that a detention
remained a valid Terry stop despite detaining the suspect at gunpoint,
handcuffing him, and placing him in a police car because “police may take
reasonable actions under the circumstances to ensure their own safety, as well
as the safety of the public, during an encounter with a suspect”).
      Based on the facts found by the district court, the agents’ stop of the
vehicle was supported by an objectively reasonable suspicion and did not
exceed the scope of a Terry stop. Therefore, Esquivel’s argument that his
statements during the police interview and cellular telephone number are
fruits of an unconstitutional seizure, and therefore must be suppressed, is
without merit.
   C. Voluntary Interview
      Esquivel further argues that the statements he made during the
interview, along with the cell phone number he provided, must be suppressed
because they were acquired through a custodial interrogation in violation of
his constitutional rights.      However, as the district court observed,
“[v]olunteered statements of any kind are not barred by the Fifth Amendment
and their admissibility is not affected by [the Court’s holding in Miranda].”
Rhode Island v. Innis, 446 U.S. 291, 300 (1980) (citation and internal quotation
marks omitted). Sergeant Whitton testified, and Esquivel does not contest,
that he asked Esquivel to come to the DPS station to talk about his
whereabouts over the past day. He explained to Esquivel that it was “strictly
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                                 No. 11-50907
voluntary” and that Esquivel did not have to come with him.           However,
Esquivel chose to accompany the agents to the DPS station. Based on this
testimony, the district court found that Esquivel’s statement “was freely and
voluntarily given.” When, as here, the district court observed live testimony
during the suppression hearing, “the clearly erroneous standard is particularly
strong because the judge had the opportunity to observe the demeanor of the
witnesses.” See Santiago, 410 F.3d at 197. We cannot conclude that the
district court clearly erred in finding Esquivel’s statement voluntary based on
Sergeant Whitton’s testimony.      Therefore, Esquivel’s argument that the
evidence should have been suppressed because it was part of an invalid
custodial interrogation is without merit.
      AFFIRMED.




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