     Case: 14-41174      Document: 00513786372         Page: 1    Date Filed: 12/06/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 14-41174                       United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
UNITED STATES OF AMERICA,                                                December 6, 2016
                                                                           Lyle W. Cayce
              Plaintiff - Appellee                                              Clerk

v.

LUIS ALBERTO AVILA-HERNANDEZ, also known as Cua Cua,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 7:08-CR-1751-8


Before WIENER, CLEMENT, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Luis Avila-Hernandez (“Avila”) was tried and convicted of one count of
conspiracy to kidnap and one count of kidnapping. The district court sentenced
Avila to life imprisonment and a five-year term of supervised release for each
count, to run concurrently. Avila now appeals the district court’s denial of his
motion to suppress incriminating statements. We AFFIRM the judgment of the
district court.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                                        I
      The Federal Bureau of Investigation (“FBI”) and Texas Department of
Public Safety (“DPS”) began a joint investigation into kidnappings near the Rio
Grande Valley. A witness identified Jose Antonio Castillo (“Castillo”), Avila,
and others as involved in a kidnapping. Sergeant Alfredo Barrera, Jr.
(“Sergeant Barrera”), an agent with the DPS Criminal Investigative Division,
received information that Castillo “was possibly back in the area” and staying
with his sister, Laura Castillo (“Laura”). Sergeant Barrera also had
information that “possibly other individuals that were involved in the
kidnappings . . . might be staying at the house again.”
      There was an outstanding warrant for Castillo’s arrest, which Sergeant
Barrera had in his possession. He contacted DPS Trooper John P. Arevalo
(“Trooper Arevalo”) because Sergeant Barrera wanted to bring a marked unit
with uniformed police officers to Laura’s house. Sergeant Barrera, Trooper
Arevalo, FBI Supervisory Special Agent Daniel Delgado (“Agent Delgado”), and
other DPS officers and FBI agents (collectively, “the officers”) went to Laura’s
house to arrest Castillo. The officers arrived at Laura’s house after midnight.
      Trooper Arevalo knocked and Laura answered the door. Trooper Arevalo
asked Laura if Castillo was inside the house, and Laura told him that Castillo
was not there. She told Trooper Arevalo that the only people inside the house
were her, her children, and her boyfriend, “Mario Lopez.” Trooper Arevalo then
told Laura that he had information that Castillo was inside the house, and
asked if the officers could search the house. When Laura told him that “the
kids were asleep,” Trooper Arevalo responded that the officers would not “make
that much noise, just go in there because [they] have information and [they]
have a job to do.” Laura then “gave . . . consent” for the officers to search the
house.


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                                  No. 14-41174
      The officers began to search the house, and Trooper Arevalo encountered
a man “underneath the covers” in the master bedroom. This man would later
be identified as Avila. When Trooper Arevalo asked Avila his name, he
responded in Spanish. Avila told the officers that his name was “Mario Lopez.”
Agent Delgado knew that “Mario Lopez” was not Avila’s name through his
“investigation and through people who were assisting” in the investigation.
      Agent Delgado asked Avila “if he had any form of identification” and “if
he was legally in the [United States].” Avila admitted to the officers that he
was in the United States illegally. Agent Delgado took Avila outside, and
Trooper Arevalo “continued to search” for Castillo with Laura. The officers
then transported Avila to the closest United States Border Patrol Station
(“Border Patrol Station”) to determine his alienage. After Avila was processed,
information “came back with a name of somebody who had been previously
deported using the name of Luis Alberto Avila-Hernandez.” Avila then
admitted that his name was not “Mario Lopez.”
      Sergeant Barrera read Avila his Miranda rights in Spanish. Avila signed
the form, waiving his Miranda rights. Sergeant Barrera explained to Avila that
they were interested in the kidnapping of Daniel Ramirez, Jr., and that they
“had a lot of information.” Avila told the officers “that he was involved, he knew
what happened, but that he was just a lookout at the time.” Avila then made
additional incriminating statements regarding the kidnapping.
      A grand jury indicted Avila and five others on seven felony counts of
conspiracy and kidnapping. Avila pleaded “not guilty” and filed a motion to
suppress the incriminating statements he made at the Border Patrol Station.
After receiving stipulations, live testimony, and other evidence at a
suppression hearing, the district court denied Avila’s motion to suppress his




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                                       No. 14-41174
statements. 1 Avila was tried and found guilty of conspiracy to kidnap and
kidnapping.
                                              II
       Upon review of a district court’s denial of a motion to suppress evidence,
this court reviews findings of fact for clear error and conclusions of law de novo.
United States v. Ortiz, 781 F.3d 221, 226 (5th Cir. 2015). “The district court’s
ruling should be upheld ‘if there is any reasonable view of the evidence to
support it.’” United States v. Scroggins, 599 F.3d 433, 440 (5th Cir. 2010)
(quoting United States v. Gonzalez, 190 F.3d 668, 671 (5th Cir. 1999)). “The
proponent of a motion to suppress has the burden of proving, by a
preponderance of the evidence, that the evidence in question was obtained in
violation of his Fourth Amendment rights.” United States v. Iraheta, 764 F.3d
455, 460 (5th Cir. 2014) (quoting United States v. Kelley, 981 F.2d 1464, 1467
(5th Cir. 1993)).
                                             III
       Avila asks this court to reverse the district court’s denial of his motion
to suppress, arguing that Laura’s consent to search was involuntary and that
Avila was unlawfully detained. 2
                                              A
       The officers had an arrest warrant for Castillo, but they did not have a
search warrant for Laura’s house. A search without a warrant “is per se
unreasonable, subject to certain exceptions.” United States v. Gonzalez-Garcia,




       1  The district court ruled from the bench and did not issue a written ruling explaining
its decision.
        2 Although the record potentially reveals an issue of Avila’s standing to contest the

search of Laura’s home, the government has waived any argument on this point. See United
States v. Ponce, 8 F.3d 989, 994 (5th Cir. 1993) (“[W]hen the government fails to challenge
facts from which it could reasonably infer a defendant’s standing, it waives the issue for
purposes of appeal.”).
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708 F.3d 682, 686 (5th Cir. 2013). The relevant exception here is the consent
exception: “a search conducted pursuant to a valid consent is constitutionally
permissible.” Schneckloth v. Bustamonte, 412 U.S. 218, 222 (1973). The
government has the burden of proving that the consent exception applies.
Bumper v. North Carolina, 391 U.S. 543, 548 (1968).
      The consent exception requires that the government show “(1) effective
consent, (2) given voluntarily, (3) by a party with actual or apparent authority.”
Scroggins, 599 F.3d at 440 (citing United States v. Gonzales, 121 F.3d 928, 938
(5th Cir. 1997)). The uncontested evidence in the record shows that Laura
consented to the search of her house. Avila does not argue that Laura’s consent
was ineffective or that she did not have actual authority to consent to the
search. Avila argues only that Laura did not voluntarily consent to the search
of her home.
      Whether consent is voluntary is a question of fact “determined from the
totality of the circumstances surrounding the search.” United States v.
Tompkins, 130 F.3d 117, 121 (5th Cir. 1997). “The issue to be decided is
whether, looking at all of the circumstances, the [person’s] will was overborne.”
United States v. Davis, 749 F.2d 292, 294 (5th Cir. 1985). This court has set
forth six factors that are “highly relevant” to the question of voluntariness to
consent. See United States v. Jenkins, 46 F.3d 447, 451 (5th Cir. 1995) (quoting
United States v. Olivier-Becerril, 861 F.2d 424, 426 (5th Cir. 1988)). But Avila
does not address these factors in his brief. Avila instead suggests that Laura’s
consent was involuntary because Trooper Arevalo deceived Laura and because
she acquiesced to the officers’ “claim of authority to search via a warrant” for
Castillo.
                                        1
      Avila does not argue that Laura did not know she could refuse to consent
to the search, a factor “highly relevant” to voluntariness. See Jenkins, 46 F.3d
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                                     No. 14-41174
at 451. He instead argues, without citing to or explaining any relevant
precedent, 3 that Laura’s consent was involuntary because of “deceit and
trickery.” The district court did not address this argument when it denied
Avila’s suppression motion. But the district court made some relevant factual
findings during the suppression hearing. The district court found that the
officers knew it was “likely” that Avila was at Laura’s house and that they
“didn’t tell [Laura] that they were looking for him also.” Avila argues that this
knowledge was enough to render Laura’s consent involuntary through “deceit
and trickery.”
        “The mere failure of the officers to give an encyclopedic catalogue of
everything they might be interested in does not alone render the consent to
search involuntary.” Davis, 749 F.2d at 295. The dispositive question is
whether “the government agent was found to have intentionally deceived the
defendant by making false representations in order to induce consent.” Id. at
297.
        Laura’s consent was not involuntary because of deceit. As in Davis, “all
of the statements the officers made and the impressions they gave were true.”
Id. The district court found at the suppression hearing that the officers were
looking for Castillo, that the officers believed that Castillo was at Laura’s
house, and that the officers “had information [Castillo] had been there prior to
that.” There is no evidence that Trooper Arevalo or any other officer told Laura
that they were only looking for Castillo or that they intended to deceive her.
Unlike in Davis, there is no evidence that Laura would have refused to consent
to the search if the officers told her they were also looking for Avila or any other



        3Avila appears to rely solely on Bumper v. North Carolina, 391 U.S. 543 (1968), to
support his argument that Laura’s consent was involuntary. But the Supreme Court in
Bumper decided only that consent was not voluntary when it was obtained via the assertion
of a search warrant. Id. at 550.
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                                 No. 14-41174
person involved in the kidnapping. See id. at 294. This court holds that the
officers’ “unrevealed knowledge” did not render Laura’s consent involuntary.
                                       2
      Consent is involuntary if “it was coerced by threats or force, or granted
only in submission to a claim of lawful authority.” Schneckloth, 412 U.S. at
233; see also Bumper, 391 U.S. at 550. Avila argues that the officers entered
Laura’s house “through the claim of authority to search via a warrant” for
Castillo. But Avila fails to cite to any evidence in the record that any law
enforcement officer told Laura that there was a warrant for Castillo. This court
holds that Laura’s consent to search was voluntary.
                                       B
      Avila’s argument that he was unlawfully detained at the Border Patrol
Station is an extension of his argument that Laura’s consent to search her
house was involuntary. Avila does not argue that his detention was unlawful
even if Laura’s consent was voluntary. “Without a poisonous tree, there can be
no tainted fruit.” United States v. Rios-Davila, 530 F. App’x 344, 348 (5th Cir.
2013). Because Laura’s consent to search was voluntary, the officers had the
right to perform a protective sweep. The officers then had probable cause to
detain Avila because he admitted he was in the country illegally.
      In Avila’s statement of the issues, he asserts that “his subsequent
statement was involuntarily provided.” But Avila waived any argument that
his Miranda waiver or subsequent statements were involuntary by failing to
adequately make that argument in his brief. See Scroggins, 599 F.3d at 447.
Because Avila’s detention was lawful, his statements at the Border Patrol
Station are not subject to the exclusionary rule and the district court properly
denied Avila’s motion to suppress.
                                      IV
      The judgment of the district court is AFFIRMED.
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