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

                                                                            FILED
                                                                            July 7, 2008
                                     No. 07-51037
                                   Summary Calendar                   Charles R. Fulbruge III
                                                                              Clerk

UNITED STATES OF AMERICA

                                                  Plaintiff-Appellee

v.

FREDERICO BENITO LOPEZ

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No.7:07-cr-00030


Before STEWART, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Frederico Benito Lopez appeals his conviction for possession with the
intent to distribute methamphetamine and possession of a firearm in
furtherance of a drug-trafficking crime. Lopez argues that the district court
abused its discretion by reopening the hearing on his motion to suppress at the
Government’s request and then erred by denying the motion. We disagree and
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                       No. 07-51037

                        I. Facts and Procedural Background
       On February 20, 2007, Midland (Texas) Police Officer Scott Howard
responded to a call from a police dispatcher reporting that a citizen had called
the 911 emergency number to report that an individual in a maroon vehicle was
stalled at a busy intersection and the driver appeared to have “passed out.” The
officer very quickly arrived at the scene, but the vehicle was no longer at the
intersection. He observed the vehicle traveling northbound at a high rate of
speed.     He pursued the vehicle and ultimately confronted the driver, the
Defendant Lopez, in a parking lot. Another officer arrived shortly thereafter,
searched Lopez, and found a handgun and 7.1 grams of methamphetamine.
       Lopez moved to suppress the gun and drugs, arguing that the vehicle stop
violated the Fourth Amendment because Officer Howard did not have reasonable
suspicion that a crime had been committed.1 At the initial suppression hearing,
the Government offered only Officer Howard’s testimony regarding the relevant
events. At the conclusion of that testimony, the district court asked the parties
to argue the relevance of a precedent analyzing the stop of a vehicle that had
been identified solely by its color. United States v. Jaquez, 421 F.3d 338 (5th Cir.
2005). After providing copies of the Jaquez opinion to counsel and permitting a
fifteen minute recess, the court heard arguments. The motion was then taken
under advisement. Two days later, the Government moved to reopen the
suppression hearing in order to introduce the transcript of the 911 call that
identified Lopez’s vehicle and detailed his behavior. Lopez objected to the
Government’s motion, but the district court reopened the hearing.
       At the second hearing, the government offered a recording and transcript
of the 911 call regarding Lopez’s stalled vehicle. The caller, who identified
himself, reported that Lopez was “slumped” in his vehicle and had sat through
multiple light changes at the intersection. The caller also stated that Lopez

       1
        Lopez did not separately challenge the search of his person that occurred after he was
confronted by Officer Howard.

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appeared to be “drunk or something was wrong.” The dispatch officer who took
the call and relayed the information to Officer Howard also testified at the
second hearing. She explained that she remained in communication with the
caller while simultaneously relaying information to Officer Howard. The caller
confirmed that the maroon vehicle had begun to move about the same time that
Officer Howard arrived. This reinforced Officer Howard’s belief that he was
pursuing the correct vehicle.
      After receiving this additional evidence, the district court denied Lopez’s
motion to suppress, finding that Officer Howard had “probable cause” to stop
Lopez for failing to comply with traffic-control devices, in violation of Texas
Transportation Code § 544.004 (Vernon 1999). Alternatively, the district court
held that Officer Howard was performing a “community caretaking” function
when he stopped Lopez. Lopez entered a conditional guilty plea, but preserved
his right to appeal the denial of his motion to suppress. This appeal followed.
                                  II. Analysis
      Lopez argues that the district court abused its discretion by reopening the
hearing. Lopez proposes that such an abuse occurs if the Government (1) does
not show that new evidence justifies reopening the hearing and (2) fails to
explain its failure to present the new evidence at the original hearing. See
United States v. Bayless, 201 F.3d 116, 131-32 (2d Cir. 2000) (describing but not
adopting this standard). Lopez also cites two other cases that allegedly support
such a standard. United States v. Hassan, 83 F.3d 693, 696 (5th Cir. 1996);
United States v. Mercadel, 75 F. App’x 983 (5th Cir. 2003) (unpublished). In
Hassan, this court affirmed a district court’s refusal to reopen a suppression
hearing because the government had been given “ample time to prepare for the
previous hearing and the [c]ourt spent considerable time reviewing the facts of
[the] case.” 83 F.3d at 696. In Mercadel, this court affirmed the district court’s
refusal to reopen a suppression hearing for the purposes of accepting new
evidence that would not have created a genuine factual dispute on an outcome

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determinative fact. 75 F. App’x 983 at **5-6. In both cases, the district court
had previously ruled on the motion to suppress.
      Lopez’s case differs. Importantly, the Government moved to reopen before
the district court ruled, but after the court’s request for briefing on a recent
precedent. The motion to reopen, made only a few days after the initial hearing,
addressed concerns and analyzed precedent that had been raised sua sponte by
the district court during the initial hearing.
      Regardless of the precise standard to be applied to review the district
court’s discretion, in this case there was a need to respond to the court’s concern
regarding the import of a specific precedent, not relied upon by either party in
prior briefing. Because Lopez has not shown that the district court had an
erroneous view of the law or made a clearly erroneous assessment of the
evidence, he has not demonstrated that the court abused its discretion in
granting the Government’s motion to reopen. Hassan, 83 F.3d at 696.
      Lopez also argues that the district court erred in denying his motion to
suppress. The reasonableness of an investigatory stop is a question of law,
which this court reviews de novo. Jaquez, 421 F.3d at 341. The court must
determine whether, when viewed in the context of the totality of the
circumstances, the officer had reasonable suspicion that criminal activity may
be afoot. Id. at 340-41. This court has recognized that “[a]n ordinary citizen’s
eyewitness account of criminal activity and identification of a perpetrator is
normally sufficient to supply probable cause to stop the suspect.” United States
v. Burbridge, 252 F.3d 775, 778 (5th Cir. 2001). Officer Howard had no reason
to believe that the eyewitness-caller was lying, mistaken, or otherwise
inaccurately recounting Lopez’s conduct. Under these circumstances, we agree
with the district court’s determination that Officer Howard had probable cause
to make the stop based upon the 911 caller’s account of Lopez’s criminal activity
and his own efforts to corroborate the caller’s identification of Lopez’s vehicle.
See id. at 778. Consequently, we do not reach the alternative ground relied upon

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by the district court. See United States v. Encarnacion-Galvez, 964 F.2d 402, 410
n.23 (5th Cir. 1992).
      Lopez argues that even if the caller’s account of his conduct was sufficient
to supply probable cause, Officer Howard did not have authority under Texas
law to arrest Lopez for a misdemeanor traffic violation that was committed
outside of his presence. In other words, because Officer Howard was relying on
mere reports of a traffic violation, he allegedly had no authority to stop or arrest
Lopez. See Tex. Code Crim. Proc. art. 14.01 & 14.03; Drago v. State, 553 S.W.2d
375, 377 (Tex. Crim. App. 1977). Even if we accept Lopez’s interpretation of
Texas law, his argument would not require suppression of evidence under the
federal constitution. This is because “[w]hether the Fourth Amendment has
been violated is determined solely by looking to federal law on the subject.”
United States v. Walker, 960 F.2d 409, 415 (5th Cir. 1992). The Supreme Court
recently unanimously held that evidence obtained after a traffic stop and arrest
based on probable cause could be used in a prosecution even though state law did
not permit an arrest for the misdemeanor offense. Virginia v. Moore, 128 S. Ct.
1598, 1606-07 (2008). We have not been shown any basis to conclude that the
Constitution prohibits an arrest based on probable cause, when the cause is a
sufficient report of a misdemeanor unobserved by the arresting officer. The
evidence properly obtained after the arrest was admissible.
      For these reasons, the judgment is AFFIRMED.




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