     Case: 18-10354      Document: 00514745845         Page: 1    Date Filed: 12/03/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                     United States Court of Appeals
                                                                              Fifth Circuit
                                    No. 18-10354                            FILED
                                  Summary Calendar                   December 3, 2018
                                                                       Lyle W. Cayce
                                                                            Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

ALONZO ESCALON,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:17-CR-167-1


Before SMITH, WIENER, and WILLETT, Circuit Judges.
PER CURIAM: *
       Defendant-Appellant Alonzo Escalon was convicted in a bench trial of
being an illegal alien in possession of a firearm. On appeal, he raises issues
related to his suppression hearing. “When reviewing a district court’s grant or
denial of a motion to suppress evidence as obtained in violation of the Fourth
Amendment, we review a district court’s factual determinations for clear error




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 18-10354

and its ultimate Fourth Amendment conclusions de novo.” United States v.
Gonzalez, 328 F.3d 755, 758 (5th Cir. 2003).
      Escalon contends that he was seized in violation of the Fourth
Amendment.      He claims that his detention began when police officers
approached him in their patrol car and walked toward him prior to observing
signs that gave them probable cause to believe that he was intoxicated in
public. Escalon argues that, because the information supporting the probable
cause determination was developed after his illegal detention, the warrantless
search of his person was unlawful and the firearms evidence must be
suppressed.
      “Even when law enforcement officers have no basis for suspecting a
particular individual,” a person is not detained as long as the officers “do not
induce cooperation by coercive means.” United States v. Drayton, 536 U.S. 194,
201 (2002). A detention thus occurs when the officer’s conduct is sufficiently
coercive that a reasonable person would not feel free to leave or to terminate
the encounter. Id.
      Here, the district court’s factual findings support a determination that
police officers approached Escalon and had a consensual encounter with him,
during which they developed probable cause to arrest him for public
intoxication based on his unsteady gait, slurred speech, red eyes, and the odor
of alcohol. The district court’s factual determinations are plausible in light of
the record as a whole and therefore are not clearly erroneous. See United
States v. Rounds, 749 F.3d 326, 337-38 (5th Cir. 2014). It follows that Escalon
has not shown error in the district court’s determination that there was no
constitutional violation, as “[l]aw enforcement officers do not violate the Fourth
Amendment’s prohibition of unreasonable seizures merely by approaching
individuals on the street or in other public places and putting questions to



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                                 No. 18-10354

them if they are willing to listen.” Drayton, 536 U.S. at 200. Escalon has
waived any other issues pertaining to the district court’s Fourth Amendment
determinations by failing to brief them. See United States v. Pompa, 434 F.3d
800, 806 n.4 (5th Cir. 2005).
      Escalon’s contention that the district court erred at the suppression
hearing by placing undue weight on hearsay evidence lacks merit.            The
evidence in question was not offered for the truth of the matter and therefore
was not hearsay. See United States v. Sosa, 897 F.3d 615, 623 (5th Cir. 2018).
In any event, hearsay is admissible at a suppression hearing. See United
States v. Matlock, 415 U.S. 164, 175 (1974).
      Finally, Escalon insists that his due process rights were violated by a
police officer’s failure to preserve the footage from his body camera. Although
Escalon did not raise a due process claim in the district court, we consider the
issue preserved since Escalon placed the “essential substance” of his objection
to the destruction of the body camera video before the district court by raising
a claim based on spoliation of evidence. See United States v. Mendiola, 42 F.3d
259, 261 (5th Cir. 1994).
      The exculpatory value of the evidence in question is undetermined, but
may be “potentially useful” to the defense. To prevail, Escalon must show that
the evidence was destroyed in bad faith. See Arizona v. Youngblood, 488 U.S.
51, 58 (1988). The district court addressed the substance of this claim by
noting that there was no evidence that Officer Vazquez had deliberately
destroyed or suppressed the video of the incident. Escalon’s claim fails because
he has not shown that the district court’s implicit determination that there was
no bad faith was clearly erroneous. See United States v. McNealy, 625 F.3d
858, 869-70 (5th Cir. 2010).
      AFFIRMED.



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