     Case: 12-11279    Document: 00512491466     Page: 1   Date Filed: 01/07/2014




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

                                                                    FILED
                                                                   January 7, 2014

                                  No. 12-11279                     Lyle W. Cayce
                                                                        Clerk

UNITED STATES OF AMERICA,

                                            Plaintiff – Appellee
v.

ALBERT GUZMAN,

                                            Defendant – Appellant



                 Appeal from the United States District Court
                      for the Northern District of Texas


Before HIGGINBOTHAM, OWEN, and HIGGINSON, Circuit Judges.
HIGGINSON, Circuit Judge.
      Albert Guzman was convicted, following a stipulated bench trial, of being
a felon in possession of a firearm. He appeals the denial of his motion to
suppress evidence. Because the district court expressly declined to make factual
findings that may have had a determinative impact on the outcome of the
suppression hearing, we vacate the conviction and sentence and remand for
further findings to ascertain, inter alia, whether the police officer asked Guzman
for consent to search his car.
                  FACTS AND PROCEDURAL HISTORY
      On May 11, 2010, Dallas police officers Daniel Warren Foster and George
Garcia arrived at a house in response to a tip that methamphetamines were
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                                      No. 12-11279

being sold there. Guzman was sitting in the driver’s seat of a tan 1998 Dodge
Intrepid parked in the driveway.             He exited the car when the officers
approached. Foster testified at the suppression hearing that he “struck up a
conversation” with Guzman, who was “very cooperative.” Guzman said he was
at the house to see a friend, and added that he had recently been released from
prison. Foster told Guzman that the officers had received drug complaints
regarding the house and had been told that buyers parked in the driveway.
       According to Foster, he then asked Guzman if there were drugs in the car
and whether he could search the car for drugs. Guzman said that Foster could
search the car, that there were no drugs, but that there was a handgun in the
car. According to Foster, Guzman did not seem “particularly” anxious, and he
“said it was his dad’s gun.”1 Foster searched the car and found a semiautomatic
handgun under the driver’s seat. The officers did not find drugs in the car or on
Guzman’s person.
       Foster and Garcia took Guzman to the police car, read him his Miranda
rights, and conducted a recorded interview. At some point, Foster and Garcia
checked Guzman’s criminal history and found that he had eight prior felony
convictions. During the recorded interview, Guzman admitted to knowingly
possessing the gun, said he had it for protection, and repeated that it was his
father’s. He said he had previously shot the gun “not at anyone but just shooting
it off.” Guzman said the car belonged to him and was given to him by his wife.
Foster did not ask Guzman to “reaffirm” his consent to the search during the
interview.
       During the recorded interview, the following exchange took place:


       1
         The police report describes the interaction as follows: “Foster asked AP Guzman for
consent to search the vehicle for drugs. AP Guzman informed [Foster] that there were no
drugs in the vehicle, but that there was a pistol in the vehicle. AP Guzman gave [Foster]
verbal consent to search the vehicle for drugs. AP Guzman also informed [Foster] that he had
just gotten out of the prison.”

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                                       No. 12-11279

       Foster:       Like I was saying, we have had ongoing complaints
                     about drugs being sold out of this house, and you are
                     sitting back here behind [it]. In particular there’s
                     buyers that are supposed to come and go from where
                     you are sitting. We see you there. You know, we come
                     and talk to you. And you are real cool. We ask you if
                     there are any drugs in the car, and you tell us no, but
                     there’s a gun.
       Guzman:       Yeah, that’s . . . that’s what I said, that’s why I was
                     honest with you, right, right off the front street.
       Foster:       You were very honest.
       Guzman:       You know, I’m an honest person, I’m not going to lie
                     about nothing. That’s why, you know, once you say I’m
                     going to search the car but there is no drugs in the car,
                     and that’s what I told you right off the front, you know
                     there’s a gun in there.
       Guzman pleaded not guilty to one count of being a felon in possession of
a firearm in violation of 18 U.S.C. § 922(g)(1) and § 924(e)(1).2 Before trial, the
government filed a notice of intent to introduce evidence and statements
including Guzman’s May 11 admission to knowingly possessing the firearm at
issue. Guzman moved to suppress the seized firearm and any incriminating
statements arising from the search of his car, arguing that he did not consent to
the search.3 In its response, the government maintained that Guzman gave
voluntary verbal consent to the search,4 and, in the alternative, that the search
was valid under the automobile exception to the Fourth Amendment’s warrant




       2
       At that time, Guzman’s suggested defense theory was that he lacked the requisite
knowledge for a conviction under § 922(g).
       3
        Guzman’s counsel noted that his argument was based on the understanding that the
government’s position was that “the search was based on Mr. Guzman’s consent and not on
any other basis,” and thus, the motion did not address any “other unstated basis for a search.”
       4
          With regard to voluntariness, the government noted that Guzman spoke fluent
English, had extensive interaction with the criminal justice system, was cooperative with the
officers, and was not in custody when he gave his consent to the search.

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requirement due to Guzman’s statements that he had recently been released
from prison and that there was a gun in the car.
      The court held a suppression hearing on September 14, 2011, at which
Foster and Garcia were the only witnesses. Foster testified that Guzman gave
verbal consent to the search, and that he, Foster, should have reaffirmed that
consent on the record. Nonetheless, he stated that he believed there was
“probable cause to search the vehicle just based on his statements” about the gun
and having been released from prison, “even without a consent.” When asked
what would have happened if Guzman had not consented, Foster said: “If he had
just flat out said no . . . he would have been free to go. But if he had said, no, but
. . . there was a gun in the car . . . I still would have searched the car.”
Questioned about Guzman’s statement in the recorded interview that Foster had
told him “I’m going to search the car,” Foster responded, “No. I asked him if I
could search the car.” Garcia testified that he heard Foster ask Guzman for
consent and that Guzman responded “yes, he could search but there were no
drugs in there . . . but there was a pistol.”
      During its closing argument, the government argued that the search was
based on valid consent, and that alternatively, even if there was “an issue with
consent,” the search was proper under the automobile exception.               Before
Guzman’s attorney began his closing statement, the district court presented him
with a hypothetical question:
      What if you had a clever police officer who wanted to trick a
      defendant into making a guilty admission and the police officer said,
      “I’m going to search your car whether you like it or not. When I do,
      am I going to find any contraband,” and the person being deceived
      by the clever police officer said, “You won’t find any drugs, but you
      will find a handgun”? . . . [W]hy isn’t that enough? . . . The officer
      hasn’t committed any unlawful search. The potential defendant has
      made a culpable admission that justifies a warrantless search at
      that point.


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                                       No. 12-11279

Guzman’s attorney agreed that police officers “can use trickery,” but said an
officer’s statement that he is going to search the car could be a “violation of [the
defendant’s] rights.” The attorney went on to argue that Guzman “didn’t give
consent,” citing the government’s recording.
       The district court orally denied the motion to suppress. It based its denial
on the:
       . . . understanding of the law that the officers could resort to trickery
       and best case for the defense is that the officers resorted to trickery,
       told him that they were going to get in the car, and faced with that
       belief, he volunteered to the officers that there was a gun in the car.
       At that point I think they had probable cause under the automobile
       exception to go ahead and do a search. . . . [B]ased on my current
       understanding of the law, I think the way the defense characterizes
       the facts still supports a finding of probable cause.

With regard to consent, the district court stated:
       I think there is a conflict in the record, evidence that could be
       argued both ways on the issue of consent, but I don’t think I need to
       reach that issue and resolve that factual question based on my
       understanding of the law.5

       At the pretrial conference, Guzman’s attorney requested that the district
court hold a bench trial, at which Guzman would stipulate to facts establishing
his “factual guilt,” but would “preserve his right to contest his legal guilt” based
on the denial of the suppression motion.6 The district court agreed and held a
one-day bench trial on September 10, 2012.                Guzman stipulated: that he
knowingly possessed a firearm, which had moved in interstate commerce; and


       5
         The district court noted that it was “more than happy to be educated” on the probable
cause issue if the attorneys disagreed with his understanding of the law. Guzman submitted
a supplemental brief on October 17, 2011. The brief requested a continuance and further
briefing and argument as to whether Guzman’s “confession”—that there was a gun in the
car—was voluntary. It does not appear from the record that this request was granted.
       6
         Guzman had previously attempted to change his plea to guilty, but the government
did not agree to offer him a conditional guilty plea.

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                                      No. 12-11279

that he had been previously convicted of a felony. He waived his rights to testify
and to cross-examination.
       Guzman was found guilty, convicted, and sentenced to 200 months
imprisonment and three years of supervised release. Guzman appealed “the
judgment and sentence,” but the sole issue on appeal is whether the district
court correctly denied the motion to suppress.7
                                     DISCUSSION
I.     Standard of Review
       “When reviewing a denial of a motion to suppress evidence, this court
review[s] factual findings for clear error and the district court’s conclusions
regarding . . . the constitutionality of law enforcement action de novo.” United
States v. Perez, 484 F.3d 735, 739 (5th Cir. 2007).
II.    Probable Cause
       A warrantless search is presumptively unreasonable unless it falls within
an exception to the Fourth Amendment’s warrant requirement. United States
v. Karo, 468 U.S. 705, 717 (1984). “One of those exceptions is that a warrantless
search of an automobile with probable cause is justified where circumstances
make a warranted search impracticable.” United States v. Reed, 26 F.3d 523,
528 (5th Cir. 1994); see also New York v. Class, 475 U.S. 106, 112–13 (1986)
(explaining that the automobile exception stems from the inherent mobility of,
and reduced expectation of privacy in, a vehicle). Probable cause in this context
consists of “trustworthy facts and circumstances within the officer’s knowledge
[that] would cause a reasonably prudent man to believe the car contains
contraband.” United States v. Banuelos-Romero, 597 F.3d 763, 767 (5th Cir.


       7
         Because the government has not challenged the use of a stipulated bench trial to
preserve a suppression issue for appeal, we “express no opinion as to the propriety of [the
proceeding,” see United States v. Richardson, 713 F.3d 232, 234 n.2 (5th Cir. 2013); the
necessity of a remand for additional factual findings, however, calls into question even the
advisability of this truncated “trial” approach.

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2010). “Probable cause determinations are not to be made on the basis of factors
considered in isolation, but rather on the totality of the circumstances.” Id.
       The district court denied the motion to suppress because it found that the
officers “had probable cause under the automobile exception to go ahead and do
a search” based on Guzman’s statement that there was a gun in the car.
Guzman maintains that his statement about the gun cannot support a finding
of probable cause, because it was prompted by a Fourth Amendment violation:
Foster’s alleged statement that he was “going to search the car.”8
       When an officer conducts an unlawful search, the fruits of that search,
including incriminating statements, may be inadmissible. See United States v.
Hernandez, 670 F.3d 616, 621–22 (5th Cir. 2012) (“[J]ust as the officers could not

       8
          Guzman alternatively argues for the first time on appeal that the automobile
exception could not apply to this case because his car was parked in a private driveway.
Because Guzman did not raise this argument at the suppression hearing, he has waived it.
See United States v. Scroggins, 599 F.3d 433, 448 (5th Cir. 2010) (“[F]ailure to raise specific
issues or arguments in pre-trial suppression proceedings operates as a waiver of those issues
or arguments for appeal.”) (quoting United States v. Pope, 467 F.3d 912, 918–19 (5th Cir.
2010)). Nonetheless, we have “often proceeded to evaluate [waived] issues under a plain error
standard for good measure.” See id. A district court may commit plain error if, inter alia, the
claimed error was “clear and obvious.” Id. (quoting United States v. Olano, 507 U.S. 725, 732
(1993)). This twin-prong of the plain error test “contemplates an error which was clear under
current law at the time of trial”; “if a defendant’s theory requires the extension of precedent,
any potential error could not have been ‘plain.’” United States v. Garcia-Rodriguez, 415 F.3d
452, 455 (5th Cir. 2005). Although we have noted that where a vehicle is “parked in the
driveways of the residences of the defendants . . . exigent circumstances were required to
justify a warrantless search,” United States v. Sinisterra, 77 F.3d 101, 105 (5th Cir. 1996), we
have not extended that ruling to a vehicle parked in any driveway. In addition, where a
residence was used to sell drugs rather than “regularly use[d] . . . for residential purposes,”
we have held that “the Fourth Amendment concerns that arise when the police search a car
that is parked in a driveway of a home, without a warrant, are not present.” United States v.
Fields, 456 F.3d 519, 525 (5th Cir. 2006); see also 3 W. LaFave, Search and Seizure: A Treatise
on the Fourth Amendment § 7.2(b) n.59 (5th ed. 2012) (“It is not apparent that” the automobile
exception would not apply “when the vehicle is parked on the grounds of the residence where
police have some lawful basis for entering that area.”). Guzman’s alternative argument to
us—that the automobile exception does not apply to a vehicle parked in a private driveway not
belonging to the defendant, where the officers believed the home in question was being used
for illegal activity—does not find clear support in our precedent, hence we hold that the
district court did not plainly err in assuming that the automobile exception would apply to this
case. See Garcia-Rodriguez, 415 F.3d at 455.

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                                 No. 12-11279

have relied on [the defendant’s] admission as probable cause to enter her home,
they also could not have relied on the admission as probable cause to arrest her,
because the officers’ Fourth Amendment violation had already occurred, tainting
[the defendant’s] admission.”). An inadmissible statement cannot constitute
probable cause to support an otherwise illegal search. Id. Foster’s statement,
that he was “going to search the car,” could constitute a false claim of lawful
authority affecting the validity of Guzman’s consent and the admissibility of his
subsequent statements. See United States v. Morales, 171 F.3d 978, 980 (5th
Cir. 1999); United States v. Lopez, 911 F.2d 1006, 1010 (5th Cir. 1990) (holding
that consent must be “given voluntarily and not simply in acquiescence to a
claim of lawful authority”). However, the district court expressly declined to
make a finding on whether Foster made the controverted statement and whether
Guzman consented to the search. Instead, the district court assumed that
Foster’s statement was allowable as “trickery.”
      On appeal, the government maintains that under the district court’s
hypothetical, the officer’s statement would be mere “trickery,” relying primarily
on our decision in United States v. Andrews, 746 F.2d 247 (5th Cir. 1984). In
Andrews, an officer secured consent to inspect the defendant’s shotguns by
stating that a person fitting the defendant’s description “had been connected to
various robberies in which a sawed-off shotgun was employed.” Id. at 248. This
was untrue; the officer’s purpose was to charge Andrews with illegal possession
of a firearm. Id. Wanting to clear his name of the robberies, Andrews gave his
consent to the search. Id. We noted that “any misrepresentation by the
Government is a factor to be considered in evaluating” whether the defendant’s
consent was voluntary, but in that particular case, there was no “evidence that
Andrews’s will was overborne.” Id. at 248–50. Andrews did not establish a
general rule that officers can use trickery to obtain consent; instead, it was a
“narrow” decision holding that “under the facts of this case . . . the government

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                                  No. 12-11279

carried its burden in establishing that any taint which may have occurred”
through the officer’s misrepresentation did not render Andrews’s consent
involuntary. Id. at 251. By contrast, the district court in this case identified a
“conflict in the record . . . on the issue of consent” and declined to “resolve that
factual question.”
      The government contends that, because the district court made no factual
findings, this court must affirm its ruling so long as any reasonable view of the
evidence supports the district court’s ruling. Federal Rule of Criminal Procedure
12(e), which governs motions to suppress, requires that if “factual issues are
involved in determining a motion, the court shall state its essential findings on
the record.” Although this requirement was introduced to aid appellate review,
see Fed. R. Crim. P. 12 (advisory commitee’s notes), we have not applied Rule
12(e) inflexibly. See United States v. Yeagin, 927 F.2d 798, 800 (5th Cir. 1991).
We have held that, where the district court “entered no factual findings and
indicated no legal theory underlying its decision to admit the evidence obtained
in the consent search,” we would “independently review the record to determine
whether any reasonable view of the evidence supports admissibility.” Id.
      Nonetheless, as the D.C. Circuit has explained, the “any reasonable view
of the evidence” rule rests on two assumptions: first, “that the district court
asked the right legal questions in making its ruling,” and second, “that it
actually weighed the evidence bearing on the facts needed to answer them.”
United States v. Williams, 951 F.2d 1287, 1290–91 (D.C. Cir. 1991). When there
is a basis to question “those assumptions, the court may dispense with [this rule]
. . . and remand the case to the district court.” Id.; see also United States v.
Chacon, 330 F.3d 323, 329 (5th Cir. 2003) (remanding where the district court
failed to make factual findings essential to the disposition of a suppression
motion). In this case, we doubt the validity of both assumptions. First, the
district court erroneously assumed as a question of law that any

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                                  No. 12-11279

misrepresentation on the officers’ part would not affect the admissibility of
Guzman’s subsequent statements; second, it expressly declined to make the
factual findings necessary to address that issue. Cf. United States v. Bloomfield,
40 F.3d 910, 914 (8th Cir. 1994) (a circuit court can review facts it “infer[s] were
actually, albeit silently, found” when “the district court could have reached but
one result . . . [and] presumably made whatever factual findings were needed to
support the conclusion”); Ferguson v. Hill, 846 F.2d 20, 21 (5th Cir. 1988) (“An
appellate court may affirm a decision based on incomplete findings if there can
be no genuine dispute about how the trial court actually resolved the facts
missing from its express findings.”).
      The district court assumed “the best [factual] case for the defense”: that
the officers told Guzman “that they were going to get in the car, and faced with
that belief,” Guzman “volunteered . . . that there was a gun.” Under those facts,
the district court found as a question of law that probable cause would exist to
search.    However, whether consent is voluntary following an officer’s
misrepresentation is a question of fact. See Andrews, 746 F.2d at 248; Morales,
171 F.3d at 980 (noting that “the mere utilization of words by officers that would
reasonably be considered to be a command or order does not preclude the
possibility of a suspect validly consenting to a search,” but, instead, whether
consent was given involves “a careful review of [a] fact-intensive record”). See
generally Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973) (“[W]hether
consent to a search was in fact ‘voluntary’ or was the product of duress or
coercion, express or implied, is a question of fact to be determined from the
totality of all the circumstances.”).     The question whether a subsequent
admission is “sufficiently an act of free will to purge the primary taint” similarly




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involves an evaluation of the record. See United States v. Cotton, 72 F.3d 271,
274 (5th Cir. 2013).9
       These issues are “antecedent to the question actually decided by the
district court”: whether Guzman’s admission that there was a gun in his car
could constitute probable cause to search the car. See Chacon, 330 F.3d at 329.
Thus, we vacate Guzman’s conviction and sentence and remand for the district
court to determine whether Foster asked Guzman for his consent to search and
whether Guzman’s consent was voluntary, or, in the alternative, whether
admissible evidence existed to support a finding of probable cause. If after doing
so, the court again denies Guzman’s motion to suppress, it shall reinstate the
conviction and sentence, and Guzman could then appeal. See United States v.
Chavis, 48 F.3d 871, 873 (5th Cir. 1995).
                                       CONCLUSION
       For the foregoing reasons, we VACATE the conviction and sentence and
REMAND to the district court to obtain additional findings.




       9
          This inquiry implicates “(1) the temporal proximity of the arrest to the statement, (2)
the presence of intervening circumstances, and (3) the purpose and flagrancy of the official
misconduct.” Cotton, 72 F.3d at 274 (citing Brown v. Illinois, 422 U.S. 590, 603–04 (1975)).
We note that, even if accepted as true, Foster’s alleged statement is not so “flagrant” as the
behavior described in Hernandez, where officers “had their guns drawn” and “banged on doors
and windows while demanding entry,” then “rel[ied]” on Hernandez’s “admission that an
illegal alien was present as probable cause to enter.” 670 F.3d at 622. Nonetheless, we decline
to address this question when the district court explicitly found “a conflict in the record . . . on
the issue of consent.” Cf. United States v. McSween, 53 F.3d 684, 687 n.3 (5th Cir. 1995)
(noting that “[o]n the facts as found by the district court (or established without dispute in the
record), the question of probable cause is a question of law”) (emphasis added).

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