     Case: 16-40085      Document: 00513767097         Page: 1    Date Filed: 11/21/2016




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

                                    No. 16-40085                                    FILED
                                  Summary Calendar                          November 21, 2016
                                                                               Lyle W. Cayce
                                                                                    Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

MANUEL MONTEMAYOR,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:15-CR-239-1


Before STEWART, Chief Judge, and CLEMENT and SOUTHWICK, Circuit
Judges.
PER CURIAM: *
       Manuel Montemayor entered a conditional guilty plea to being a felon in
possession of a firearm and ammunition and was sentenced to 50 months in
prison. He appeals the denial of his motion to suppress the evidence. He
argues that the warrantless search of his truck and the backpack contained
therein, which led to the discovery of the firearm and ammunition, was illegal


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 16-40085     Document: 00513767097       Page: 2   Date Filed: 11/21/2016


                                   No. 16-40085

because the third party who consented to the search, his wife, Monica
Banuelos, did not have actual or apparent authority to do so.
      When reviewing a denial of a motion to suppress evidence, this court
reviews factual findings for clear error and the ultimate constitutionality of
law enforcement action de novo. United States v. Perez, 484 F.3d 735, 739 (5th
Cir. 2007). A finding is clearly erroneous only if the court is left with a “definite
and firm conviction that a mistake has been committed.” United States v.
Hernandez, 279 F.3d 302, 306 (5th Cir. 2002). This standard is particularly
deferential where “denial of a suppression motion is based on live oral
testimony . . . because the judge had the opportunity to observe the demeanor
of the witnesses.” United States v. Gibbs, 421 F.3d 352, 357 (5th Cir. 2005)
(internal quotation marks and citation omitted). In addition, we view the
evidence “most favorably to the party prevailing below, except where such a
view is inconsistent with the trial court’s findings or is clearly erroneous
considering the evidence as a whole.” United States v. Shabazz, 993 F.2d 431,
434 (5th Cir. 1993).
      Although warrantless searches are per se unreasonable under the
Fourth Amendment, there are certain well-established exceptions to that
warrant requirement. United States v. Guzman, 739 F.3d 241, 245-46 (5th Cir.
2014). Voluntary consent provided by a person with authority to grant such
consent is one such exception. United States v. Tompkins, 130 F.3d 117, 121
(5th Cir. 1997). Valid consent from a third party, rather than from the person
whose property was seized, requires proof that “the third party had either
actual or apparent authority to consent.” United States v. Gonzales, 121 F.3d
928, 938 (5th Cir. 1997), overruled on other grounds by United States v.
O’Brien, 560 U.S. 218 (2010).




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                                No. 16-40085

      The district court found that the testimony set forth at the suppression
hearing established that Banuelos had actual and apparent authority to
consent to the search of the truck and the backpack.        That finding was
supported by the evidence that, inter alia, Banuelos was and remains
Montemayor’s wife; Banuelos and Montemayor lived together at the address
to which the officers responded; Banuelos claimed that the title was registered
in her name, and the officers believed her, although that was later disproven;
Banuelos was a co-owner of the truck since she signed the note to finance its
purchase; Banuelos was a named insured on the automobile insurance policy;
Banuelos had operated the truck before when she needed to; the truck was
parked in the driveway of the home occupied by Banuelos and Montemayor;
Banuelos knew that Montemayor kept a gun in the backpack; Banuelos knew
that Montemayor usually kept the backpack in their bedroom closet;
Montemayor did not attempt to hide the backpack from Banuelos, either when
it was inside the home or inside the truck; and Montemayor had not locked the
truck during the altercation, had not locked it when the officers arrived, and
did not request that it be locked when he was driven out of view of the truck.
      In light of the foregoing, Montemayor has not demonstrated that the
district court erred by concluding that Banuelos had authority to consent. See
Gonzales, 121 F.3d at 938; Shabazz, 993 F.2d at 434.        Consequently, the
judgment is AFFIRMED.




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