     Case: 12-40293       Document: 00512115287         Page: 1     Date Filed: 01/16/2013




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

                                                                            FILED
                                                                         January 16, 2013
                                     No. 12-40293
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

RICHARD ANGEL GONZALES, also known as Angel Ricardo Gonzales, Jr.,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:11-CR-801-1


Before WIENER, ELROD, and GRAVES, Circuit Judges.
PER CURIAM:*
       Richard Angel Gonzales entered a conditional guilty plea to being a felon
in possession of a firearm and ammunition, and he was sentenced to 293 months
of imprisonment. He appeals the denial of his motion to suppress the evidence.
He argues that the warrantless search of his locked briefcase, which led to the
discovery of the firearm, was illegal because the third party who consented to the
search did not have actual or apparent authority to do so. He argues that the
firearm should have been suppressed as the product of an illegal search and that


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-40293

any other evidence derived from that search, including any oral and written
statements subsequently made by him, should have been suppressed as the
fruits of the illegal search.
      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) (citation omitted). 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) (citation and internal quotation marks 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. See United States v. Charles, 469 F.3d 402, 405 (5th Cir. 2006).
Voluntary consent provided by a person with authority to grant such consent is
one such exception. Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973); United
States v. Gonzales, 121 F.3d 928, 938 (5th Cir. 1997), overruled on other grounds,
United States v. O’Brien, 130 S. Ct. 2169, 2180 (2010). 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.”
Gonzales, 121 F.3d at 938.
      The district court found that the testimony set forth at the suppression
hearing established that Gonzales’s girlfriend, Maribel Duran, had actual and

                                        2
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                                 No. 12-40293

apparent authority to consent to the search of the locked briefcase. That finding
was supported by the evidence that, inter alia, Gonzales had been living at
Duran’s apartment for about a month, keeping clothes and receiving mail there;
that he kept the briefcase in a shared bedroom; that he had given Duran the
combination to the briefcase; and that he left the briefcase at the apartment
when he spent time away. Gonzales has not demonstrated that the district court
erred by concluding that Duran 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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