     Case: 14-50591      Document: 00512974860         Page: 1    Date Filed: 03/19/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 14-50591
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                          March 19, 2015
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

DAVID GUERRA,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:13-CR-274-1


Before KING, JOLLY, and HAYNES, Circuit Judges.
PER CURIAM: *
       David Guerra pleaded guilty to conspiracy to distribute 100 grams or
more of heroin; he was sentenced to 60 months of imprisonment and five years
of supervised release. He reserved the right to appeal the district court’s denial
of his motion to suppress. Guerra contends that officers lacked reasonable
suspicion or probable cause to conduct an investigatory stop and search his
vehicle. He specifically avers that the vehicular search violated the holding in


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 14-50591     Document: 00512974860      Page: 2    Date Filed: 03/19/2015


                                  No. 14-50591

Arizona v. Gant, 556 U.S. 332, 339 (2009). Guerra also complains that the
district court abused its discretion when it denied his request for an
evidentiary hearing on his motion to suppress.
      In reviewing the denial of a suppression motion, this court reviews the
district court’s factual findings for clear error and its legal conclusions de novo.
United States v. Lopez-Moreno, 420 F.3d 420, 429 (5th Cir. 2005). Factual
findings, including credibility determinations, are not clearly erroneous so long
as the findings are plausible in light of the record as a whole. United States v.
Montes, 602 F.3d 381, 384 (5th Cir. 2010). In making its determination, this
court considers the evidence in the light most favorable to the prevailing party.
United States v. Zavala, 541 F.3d 562, 574 (5th Cir. 2008).
      “An officer may, consistent with the Fourth Amendment, conduct a brief
investigatory stop when the officer has a reasonable articulable suspicion that
criminal activity is afoot.” United States v. Jordan, 232 F.3d 447, 448 (5th Cir.
2000) (citing Terry v. Ohio, 392 U.S. 1, 30 (1968)). Reasonable suspicion is
measured in light of the totality of the circumstances and must be supported
by particular, articulable, and objective facts. United States. Arvizu, 534 U.S.
266, 273 (2002); United States v. Michelletti, 13 F.3d 838, 840 (5th Cir. 1994)
(en banc).
      Guerra fails to demonstrate that officers lacked reasonable suspicion to
stop him. Acting on a tip from a confidential source, detectives observed a man
and a woman participate in suspected narcotics transactions on several
occasions. They witnessed these individuals engage in similar behavior with
the passenger of a vehicle driven by Guerra. Detectives followed Guerra’s car
to another location, where the passenger put an unknown object in the trunk,
while a nervous Guerra watched the activity. Considering the totality of the




                                         2
    Case: 14-50591    Document: 00512974860        Page: 3   Date Filed: 03/19/2015


                                    No. 14-50591

circumstances, officers had reasonable suspicion to stop and question Guerra.
See Michelletti, 13 F.3d at 840.
      Warrantless searches are per se unreasonable under the Fourth
Amendment, subject to a few specific exceptions. Schneckloth v. Bustamonte,
412 U.S. 218, 219 (1973). Because the court is asked to consider a warrantless
search and seizure, the Government has the burden of proving, by a
preponderance of the evidence, that the search and seizure were constitutional.
See United States v. McKinnon, 681 F.3d 203, 207 (5th Cir. 2012). Whether
there is probable cause to conduct a warrantless search is a mixed
determination of law and fact and one this court reviews de novo. United
States v. Muniz-Melchor, 894 F.2d 1430, 1439 n.9 (5th Cir. 1990); United States
v. Wadley, 59 F.3d 510, 512 (5th Cir. 1995). A determination of probable cause
is also based on the totality of circumstances and must be predicated on more
than a “bare suspicion.” United States v. Banuelos-Romero, 597 F.3d 763, 767
(5th Cir. 2010).
      When a police officer has made a lawful arrest of the occupant of an
automobile, he may, under certain circumstances, as a contemporaneous
incident of that arrest, search the passenger compartment of the automobile.
See Gant, 556 U.S. at 343.         Police may search only the space within an
arrestee’s immediate control; a search of a vehicle incident to a warrantless
arrest may not be made if the arrestee has been secured and cannot access the
interior of the vehicle. Id. Officers may, however, conduct a search in that
circumstance when it is “reasonable to believe evidence relevant to the crime
of arrest might be found in the vehicle.” Id. (internal quotation marks and
citation omitted); see also United States v. Ned, 637 F.3d 562, 567 (5th Cir.
2011)(explaining the automobile exception).




                                         3
    Case: 14-50591     Document: 00512974860     Page: 4   Date Filed: 03/19/2015


                                  No. 14-50591

      The officers had reason to believe that evidence relevant to an illegal
narcotics transaction was in the vehicle. Surveillance had established an
interaction between a passenger in Guerra’s car and two individuals suspected
of dealing narcotics. The police had continued surveillance on the vehicle.
When the officer approached the men, Guerra pulled a white object out of his
pants pocket and placed it in the car. When he looked inside the car, the officer
observed a clear plastic baggie containing a white powdery substance, located
on the center console.    Considering the totality of the circumstances, and
viewing the evidence in the light most favorable to the Government, the district
court did not err in determining that officers had probable cause to believe that
evidence related to criminal activity was in Guerra’s vehicle. See Gant, 556
U.S. at 343; Banuelos-Romero, 597 F.3d at 767.
      Finally, as to Guerra’s claim regarding an evidentiary hearing, this court
reviews a district court’s denial of an evidentiary hearing on a suppression
motion for abuse of discretion. See United States v. Harrelson, 705 F.2d 733,
737 (5th Cir. 1983). Suppression hearings are required “only when necessary
to receive evidence on an issue of fact” and when a defendant has “allege[d]
sufficient facts which, if proven, would justify relief.” Id. “Factual allegations
set forth in the defendant’s motion, including any accompanying affidavits,
must be sufficiently definite, specific, detailed, and non-conjectural, to enable
the court to conclude that a substantial claim is presented.” Id. (internal
quotation marks and citation omitted). Guerra has not established that a
hearing was necessary to receive evidence on any issue of fact and has failed
to present sufficient facts which, if proven, would justify relief on his
suppression motion. See Harrelson, 705 F.2d at 737. Therefore, the district
court did not abuse its discretion when it denied Guerra’s request for an
evidentiary hearing. See id.



                                        4
Case: 14-50591   Document: 00512974860   Page: 5   Date Filed: 03/19/2015


                          No. 14-50591

 AFFIRMED.




                                5
