                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                                                               July 17, 2007
                        FOR THE FIFTH CIRCUIT
                        _____________________            Charles R. Fulbruge III
                                                                 Clerk
                             No. 06-50194
                        _____________________

UNITED STATES OF AMERICA,

                                                Plaintiff - Appellee,

                               versus

CESAR CHAVEZ-BARRAZA,

                                           Defendant - Appellant.
_________________________________________________________________

           Appeal from the United States District Court
                 for the Western District of Texas
                      USDC No. 3:05-CR-947-ALL
_________________________________________________________________

Before JOLLY, STEWART, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Cesar Chavez-Barraza (“Chavez-Barraza”) was convicted by a

jury of possession of marijuana with intent to distribute and of

maintaining an establishment for distribution of marijuana.            On

appeal, he argues that the district court erred in denying his

motion to suppress the evidence seized from his property located at

Lettunich Street.   We disagree and affirm.

                                 I.

     On April 5, 2005, law enforcement officers in El Paso received

a tip from a confidential informant (“CI”) that Chavez-Barraza was


     *
      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this opinion should not be published and is not precedent except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.
storing 4000 pounds of marijuana at his residence at 1306 Twig

Road.   The CI led the officers to the house where they waited until

Chavez-Barraza returned home.    At this point, Officer Triana spoke

with Chavez-Barraza in Spanish and obtained his consent to search

the residence.    Chavez-Barraza signed a written consent form in

Spanish permitting the officers to search the residence.

     After   obtaining   Chavez-Barraza’s   consent,   the   officers

searched the residence at 1306 Twig Road but found no drugs.      The

officers did, however, discover a mortgage statement on a night

stand that was for a second property located at 401 Lettunich

Street.   The statement was addressed to Chavez-Barraza, his wife

Lorena, his sister Anna, and his brother-in-law Manuel Rivera. The

parties dispute whether the mortgage statement was plainly visible

or mixed into a stack of mail.

     Officer Triana placed the mortgage statement in his back

pocket and went outside to speak with Chavez-Barraza.        He asked

Chavez-Barraza if he owned any other properties in the area.     When

Chavez-Barraza stated that he did not, Triana produced the mortgage

statement.   At this point, Triana testified, Chavez-Barraza became

visibly agitated.     He told Triana that his sister owned the

Lettunich Street property and that he didn’t know who lived there.

The officers then decided to visit the Lettunich property.     Triana

told Chavez-Barraza that he and the other officers were going to go

see the second property, and that Chavez-Barraza could drive



                                  2
himself or ride with Triana if he wanted to come along.            Chavez-

Barraza voluntarily elected to ride with Triana.

     The Lettunich Street property included a single building

divided into two residences.           The back residence could not be

accessed from inside the front residence. Chavez-Barraza’s mother,

who lived in the front residence, gave the officers permission to

search her home.      They did so and found nothing significant.          The

officers then asked Chavez-Barraza for consent to search the back

apartments, which he claimed to be maintaining.              Chavez-Barraza

signed a written consent, but he did not have keys to open the

door.   One of the officers climbed into the building through an

upstairs window and found approximately 2,700 pounds of marijuana.

     The officers arrested Chavez-Barraza, Mirandized him, and

questioned him.      Chavez-Barraza confessed that he had rented the

back to men who used it to store marijuana and that he had helped

to unload the drugs.

     Chavez-Barraza was indicted by grand jury on one count of

possession    with   intent   to     distribute   1,256.54    kilograms    of

marijuana, in violation of 21 U.S.C. § 841(a)(1), and one count of

maintaining    an    establishment     for   distributing    marijuana,    in

violation of 21 U.S.C. § 856(a)(2) & (b).         Chavez-Barraza filed a

motion to suppress the evidence against him, which the district

court denied without making any factual findings.            Chavez-Barraza

was tried by jury and convicted on both counts.        The district court

sentenced Chavez-Barraza to 121 months on each count, to be served

                                       3
concurrently,   and   Chavez-Barraza       timely   appealed.      We   have

jurisdiction over this appeal under 28 U.S.C. § 1291 and 18 U.S.C.

§ 3742(a).

                                     II.

     On appeal, Chavez-Barraza argues that the district court erred

in denying his suppression motion because (1) the discovery and

seizure of the mortgage statement occurred outside the scope of

Chavez-Barraza’s consent; (2) the intervening event of Chavez-

Barraza’s second consent did not break the causal chain; and (3)

Chavez-Barraza’s second consent was involuntary.          Because we find

that Chavez-Barraza’s second         consent was voluntary, and that it

was an intervening act of free will, we assume without deciding

that the “seizure” of the mortgage statement was a constitutional

violation.

     In   reviewing   a   district    court’s   ruling   on   a   motion   to

suppress, “[w]e view the evidence in a light most favorable to the

prevailing party.”    United States v. Maldonado, 472 F.3d 388, 392

(5th Cir. 2006). Generally, “[w]hen reviewing a ruling on a motion

to suppress, the court reviews questions of law de novo and

findings of fact for clear error.”          United States v. Grant, 349

F.3d 192, 195 (5th Cir. 2003), cert. denied 540 U.S. 1227 (2004).

Because the district court here made no factual findings, this

court may “conduct a more searching review, [but] our analysis will

be guided by the testimony and other evidence adduced at the

suppression hearing.”     United States v. Paige, 136 F.3d 1012, 1017

                                      4
(5th Cir. 1998).    “Since findings were not made, we uphold the

ruling of the Trial Court if there is any reasonable view of the

evidence to support it.”     United States v. Montos, 421 F.2d 215,

219 n.1 (5th Cir. 1970).

     Generally, “all evidence derived from the exploitation of an

illegal search or seizure must be suppressed, unless the government

shows that there was a break in the chain of events sufficient to

refute the inference that the evidence was a product of the

constitutional violation.”    United States v. Dortch, 199 F.3d 193,

200-01 (5th Cir. 1999).1     “Consent to [a subsequent] search may,

but does not necessarily, dissipate the taint of a [prior] fourth

amendment violation.”   United States v. Chavez-Villarreal, 3 F.3d

124, 127 (5th Cir. 1993).     “The admissibility of the challenged

evidence turns on a two-pronged inquiry:    whether the consent was

voluntarily given and whether it was an independent act of free

will.”   Id.

     We first consider whether Chavez-Barraza’s second consent was

voluntary and conclude that it was.2     Chavez-Barraza was not in

     1
          Chavez-Barraza argues that because the district court
denied his motion to suppress without explanation, we should remand
for consideration of the “fruit of the poisonous tree” doctrine.
We decline to do so because the record is adequate to support our
review.
     2
       In evaluating the voluntariness of consent, this court
considers:

           (1) the voluntariness of the defendant’s
           custodial status; (2) the presence of coercive
           police procedures; (3) the extent and level of

                                  5
custody at the time his second consent was requested; in fact,

Chavez-Barraza was only present at the Lettunich Street property

because he had chosen to accompany the officers when they left his

residence at Twig Road.   These facts indicate that Chavez-Barraza

was voluntarily accompanying the officers and that his consent was

not brought about by coercion on the part of the police.

     Furthermore, the circumstances under which the second consent

was obtained indicate that Chavez-Barraza was aware that he could

have declined to consent to the search.   The officers searched the

front of the Lettunich Street residence based on the consent given

by Chavez-Barraza’s mother.   When they discovered that they could

not reach the entire property from her residence, they then asked

Chavez-Barraza for his consent to search the back residence.

Furthermore, at the Twig Road search, Chavez-Barraza had limited

his consent to a search of the residence, a vehicle, and the

storage area.   We conclude that Chavez-Barraza knew that he could

refuse consent and that the consent he gave was voluntary.

     We now turn to consider whether Chavez-Barraza’s voluntary

consent was an independent act of free will.   To determine whether



          the defendant’s cooperation with the police;
          (4) the defendant’s awareness of his right to
          refuse to consent; (5) the defendant’s
          education and intelligence; and (6) the
          defendant’s belief that no incriminating
          evidence will be found.

United States v. Shabazz, 993 F.2d 431, 438 (5th Cir. 1993)
(internal quotation omitted).

                                 6
the causal chain was broken between the presumed constitutional

violation and Chavez-Barraza’s consent, we consider: “(1) the

temporal proximity of the illegal conduct and the consent; (2) the

presence of intervening circumstances; and (3) the purpose and

flagrancy of the initial misconduct.” Chavez-Villarreal, 3 F.3d at

128.

       Although the presumed violation and the second consent were

temporally close, the remaining two factors favor a finding that

Chavez-Barraza’s second consent was an independent act of free

will.       After the search, Chavez-Barraza was given the option to

stay at Twig Road            and chose to accompany the police to the

Lettunich Street property.         Chavez-Barraza’s knowledge that he was

free to leave, coupled with his decision not to do so, indicate

that his subsequent consent was an independent act of free will.

Cf. United States v. Jenson, 462 F.3d 399, 407 (5th Cir. 2006)

(noting that there was “no evidence that ... [the defendant] knew

he was free to leave,” while rejecting the government’s argument

for a break in the causal chain).3

       Furthermore,     the    violation    here,    if     indeed   a   violation

occurred, was not flagrant.         Chavez-Barraza does not dispute that

he gave the officers a broad written consent to search the Twig

Road       residence   for    “contraband   or      other    evidence    of   drug

       3
        Furthermore, Chavez-Barraza observed the officers request
and obtain his mother’s consent before searching her residence.
This should have indicated to Chavez-Barraza that the officers were
bound to respect his choice.

                                       7
trafficking,” but rather contends that his personal papers were not

included in the scope of that consent, and that Officer Triana

unlawfully seized the mortgage statement by placing it in his

pocket and carrying it outside.   This conduct was “at worst a ...

minor and technical invasion of [Chavez-Barraza’s] rights.” United

States v. Sheppard, 901 F.2d 1230, 1235 (5th Cir. 1990).        We

therefore conclude that Chavez-Barraza’s consent was an intervening

act of free will that broke the causal chain.

                               III.

     The ruling of the district court denying Chavez-Barraza’s

motion to suppress and the judgment of conviction are therefore

                                                         AFFIRMED.




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