     Case: 12-40245         Document: 00512422901          Page: 1     Date Filed: 10/29/2013




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

                                                                               FILED
                                                                            October 29, 2013
                                         No. 12-40245
                                                                              Lyle W. Cayce
                                                                                   Clerk
UNITED STATES OF AMERICA,

                                                     Plaintiff–Appellee,

v.

FELIPE SALINAS,

                                                     Defendant–Appellant.



                     Appeals from the United States District Court
                          for the Southern District of Texas
                               USDC No. 2:11-CR-966-1


Before OWEN and HAYNES, Circuit Judges, and LEMELLE,* District Judge.
PER CURIAM:**
       Felipe Salinas appeals his convictions for knowingly making a materially
false statement to a deputy United States marshal in violation of 18 U.S.C.
§ 1001(a)(2) and for possession of more than 500 grams of a mixture or substance
containing a detectable amount of cocaine with the intent to distribute in
violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B). We affirm.



       *
           District Judge of the Eastern District of Louisiana, sitting by designation.
       **
         Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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: 12-40245    Document: 00512422901     Page: 2   Date Filed: 10/29/2013



                                 No. 12-40245

                                        I
      Agents of the United States Marshal Service (USMS), led by Deputy
Marshal Chris Askew, tracked the cell phone of a wanted fugitive, Antonio Ortiz,
to an apartment complex in Corpus Christi, Texas. The agents followed the
phone signal as it moved through the complex, and Askew observed a person he
did not know, Felipe Salinas, walking in the location that was indicated as the
phone’s location. Wearing full tactical gear that conspicuously identified him as
a USMS agent, Askew approached and confronted Salinas on the sidewalk with
one other agent. Shortly after the conversation was initiated, one of the other
agents in the area notified Askew through a radio earpiece that Ortiz’s cell
phone was in Askew’s immediate vicinity. Askew told Salinas that the USMS
was looking for a fugitive, showed him a picture of Ortiz, and asked if Salinas
knew Ortiz. Initially, Salinas denied knowing Ortiz or having ever seen him.
      Shortly thereafter, a cell phone in Salinas’s possession began to ring.
Salinas removed the phone from his pocket, which allowed Askew to see the
incoming call’s phone number on the screen. Askew immediately recognized the
number as one that was frequently called from Ortiz’s phone. Askew asked
Salinas who was calling, and Salinas claimed the call was from his father’s work
number. At Askew’s request, Salinas handed the phone to the officer for
inspection, and at the same time, Salinas produced another phone from his
pocket, which he also gave to Askew. When questioned, Salinas disclosed the
phone number of the first phone but claimed not to know the number for the
second phone. Salinas did, however, disclose the passcode for the second phone,
which was locked.
      Once Askew had unlocked the second phone, he was able to confirm that
it was the phone that USMS had been tracking. Salinas initially claimed that
he had purchased the phone himself and continued to deny knowing Ortiz. After
further questioning, Salinas admitted that he knew Ortiz, but asserted that he

                                       2
     Case: 12-40245        Document: 00512422901         Page: 3    Date Filed: 10/29/2013



                                        No. 12-40245

had not seen Ortiz in months. When Askew confronted Salinas with the fact
that the second phone belonged to Ortiz, Salinas feigned surprise but then
confessed that he was holding the phone at Ortiz’s request because Ortiz was
worried that the Government might track him through the phone. Salinas was
then arrested by Officer Matt Harmon, a Corpus Christi police officer assigned
to the USMS task force, on state charges for hindering apprehension of a
fugitive.1 The duration of the encounter between the time Askew approached
Salinas and his arrest was approximately 15 to 20 minutes.2                      At some
unspecified point after Salinas’s arrest, agents read him his rights pursuant to
Miranda v. Arizona.3
      Once arrested, Salinas further divulged that he had been in recent contact
with Ortiz and offered to show the agents the location of Ortiz’s parents’ house,
where he believed they could find Ortiz. The agents asked Salinas to call Ortiz,
which he did, but Salinas received no answer.
      A federal grand jury indicted Salinas on September 28 on one count of
making false statements to a deputy United States marshal. On October 11, a
group of agents, including Askew and Harmon, executed an arrest warrant at
Salinas’s apartment. The agents knocked for several minutes before Salinas
opened the door, and Askew presented him with the warrant. Askew asked
whether there was anyone else in the apartment, and Salinas replied, “No, you
can search it,” and gestured inside. Both Askew and Harmon took that to mean


      1
          It is not clear whether the state charges were ever prosecuted.
      2
        There is some uncertainty about when Salinas was arrested and read his Miranda
rights. Contradicting the district court’s conclusion that Salinas was arrested at the
apartment complex, Harmon testified that he arrested Salinas and read him his rights after
Salinas lead the agents to Ortiz’s parents’ house. Because Salinas does not challenge the
introduction of any statements made after the encounter on the apartment sidewalk, the
precise moment of Salinas’s arrest is immaterial.
      3
          384 U.S. 436 (1966).

                                               3
    Case: 12-40245        Document: 00512422901        Page: 4    Date Filed: 10/29/2013



                                      No. 12-40245

Salinas was consenting to a full search of the apartment. The agents entered the
apartment and handcuffed Salinas. Once inside, the agents saw a notebook
containing names and dollar amounts that Askew recognized as a drug-
transaction ledger; razor blades; white powder on a table and the floor that later
field-tested positive for cocaine; and clothing and a duffel bag with the Ferrari
symbol on them, which Askew knew was associated with Los Zetas—a violent
gang known to deal drugs.4 Askew opened the duffel bag and found what was
later confirmed to be several hundred grams of cocaine. Pursuant to protocol,
the agents then stopped the search and called the Drug Enforcement Agency
(DEA). Officer Charles L. Bartels, a Corpus Christi police officer assigned to the
DEA task force, and a second agent responded. Bartels presented Salinas with
a written search-consent form, but Salinas refused to sign it. On the basis of the
evidence already collected, the agents obtained a search warrant for Salinas’s
apartment. In the subsequent search, the agents discovered more cocaine in
Salinas’s bathroom closet. A total of 785.5 grams of cocaine was seized from the
duffel bag and the closet.
      The Government then secured a superseding indictment, charging Salinas
with one count of making false statements and one count of possession of at least
500 grams of a mixture or substance containing a detectable amount of cocaine
with the intent to distribute. Salinas filed a motion to suppress the statements
he made to Askew during their first encounter at the apartment complex and a
motion to suppress the evidence seized from his apartment. At the suppression
hearing, the Government offered testimony from Askew, Harmon, and Bartels.
Salinas also testified, contradicting the Government’s version of the events. The
court found Salinas’s testimony unconvincing. Regarding the motion to suppress
Salinas’s statements at the apartment complex, the court concluded:


      4
          This name was erroneously transcribed as “Losetas” in the suppression hearing.

                                             4
     Case: 12-40245         Document: 00512422901         Page: 5      Date Filed: 10/29/2013



                                        No. 12-40245

       On August the 2nd I find that the Marshal testified that he showed
       pictures of Ortiz to the Defendant who denied knowing him and
       then a phone call came in on Ortiz’s phone in the hand of the
       Defendant. The conversation ensued further where he changed his
       story. He was arrested within 15 minutes of the initial contact.
With regard to the search, the court ruled:
       On October the 11th the Marshals executed an arrest warrant.
       They conducted a protective search incident to a lawful arrest. They
       may have believed they had consent to do more, but I’m not sure
       that that’s clear from the testimony. They exceeded that by looking
       in the duffel bag. However, they had enough with the cocaine in
       plain view, the razors, the drug log, to get the search warrant, come
       back and it was inevitable that they would have seen the cocaine in
       the bag, as they found the cocaine in the laundry. So that is all
       admissible.
       At a stipulated bench trial, the court found Salinas guilty on both counts.
On appeal, Salinas argues that the district court erred in denying his motions
to suppress the incriminating statements and the evidence of cocaine.
                                               II
       We review the factual findings supporting the denial of a motion to
suppress evidence for clear error, and we review questions of law de novo.5 “The
clearly erroneous standard is particularly deferential where ‘denial of the
suppression motion is based on live oral testimony . . . because the judge had the
opportunity to observe the demeanor of the witnesses.’”6 Furthermore, under the
clear error standard we review the evidence in the light most favorable to the
prevailing party (the Government).7 A factual finding is clearly erroneous only




       5
           United States v. Mata, 517 F.3d 279, 284 (5th Cir. 2008).
       6
        United States v. Scroggins, 599 F.3d 433, 440 (5th Cir. 2010) (quoting United States
v. Gibbs, 421 F.3d 352, 357 (5th Cir. 2005)).
       7
           United States v. Menchaca-Castruita, 587 F.3d 283, 289 (5th Cir. 2009).

                                                5
     Case: 12-40245         Document: 00512422901         Page: 6       Date Filed: 10/29/2013



                                        No. 12-40245

when it is unsupported by the evidence when considering the record as a whole.8
Furthermore, we are not limited to considering only the district court’s reasoning
and “may affirm a district court’s ruling on a motion to suppress on any basis
established by the record.”9
                                               III
       Salinas argues that the incriminating statements he made to Askew were
inadmissible evidence because he was in custody at the time and had not been
apprised of his rights pursuant to Miranda v. Arizona.10                        We disagree.
Additionally, even if those statements should have been excluded, their
admission was harmless error because the remaining evidence was sufficient to
convict Salinas.
       Salinas is correct that “the prosecution may not use statements, whether
exculpatory or inculpatory, stemming from custodial interrogation of the
defendant” unless the defendant has been given the prophylactic warnings
mandated by Miranda.11 Custodial interrogation is “questioning initiated by law
enforcement officers after a person has been taken into custody.”12 Salinas
argues that he was in custody for the purposes of Miranda as soon as Askew had
possession of his cell phone and suspected he was lying.
       In the absence of a formal arrest, whether a person is “in custody” depends
on how a reasonable person would perceive and respond to the situation.13 We

       8
           United States v. Raney, 633 F.3d 385, 389 (5th Cir. 2011).
       9
           Mata, 517 F.3d at 284.
       10
            384 U.S. 436 (1966).
       11
            Miranda, 384 U.S. at 444.
       12
         United States v. Gonzales, 121 F.3d 928, 939 (5th Cir. 1997) (quoting Illinois v.
Perkins, 496 U.S. 292, 296 (1990)) (emphasis and internal quotation marks omitted).
       13
        United States v. Chavira, 614 F.3d 127, 133 (5th Cir. 2010) (“[T]he issue is whether
the reasonable person in [the same] situation would have understood the situation to

                                                6
     Case: 12-40245         Document: 00512422901          Page: 7   Date Filed: 10/29/2013



                                            No. 12-40245

focus on the objective circumstances of the questioning and not the subjective
purpose or intention of the law enforcement officers.14 A brief, public stop for
questioning does not generally rise to the level of a custodial interrogation, even
if the questioning is intended to determine whether the defendant is complying
with the law.15 The hallmark of a custodial interrogation is the coercive power
of law enforcement, which the Supreme Court “has recognized . . . can be mental
as well as physical.”16 “A determination of whether a defendant is ‘in custody’
for Miranda purposes depends on the ‘totality of circumstances.’”17
       The basic test for what constitutes a custodial interrogation is whether “a
reasonable person in the suspect’s position would have understood the situation
to constitute a restraint on freedom of movement of the degree which the law
associates with formal arrest.”18              In general, we have held that custodial
interrogation requires some combination of isolation, restriction of movement,
physical restraint, and coercive technique. For example, in United States v.
Cavazos,19 we held that the hour-long questioning of a defendant who was roused
from his bed by fourteen officers executing a search warrant, handcuffed, and
separated from his family during questioning constituted a custodial
interrogation.20


constitute a restraint on freedom to the degree the law associates with formal arrest.”).
       14
            United States v. Bengivenga, 845 F.2d 593, 596-97 (5th Cir. 1988) (en banc).
       15
            Id.
       16
            Miranda, 384 U.S. at 448.
       17
         United States v. Cavazos, 668 F.3d 190, 193 (5th Cir. 2012) (quoting California v.
Beheler, 463 U.S. 1121, 1125 (1983)).
       18
            Bengivenga, 845 F.2d at 596.
       19
            668 F.3d 190 (5th Cir. 2012).
       20
            Cavazos, 668 F.3d at 194.

                                                 7
    Case: 12-40245           Document: 00512422901        Page: 8   Date Filed: 10/29/2013



                                           No. 12-40245

      In contrast, in United States v. Bengivenga21 we held that the questioning
of two women on a commercial bus at a fixed immigration checkpoint did not rise
to the level of custodial interrogation.22 In that case, agents detected a strong
odor of marijuana emanating from three checked bags and asked the women to
step off the bus for further questioning in the checkpoint trailer.23                 The
questioning officer quickly determined that the bags belonged to the two women
based on luggage tags in their possession, and he arrested them and advised
them of their constitutional rights.24 Noting that the questioning was brief and
not overbearing (lasting only a few minutes), was not in isolation, and did not
involve a large number of agents, the court concluded that “a reasonable person
in Bengivenga’s position would have understood that so long as the bus driver
remained in the trailer the bus would not depart and if everything checked out
she would shortly rejoin the other passengers on the bus.”25
      More recently, in United States v. Chavira,26 we examined when
questioning that is initially noncustodial becomes a custodial interrogation. In
that case, immigration officers first detained Chavira at an established
pedestrian border checkpoint.27 When they grew suspicious of her claims that
the minor teenage girl accompanying her was her daughter, immigration
officials moved Chavira to a small, windowless room in the “secondary
processing area” where she was subjected to a pat-down search, seated and

      21
           845 F.2d 593 (5th Cir. 1988) (en banc).
      22
           Bengivenga, 845 F.2d at 594.
      23
           Id.
      24
           Id.
      25
           Id. at 599-600.
      26
           614 F.3d 127 (5th Cir. 2010).
      27
           Chavira, 614 F.3d at 129.

                                                8
     Case: 12-40245          Document: 00512422901       Page: 9     Date Filed: 10/29/2013



                                       No. 12-40245

handcuffed to a chair, and questioned by several officers about her statements.28
We held that although Chavira was not free to leave, the initial checkpoint
detention did not constitute a custodial interrogation.29                    However, the
questioning in the secondary processing area did.30 We noted that, in addition
to moving Chavira to a small, enclosed space away from the public, immigration
officials had confiscated Chavira’s birth certificate and driver’s license,
separately detained the minor child accompanying her, physically restrained her
with handcuffs, and questioned her for 30 to 40 minutes in an “increasingly
accusatory” manner.31
       The circumstances of Salinas’s initial encounter with law enforcement at
the apartment complex do not indicate that it was a custodial interrogation.
Salinas was not moved to a separate location or physically restrained. He
remained subject to public scrutiny and was questioned by only two agents.
Unlike Chavira and Cavazos, the agents did not restrict or control Salinas’s
actions beyond asking him questions. Although, post hoc, Salinas claims that
he perceived himself to be in custody, a reasonable person would not have
considered himself to be under arrest in those circumstances.32




       28
            Id. at 129-30.
       29
            Id. at 133.
       30
            Id.
       31
            Id. at 134.
       32
          See United States v. Cavazos, 668 F.3d 190, 193 (5th Cir. 2012) (recognizing that the
“essential” inquiry is whether “a reasonable person [would] have felt he or she was at liberty
to terminate the interrogation and leave” (citing J.D.B. v. North Carolina, 131 S. Ct. 2394,
2402 (2011))); United States v. Bengivenga, 845 F.2d 593, 596 (5th Cir. 1988) (en banc) (“The
reasonable person through whom we view the situation must be neutral to the environment
and to the purposes of the investigation—that is, neither guilty of criminal conduct and thus
overly apprehensive nor insensitive to the seriousness of the circumstances.”).

                                              9
    Case: 12-40245            Document: 00512422901       Page: 10   Date Filed: 10/29/2013



                                           No. 12-40245

       Salinas concedes that the encounter did not begin as a custodial
interrogation, but argues that two circumstances moved the encounter into the
realm of a custodial interrogation: that Askew took possession of his cell phones
and became suspicious that he was lying. Relying on Florida v. Royer,33 Salinas
argues that retention of a key item of property is a “show of official authority
such that ‘a reasonable person would have believed that he was not free to
leave.’”34 However, at issue in Royer was whether the defendant was “seized” for
the purposes of an illegal search and seizure under the Fourth Amendment.35 We
have repeatedly recognized that seizure under the Fourth Amendment is distinct
from custody under Miranda.36 “The critical difference between the two concepts
. . . is that custody arises only if the restraint on freedom is a certain degree—the
degree associated with formal arrest.”37 Although the retention of the phones,
like the retention of the identifying documents in Chavira, is some evidence that
the encounter was custodial, it is insufficient for us to conclude that the district
court clearly erred in finding that Salinas was not in custody.
       The only other evidence Salinas offers is Askew’s testimony that he
suspected Salinas was lying and that “at that point [Salinas] was not free to
leave.” Under Bengivenga, the focus of the officer’s questioning is not probative
of custody.38 Nor does temporary detention by itself automatically rise to the


       33
            460 U.S. 491 (1983).
       34
         Royer, 460 U.S. at 502 (quoting United States v. Mendenhall, 446 U.S. 544, 554 (1980)
(opinion of STEWART, J.)).
       35
            Id. at 499-500.
       36
          E.g., Cavazos, 668 F.3d at 193 (“Custody for Miranda purposes requires a greater
restraint on freedom than seizure under the Fourth Amendment.” (citing Bengivenga, 845 F.2d
at 598)).
       37
            Bengivenga, 845 F.2d at 598.
       38
            Id. at 597.

                                               10
    Case: 12-40245            Document: 00512422901        Page: 11     Date Filed: 10/29/2013



                                           No. 12-40245

level of custodial interrogation.39 Even if Salinas were not “free to leave,” that
does not mean that he was effectively under arrest for the purposes of Miranda.
         In the alternative, assuming that Salinas’s statements were obtained in
violation of Miranda and were therefore inadmissible, admission of the
incriminating statements was harmless error. To demonstrate harmless error
in this context, the Government must show that the evidence, absent the
improperly admitted evidence, overwhelmingly demonstrates beyond a
reasonable doubt that Salinas knowingly made a materially false statement.40
We conclude that it has met this burden.
         Salinas sought to exclude three specific statements: that he knew Ortiz,
that he had spoken with Ortiz recently, and that he was holding Ortiz’s phone
to help Ortiz avoid capture. He argues that, without those three statements, the
Government could not prove beyond a reasonable doubt that Salinas knowingly
made a materially false statement to Askew when Salinas said he did not know
Ortiz.
         To convict Salinas under 18 U.S.C. § 1001, the Government had the
burden to prove that Salinas “(1) made a statement (2) that was false (3) and
material (4) knowingly and willfully and (5) that falls within agency
jurisdiction.”41 Each element of the crime is either directly proven or is an
inescapable inference from the admissible evidence that Salinas possessed
Ortiz’s cell phone and received a phone call on his personal phone from a number
associated with Ortiz—all while denying any knowledge of or connection to
Ortiz. Salinas’s statement that he did not know Ortiz was shown to be false by


         39
              Id. at 597-98; see also United States v. Chavira, 614 F.3d 127, 129, 133 (5th Cir.
2010).
         40
          United States v. Virgen-Moreno, 265 F.3d 276, 294 (5th Cir. 2001) (citing United
States v. Paul, 142 F.3d 836, 843 (5th Cir. 1998)).
         41
              United States v. Jara-Favela, 686 F.3d 289, 301 (5th Cir. 2012).

                                                 11
    Case: 12-40245       Document: 00512422901          Page: 12     Date Filed: 10/29/2013



                                       No. 12-40245

Salinas’s possession of Ortiz’s phone and knowledge of the passcode. The sole
plausible inference for Salinas’s denial that he knew Ortiz is an intent to
deceive.42 Salinas made a statement that, if believed, would frustrate the
apprehension of a fugitive, making it material to the USMS investigation.43 For
the same reason, the statement was relevant to the jurisdiction of the USMS.
The statements that Salinas asserts were obtained in violation of Miranda were
cumulative and their admission, if in error, was harmless.44


       42
          United States v. Guzman, 781 F.2d 428, 431 (5th Cir. 1986) (“The requirement that
the false representation be made ‘knowingly and willfully’ is satisfied if the defendant acts
deliberately and with the knowledge that the representation is false.”).
       43
         United States v. Moore, 708 F.3d 639, 649 (5th Cir. 2013) (“A material statement is
one that has ‘a natural tendency to influence, or be capable of influencing, the decision of a
decisionmaking body to which it was addressed.’” (quoting United States v. Richardson, 676
F.3d 491, 505 (5th Cir. 2012))).
       44
        The following exchange during the suppression hearing among the district court,
Askew, and the prosecutor, Ms. Hampton, suggests that the court too considered the
statements made by Salinas merely cumulative evidence:

       THE COURT: Well, how early in the process did you figure out that was Mr.
       Ortiz’s phone?
       THE WITNESS: Within—within a couple minutes.
       THE COURT: A couple minutes?
       THE WITNESS: Yes, ma’am.
       THE COURT: Okay. So nothing you found out after that—I mean, is there anything
       of any import to suppress after that?
       MS. HAMPTON: Yes, your Honor. There’s statements by the Defendant after that,
       when he’s not in custody, before the 15 minutes that he’s talking—they’re still trying
       to find out where Mr. Ortiz is at, is that correct?
       THE WITNESS: That’s correct.
       MS. HAMPTON: And they know—
       THE COURT: Well, he said he didn’t know who this person was.
       MS. HAMPTON: That’s correct, your Honor.
       THE COURT: And that you later found out within two minutes that he had the phone.
       So what more is there ever to suppress?
       MS. HAMPTON: After that he admits to knowing Mr. Ortiz and admits—
       THE COURT: Well, they knew that. He had his phone.
       MS. HAMPTON: And admits that he had switched phones with Mr. Ortiz.
       THE COURT: Of course he did. He had the phone. He said, “I didn’t know him.”
       MS. HAMPTON: It’s just those admissions, your Honor.
       THE COURT: I don’t know what difference it makes, really.

                                             12
    Case: 12-40245         Document: 00512422901       Page: 13     Date Filed: 10/29/2013



                                      No. 12-40245

                                            IV
       Salinas’s second issue concerns the district court’s denial of his motion to
suppress the evidence of cocaine seized at his apartment. He argues that
because the agents had no authority to search the Ferrari duffel bag, the cocaine
found in the bag is inadmissible. Without the cocaine from the duffel bag,
Salinas asserts that the agents did not have probable cause for a search warrant
and therefore would not have discovered the quantity of cocaine in his bathroom
closet. We disagree. Even assuming that the agents’ search of the duffel bag
violated the Fourth Amendment, the evidence seized in plain view was sufficient
to support a search warrant. As a result, all 785 grams of cocaine inevitably
would have been discovered, and the exclusionary rule does not apply.
       The Fourth Amendment protects “against unreasonable searches and
seizures,”45 and the search of a home without a warrant is presumptively
unreasonable.46          The exclusionary rule prohibits the Government from
introducing evidence obtained directly or indirectly as result of an illegal
search.47         However, the exclusionary rule is inapplicable if the otherwise
suppressible evidence would inevitably have been discovered by lawful means.48
Evidence is inevitably discoverable if “(1) there is a reasonable probability that
the contested evidence would have been discovered by lawful means in the
absence of police misconduct and (2) the Government was actively pursuing a




       45
            U.S. CONST. amend. IV.
       46
         United States v. Scroggins, 599 F.3d 433, 440 (5th Cir. 2010) (quoting Brigham City
v. Stuart, 547 U.S. 398, 403 (2006)).
       47
        United States v. Jackson, 596 F.3d 236, 241 (5th Cir. 2010) (quoting United States v.
Grosenheider, 200 F.3d 321, 327 (5th Cir. 2000)).
       48
            Id.

                                             13
    Case: 12-40245          Document: 00512422901         Page: 14     Date Filed: 10/29/2013



                                         No. 12-40245

substantial alternate line of investigation at the time of the constitutional
violation.”49 In this case, both elements are satisfied.
       With regard to the second element, the agents’ presence for the purpose
of executing a valid arrest warrant demonstrates active pursuit of an alternate
line of investigation.50 Indeed, we have suggested that the second element of the
inevitable discovery rule may be superfluous.51
            The first element is satisfied in the present case because the legally
obtained evidence was sufficient to support probable cause for the search
warrant that ultimately issued.52 In his affidavit in support of the application
for a search warrant, Bartels provided the following details: (1) an account of his
knowledge and experience in drug enforcement, particularly with regard to facts
and circumstances that are indicative of drug dealing; (2) an account of Askew’s
initial encounter with Salinas leading to the conclusion that Salinas was
associated with Ortiz, a known drug dealer; (3) an attestation as to Askew’s
belief, based on his own knowledge and experience, that Salinas was involved in
the distribution of illegal narcotics; and (4) a description of items found in
Salinas’s apartment during his arrest, including the drug ledger, pill bottles,
razor blades, several cell phones, the duffel bag with the Ferrari emblem, and
cocaine residue on the kitchen floor. The affidavit contained more than enough
evidence to provide probable cause for a search warrant, and Salinas’s
contention that the agents would not have obtained a search warrant without


       49
            Id. (citing United States v. Lamas, 930 F.2d 1099, 1102 (5th Cir. 1991)).
       50
         Id. at 242 (“[A]n ongoing grand jury investigation that has already led to an
indictment would clearly satisfy [the second element].”).
       51
            Id. (citing Lamas, 930 F.2d at 1104).
       52
         Id. (“Once seized, this evidence could not only be introduced at trial but also used as
evidence of probable cause in support of a warrant.” (citing United States v. Webster, 750 F.2d
307, 328 (5th Cir. 1984))).

                                               14
    Case: 12-40245        Document: 00512422901          Page: 15      Date Filed: 10/29/2013



                                        No. 12-40245

evidence of the quantity of cocaine found inside the Ferrari duffel bag is
unconvincing.53 Even assuming that the cocaine in the duffel bag was obtained
from an illegal search, a reasonable basis for probable cause is evident.54 As a
result, there is a reasonable probability that the cocaine in the duffel bag
inevitably would have been discovered legally.
       We also reject Salinas’s suggestion that the agents had no right to be in his
apartment at all and that therefore none of the supporting evidence was legally
obtained. The record demonstrates that the agents’ presence was justified for
at least three reasons. First, the arrest warrant alone provided a legal basis for
entry into the apartment.55 Second, pursuant to an arrest, law enforcement
agents are permitted to perform a “protective sweep” search of the area within
immediate control of an arrestee and areas immediately adjacent to the place of
arrest “from which a surprise attack could occur.”56 Finally, the record


       53
         See United States v. Adcock, 756 F.2d 346, 347 (5th Cir. 1985) (per curiam) (“Probable
cause [for a search warrant] is that which warrants a man of reasonable caution in believing
that there is a ‘practical, non-technical’ probability that contraband is present on the premises
to be searched; it does not demand a showing that the belief is more likely true than false.”).
       54
          See Jackson, 596 F.3d at 241 (reasoning that probable cause existed for a subsequent
search warrant as soon as the police found a single bag of marijuana during their protective
sweep); United States v. Monroy, 614 F.2d 61, 63-64 (5th Cir. 1980) (holding that probable
cause for a wider search existed when officers detected the odor of marijuana); see also United
States v. Hill, 500 F.2d 315, 317 (5th Cir. 1974) (“Probable cause is deemed to exist where the
facts and circumstances within the affiant’s knowledge, and of which he has reasonably
trustworthy information, are sufficient unto themselves to warrant a man of reasonable
caution to believe that an offense has been or is being committed.” (quoting United States v.
Melancon, 462 F.2d 82, 89 (5th Cir. 1972)) (internal quotation marks omitted)).
       55
          Jackson, 596 F.3d at 241; see also Payton v. New York, 445 U.S. 573, 603 (1980)
(“[F]or Fourth Amendment purposes, an arrest warrant founded on probable cause implicitly
carries with it the limited authority to enter a dwelling in which the suspect lives when there
is reason to believe the suspect is within.”).
       56
          United States v. Mata, 517 F.3d 279, 285 (5th Cir. 2008); see also United States v.
Virgil, 444 F.3d 447, 451 (5th Cir. 2006) (“Any arrest may be accompanied by a search
‘incident to the arrest’ of the immediate vicinity, limited to areas in which weapons might be
found, regardless of probable cause or reasonable suspicion.”).

                                               15
    Case: 12-40245        Document: 00512422901          Page: 16      Date Filed: 10/29/2013



                                        No. 12-40245

demonstrates that Salinas invited the agents into his apartment. Salinas
concedes that he consented to entry but argues that his consent was not
voluntary.57 Salinas has waived this argument by failing to raise it in the
district court.58 Furthermore, although there is some disagreement about the
scope of the invitation, it is plain that at the very least Salinas consented to the
officers’ entrance. Thus, the agents had ample legal grounds for being present
inside the apartment, where the other evidence was in plain view.
       Law enforcement agents may, in certain circumstances, legally seize
evidence that is out in the open without a warrant or separate justification to
search.59 Under the plain view doctrine, any evidence was legally obtained if “(1)
the police lawfully entered the area where the item was located; (2) the item was
in plain view; (3) the incriminating nature of the item was ‘immediately
apparent;’ and (4) the police had a lawful right of access to the item.”60 All four
prongs are satisfied in this case.
       Whether the agents were inside the apartment at Salinas’s invitation, to
conduct a protective sweep, or simply to execute the arrest, they were lawfully
present in the room, satisfying the first prong.61 Evidence was visible without

       57
          See United States v. Scroggins, 599 F.3d 433, 440 (5th Cir. 2010) (“In order to satisfy
the consent exception, the government must demonstrate that there was (1) effective consent,
(2) given voluntarily, (3) by a party with actual or apparent authority.”).
       58
         See United States v. Pope, 467 F.3d 912, 919-20 (5th Cir. 2006). Salinas argued below
that the exchange with Askew never took place and that he had not given any consent.
       59
          See Jackson, 596 F.3d at 241-42 (recognizing that the plain view doctrine is an
independent exception to the search warrant requirement if the police are lawfully present by
virtue of an arrest warrant and that it does not require that the officers be conducting a
protective sweep).
       60
       United States v. Virgil, 444 F.3d 447, 451 (5th Cir. 2006) (quoting United States v.
Buchanan, 70 F.3d 818, 825-26 (5th Cir. 1995)).
       61
         See Moore v. Felger, 19 F.3d 1054, 1058 (5th Cir. 1994) (“Agents who have a lawful
right of access to an area do not have to look the other way if they discover evidence of
criminal conduct not specified in a search warrant. That is the central principle of the plain

                                               16
    Case: 12-40245        Document: 00512422901          Page: 17      Date Filed: 10/29/2013



                                          No. 12-40245

any intrusive search, satisfying the second prong. The third prong is satisfied
as well; both Askew and Bartels indicated that the visible items, in their
experience, were indicative of drug trafficking.                Finally, the fourth prong
collapses with the first in this case because the legal justification for the agents’
presence in Salinas’s apartment puts them in the position to have legal access
to the evidence.62
       In sum, assuming arguendo the cocaine seized from the duffel bag and
closet during the initial search of Salinas’s apartment was seized illegally, it was
admissible under the inevitable discovery doctrine, and therefore the district
court did not err in denying Salinas’s second motion to suppress.
                                      *         *        *
       For the foregoing reasons, the judgment of the district court is
AFFIRMED.




view doctrine.”) (internal citation omitted).
       62
          See United States v. Paige, 136 F.3d 1012, 1024 (5th Cir. 1998) (noting that the fourth
factor “is [ordinarily] implicated in situations such as when an officer on the street sees an
object through the window of a house, or when officers make observations via aerial
photography or long-range surveillance. In those cases, the officers cannot use the plain view
doctrine to justify a warrantless seizure, because to do so would require a warrantless entry
upon private premises.” (alteration in original) (quoting United States v. Naugle, 997 F.2d 819,
823 (10th Cir. 1993)) (internal quotation marks omitted)).

                                                17
