     Case: 17-50131       Document: 00514263110         Page: 1     Date Filed: 12/06/2017




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

                                     No. 17-50131                                FILED
                                   Summary Calendar                      December 6, 2017
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

JULIO CESAR HERRERA CANO,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 7:16-CR-177-1


Before BARKSDALE, PRADO, and OWEN, Circuit Judges.
PER CURIAM: *
       Julio Cesar Herrera Cano challenges his conviction for being an illegal
alien in possession of a firearm, in violation of 18 U.S.C. § 922(g)(5), asserting
the court erred in denying his motion to suppress evidence seized from his
residence. Cano claims the evidence should have been suppressed because: (1)
Ana Valenzuela, his girlfriend, lacked authority to consent to the officers’ entry




       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 17-50131

into his home; (2) he implicitly refused consent to the officers’ entry; and (3)
their subsequent protective sweep of his home was illegal.
      When reviewing the denial of a motion to suppress evidence, factual
findings are reviewed for clear error; the constitutionality of law-enforcement
action, de novo. E.g., United States v. Perez, 484 F.3d 735, 739 (5th Cir. 2007).
“A finding is clearly erroneous if the court is left with the definite and firm
conviction that a mistake has been committed.” United States v. Hernandez,
279 F.3d 302, 306 (5th Cir. 2002) (internal quotation and citation omitted).
And, the clearly-erroneous standard is particularly deferential where “denial
of a suppression motion is based on live oral testimony . . . because the [district]
judge had the opportunity to observe the demeanor of the witnesses”. United
States v. Gibbs, 421 F.3d 352, 357 (5th Cir. 2005) (quoting United States v.
Santiago, 410 F.3d 193, 197 (5th Cir. 2005)). Moreover, we must also view the
evidence in the light most favorable to the prevailing party, in this case, the
Government. E.g., United States v. Shabazz, 993 F.2d 431, 434 (5th Cir. 1993).
      First, the record reflects Valenzuela had actual authority to consent to
the search, or at the very least, the officer had a reasonable belief she had
common authority over the residence. E.g., United States v. Matlock, 415 U.S.
164, 171 (1974) (“permission to search [may be] obtained from a third party
who possesse[s] common authority over or other sufficient relationship to the
premises or effects sought to be inspected”); see also Illinois v. Rodriguez, 497
U.S. 177, 186–87 (1990). Valenzuela called officers to the scene to help retrieve
her belongings from inside the home. One of the officers was familiar with
Valenzuela’s living situation because he had been called to the residence in the
past. He also knew she was Cano’s girlfriend, and that she stored belongings
in the house.    Viewing this evidence in the light most favorable to the
Government, the officers had a reasonable belief Valenzuela had common



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                                  No. 17-50131

authority over the residence and was, therefore, able to consent to their entry.
Shabazz, 993 F.2d at 434; Rodriguez, 497 U.S. at 186.
      Second, there is no indication Cano, who was present at the time of the
entry, expressly refused the officers’ permission to enter the residence. He
asserts his “behavior while under stress of entry” sufficed to show “implicit
refusal”. Even assuming Cano did implicitly refuse consent, this would not
render the officers’ entry invalid; only the “express refusal of consent by a
physically present resident” can override the consent of a cohabitant. Georgia
v. Randolph, 547 U.S. 103, 120 (2006). He has therefore not shown the officers’
entry violated his Fourth Amendment rights. Id.
      Third, Cano claims that, because “the entry of the home was illegal, there
[wa]s no basis for the protective sweep”. But as noted supra, the officers legally
entered his home.
      AFFIRMED.




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