     Case: 09-40070     Document: 00511051802          Page: 1    Date Filed: 03/15/2010




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

                                                  FILED
                                                                           March 15, 2010

                                       No. 09-40070                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA

                                                   Plaintiff-Appellee
v.

DANIEL LONGORIA

                                                   Defendant-Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                               USDC No. C-08-321


Before KING, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
        Convicted for possession of a firearm by a convicted felon, Daniel Longoria
contests the denial of his suppression motion. At issue is only the voluntariness
of his consenting to his home being searched, which led to the firearms’
discovery. AFFIRMED.
                                              I.
        The following facts were developed at the evidentiary hearing for
Longoria’s suppression motion. In May 2008, Texas Department of Public Safety

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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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Sergeants Rickel and Pauska set up surveillance outside a duplex in Corpus
Christi, Texas, looking for Adam Anderson, a fugitive, to execute on him a felony
arrest warrant for drug-related offenses. In addition, there was a pending
motion to revoke his probation. The Sergeants believed Anderson resided in the
upstairs apartment of that duplex.      The Sergeants were also aware that
Longoria, whom the Sergeants believed to be acquainted with Anderson, resided
in the downstairs apartment and was a convicted felon (on parole) for possession
of a controlled substance.
      During their surveillance, the Sergeants observed a white male wearing
a baseball cap and driving a black pickup truck depart from the rear of the
duplex. Sergeant Rickel testified that the driver resembled Anderson, whom the
Sergeant had met the previous year. The Sergeants, in separate, unmarked
vehicles, decided to follow the truck. After they began doing so, the truck’s
driver accelerated and began driving recklessly, causing the Sergeants to believe
the driver was Anderson and was attempting to evade them. The Sergeants
eventually lost contact with the truck. Sergeant Rickel then decided to return
to the duplex.
      When he arrived there, Sergeant Rickel observed the same truck parked
in the driveway. A neighbor informed him that two people had run from the
truck into the downstairs apartment. Sergeant Rickel notified Sergeant Pauska
that the truck had returned to the duplex and also radioed for additional
Officers. Once Sergeant Pauska and other Officers arrived, all of the Officers
positioned themselves at the front and back doors of the downstairs apartment.
They knocked on both doors, identified themselves as state police, and ordered
that the door be opened. In addition, Sergeant Pauska shouted, “Adam, open the
door. We know you’re inside. Open the door or we’re going to come in and get
you”. (Emphasis added.)



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      Longoria, whose first name is Daniel, not Adam, opened the back door of
the apartment, which led into a small kitchen area. The Officers observed both
Longoria and Andrea Nicole Mitchell in the kitchen.        At this point, out of
caution, the Officers had drawn their weapons but were holding them to their
side, not pointing them at Longoria or Mitchell. Sergeant Rickel then ordered
them to lie down on the floor and asked where Adam (Anderson) was. Longoria
acknowledged he knew Anderson, but stated he was not in the apartment. The
Officers then asked Longoria whether anyone else was in the apartment.
Longoria responded: “No, there’s not. You can look if you want”. (Emphasis
added.)
      As a result, the Officers entered and conducted a protective search to
ensure no one else was there.       Neither Longoria nor Mitchell had been
handcuffed.    During the search, Sergeant Pauska found a box labeled
ammunition within a clear container inside the bedroom closet, but he did not
then open the box. Next, Sergeant Rickel telephoned the Bureau of Alcohol,
Tobacco, Firearms, and Explosives (ATF) for assistance. When ATF Agents
arrived, the Officers and ATF Agents opened the above-referenced box and found
ammunition. In plain sight inside the closet, the Officers also found a clear bag
of methamphetamine.
      The Officers then asked Longoria’s permission to search for further
contraband. This time, however, Longoria refused to give either oral or written
consent. Sergeant Rickel then returned to his office to draft an affidavit in
support of a search warrant, while the other Officers remained with Longoria
and Mitchell in the apartment. Sergeant Rickel returned with a search warrant
and gave Longoria a copy, and the Officers asked him if he had any other
contraband. Longoria led the Officers to three firearms.
      Longoria was charged with one count of being a felon in possession of three
firearms, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). He filed a motion

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to suppress evidence, claiming: his consent for the Officers to enter and search
his apartment was involuntary; and, therefore, the search violated his Fourth
Amendment rights.      The court then held the above-referenced evidentiary
hearing to determine whether the consent was voluntary.
      In denying Longoria’s suppression motion, the district court concluded that
the Government met its burden of proof with respect to the reasonableness of the
warrantless search. The court found, after considering the factors provided in
United States v. Jenkins, 46 F.3d 447, 451 (5th Cir. 1995), discussed infra, that
Longoria voluntarily consented to the Officers’ searching his residence without
a warrant.
      In finding his consent voluntary, the court found: when the Officers
knocked on Longoria’s door, they shouted, “Adam, open up”; and they did not
direct their command to Daniel Longoria. (As noted, the Officers knew Longoria
resided in the apartment.) Further, the court found that, once Longoria opened
the door, the Officers made no attempt to enter the apartment, nor did they even
request to do so. Instead, the court found that the Officers asked, “Where’s
Adam?”. The court found, by implication, that this confirmed to Longoria that
they were interested only in locating Anderson. Longoria then, without being
asked, gave the Officers permission to enter the apartment to determine no one
else was inside.
      The court relied on its past experience with Longoria in determining that
he possessed sufficient education and intelligence to know of his right to decline
consent. The court also noted, as evidence of Longoria’s awareness of his right
to privacy and to refuse consent, the cameras Longoria had placed around his
home to secure it from the presence of others. As further evidence of this
awareness, the court noted that, after the Officers discovered the box of
ammunition and the bag of methamphetamine, Longoria refused consent to any
additional search of his apartment. The court acknowledged that the Officers’

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ordering Longoria and Mitchell to lie on the floor appeared somewhat coercive
but stated that these actions were not so coercive as to force Longoria to give
consent to search the apartment.
      Following the denial of his suppression motion, Longoria waived his right
to a jury trial and was convicted following a short bench trial on stipulated facts.
He was sentenced to, inter alia, 112 months’ imprisonment.
                                        II.
      A warrantless search is presumptively unreasonable unless the search
falls into an exception to the Fourth Amendment’s warrant requirement. United
States v. Karo, 468 U.S. 705, 717 (1984). Needless to say, one well-settled
exception is a search conducted pursuant to consent. Schneckloth v. Bustamonte,
412 U.S. 218, 219 (1973). In challenging the denial of his suppression motion,
Longoria maintains his consent was involuntarily given as a result of the
Officers’ coercive tactics. (In other words, he does not claim he was seized, in
violation of the Fourth Amendment, inside his home. Nor does he claim the
conduct of the Officers, including the ATF Agents, exceeded the scope of any
consent that he might have given to locate Anderson.)
      “When reviewing the district court’s denial of a suppression motion, we
review conclusions of law de novo and findings of fact for clear error; the
evidence is viewed in the light most favorable to the prevailing party.” United
States v. Gibbs, 421 F.3d 352, 356–57 (5th Cir. 2005). “[T]he question whether
consent to a search was in fact ‘voluntary’ or was the product of duress or
coercion, express or implied, is a question of fact to be determined from the
totality of all the circumstances”. Jenkins, 46 F.3d at 451 (quoting Schneckloth,
412 U.S. at 227) (alteration in original); see also United States v. Ponce, 8 F.3d
989, 997 (5th Cir. 1993) (citing United States v. Gonzales, 842 F.2d 748, 754 (5th
Cir. 1988)) (“As the district court’s resolution of the voluntariness issue is a
finding of fact, it is reviewed only for clear error.”). In that regard, if the

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Government relies upon consent, it “has the burden of proving by a
preponderance of the evidence that consent was freely and voluntarily given”.
Ponce, 8 F.3d at 997 (citing United States v. Hurtado, 905 F.2d 74, 76 (5th Cir.
1990) (en banc)).
      For determining whether, under the totality of the circumstances, consent
was given voluntarily, our court has enumerated six relevant factors:
      (1) the voluntariness of the defendant’s custodial status; (2) the
      presence of coercive police procedures; (3) the extent and level of 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.

Jenkins, 46 F.3d at 451 (quoting United States v. Olivier-Becerril, 861 F.2d 424,
426 (5th Cir. 1988)). No one of these factors is dispositive. Id.
      To hold the district court clearly erred in finding Longoria consented
voluntarily to the initial search of his home, our court must “on the entire
evidence [be] left with a firm and definite conviction that a mistake has been
committed”. United States v. Gomez-Moreno, 479 F.3d 350, 354 (5th Cir. 2007)
(quoting In re Missionary Baptist Found. of Am., Inc., 712 F.2d 206, 209 (5th Cir.
1983)).    In other words, “[i]f the district court’s account of the evidence is
plausible in light of the record viewed in its entirety, the court of appeals may
not reverse it even though convinced that had it been sitting as the trier of fact,
it would have weighed the evidence differently”. United States v. Charon, 442
F.3d 881, 890–91 (5th Cir. 2006) (quoting United States v. Harris, 434 F.3d 767,
773 (5th Cir. 2005).
                                         A.
          To support his claim that the district court erred in making its findings
regarding consent, Longoria relies primarily on United States v. Morales, 171
F.3d 978 (5th Cir. 1999), in which our court held defendants did not voluntarily


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consent to officers’ entry and search. Longoria’s reliance on Morales, however,
is misplaced.
      In Morales, Fort Worth police officers received an anonymous “911” call,
reporting that two Hispanic males were unloading cocaine from flatbed trucks
at Milagro’s Botanica. Id. at 980. Four officers arrived at the scene, but they did
not see any flatbed trucks or Hispanic males in the area. Id. After checking the
registration of a pickup truck parked in front of Milagro’s and, finding the
vehicle was registered to a man with a Hispanic surname, the officers proceeded
to investigate the warehouse behind Milagro’s, from which they heard loud
banging noises. Id.
      Upon seeing two individuals opening crates inside the warehouse, the
officers began banging on the front door, and shouted, “Fort Worth Police: Open
the door”. Id. The Morales court stated that “[t]he loud banging on the door, the
tone of voice, its volume, and the authoritative manner unmistakably showed
that the officers issued an order as opposed to a request to open the door”. Id.
When one of the individuals inside the warehouse opened the door, the officers
“immediately rushed in with their weapons drawn and arrested the
[individuals]”.   Id. at 981.   Morales held that the individuals inside the
warehouse did not give voluntary consent for the officers to enter. Id. at 983.
      Unlike the facts of Morales, the Officers standing outside Longoria’s
apartment did not make a categorical demand to whomever was inside to open
the door. Instead, the Officers shouted, “Adam, open the door”. In addition, they
did not rush inside immediately after the door was opened. When Longoria
opened the door, in contrast to Morales, the Officers remained outside the
apartment until Longoria gave them permission to enter. Based on these facts,
the Officers’ actions here do not closely resemble those in Morales.




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                                       B.
      An examination of the six Jenkins factors for determining voluntariness
confirms that, under the totality of the circumstances, the district court did not
clearly err in finding Longoria’s consent voluntary.
                                        1.
      The first factor, the voluntariness of Longoria’s custodial status, cuts the
most strongly against finding voluntariness.       Once the door was opened,
Longoria and Mitchell immediately were ordered onto the floor by Officers with
their weapons drawn. Further, the Officers had completely surrounded the
duplex and had even parked police vehicles on the front lawn of the duplex.
These actions do not indicate that Longoria’s custodial status was voluntary. As
previously stated, however, no one factor is determinative.
                                        2.
      The second Jenkins factor, the presence of coercive police procedures, also
weighs against voluntariness. When the Officers ordered Longoria and Mitchell
on the floor, they did so while their weapons were drawn—but not pointed at
Longoria or Mitchell— after completely surrounding the duplex. As noted, the
district court stated that these actions seemed unnecessarily coercive.
      On the other hand, it is quite understandable why the Officers would have
been extremely cautious. Indeed, when an officer is questioning an individual
at the side of a vehicle, the individual will often be asked to place his hands on
the hood of the vehicle to ensure the officer’s safety. Our court has previously
held that such precautions do not violate an individual’s Fourth Amendment
rights when an 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)). Moreover, our court has also stated
that even handcuffing an individual does not automatically convert an
investigatory detention into an arrest requiring probable cause. Id. at 450

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(citing United States v. Sanders, 994 F.2d 200, 206 (5th Cir. 1993)). Here,
neither Longoria nor Mitchell had been handcuffed.
                                       3.
      The third factor is the extent and level of Longoria’s cooperation with the
police. When the Officers began knocking on the door, they shouted, “Adam,
open the door”. As stated supra, this was not a categorical order that whomever
was inside must open the door. Rather this statement was targeted directly at
Anderson, whom the Officers believed to be inside. Yet, Longoria chose to
cooperate with the Officers and opened the door. Longoria also immediately
complied with the Officers’ instructions by lying on the floor. Further, as the
district court noted, by allowing the Officers to come inside his home to search
for Adam Anderson before they asked to do so, Longoria was fully cooperating
with the Officers. His cooperation with them, especially his offering to let them
search the apartment, strongly suggests Longoria was acting voluntarily.
                                        4.
      The fourth factor, Longoria’s awareness of his right to refuse consent,
weighs heavily in favor of finding voluntariness.        Indeed, Longoria clearly
demonstrated his knowledge of this right by later refusing, as discussed above,
to allow the Officers to search his apartment further after they discovered the
box of ammunition.     Moreover, the district court explained that, based on
Longoria’s prior appearances before that court, Longoria was familiar with the
criminal system and understood his right to refuse consent.
                                        5.
      The fifth factor concerns Longoria’s education and intelligence.         The
district court found, based on its prior above-described experience with Longoria,
that he possessed sufficient education and intelligence to understand his right
to refuse consent. Nothing in the record disputes Longoria’s education and
intelligence were sufficient to understand this right.

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                                        6.
      The last factor, Longoria’s belief that no incriminating evidence would be
found, also weighs in favor of voluntariness. Longoria’s weapons were not
discovered in the middle of his apartment. Nor were they even found during the
initial protective search. The box of ammunition found in the closet was inside
a clear plastic container. The Officers only discovered the box because it was
visible through that container.     It is certainly possible that Longoria was
unaware the box of ammunition was in plain view. From the evidence in the
record, Longoria could have easily believed no incriminating evidence would be
found when the Officers searched the apartment for Anderson.
      In sum, after considering the Jenkins factors, including reviewing the
evidence in the light most favorable to the Government, and based on the
totality of the circumstances, we are not left with a “firm and definite conviction
that a mistake has been committed”. See Gomez-Moreno, 479 F.3d at 354.
Therefore, the district court did not clearly err in finding Longoria’s consent was
voluntary.
                                       III.
      For the foregoing reasons, the judgment is AFFIRMED.




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