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

                                                 FILED
                                                                            July 14, 2009

                                       No. 08-50563                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff–Appellee,
v.

MANUEL MUNIZ,

                                                   Defendant–Appellant.




                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 1:07-CR-172-3


Before DAVIS, OWEN, and HAYNES, Circuit Judges.
PER CURIAM:*
       Manuel Muniz appeals the district court’s evidentiary rulings involved in
his   conviction     for   conspiracy     to   possess     with    intent     to   distribute
methamphetamine and conspiracy to possess with intent to distribute
cocaine. We affirm.




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                  No. 08-50563

                                        I
      Muniz and eight other co-defendants were indicted for conspiracy to
possess with intent to distribute 500 grams or more of methamphetamine in
violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. The indictment alleged
that the conspiracy existed from June 2005 until the date of the indictment.
Subsequent to the first indictment, the Government obtained a superseding
indictment against Muniz only. This indictment charged him with conspiracy
to possess with intent to distribute 500 grams of cocaine and 500 grams of
methamphetamine and amended the period of conspiracy from an unknown date
in 2000 to October 4, 2007, the date Muniz was arrested.
      Before trial, Muniz filed a motion to suppress evidence of cocaine
possession collected during a 2001 traffic stop on the ground that the search was
conducted in violation of his Fourth Amendment rights. Muniz also filed a
motion to suppress evidence collected during a March 12, 2007 search of his
home on the ground that the search warrant was not supported by probable
cause. The district court held an evidentiary hearing and denied both motions.
      At trial, the prosecution called six of Muniz’s alleged co-conspirators.
Three of them had been indicted in federal court (Mark Copeland, Danny Walton
and Andrew Harris) and two in state court (Aaron Condron and Christopher
Appleton).    The sixth, Chad Regeon, was an unindicted co-conspirator
cooperating with the investigation.
      Five of the six witnesses testified that Muniz sold them methamphetamine
or cocaine. Copeland testified that he bought small amounts of cocaine twice
from Muniz and a small amount of methamphetamine once. Walton testified
that he purchased a total of between one and one-and-one-half ounces of
methamphetamine from Muniz between November 2006 and January 2007.
Condron testified that he bought cocaine from Muniz until 2001 and
methamphetamine after Muniz returned from Iraq in 2005.              Regeon and

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                                   No. 08-50563

Appleton   likewise    testified   that   they   purchased   both   cocaine   and
methamphetamine frequently.
      Several cooperating witnesses also testified that they went with Muniz to
Austin to purchase methamphetamines from his supplier. Regeon testified that
he was with Muniz in Austin when Muniz closed a drug deal, although he did
not actually see the transaction occur. Regeon also claimed that Muniz told him
that on a trip the previous week, Muniz had tossed drugs wrapped in camouflage
out of the car because he believed a traffic stop was imminent. Regeon claimed
he and Muniz searched for the drugs on their way home from Austin.
      The Government also called six law-enforcement officers, including Special
Agent Raymond Rivera, Officer Ty Tully of the McCulloch County Sheriff’s
Department, and Lieutenant Brian Baxter. Rivera testified that he drove Muniz
to Austin after he was arrested in Brady and that, during the drive, he heard
Muniz state that Muniz knew he was being investigated and was the target of
a conspiracy case and that Muniz had someone checking for warrants. Officer
Tully testified to conducting a traffic stop of Muniz in 2001 during which Tully
discovered Muniz with five to six grams of cocaine, a small scale, and other
miscellaneous items.    Muniz was arrested and charged with possession of
cocaine in Texas state court, but the charge was later dismissed. Officer Baxter,
who coordinated the investigation, chiefly testified about the fruits of the March
12, 2007 search of Muniz’s home. The search recovered evidence such as small
ziploc baggies, a manual for a digital scale, a military notebook containing
names and phone numbers of people Baxter was investigating, checks showing
cash withdrawals of $12,500, a letter from Muniz’s mom cautioning him about
getting a lawyer, various firearms, and an alleged “cutting agent” (a whitish
powder or crystalline substance).
      Muniz called six witnesses at trial. Four of these witnesses were National
Guard soldiers who served with Muniz in Iraq or participated in weekend

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                                        No. 08-50563

training with him. They testified that they did not see Muniz use drugs in Iraq
or in training for deployment. Muniz also called Eric Ortega, his best friend, and
Kayla Guajardo, his girlfriend. Both said they had never seen Muniz use or deal
drugs. The Government then cross-examined Ortega and Guajardo concerning
Muniz’s prior arrests for assault, DWI, and evading arrest, among others. The
district court overruled Muniz’s objection to the cross-examination of Ortega but
Muniz did not renew his objection during the questioning of Guajardo.
      A jury convicted Muniz of conspiracy and the court sentenced Muniz to 235
months imprisonment. Muniz timely appealed.
                                               II
      When reviewing the denial of a motion to suppress, this court reviews
findings of fact for clear error and conclusions of law de novo.1 We consider all
the evidence at trial, “not just that presented before the ruling on the
suppression motion, in the light most favorable to the prevailing party.”2
                                               A
      Muniz argues that the district court erred when it denied his motion to
suppress the evidence of the 2001 traffic stop. Traffic stops are analyzed under
the framework set forth by the Supreme Court in Terry v. Ohio.3 Under Terry,
to comply with the Fourth Amendment, an officer’s action at a traffic stop must
(1) be justified at its inception and (2) reasonably relate in scope to the
circumstances which justified the stop.4 Regarding the second prong, this court
has previously held that a detention may not exceed the scope of the initial stop




      1
          United States v. Brigham, 382 F.3d 500, 506 n.2 (5th Cir. 2004) (en banc).
      2
          United States v. Ibarra, 493 F.3d 526, 530 (5th Cir. 2007).
      3
          392 U.S. 1 (1968).
      4
          Id. at 19-20.

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                                         No. 08-50563

unless additional reasonable suspicion arises in the course of the stop and before
the initial purpose of the stop has been fulfilled.5
       Muniz concedes that Officer Tully’s initial stop was a valid traffic stop for
failure to properly signal a lane change but argues that Tully’s subsequent
questioning after the purpose of the traffic stop ended was an unreasonable
detention. The district court determined that Officer Tully’s questioning of
Muniz occurred during a consensual encounter and that the Fourth Amendment
did not apply. A district court’s determination that an exchange with a police
officer constitutes a consensual encounter, rather than a seizure implicating
Fourth Amendment protections, is a factual finding reversible only for clear
error.6
       After Officer Tully completed the warrants check and issued a warning
citation, he gave Muniz back his driver’s license. At this point, a reasonable
person would believe that the traffic stop had ended and that he would be free
to terminate the encounter.7 Contrary to Muniz’s contention, Officer Tully was
not required to inform Muniz that the legal detention had concluded.8 Although
Officer Tully thereafter immediately began to question Muniz to “take consent
or develop reasonable suspicion,” this follow-on questioning did not change the




       5
           United States v. Jenson, 462 F.3d 399, 404 (5th Cir. 2006).
       6
           United States v. Mask, 330 F.3d 330, 334, 337 (5th Cir. 2003).
       7
       See United States v. Sanchez-Pena, 336 F.3d 431, 441 (5th Cir. 2003) (“So long as ‘a
reasonable person would feel free to decline the officers’ requests or otherwise terminate the
encounter,’ it is consensual.” (quoting United States v. Drayton, 536 U.S. 194, 202 (2002))).
       8
        United States v. Brown, 102 F.3d 1390, 1394-97 (5th Cir. 1996); see also Ohio v.
Robinette, 519 U.S. 33, 39-40 (1996) (holding that a rule requiring an officer to inform
detainees that they are free to go before a consent to search is deemed voluntary was
inappropriate and that instead “the proper inquiry necessitates a consideration of all the
circumstances surrounding the encounter” (citation and internal quotation marks omitted)).

                                                5
                                            No. 08-50563

consensual encounter into an illegal detention.9 The district court did not clearly
err in its determination that the post-Terry-stop questioning was a consensual
encounter.
       Muniz argues that our previous decisions in United States v. Jenson,10
United States v. Santiago,11 United States v. Jones,12 and United States v.
Dortch 13 require a different conclusion. But in each of these cases, the officers
failed to return a driver’s license taken in furtherance of the initial stop.14
Additionally, in each case the officers involved began their initial questioning of
the defendants before the traffic stop was complete and continued the same line
of questioning after the purpose for the initial traffic stop had been fulfilled.15
In contrast, Officer Tully returned all of Muniz’s paperwork, including his
driver’s license, and did not begin asking questions concerning suspected
narcotics activity until after the initial Terry stop had ended. Therefore, unlike
in Muniz’s cited cases, Officer Tully’s questioning and subsequent consensual
search did not illegally prolong the initial Terry stop.
       Based on our conclusion that the questioning was not part of an illegal
detainment but rather a consensual encounter, we need only determine whether
Muniz voluntarily consented to the search of his person and vehicle.                     The



       9
           See Sanchez-Pena, 336 F.3d at 443.
       10
            462 F.3d 399 (5th Cir. 2006).
       11
            310 F.3d 336 (5th Cir. 2002).
       12
            234 F.3d 234 (5th Cir. 2000).
       13
            199 F.3d 193 (5th Cir. 1999).
       14
         See Jenson, 462 F.3d at 407; Santiago, 310 F.3d at 343; Jones, 234 F.3d at 243;
Dortch, 199 F.3d at 202.
       15
         See Jenson, 462 F.3d at 402-03; Santiago, 310 F.3d at 338-39; Jones, 234 F.3d at 237-
38; Dortch, 199 F.3d at 195-96.

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                                          No. 08-50563

question whether Muniz’s consent was voluntary or was the product of duress
or coercion, express or implied, “is to be determined by the totality of all the
circumstances and is a matter which the Government has the burden of
proving.” 16
        Voluntariness is determined by examining six separate factors: (1) the
voluntariness of Muniz’s custodial status; (2) the presence of coercive police
procedures; (3) the extent and level of Muniz’s cooperation with the police;
(4) Muniz’s awareness of his right to refuse consent; (5) Muniz’s education and
intelligence; and (6) Muniz’s belief that no incriminating evidence will be
found.17 The Government asserts, and Muniz does not contest, that Officer Tully
returned Muniz’s driver’s license and provided a warning citation, that Officer
Tully did not use any coercive police procedures, that Muniz cooperated with
Officer Tully, and that the tone of the conversation was subdued. Under these
circumstances, the district court’s determination that Muniz’s consent was
voluntary was not clearly erroneous. Accordingly, the district court properly
denied Muniz’s motion to suppress the evidence obtained during the 2001 traffic
stop.
                                                B
        Muniz contends that the district court erred by failing to suppress the
evidence gathered during the March 2007 search of Muniz’s home because the
magistrate judge signing the warrant could not have had a substantial basis for
concluding that probable cause existed. “In considering a Fourth Amendment
challenge to a seizure conducted pursuant to a search warrant, we ask first
whether the seizure falls within the good-faith exception to the exclusionary




        16
             United States v. Mendenhall, 446 U.S. 544, 557 (1980) (citation omitted).
        17
             Jenson, 462 F.3d at 406.

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                                        No. 08-50563

rule.”18 If the good-faith exception applies, “we end our analysis and affirm the
district court’s decision to deny the motion to suppress.” 19
      The Supreme Court has held that evidence obtained by officers in
objectively reasonable good-faith reliance upon a search warrant is admissible,
even though the warrant was unsupported by probable cause.20 “Nevertheless,
the officer’s reliance on the magistrate’s probable-cause determination and on
the technical sufficiency of the warrant he issues must be objectively reasonable,
and it is clear that in some circumstances the officer will have no reasonable
grounds for believing that the warrant was properly issued.” 21              These
circumstances include when (1) the issuing-judge “was misled by information in
an affidavit that the affiant knew was false or would have known was false
except for his reckless disregard of the truth,” (2) the issuing-judge “wholly
abandoned his judicial role” in such a manner that “no reasonably well trained
officer should rely on the warrant,” (3) the underlying affidavit is “so lacking in
indicia of probable cause as to render official belief in its existence entirely
unreasonable,” or (4) the warrant is “so facially deficient . . . that the executing
officers cannot reasonably presume it to be valid.”22
      Muniz contends that the good-faith exception is not available to
Lieutenant Baxter because the warrant was based on an affidavit “so lacking in
indicia of probable cause as to render belief in its existence entirely
unreasonable.” 23        Muniz first argues that the information contained in the


      18
           United States v. Davis, 226 F.3d 346, 350 (5th Cir. 2000).
      19
           United States v. Cherna, 184 F.3d 403, 407 (5th Cir. 1999).
      20
           United States v. Leon, 468 U.S. 897, 922 (1984).
      21
           Id. at 922-923 (citation and footnotes omitted).
      22
           Id. at 923.
      23
           Id.

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                                         No. 08-50563

affidavit was stale.
       While the temporal proximity of information in an affidavit affects the
probable cause inquiry,24 when “the information of the affidavit clearly shows a
long-standing, ongoing pattern of criminal activity” this court is “more tolerant
of dated allegations.” 25 Baxter’s affidavit included information gleaned over the
six months he investigated Muniz before seeking a warrant.                      The warrant
included information from two identified and five confidential informants who
had dealings with Muniz involving the transportation and distribution of illicit
drugs. Baxter’s interviews of these informants occurred continuously over the
six-month period, the latest of which was nine days before Baxter sought the
search warrant. Based on the information provided by these informants alleging
continuous drug activity by Muniz, the district court did not clearly err in
determining that the information in the affidavit was not stale.
       Muniz also argues that the affidavit lacked probable cause because the
informants were unreliable.            “There is no set requirement that all tips be
corroborated by subsequent police investigation in order to be considered
credible. Whether subsequent corroboration is necessary must be determined
in the light of the totality of the circumstances presented by the particular set
of facts.”26
       Baxter’s affidavit included information describing both general and
specific incidents of drug trafficking, details of which were corroborated by
Baxter’s own investigative efforts, fellow officers, or other informants. Based on


       24
         See United States v. Freeman, 685 F.2d 942, 951 (5th Cir. 1982) (“Although probable
cause may exist at one point to believe that evidence will be found in a given place, the passage
of time may (without additional newer facts confirming the location of the evidence sought)
render the original information insufficient to establish probable cause at the later time.”).
       25
        United States v. Alvarez, 451 F.3d 320, 332 (5th Cir. 2006) (quoting United States v.
Pena-Rodriguez, 110 F.3d 1120, 1130 (5th Cir. 1997)).
       26
            United States v. Blount, 123 F.3d 831, 836 (5th Cir. 1997) (en banc).

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                                        No. 08-50563

the information provided by seven informants and Baxter’s own investigation,
the district court did not clearly err when it determined that Baxter’s affidavit
was not so lacking in indicia of probable cause as to render good-faith reliance
on the warrant unreasonable. Accordingly, we conclude that the good-faith
exception applies and that the district court properly denied Muniz’s motion to
suppress the evidence obtained during the March 2007 search of his home.
                                              III
      Muniz argues that the district court erred in permitting the Government
to cross-examine Muniz’s best friend, Eric Ortega, and his girlfriend, Kayla
Guajardo, regarding Muniz’s prior arrests.              Because Muniz objected to the
questioning of Ortega, we review the district court’s decision to permit Ortega’s
cross-examination for abuse of discretion.27 There is a dispute as to whether
Muniz’s failure to object to the Government’s cross-examination of Guajardo in
the district court changes our standard of review from abuse of discretion to
plain error. We decline to decide this issue because regardless of the standard
applied, any error by the district court as to the cross-examination of Ortega or
Guajardo was harmless.
      “[O]nce a witness has testified concerning a defendant’s good character, it
is permissible during cross-examination to attempt to undermine his credibility
by asking him whether he has heard of prior misconduct of the defendant which
is inconsistent with the witness’ direct testimony.”28 However, there are limits
on this type of cross-examination. “First, the government must have a good faith
factual basis for the alleged prior misconduct. Second, the incidents must be




      27
           United States v. Sumlin, 489 F.3d 683, 688 (5th Cir. 2007).
      28
         United States v. West, 58 F.3d 133, 141 (5th Cir. 1995) (quoting United States v.
Wells, 525 F.2d 974, 976 (5th Cir. 1976)).

                                              10
                                          No. 08-50563

relevant to the trial.”29
       A review of the record reveals nothing in Muniz’s direct examination of
Ortega or Guajardo that provided grounds for the prosecutor to cross-examine
them about Muniz’s character. The defense’s questioning of these witnesses
focused solely on whether they had seen Muniz use or sell drugs. Neither Ortega
nor Guajardo expressed an opinion about Muniz’s character. The fact that
Ortega and Guajardo had a special relationship with Muniz does not, on its own
accord, open the door for the prosecution to cross-examine them about Muniz’s
prior offenses.
       The prosecution’s questions did not relate to any issue other than Muniz’s
character and fail the threshold inquiry under Federal Rule of Evidence 404(b).30
Therefore, the prior incidents are not relevant to the trial and the district court
erred in allowing the prosecution’s line of questioning. However, after reviewing
the entire record and the evidence against Muniz, we conclude that the jury
would have returned a guilty verdict against Muniz even without the prejudicial
testimony.31 Accordingly, the error was harmless.
                                      *        *         *
       AFFIRMED.




       29
            Id. (footnote omitted).
       30
         See Huddleston v. United States, 485 U.S. 681, 685 (1988) (requiring courts to
examine first whether character evidence under Rule 404(b) is probative of material issues
other than character).
       31
        United States v. Hasting, 461 U.S. 499, 508, 510-11 (1983) (noting that “there can be
no such thing as an error-free, perfect trial” and denying reversal because the error was
harmless beyond a reasonable doubt).

                                              11
