     Case: 09-50948        Document: 00511138631              Page: 1      Date Filed: 06/10/2010




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

                                                                                       FILED
                                                                                     June 10, 2010
                                            No. 09-50948
                                          Summary Calendar                           Lyle W. Cayce
                                                                                          Clerk

UNITED STATES OF AMERICA,

                                                         Plaintiff-Appellee

v.

JOSE BOLIVAR CIENFUEGOS-POMPA, also known as Jose P. Cienfuegos,

                                                         Defendant-Appellant


                          Appeal from the United States District Court
                              for the Western District of Texas
                                   USDC No. 6:09-CR-86-1


Before KING, STEWART, and HAYNES, Circuit Judges.
PER CURIAM:*
        Jose Bolivar Cienfuegos-Pompa (Cienfuegos) pleaded guilty to a superseding
information charging that he was an illegal alien in possession of at least one of six
enumerated firearms. Cienfuegos preserved his right to appeal the district court’s denial of
his suppression motion. He now argues that the district court clearly erred in denying the
motion with respect to the firearms that were seized without a warrant on April 15, 2009.
He argues that his surrender of the firearms was not the result of free and voluntary consent.
        “In reviewing the denial of a motion to suppress, the district court’s factual findings
are reviewed for clear error, and its legal conclusions . . . are reviewed de novo.” United


        *
          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 R. 47.5, the court has determined that this opinion should not be published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: 09-50948       Document: 00511138631 Page: 2             Date Filed: 06/10/2010
                                     No. 09-50948

States v. Jacquinot, 258 F.3d 423, 427 (5th Cir. 2001). Voluntariness of consent is a finding
of fact reviewed for clear error. United States v. Arias-Robles, 477 F.3d 245, 248 (5th Cir.
2007). When, as here, the district court’s finding of consent is based on oral testimony at a
suppression hearing, the clear error standard is particularly strong because the district court
had the opportunity to observe the demeanor of the witnesses. See United States v. Gonzales,
79 F.3d 413, 421 (5th Cir. 1996).
       A search pursuant to consent is a well-established exception to the Fourth Amendment
requirement of a warrant. United States v. Tompkins, 130 F.3d 117, 121 (5th Cir. 1997).
Where an appellant challenges the voluntariness of consent to a search, the Government must
prove that consent was freely and voluntarily given by a preponderance of the evidence.
United States v. Santiago, 410 F.3d 193, 198-99 (5th Cir. 2005). That burden is not satisfied
by a mere submission to a claim of lawful authority. United States v. Villareal, 963 F.2d
770, 777 (5th Cir. 1992). In evaluating the voluntariness of consent, the examining court
should consider “(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
police; (4) the defendant’s awareness of his right to refuse consent; (5) the defendant’s
education and intelligence; and (6) the defendant’s belief that no incriminating evidence will
be found.” United States v. Jenson, 462 F.3d 399, 406 (5th Cir. 2006). All six factors are
relevant; however, no one is dispositive. Arias-Robles, 477 F.3d at 248.
       On appeal, Cienfuegos challenges the district court’s findings with respect to a lack
of coercion. He argues that his actions amounted to no more than a mere submission to a
claim of lawful authority.   Warden Bernstein testified at the suppression hearing that he
considered his actions to be a “knock and talk” and that he “basically asked [Cienfuegos] if
he would mind getting the weapons” for him. Bernstein’s testimony thus supports the district
court’s finding of a lack of coercion. Moreover, “[t]he mere failure of the officers to give
an encyclopedic catalogue of everything they might be interested in does not alone render
the search involuntary.” United States v. Davis, 749 F.2d 292, 295 (5th Cir. 1985).
Although Cienfuegos may have assumed that Warden Bernstein’s inquiry related only to his
earlier hunting violations, there is no evidence in the record to support the conclusion that
Warden Bernstein intentionally misrepresented his purpose for requesting to see the firearms.

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   Case: 09-50948     Document: 00511138631 Page: 3          Date Filed: 06/10/2010
                                   No. 09-50948

Cienfuegos did not provide any such testimony; nor does the cross-examination of the
Government’s witnesses reveal such a ruse.
      Cienfuegos has not shown that the district court clearly erred in determining that
consent for the search was voluntarily given.    See Arias-Robles, 477 F.3d at 248.
Accordingly, the judgment is AFFIRMED.




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