     Case: 10-50470 Document: 00511430357 Page: 1 Date Filed: 03/31/2011




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

                                                 FILED
                                                                           March 31, 2011
                                     No. 10-50470
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff - Appellee

v.

MICHAEL SCOTT MCAULEY,

                                                   Defendant - Appellant


                    Appeal from the United States District Court
                         for the Western District of Texas
                              USDC No. 2:07-CR-786-1


Before BARKSDALE, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
       Michael Scott McAuley pleaded guilty conditionally to transporting child
pornography and was sentenced, inter alia, to 188 months’ imprisonment. He
reserved his right to appeal the denial of his motion to suppress evidence
discovered on his external computer hard drive during a warrantless search at
a border checkpoint.
       Arguably, because this search occurred at a border checkpoint, McAuley’s
consent was not required to conduct the warrantless search. See United States

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-50470 Document: 00511430357 Page: 2 Date Filed: 03/31/2011

                                   No. 10-50470

v. Arnold, 533 F.3d 1003, 1008 (9th Cir. 2008) (“[R]easonable suspicion is not
needed for customs officials to search a laptop or other personal electronic
storage devices at the border”.). In the light of the following, however, we need
not decide whether the search was constitutionally permissible as a routine
search under the border-search doctrine.        See United States v. Montoya de
Hernandez, 473 U.S. 531, 538 (1985).
      The district court’s finding that McAuley consented to the search is
reviewed for clear error. E.g., United States v. Pickett, 598 F.3d 231, 233 (5th
Cir. 2010) (reviewing legal conclusions de novo; factual findings for clear error).
McAuley, among others, testified at the hearing on his suppression motion. The
factual findings underlying the district court’s conclusion that McAuley
voluntarily consented to the search were not clearly erroneous. See United
States v. Mata, 517 F.3d 279, 291 (5th Cir. 2008) (noting defendant did not
withdraw verbal consent despite his refusal to sign consent form); United States
v. Garza, 118 F.3d 278, 283 (5th Cir. 1997) (“We will not second guess the
district court’s factual findings as to the credibility of witnesses.”); United States
v. Alfaro, 935 F.2d 64, 67 (5th Cir. 1991) (finding defendant’s conduct not
unequivocal act or statement of withdrawal). Because McAuley waived his
Fourth Amendment rights, the search was constitutionally permissible. See
Mata, 517 F.3d at 290.
      AFFIRMED.




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