     Case: 13-40475      Document: 00512613327         Page: 1    Date Filed: 04/30/2014




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

                                      No. 13-40475                             FILED
                                                                           April 30, 2014
                                                                          Lyle W. Cayce
UNITED STATES OF AMERICA,                                                      Clerk

                                                 Plaintiff-Appellee
v.

OMAR MONTOYA,

                                                 Defendant-Appellant




                  Appeals from the United States District Court
                       for the Southern District of Texas
                            USDC No. 7:12-CR-614-9


Before REAVLEY, JONES, and GRAVES, Circuit Judges.
PER CURIAM:*
       Omar Montoya was convicted by a jury of conspiracy to possess with
intent to distribute, as well as possession with intent to distribute, cocaine. He
argues on appeal that the district court erroneously denied his motion to
suppress evidence. We AFFIRM.
       During the course of an investigation into a cocaine conspiracy, police
stopped Montoya while he was driving his truck and obtained his consent to
search his residence, where they found over twenty kilograms of cocaine.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-40475
Montoya argues that the police lacked reasonable suspicion to stop him, that
the officers’ intent to obtain his consent could not justify the stop, and that his
consent was not voluntary.
      An investigatory stop is proper only if based on reasonable suspicion that
criminal activity is afoot. Terry v. Ohio, 392 U.S. 1, 30, 88 S. Ct. 1868 (1968).
Prior to the stop here, police learned from an intercepted telephone call that
Tio Gonzalez was to deliver eight kilograms of cocaine to Montoya at Johnny’s
Meat Market, where Tio had previously engaged in narcotics transactions.
During surveillance, police witnessed Tio place a black bag in the passenger
side of his vehicle and drive to Johnny’s. They then saw Montoya walk up to
the passenger side of Tio’s vehicle. A subsequently intercepted telephone call
confirmed that Tio had delivered the cocaine to Montoya. Surveillance officers
then saw Montoya drive to his residence and exit his vehicle carrying a black
bag. Montoya left the residence a short time later carrying a smaller bag, drove
to a Boost Mobile store, parked, and then drove back to his residence. The
smaller bag was not seen again.
      Police intended to talk with Montoya at his residence to get his consent
to search the house, but before they could talk to him he left the residence a
second time. Police stopped Montoya a few blocks away and told him about
their investigation of narcotics being stored at his home. Within five minutes
of the stop, Montoya gave police consent to search the residence. Under the
totality of the circumstances, police had reasonable suspicion to suspect that
Montoya was involved in criminal activity and properly conducted an
investigatory stop. See, e.g., United States v. Rideau, 969 F.2d 1572, 1574-75
(5th Cir. 1992) (en banc) (holding that reasonable suspicion to conduct an
investigatory stop requires “only some minimal level of objective justification
for the officer’s actions, measured in light of the totality of the circumstances”).


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                                  No. 13-40475
      Montoya argues that the stop was improper because he had committed
no traffic offense and the officers stopped him solely to obtain consent to search
his house. However, police already had reasonable suspicion, if not probable
cause, based on their surveillance to believe that Montoya was involved in
criminal activity independent of his driving the vehicle. Those suspicions at
the least justified an investigatory stop. See United States v. Stevens, 487 F.3d
232, 244 (5th Cir. 2007) (characterizing reasonable suspicion of defendants’
involvement in narcotics activity learned from surveillance of a house as an
independent justification, apart from an illegal lane change, for an
investigative stop); see also United States v. Felix-Felix, 275 F.3d 627, 635-36
(7th Cir. 2001) (noting where police had reasonable suspicion of defendant’s
involvement in drug trafficking that it would have been “easy to conclude”
there was a permissible Terry stop if defendant, rather than fleeing from police,
had “simply chosen to stop his car and answer the government’s questions”),
superseded on other grounds by statute as recognized in United States v.
Rodriguez-Cardenas, 362 F.3d 958 (7th Cir. 2004); United States v.
Maldonado, 213 F. Supp. 2d 710, 715 (S.D. Tex. 2002) (holding that it was
reasonable to stop a vehicle for further investigation where police had ample
grounds to believe that at least two of the three occupants were involved in an
ongoing conspiracy to distribute cocaine).
      After police properly stopped Montoya, he gave valid consent to the
search of his home. Montoya challenges the voluntariness of the consent, but
because he did not raise the same argument in his motion to suppress that he
now makes on appeal the issue is waived. See United States v. Scroggins, 599
F.3d 433, 448 (5th Cir. 2010) (“failure to raise specific issues or arguments in
pre-trial suppression proceedings operates as a waiver of those issues or
arguments for appeal” (internal quotation marks and citation omitted)). Even
if we applied a plain error standard for good measure, see id., the voluntariness
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                                 No. 13-40475
of a defendant’s consent is an issue of fact. See United States v. Santiago, 410
F.3d 193, 199 (5th Cir. 2005). An issue of fact capable of resolution by the
district court can never be plain error. United States v. Chung, 261 F.3d 536,
540 (5th Cir. 2001); see also United States v. Huesca, No. 99-50127, 1999 WL
1068212, at *1 (5th Cir. Oct. 21, 1999) (unpublished). Moreover, even if we
reviewed the totality of the circumstances, we would find no reversible error
because there is no evidence of police coercion during the stop. The few officers
who were involved, some of whom were in civilian clothes, never drew their
weapons or handcuffed Montoya. Montoya was detained for only a short time,
he fully cooperated with the police, and he indicated by signing the consent
form that he was acting freely and voluntarily and that he knew he could refuse
to consent. We are satisfied from our review of the record that Montoya’s
consent was valid. See United States v. Shabazz, 993 F.2d 431, 438-39 (5th
Cir. 1993).
      AFFIRMED.




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