     Case: 11-10902     Document: 00511978610         Page: 1     Date Filed: 09/07/2012




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

                                                                            FILED
                                                                        September 7, 2012
                                     No. 11-10902
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

MARK THOMAS ANTHONY,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:10-CR-13-1


Before REAVLEY, JOLLY, and DAVIS, Circuit Judges.
PER CURIAM:*
        Mark Thomas Anthony pleaded guilty to theft or receipt of stolen mail, but
reserved his right to appeal the denial of his motion to suppress evidence.
Anthony contends on appeal that he was “seized” within the meaning of the
Fourth Amendment as soon as the officers parked their patrol unit
perpendicular to his vehicle, thereby preventing him from leaving the scene and
ordering him to stand in front of the police unit. He asserts that the officers
were not merely asking questions, but had “clearly exercised their authority over

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-10902

[him] immediately upon their initial contact and he complied with their
instructions.” Anthony points to Officer Drummond’s testimony that Anthony
was not free to leave once he was directed to stand in front of the police unit.
Anthony contends that, contrary to the district court’s findings, the initial
encounter between him and the officers constituted a Terry1 stop.
      When reviewing a denial of a motion to suppress evidence, this court
reviews factual findings for clear error and the ultimate constitutionality of law
enforcement action de novo. United States v. Perez, 484 F.3d 735, 739 (5th Cir.
2007) (citation omitted).
      Officer Campbell approached Anthony in a public parking lot to ascertain
his identity while Officer Drummond stayed in the patrol car checking the
vehicle’s registration. There was no testimony that the officers brandished their
weapons or that Anthony was handcuffed prior to being placed under arrest.
There was also no testimony that Anthony was advised that he could not leave
the area. Anthony is correct that the officers parked their unit perpendicular to
his vehicle. However, contrary to Anthony’s assertions, Officer Drummond
testified that the unit was parked several feet away from Anthony’s and there
was still room for Anthony to leave, as well as “room for vehicles to pass between
[them].” Further, Officer Drummond’s subjective intentions as to whether
Anthony was free to leave once he was asked to stand in front of the police unit
is not determinative of whether there was a seizure within the meaning of the
Fourth Amendment. See United States v. Mask, 330 F.3d 330, 336 (5th Cir.
2003). Given the totality of the circumstances, the officers’ conduct was not
sufficiently coercive to transform the consensual encounter into a detention. See
United States v. Drayton, 536 U.S. 194, 204-05 (2002); see also United States v.
Galberth, 846 F.2d 983, 989 (5th Cir. 1988). Thus, the district court did not
clearly err in finding that the initial encounter was not a seizure within the


      1
          Terry v. Ohio, 392 U.S. 1 (1968).

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                                  No. 11-10902

Fourth Amendment. See United States v. Hernandez, 279 F.3d 302, 306 (5th Cir.
2002).
      Nevertheless, even if the district court’s finding was clearly erroneous,
there was ample evidence in the record that the officers possessed reasonable
suspicion sufficient to conduct an investigatory stop. The area the officers were
patrolling was known to be a high crime area, particularly with regard to the
burglary of vehicles. Anthony’s behavior was suspicious in that he was lying
with his feet outside the vehicle and working under the dashboard. Also, the
officers observed another person standing nearby the vehicle. Anthony stresses
the fact that he had been staying in the hotel for several months and compares
the hotel to his residence. However, at the time of the stop, it was unknown to
the officers whether Anthony was staying in the hotel or a transient involved in
the perpetration of a crime. The particular and articulable facts, taken together
with rational inferences from those facts, reasonably warranted the officers to
conduct an investigatory stop. See United States v. Michelletti, 13 F.3d at 838,
840 (5th Cir. 1994) (en banc). Further, the actions taken by the officers were
reasonable under the circumstances and related to dispelling their belief
whether they were witnessing a burglary in progress. See United States v.
Brigham, 382 F.3d 500, 507 (5th Cir. 2004) (en banc). As such, the district court
did not err in finding that the stop of Anthony by the officers was valid under
Terry. See id. at 506.
      Anthony challenges the district court’s finding that his girlfriend, Ashley
Engel, had actual or apparent authority to consent to the search of his property,
particularly the blue tote bag, and the seizure of car keys found in the hotel room
in which she was also found. The hotel room was rented in Engel’s name, she
signed a consent form giving the officers permission to search the entire
premises of the one-room hotel room, the blue tote bag was found in plain view
on a shelving area that lacked doors, and there was no indication on the bag that
it belonged to Anthony. Based on these circumstances, it was not clearly

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                                  No. 11-10902

erroneous for the district court to find that Engel had actual or apparent
authority to give consent to a search of the room, including the blue tote bag and
keys. See Illinois v. Rodriguez, 497 U.S. 177, 186 (1990); United States v.
Navarro, 169 F.3d 228, 232 (5th Cir. 1999).
      Finally, Anthony contends that, under the “fruit of the poisonous tree
doctrine,” evidence from the hotel room and statements he made to authorities
should have been suppressed due to his unlawful detention and the illegal
search of his vehicle. The Government contends that although proper, the
officers’ decision to impound and search Anthony’s vehicle is irrelevant because
Engel’s voluntary consent to search the hotel room cures any taint of a prior
Fourth Amendment violation.
      Anthony does not contest the district court’s finding that Engel’s consent
was voluntary.      Consequently, we focus on whether the “consent was an
independent act of free will;” in doing so we consider “1) the temporal proximity
of the illegal conduct and the consent; 2) the presence of intervening
circumstances; and 3) the purpose and flagrancy of the initial misconduct.”
United States v. Jones, 234 F.3d 234, 243 (5th Cir. 2000) (citation omitted).
      Even if the was a prior Fourth Amendment violation, Anthony is not
entitled to relief. Engel did not witness the arrest of Anthony nor the search of
his vehicle. Engel was approached by two officers and voluntarily consented to
the search of the hotel room in which she was found. Further, the district court
adopted the Government’s version of events which did not reflect any flagrant
official misconduct. Thus, based on the evidence presented at the hearing,
Engel’s voluntary consent dissipated the taint of any alleged Fourth Amendment
violation regarding the search and seizure of Anthony’s truck. See Jones, 234
F.3d at 242; United States v. Richard, 994 F.2d 244, 252 (5th Cir. 1993). As
such, his argument that evidence seized from the room should have been
suppressed as fruit of the poisonous tree fails. Because there was no Fourth
Amendment violation in connection with the seizure of the stolen mail,

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                                  No. 11-10902

Anthony’s argument that the inculpatory statements he made with respect to
the stolen mail should be suppressed as “fruits of the poisonous tree” also fails.
See United States v. Scroggins, 599 F.3d 433, 446 (5th Cir. 2010). Accordingly,
the judgment of the district court is AFFIRMED.




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