     Case: 15-40301      Document: 00513246872         Page: 1    Date Filed: 10/26/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 15-40301
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                         October 26, 2015
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

ELMO MENCHACA-LOPEZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 7:12-CR-1414-1


Before JONES, DENNIS, and GRAVES, Circuit Judges.
PER CURIAM: *
       Following the denial of his motion to suppress contraband seized during
a consensual search of his residence as well as his subsequent inculpatory
statements, Elmo Menchaca-Lopez entered a conditional guilty plea, under
Federal Rule of Criminal Procedure 11(a)(2), to conspiracy to possess cocaine
with intent to distribute. In this appeal, Menchaca-Lopez asserts that the
district court reversibly erred in denying his motion to suppress evidence


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-40301

because his consent to search was induced by coercive actions and statements
by law enforcement officers.       He further contends that his subsequent
inculpatory   statements    warranted       suppression     as    the   fruit   of   the
unconstitutional search of his residence.
      The Fourth Amendment to the United States Constitution guarantees
individuals the right “to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures.” Warrantless searches are per se
unreasonable under the Fourth Amendment, subject to a few specific
exceptions. Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973). “[O]ne of the
specifically established exceptions to the requirements of both a warrant and
probable cause is a search that is conducted pursuant to consent.” Id. When
a search is based on consent, the Government bears the burden of proving,
based on the totality of the circumstances, that consent was voluntarily given.
United States v. Dilley, 480 F.3d 747, 749 (5th Cir. 2007). On appeal from the
denial of a motion to suppress, we review a district court’s factual finding that
consent was voluntarily given for clear error. See id.
      Menchaca-Lopez asserts that his consent to search his residence was
involuntarily coerced by two factors.        First, he argues that the show of
authority by law enforcement officers, which included a cadre of armed state
and federal agents outside his property and a United States Border Patrol
helicopter orbiting above, made him believe that a search of his residence
would occur whether or not he consented to one. Second, he contends that one
of the police officers furthered that belief by informing him that agents would
either obtain a search warrant for his residence or conduct a warrantless
search of his residence if he did not consent.
      Reviewing the record under the governing precedents, we conclude that
the district court did not clearly err in resolving those factual inquiries against



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                                 No. 15-40301

Menchaca-Lopez.      First, beyond the law enforcement agents’ mere armed
presence, Menchaca-Lopez does not point to any specific provocative behavior
on their part—nor was any identified through the testimony of the agents
themselves—that would have caused him reasonably to believe that a search
of his residence would occur even if he denied consent. See United States v.
Martinez, 410 F. App’x 759, 764 (5th Cir. 2011) (holding that “the mere
presence of armed officers does not render a situation coercive”).
      Second, the district court heard conflicting testimony as to whether
police officers threatened Menchaca-Lopez that they would search his
residence, with or without a warrant, if he did not give consent and ultimately
credited the officers’ testimony that no such threat was made. Giving utmost
deference to the district court’s determinations of witness credibility, see
United States v. Solis, 299 F.3d 420, 439 (5th Cir. 2002), we conclude that the
district court’s finding that Menchaca-Lopez’s consent was not coerced by
police threats is “plausible in light of the record as a whole.” United States v.
Gomez, 623 F.3d 265, 268 (5th Cir. 2010) (internal quotation marks and
citation omitted).
      Viewing the evidence in the light most favorable to the Government, we
hold that the district court did not err in denying Menchaca-Lopez’s motion to
suppress evidence. See Gomez, 623 F.3d at 268-69. Accordingly, we further
hold that the district court did not err in denying the motion to suppress his
related inculpatory statements as “fruit of the poisonous tree.” United States
v. Hernandez, 670 F.3d 616, 620 (5th Cir. 2012) (internal quotation marks and
citation omitted).
      The judgment of the district court is AFFIRMED.




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