United States v. Torres de Lopez ( 2023 )

Case: 22-50505 Document: 00516640140 Page: 1 Date Filed: 02/09/2023
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 22-50505
Summary Calendar FILED
____________ February 9, 2023
Lyle W. Cayce
United States of America, Clerk
Plaintiff—Appellee,
versus
Maria Torres de Lopez,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:21-CR-1385-1
______________________________
Before Higginbotham, Graves, and Ho, Circuit Judges.
Per Curiam: *
Maria Torres de Lopez was convicted by a jury of conspiracy to harbor
aliens and sentenced to six months of imprisonment. On appeal, Torres de
Lopez argues that the district court erred in denying her motion to suppress
all evidence obtained following a warrantless search of her home. Border
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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No. 22-50505
Patrol agents approached Torres de Lopez’s home after receiving a tip from
a confidential informant that illegal immigrants were being housed there.
Torres de Lopez argues that the agents lacked a warrant and probable
cause to search her home, rendering the information gathered during the
search, seizure, and interview illegal under the Fourth Amendment. We
uphold a district court’s ruling on a motion to suppress “if there is any
reasonable view of the evidence to support it.” United States v. Michelletti, 13
F.3d 838, 841 (5th Cir. 1994) (en banc). Torres de Lopez also argues that
“the use of an unnamed cooperating witness, who was unavailable for cross-
examination” at trial, violates the Confrontation Clause of the Sixth
Amendment. This court reviews preserved Confrontation Clause claims de
novo, subject to a harmless error analysis. United States v. Noria, 945 F.3d
847, 853 (5th Cir. 2019). Torres de Lopez preserved her claim by raising this
objection at trial.
“Federal courts have recognized the ‘knock and talk’ strategy as a
reasonable investigative tool when officers seek to gain an occupant’s consent
to search or when officers reasonably suspect criminal activity.” United
States v. Jones, 239 F.3d 716, 720 (5th Cir. 2001). A person is seized for
Fourth Amendment purposes “only if, in view of all of the circumstances
surrounding the incident, a reasonable person would have believed that he
was not free to leave.” United States v. Mendenhall, 446 U.S. 544, 554 (1980).
While the officers initiated a knock and talk encounter with Torres de Lopez,
there is no evidence that a seizure occurred. Because Torres de Lopez was
not seized, her Fourth Amendment rights were not implicated, and the
officers did not have to articulate reasonable suspicion or probable cause. See
United States v. Valdiosera-Godinez, 932 F.2d 1093, 1099 (5th Cir. 1991).
While the officers did not enter or search Torres de Lopez’s home initially,
they did eventually search the home for the passport of one of the subjects.
However, the agents asked for permission to do so, and Torres de Lopez
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consented. Torres de Lopez does not argue that her consent was in any way
coerced. Consequently, Torres de Lopez’s consent to search her residence
for the passport was not tainted or invalid, and the district court did not err
when it denied her motion to suppress. See Mendenhall, 446 U.S. at 554.
The Confrontation Clause of the Sixth Amendment provides that
“[i]n all criminal prosecutions, the accused shall enjoy the right … to be
confronted with the witnesses against him.” U.S. Const. amend. VI. The
Supreme Court has held that the Confrontation Clause bars the admission of
“testimonial statements of a witness who did not appear at trial unless he was
unavailable to testify, and the defendant had had a prior opportunity for
cross-examination.” Crawford v. Washington, 541 U.S. 36, 53-54 (2004).
Law enforcement officers may testify to tips from a confidential informant to
“provide context for their investigation or explain background facts,”
provided the “out-of-court statements are not offered for the truth of the
matter asserted therein, but instead for another purpose: to explain the
officer’s actions.” United States v. Kizzee, 877 F.3d 650, 659 (5th Cir. 2017)
(internal quotation marks and citation omitted). Here, the agents did not
testify that the confidential informant said that Torres de Lopez was housing
or was involved in housing illegal immigrants. They did not testify about the
confidential informant saying anything about Torres de Lopez. Instead, they
testified that they received information that illegal aliens were being housed
at a certain location. This was not an accusation but a background fact about
their investigation; therefore, the testimony did not violate the Confrontation
Clause. See id.The judgment of the district court is AFFIRMED.
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