United States v. Garza ( 2001 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-20187
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE GARZA,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-00-CR-646
October 24, 2001
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Jose Garza was convicted of possession with intent to
distribute 50 grams or more of cocaine base. He appeals the
district court’s denial of his motion to suppress the cocaine base
discovered at his apartment after a consensual search of his car,
which he was driving when stopped, revealed no contraband.
In reviewing the denial of the defendant's motion to suppress,
we review the district court's factual findings for clear error and
*
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this opinion should not be published and is not precedent except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.
its legal conclusions de novo.1 "We view the evidence in the light
most favorable to the party that prevailed in the district court,"
here the government.2 When reviewing the district court's denial
of the defendant's motion to suppress, we may consider the evidence
admitted at both the suppression hearing and the trial.3
A stop of a vehicle suspected of transporting drugs
constitutes a permissible Terry stop if the officer's action was
justified at its inception and the detention was reasonably related
in scope to the circumstances that justified the interference in
the first place.4 Garza does not contest the district court’s
finding that, based on the confidential source’s information, the
Houston Police Department had the requisite reasonable suspicion
for stopping him and questioning him with regard to his suspected
drug dealings. Thus, he admits that the initial stop of his car
and his initial detention were justified at their inception. Garza
also does not challenge the voluntariness of his consent to search
his car. He argues, however, that the requirement that the
detention be reasonably related in scope to the circumstances that
1
United States v. Jacquinot, 258 F.3d 423, 427 (5th Cir.
2001).
2
United States v. Hunt, 253 F.3d 227, 230 (5th Cir. 2001).
3
United States v. Jones, 239 F.3d 716, 718 (5th Cir.), cert.
denied, No. 00-10498, 2001 WL 650688 (U.S. Oct. 1, 2001).
4
United States v. Jones, 234 F.3d 234, 240 (5th Cir. 2000);
United States v. Zucco, 71 F.3d 188, 190 (5th Cir. 1995).
2
justified the initial interference was blatantly violated by his
continued detention after a search of his car revealed no
contraband and by the subsequent search of his apartment, to which
he consented.
In assessing whether a detention is too long in duration to be
justified as an investigative stop, it is appropriate to examine
whether the police diligently pursued a means of investigation that
was likely to confirm or dispel their suspicions quickly, during
which time it was necessary to detain the defendant.5 Our review
of the record shows that Garza's continued detention was not
unreasonable in light of the developing situation.6 Officer Dennis
Nelius testified that he continued questioning Garza after the
search of Garza's car because he believed, based on over $12,000 in
cash found during the search of Garza's partner's vehicle, that he
had stopped Garza too soon, i.e., before Garza's car was loaded
with narcotics which might still be at Garza's apartment. There
was therefore an ongoing justification for detaining Garza for a
continuing investigation of Garza's drug trafficking based on a
reasonable suspicion that narcotics were present in Garza's
apartment. The district court did not clearly err in finding that
the duration of the investigative detention was not unreasonably
5
United States v. Sharpe, 470 U.S. 675, 685 (1985); United
States v. Campbell, 178 F.3d 345, 349-50 (5th Cir. 1999).
6
See Sharpe, 470 U.S. at 688; Campbell, 178 F.3d at 350.
3
lengthy and did not extend beyond the scope of the circumstances
that justified the initial stop and detention.
Garza also argues that his consent to search his apartment was
vitiated by his illegal detention. We have already held that Garza
was not illegally detained and so do not address this argument.7
To the extent that Garza argues that his consent to search his
apartment was not voluntary, this argument is unavailing as well.
"The voluntariness of consent is a question of fact to be
determined from a totality of the circumstances," and we review the
district court's finding of voluntariness for clear error.8
"'Where the judge bases a finding of consent on the oral testimony
at a suppression hearing, the clearly erroneous standard is
particularly strong since the judge had the opportunity to observe
the demeanor of the witnesses.'"9 This court considers six factors
in evaluating the voluntariness of consent to search, all of which
are relevant, but no one of which is dispositive or controlling.10
Although the first factor, voluntariness of the defendant’s
custodial status, militates against voluntariness because Garza was
7
See United States v. Navarro, 169 F.3d 228, 231-32 (5th
Cir.), cert. denied, 528 U.S. 845 (1999).
8
United States v. Cooper, 43 F.3d 140, 144 (5th Cir. 1995).
9
United States v. Kelley, 981 F.2d 1464, 1470 (5th Cir.
1993) (quoting United States v. Sutton, 850 F.2d 1083, 1086 (5th
Cir. 1988)).
10
Id.4
not free to leave, the remaining factors, especially Garza’s
admission that he had cocaine at his apartment, indicates that his
consent was voluntary. Based on the district court’s specific
findings as to each of the six factors, and considering the
evidence as a whole, we conclude that the district court’s ultimate
finding, that Garza voluntarily consented to the search, was not
clearly erroneous or influenced by an incorrect view of the law.
AFFIRMED.
5