United States v. Gilbert ( 2007 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 30, 2007
No. 06-51446
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
MICHAEL SHAWN GILBERT
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:06-CR-42-ALL
Before HIGGINBOTHAM, STEWART and OWEN, Circuit Judges.
PER CURIAM:*
Michael Shawn Gilbert (Gilbert) was convicted by a jury of a single count of
possession with intent to distribute five grams or more of crack cocaine. Gilbert
appeals the district court’s denial of his motion to suppress evidence of the cocaine that
was discovered during a strip search.
In reviewing the denial of a motion to suppress evidence, this court reviews the
district court's factual findings for clear error and its legal conclusions de novo. United
States v. Hunt, 253 F.3d 227, 229-30 (5th Cir. 2001). The evidence is viewed in the
light most favorable to the prevailing party, and the district court's credibility findings
*
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should not be published and is not precedent except under the limited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.
No. 06-51446
are not second-guessed. Id. at 230; United States v. Garza, 118 F.3d 278, 282-83 (5th
Cir. 1997).
In the present matter, Officer Joel Bermea (Bermea) of the Midland Police was
on patrol when he received a report of a stolen vehicle. Bermea, who spotted the
vehicle parked in front of the residence of a known drug dealer, had recently received
reports from numerous contacts that Gilbert was also dealing drugs in the city.
Bermea saw a male enter the vehicle in front of the residence and begin to drive off.
Bermea pulled up behind the vehicle and flashed his lights. When the driver exited
the vehicle, Bermea recognized him as Gilbert. Bermea arrested Gilbert for
unauthorized use of a motor vehicle and turned him over to fellow Officer Earl Davis
(Davis) for transport to the local jail. Along the way, Bermea radioed Davis and asked
him to have Gilbert strip searched at the jail. As Gilbert was disrobing, Davis and
jailer Alex Hernandez observed Gilbert reach behind to the area near his anus and
then toss a plastic bag into the nearby shower. Lab tests confirmed that the bag
contained crack cocaine.
In Kelly v. Foti, 77 F.3d 819, 822 (5th Cir. 1996), this court held that a strip
search ordered by a police officer is permissible if the officer has an individualized
suspicion that a person arrested is hiding weapons or contraband. Viewing the totality
of the evidence in the light most favorable to the prevailing party in this case, this
court finds that the district court did not clearly err in determining that Officer
Bermea had a reasonable suspicion that justified the strip search of Gilbert.
The district court’s judgment is AFFIRMED.
2