United States v. Kane ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT July 21, 2004
Charles R. Fulbruge III
Clerk
No. 03-51332
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DAVID WAYNE KANE,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. P-03-CR-219-ALL
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Before SMITH, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
David Wayne Kane entered a conditional guilty plea to
possession with intent to distribute marijuana, reserving the right
to appeal the district court’s denial of his motion to suppress
evidence. He argues that district court erred in determining that
he voluntarily stopped his vehicle, rendering his initial encounter
with Border Patrol agents a consensual one, and argues that the
encounter was instead a seizure unsupported by reasonable
suspicion. He contends that because the district court’s
*
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this opinion should not be published and is not precedent except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.
determination whether a seizure occurred was influenced by an
incorrect view of the law, this court’s review is de novo, rather
than for clear error. See United States v. Mask, 330 F.3d 330, 335
(5th Cir. 2003).
The district court’s determination that Kane’s initial
encounter with agents was a consensual one, rather than a seizure,
was not “influenced by an incorrect view of the law.” See Mask,
330 F.3d at 337. The district court did not err in finding the
encounter consensual in the light of the evidence that Agent
Grajeda’s hand gesture toward Kane’s vehicle was a signal for Kane
to slow down, rather than for him stop, but that Kane nonetheless
stopped his vehicle. See United States v. Cooper, 43 F.3d 140,
145-46 (5th Cir. 1995). Therefore, the district court’s judgment
is AFFIRMED.
AFFIRMED.
2