United States v. Pena , 148 F. App'x 195 ( 2005 )


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  •                                                              United States Court of Appeals
    Fifth Circuit
    F I L E D
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT                       June 14, 2005
    Charles R. Fulbruge III
    Clerk
    No. 04-41234
    Summary Calendar
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    GABRIEL PENA,
    Defendant-Appellant.
    Appeal from the United States District Court
    for the Southern District of Texas
    USDC No. 6:03-CR-62-ALL
    Before JONES, BARKSDALE, and PRADO, Circuit Judges.
    PER CURIAM:*
    Gabriel Pena was indicted for possession with intent to
    distribute 1.6 kilograms of cocaine.         The indictment arose out of
    a traffic stop occurring on April 30, 2003.        Pena filed a motion to
    suppress all evidence obtained pursuant to the stop based on
    several arguments including that his consent to the search of
    vehicle was not voluntary. Following a hearing, the district court
    denied the motion to suppress.       Pena entered a conditional guilty
    plea to the indictment for possession with intent to distribute
    *
    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    opinion should not be published and is not precedent except under the limited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.
    cocaine, reserving his right to appeal the district court’s denial
    of motion to suppress.
    Pena argues that the district court erred in denying his
    motion to suppress because his consent to search the vehicle was
    not voluntary.      When a district court makes a finding of consent
    based on oral testimony presented at a suppression hearing, “the
    clearly erroneous standard is particularly strong since the judge
    had the opportunity to observe the demeanor of the witnesses.”
    United States v. Mendoza-Gonzalez, 
    318 F.3d 663
    , 666 (5th Cir.
    2003) (internal quotation and citations omitted).          To determine
    whether consent was voluntary, the court considers the following
    factors: (1) the voluntariness of the custodial status; (2) the
    presence of coercive police procedures; (3) the extent and level of
    cooperation with the police; (4) the awareness of the right to
    refuse   consent;    (5)   the   education   and   intelligence   of   the
    defendant; and (6) the belief that no incriminating evidence will
    be found.    United States v. Solis, 
    299 F.3d 420
    , 435-36 (5th Cir.
    2002).   The record shows that Pena was not taken into custody at
    any point, he was not coerced, and he cooperated freely with all
    aspects of the traffic stop.      Pena has not shown that the district
    court clearly erred in finding that his consent to the search of
    the vehicle was voluntary.
    AFFIRMED.
    2
    

Document Info

Docket Number: 04-41234

Citation Numbers: 148 F. App'x 195

Judges: Barksdale, Jones, Per Curiam, Prado

Filed Date: 6/14/2005

Precedential Status: Non-Precedential

Modified Date: 11/5/2024