United States v. Jorge Gracia ( 2018 )

Case: 17-40704 Document: 00514370392 Page: 1 Date Filed: 03/02/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 17-40704 FILED
Summary Calendar March 2, 2018
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JORGE LUIS GRACIA, also known as Jose Angel Gracia,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:16-CR-706-18
Before KING, ELROD, and HIGGINSON, Circuit Judges.
PER CURIAM: *
Jorge Luis Gracia was convicted pursuant to his conditional guilty plea
of conspiracy to possess with intent to distribute less than 500 grams of
cocaine. In this appeal, he challenges the district court’s denial of his motion
to suppress evidence seized during a warrantless search of the vehicle in which
he was a passenger. He contends that the driver’s consent to the search was
not voluntary. We assume without deciding that Gracia has standing to object
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 17-40704 Document: 00514370392 Page: 2 Date Filed: 03/02/2018
No. 17-40704
to the driver’s consent to the search. See United States v. Iraheta, 764 F.3d
455, 461 (5th Cir. 2014). We also decline to decide whether Gracia preserved
this argument by sufficiently raising the voluntariness of the driver’s consent
in the district court, see United States v. Scroggins, 599 F.3d 433, 448 (5th Cir.
2010), because his argument lacks merit on any standard of review, see United
States v. Fernandez, 559 F.3d 303, 330 (5th Cir. 2009).
“A search conducted pursuant to consent is excepted from the Fourth
Amendment’s warrant and probable cause requirements.” United States v.
Solis, 299 F.3d 420, 436 (5th Cir. 2002). The voluntariness of consent is a fact
question determined from the totality of circumstances and is reviewed for
clear error. Id. We consider the following six non-dispositive factors to
determine whether consent to a search was voluntarily given:
(1) the voluntariness of the defendant’s custodial status; (2) the
presence of coercive police procedures; (3) the extent and level of
the defendant’s cooperation with the police; (4) the defendant’s
awareness of his right to refuse to consent; (5) the defendant’s
education and intelligence; and (6) the defendant’s belief that no
incriminating evidence will be found.
Id. at 436 & n.21 (internal quotation marks and citation omitted).
Having reviewed the parties’ arguments, the suppression hearing, and
the video recording of the traffic stop, we conclude that the district court’s
implicit finding that the driver voluntarily consented to the search is a
reasonable view of the evidence based on the totality of the circumstances. See
Scroggins, 599 F.3d at 440; Solis, 299 F.3d at 436; see also United States v.
Crain, 33 F.3d 480, 483-84 (5th Cir. 1994). Gracia’s arguments to the contrary,
including his contention that the driver merely acquiesced to a claim of lawful
authority, are unpersuasive and fail to establish “a definite and firm conviction
that a mistake has been committed.” Scroggins, 599 F.3d at 440.
AFFIRMED.
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