United States v. Gonzales ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT November 8, 2004
Charles R. Fulbruge III
Clerk
No. 03-11208
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANTHONY V. GONZALES,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:02-CR-221-ALL
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Before WIENER, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
Anthony V. Gonzales entered a conditional guilty plea to the
indictment charging him with being a felony in possession of
firearms. Gonzales preserved his right to appeal the denial of
his motion to suppress. Gonzales argues that the district court
erred when it denied his motion to suppress his statements and
all evidence discovered in the search of the home of his
girlfriend, Xochita Oliveras. Gonzales argues that, following
his arrest, the initial entry into the house was illegal and that
*
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this opinion should not be published and is not precedent except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. 03-11208
-2-
Oliveras’s subsequent consent to a search of the house did not
remove the taint of the illegal entry.
This court reviews the district court’s denial of a motion
to suppress in the light most favorable to the prevailing party,
which in this case is the Government. United States v.
Mendoza-Gonzalez, 318 F.3d 663, 666 (5th Cir.), cert. denied,
538 U.S. 1049 (2003). Legal conclusions are reviewed de novo,
and factual findings are reviewed for clear error. Id.It is not necessary to determine whether the initial entry
was valid under the Fourth Amendment because subsequent,
voluntary consent to a search may remove the taint of the prior
Fourth Amendment violation. United States v. Richard, 994 F.2d
244, 250-52 (5th Cir. 1993). The district court’s findings that
Oliveras’s consent to the search of her home was voluntary is
unequivocal. “The voluntariness of consent is a question of
fact.” United States v. Solis, 299 F.3d 420, 436 (5th Cir.
2002). On appeal, Gonzales addresses none of the Solis factors
to be considered in addressing the voluntariness of consent but
simply asserts without support that the consent is necessarily
invalid as fruit of the poisonous tree. This is not sufficient
to show that the district court was clearly erroneous in its
factual finding that Oliveras’s consent to search was given
freely and was not the result of an compulsion or intimidation.
AFFIRMED.