United States v. Gutierrez ( 2023 )

Case: 23-40045 Document: 00516974482 Page: 1 Date Filed: 11/20/2023
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
____________
November 20, 2023
No. 23-40045 Lyle W. Cayce
Summary Calendar Clerk
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United States of America,
Plaintiff—Appellee,
versus
Felipe De Jesus Gutierrez,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:19-CR-612-1
______________________________
Before Barksdale, Graves, and Oldham, Circuit Judges.
Per Curiam: *
Felipe De Jesus Gutierrez conditionally pleaded guilty to one count of
possession with intent to distribute five kilograms or more of cocaine, in
violation of 21 U.S.C. § 841(a)(1), (b)(1)(A), and 18 U.S.C. § 2 (defining
principals), reserving his right to contest the denial of his motion to suppress
evidence. He challenges the district court’s denial at the end of an
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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No. 23-40045
evidentiary hearing of his motion to suppress evidence seized from his
vehicle and his post-arrest confession. (Gutierrez testified at the hearing.)
For the contested denial of a suppression motion, our court reviews
“the factual determinations for clear error and the legal conclusions de
novo”. United States v. Powell, 732 F.3d 361, 369 (5th Cir. 2013) (citation
omitted). The evidence is viewed in the light most favorable to the prevailing
party, in this instance the Government. See United States v. Gibbs, 421 F.3d
352, 356–57 (5th Cir. 2005).
First, Gutierrez challenges the court’s finding reasonable suspicion
justified the stop of his vehicle. “Reasonable suspicion is a low threshold,
requiring only a minimal level of objective justification.” United States v.
Alvarez, 40 F.4th 339, 345 (5th Cir. 2022) (citation omitted). The officers
responded to a tip containing a range of details related to the planned drug
transaction, including predictive information. See Alabama v. White, 496
U.S. 325, 332 (1990) (highlighting importance of tip’s prediction of future
conduct); Powell, 732 F.3d at 369 (“Reasonable suspicion can be formed by a
confidential informant’s tip so long as the information is marked by indicia of
reliability.” (citation omitted)). The officers independently corroborated the
tip and observed predicted activities. Based on the totality of the
circumstances, reasonable suspicion supported the stop of Gutierrez’
vehicle. E.g., Alvarez, 40 F.4th at 345 (“Reasonable suspicion takes into
account the totality of the circumstances . . . .” (citation omitted)).
Next, Gutierrez asserts the search of his vehicle violated the Fourth
Amendment’s warrant requirement. We hold the officers had probable cause
to search Gutierrez’ tractor-trailer when a dog alerted to the presence of
narcotics in it. See United States v. Ned, 637 F.3d 562, 567 (5th Cir. 2011)
(permitting warrantless searches of automobiles if supported by probable
cause); Resendiz v. Miller, 203 F.3d 902, 903 (5th Cir. 2000) (“A drug-
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No. 23-40045
sniffing canine alert is sufficient, standing alone, to support probable cause
for a search.”).
Nor did Gutierrez show the officers’ actions converted the stop into
an arrest. See United States v. Sanders, 994 F.2d 200, 206–07 (5th Cir. 1993)
(“[U]sing some force on a suspect, pointing a weapon at a suspect, ordering
a suspect to lie on the ground, and handcuffing a suspect—whether singly or
in combination—do not automatically convert an investigatory detention
into an arrest requiring probable cause.”).
Finally, Gutierrez contends his confession was involuntary and not
sufficiently attenuated from his claimed illegal arrest to be admissible. The
testimony at the suppression hearing establishes Gutierrez: initiated the
meeting with the officers following his initial request for an attorney; was
never threatened or coerced; and was aware of his rights but waived them.
Gutierrez’ confession was therefore voluntary. See Wyrick v. Fields, 459 U.S.
42, 45–46 (1982) (explaining once suspect invokes right to counsel,
government may not interrogate him further unless he initiates); United
States v. Mendez, 885 F.3d 899, 910–11 (5th Cir. 2018) (concluding statement
was voluntary where defendant was twice advised of Miranda rights,
voluntarily waived them, there was no evidence of physical coercion, and
defendant was not threatened). And, because we hold Gutierrez’ arrest was
constitutional, his confession was also not the fruit of an illegal arrest. See
United States v. McCowan, 469 F.3d 386, 390 (5th Cir. 2006) (ruling arrest
permissible when officers have probable cause to conclude suspect
committed offense). Gutierrez’ contention that the delay in presenting him
to a magistrate judge was unreasonable is likewise incorrect because the
reasons for delay, including case-processing, were permissible. E.g., United
States v. Boche-Perez, 755 F.3d 327, 337 (5th Cir. 2014) (“[T]he McNabb–
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Mallory doctrine tolerates delays related to legitimate law enforcement
procedures . . . .”).
AFFIRMED.
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