UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-10257
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
ANGEL MANUEL RIVERA-ROMERO,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Texas
(4:98-CR-188-1-E)
September 28, 1999
Before DAVIS, DUHÉ, and DeMOSS, Circuit Judges.
PER CURIAM:1
Angel Manuel Rivera-Romero appeals his conditional guilty-plea
conviction for possession of cocaine with the intent to distribute.
Rivera contends that the district court clearly erred in denying
his motion to suppress the evidence seized from his apartment.
Rivera argues that because he has only limited understanding of
English, his consent to the law enforcement officers’ entry into,
and warrantless search of, the apartment was involuntary.
In reviewing a district court’s ruling on a motion to suppress
based on live testimony at a suppression hearing, this court must
1
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this opinion should not be published and is not precedent except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.
accept the district court’s findings of fact unless they are
clearly erroneous or influenced by an incorrect view of the law.
United States v. Foy, 28 F.3d 464, 474 (5th Cir. 1994).
Voluntariness of consent to enter a residence or make a search is
a question of fact to be determined by a preponderance of the
evidence from the totality of the circumstances.2 See United
States v. Cooper, 43 F.3d 140, 144 (5th Cir. 1995). “[I]n regard
to Spanish speaking defendants, where there is sufficient
conversation between the suspect and law enforcement officers to
demonstrate that the suspect had an adequate understanding of
English to fully comprehend the situation, a finding that consent
was voluntary may be proper.” United States v. Alvarado, 898 F.2d
987, 991 (5th Cir. 1990).
The district court did not err, clearly or otherwise, in
finding that Rivera voluntarily consented to the officers’ entry
into, and warrantless search of, the apartment. See Alvarado, 898
F.2d at 991. Therefore, the judgment of the district court is
AFFIRMED.
2
In brief, Appellant’s counsel argues that the proof of
voluntariness must be by clear and convincing evidence, relying on
United States v. Gonzales, 842 F.2d 748 (5th Cir. 1988) and United
States v. Parker, 722 F.2d 179 (5th Cir. 1983). Those cases were
overruled by United States v. Hurtado, 905 F.2d 74, 75-76 (5th Cir.
1990). We on this occasion, assume that these improper citations
are the result of inadequate research rather than a deliberate
breach of duty by an officer of the court.
2
United States v. Rivera-Romero
Combined Opinion