IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-30681
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HENRY E. CRUZ-TORRES,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 00-50072-ALL
December 19, 2001
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Following a conditional guilty plea to possession with intent
to distribute marijuana, Henry E. Cruz-Torres appeals the district
court's denial of his motion to suppress. He argues that the
district erred on three grounds: (1) the district court erroneously
relied on United States v. Fort1 in determining that the state
*
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this opinion should not be published and is not precedent except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.
1
248 F.3d 475 (5th Cir.), cert. denied, 122 S. Ct. 405
(2001).
trooper had authority to make a warrantless stop of his commercial
vehicle under the regulatory exception to the Fourth Amendment's
warrant requirement; (2) the regulations pursuant to which the
state trooper was operating did not give him the authority to board
the bed of the commercial truck Cruz-Torres was driving and inspect
its cargo; and (3) Cruz-Torres's consent to search was
involuntarily given.
In reviewing the denial of the defendant's motion to suppress,
we review the district court's factual findings for clear error and
its legal conclusions de novo.2 "We view the evidence in the light
most favorable to the party that prevailed in the district court,"
here the government.3
Cruz-Torres concedes that Fort forecloses his first argument
but urges that we reconsider that prior panel decision. This we
cannot do, and so we are bound by Fort.4
Cruz-Torres's argument that the vehicle safety inspection
regulations did not authorize the trooper's actions is inadequately
briefed. Cruz-Torres cites only to the trooper's own testimony at
the suppression hearing and does not call our attention to any
2
United States v. Hunt, 253 F.3d 227, 229-30 (5th Cir.
2001).
3
Id. at 230.
4
See United States v. Short, 181 F.3d 620, 624 (5th Cir.
1999).
2
federal or state regulations that support his argument.
Accordingly, we consider this issue waived.5
Cruz-Torres finally argues that his consent to search was
vitiated by the allegedly illegal initial stop and the trooper's
peering into the window of the car Cruz-Torres was carrying on his
commercial vehicle. He also argues that "there is little support
for finding appellant's consent to search was voluntarily given."
We have already rejected Cruz-Torres's challenge to the
constitutionality of his stop and the trooper's actions prior to
his consent and so do not address the first part of this argument.6
As to the second part, we find sufficient support, under the clear
error standard, for the district court's finding that Cruz-Torres's
consent to search was voluntarily given.7 We note that, "'[w]here
the judge bases a finding of consent on the oral testimony at a
suppression hearing, the clearly erroneous standard is particularly
strong since the judge had the opportunity to observe the demeanor
of the witnesses.'"8 This court considers six factors in
evaluating the voluntariness of consent to search, all of which are
5
See Trevino v. Johnson, 168 F.3d 173, 181 n.3 (5th Cir.
1999).
6
See United States v. Navarro, 169 F.3d 228, 231-32 (5th
Cir. 1999).
7
See United States v. Cooper, 43 F.3d 140, 144 (5th Cir.
1995).
8
United States v. Kelley, 981 F.2d 1464, 1470 (5th Cir.
1993) (quoting United States v. Sutton, 850 F.2d 1083, 1086 (5th
Cir. 1988)).
3
relevant, but no one of which is dispositive or controlling.9
Based on the district court’s specific findings as to the relevant
factors, and considering the evidence as a whole, we conclude that
the district court’s ultimate finding, that Cruz-Torres voluntarily
consented to the search, was not clearly erroneous or influenced by
an incorrect view of the law.
AFFIRMED.
9
Id.
4