United States v. Chhay Lim

Case: 17-30469 Document: 00514579825 Page: 1 Date Filed: 07/31/2018

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit

FILED
No. 17-30469 July 31, 2018
Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,

Plaintiff−Appellee,

versus

CHHAY LIM,

Defendant−Appellant.

Appeal from the United States District Court
for the Eastern District of Louisiana

Before SMITH, WIENER, and WILLETT, Circuit Judges.
JERRY E. SMITH, Circuit Judge:

Chhay Lim conditionally pleaded guilty of possession of a firearm by an
illegal alien. He appeals pre-plea rulings denying his motions to dismiss the
indictment, to admit evidence relevant to his immigration status, and to sup-
press evidence. We affirm the refusal to dismiss the indictment and admit the
evidence. We affirm in part and reverse in part the denial of the motion to
suppress. The judgment of conviction is vacated and remanded.
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No. 17-30469
I.
In 1997, Lim, while a lawful permanent resident (“LPR”), was ordered
removed from the United States after serving three years in prison for rape.
The removal order became final in December 1998, when the Board of Immi-
gration Appeals (“BIA”) dismissed Lim’s appeal. A warrant of removal was
issued in February 1999, and Lim’s immigration bond was formally deemed
breached in June 1999.

On March 2, 2015, Immigration and Customs Enforcement (“ICE”) offi-
cers executed the removal warrant and seized two firearms from Lim’s house. 1
Lim had acquired the firearms after his removal order had become final. On
March 27, 2015, Lim was indicted on two counts of possession of a firearm by
an illegal alien under 18 U.S.C. § 922(g)(5).

In April 2015, Lim moved to reopen his removal proceedings to allow him
to seek relief from removal under former section 212(c) of the Immigration and
Nationality Act, 8 U.S.C. § 1182(c). The BIA granted the motion in May 2015.
Those proceedings remain pending.

In his section 922 criminal proceedings, Lim moved to suppress the
statements and evidence seized from his house. After a hearing, the district
court denied the motion. Lim also moved to dismiss the indictment, asserting
that, in light of the reopening of his removal proceedings, he was not an illegal
alien at the time of the offense or indictment. The government opposed the
motion, responding that on the date Lim possessed the firearms, he was an
illegal alien subject to a final order of removal, and the reopening of the immi-
ration proceedings did not retroactively restore him to LPR status for purposes

1 The events resulting in discovery of the firearms are set forth in a later section.
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of section 922. The district court denied the motion to dismiss.

Before trial, the parties filed several motions addressing the admissi-
bility of evidence regarding Lim’s immigration status. Because the district
court was not convinced that the BIA’s reopening of Lim’s immigration pro-
ceedings had retroactive effect, it determined that “any evidence of curative
efforts made by [Lim], subsequent to his March 2, 2015 arrest, relative to the
legality of his alien status, lack[ed] relevance and . . . [was] inadmissible.”
Specifically, Lim would not be allowed to “‘elicit factual testimony from his
immigration attorney regarding the motion[s] that the attorney previously
filed on [his] behalf . . . , the procedure involved, and the result achieved.’”
Thus, the court also sustained the government’s relevance objections as to
Lim’s boat registrations and commercial fishing licenses, though the relevance
objections as to Lim’s government-issued identification cards and tax returns
were referred to trial “for reconsideration in the event that [he chose] to
testify.”

In light of the legal and evidentiary rulings, Lim executed a written plea
agreement and pleaded guilty to the two-count indictment. The district court
sentenced him, within the advisory guidelines range, to concurrent terms of
ten months of imprisonment and one year of supervised release. Lim remains
on bond pending appeal.

II.
The government contends that Lim possibly did not preserve his right to
appeal all pretrial decisions. A guilty plea generally “waives [the] right to chal-
lenge any nonjurisdictional defects in the criminal proceedings that occurred

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before the plea.” 2 A defendant can, however, “enter into a conditional guilty
plea preserving the right to appeal pretrial rulings.” 3 Because “[a] conditional
guilty plea may not be implied,” it must usually “be in writing and designate
the particular issues that are preserved for appeal; the government must con-
ent to it; and the district court must approve it.” 4 We can “excuse[] variances
from these technical requirements where ‘the record clearly indicates that the
defendant intended to enter a conditional guilty plea, that the defendant
expressed the intention to appeal a particular pretrial ruling, and that neither
the government nor the district court opposed such a plea.’” 5

The written plea agreement does not indicate that the plea was condi-
tional. It also does not mention waiver of appellate rights. The record at
rearraignment, however, plainly indicates that Lim’s plea was in fact condi-
tional. First, the court summarized the rights Lim waived by pleading guilty—
the rights to a speedy and public trial by twelve jurors, to be presumed innocent
until proven guilty beyond a reasonable doubt, to confront witnesses, to call
witnesses, to testify, and to present evidence.

Then, on confirming that Lim understood the rights he would be waiving,
the court switched to discussing the rights he would be preserving:
THE COURT: Now, Mr. Lim, typically upon entering a
guilty plea, a defendant waives the rights that he otherwise would
have to appeal his conviction. In this instance, however, it is my

2 United States v. Olson, 849 F.3d 230, 231 (5th Cir. 2017) (per curiam). See also FED.
R. CRIM. P. 11(a)(2) (“With the consent of the court and the government, a defendant may
enter a conditional plea of guilty or nolo contendere, reserving in writing the right to have an
appellate court review an adverse determination of a specified pretrial motion. A defendant
who prevails on appeal may then withdraw the plea.”).
3 Olson, 849 F.3d at 231.
4 Id.
5 Id. (quoting United States v. Stevens, 487 F.3d 232, 238 (5th Cir. 2007)).
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understanding that you and the government have agreed that you
will not waive any right to appeal your conviction or your sentence,
and that you will also not waive any other post-conviction remedies
that may be available to you.
THE DEFENDANT: Yes.
THE COURT: Mr. Lim, is that a correct understanding? Is
that your understanding as well?
THE DEFENDANT: Yes.
THE COURT: All right. And [AUSA] Latsis, is that a correct
statement?
[AUSA] LATSIS: Yes, Your Honor, that is correct. We have
stripped out all of the appeal waiver language so he is reserving
all of his appellate rights.
THE COURT: Okay. [Defense counsel] Meche, that an
accurate statement?
[DEFENSE COUNSEL] MECHE: Yes.
After finishing the discussion of appellate rights, the court defined, for Lim,
each element of the offense. During the explanation, Lim’s attorney began to
interrupt, and the court immediately responded, “Mr. Meche, this is the part,
I believe, that creates the issue you would like to have reviewed by the circuit;
is that correct?” Meche responded, “That’s correct.” After extended discussion,
the court reemphasized that Lim “reserv[ed his] right to argue an appeal aris-
ing out of [the] statement” that “relates to a defendant who knows that he is
an alien and that an immigration judge previously ordered him deported.”

Later, the court attempted to summarize the factual issues. It explained
that its “understanding, based on all the motion practice and what we have
covered today, is that . . . [t]he second fact [concerning Lim’s knowledge of his
illegal status] is contested . . . and [t]hat is the issue that [he] understand[s]
[Lim] would like to have reviewed on appeal.” Lim’s attorney agreed with that

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summary.

The government then summarized the terms of the plea agreement and
again noted that the parties had “stripped out the appellate waiver so Mr. Lim
[was] preserving all of his appellate rights.” Finally, after accepting Lim’s plea,
the court allowed Lim’s counsel to proffer his objections to the draft jury
instructions on the immigration-status issues.

The government correctly concedes that Lim preserved his right to
appeal the denial of his motions to dismiss the indictment and present evidence
concerning his immigration status. 6 The government weakly contends, how-
ever, that Lim did not do enough to preserve his right to appeal the denial of
his motion to suppress. Though the government acknowledges that it stated
on the record that it “stripped out all of the appeal waiver language so [Lim] is
reserving all of his appellate rights,” it claims that such a statement does not
meet the particularity requirement. 7

Lim properly preserved his right to appeal the denial of his motion to

6 See United States v. Fernandez, 887 F.2d 564, 566 n.1 (5th Cir. 1989) (finding a
conditional plea where the government conceded on appeal that the defendant had reserved
her right to appeal the suppression issue).
7 Compare United States v. Minjarez, 667 F. App’x 144, 145 (5th Cir.) (per curiam),
cert. denied, 137 S. Ct. 406 (2016) (refusing to credit similar language as satisfying the spirit
of Rule 11(a)(2) because “[t]he discussion recognizing that Minjarez retained the right to
appeal does not show that he retained appellate rights beyond those ordinarily afforded to
any defendant who pleads guilty unconditionally without a plea agreement”); United States
v. Olivas-Hinojos, 637 F. App’x 140, 140 (5th Cir. 2016) (per curiam) (“Given that Olivas–
Hinojos reserved the right to appeal only ‘the issue of the validity of the search warrant,’ not
the denial of his suppression motion in general, the consent and probable cause issues are
outside of the scope of the appeal reservation.”), with United States v. Santiago, 410 F.3d 193,
197–98 (5th Cir. 2005) (determining that the defendant retained right to appeal an adverse
suppression motion where the rearraignment transcript showed that the district court
acknowldged the defendant’s reservation of rights, the government withdrew its initial objec-
tions to the defendant’s reservation, and the government submitted a factual basis with revi-
sions stating that the defendant preserved his right to appeal the factual findings).
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suppress. The discussion at the beginning of the rearraignment listed the
rights that Lim agreed to waive, none of which included appellate rights. The
court then moved on to determining whether everyone agreed that Lim was
entering a conditional plea to preserve all appellate rights. During that dis-
cussion, everyone—Lim, his attorney, the AUSA, and the district court—
agreed that he had preserved all appellate rights.

III.
Lim claims the indictment must be dismissed because the BIA’s order
reopening his immigration proceedings returned him to LPR status and was
retroactive, such that he was not an illegal alien at the time of the alleged
offense. A denial of a motion to dismiss an indictment and issues of statutory
interpretation are reviewed de novo. United States v. Arrieta, 862 F.3d 512,
514 (5th Cir. 2017).

Lim’s claim rests on Bonilla v. Lynch, 840 F.3d 575 (9th Cir. 2016).
There the defendant illegally reentered the United States after deportation.
The BIA denied his motion to reopen because he “had lost his [LPR] status
when he was deported and, even if reopening were granted, would not thereby
regain it pending a new removal determination.” Id. at 589. The BIA thus
“believed he could never have sufficient lawful presence to become eligible for
§ 212(c) relief.” Id. The Ninth Circuit reversed, explaining that “if the BIA
grants a motion to reopen . . . the final deportation order is vacated—that is, it
is as if it never occurred.” Id. “[L]awful permanent resident status would be
restored as if it had never lapsed.” Id. at 592. 8

8 See also Contreras-Bocanegra v. Holder, 678 F.3d 811, 818–19 (10th Cir. 2012)
(“When the Board grants a motion to reopen, this action vacates the underlying removal order
and restores the noncitizen to her prior status.”); Plasencia–Ayala v. Mukasey, 516 F.3d 738,
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Under Lim’s understanding of Bonilla, the reopening “restored [his LPR
status] as if it had never lapsed, and as a result, Lim was permitted to possess
firearms at all pertinent times.” He believes that it would be inconsistent for
“the BIA’s order [to] be retroactive in some instances—such as immigration
proceedings, and not retroactive in others—such as criminal prosecutions.”

Section 922(g)(5) makes it unlawful for “any person . . . who being an
alien . . . (A) is illegally or unlawfully in the United States” to “possess in or
affecting commerce, any firearm or ammunition.” We have defined “illegally
or unlawfully” as “an alien whose presence within the United States is forbid-
den or not authorized by law.” 9 And, we have interpreted “the structure and
purpose of” section 922(g) as “support[ing] the view that Congress sought to
rule broadly to keep guns out of the hands of those who have demonstrated
that ‘they may not be trusted to possess a firearm without becoming a threat

745–46 (9th Cir. 2008) (“Several courts of appeals, including ours, have held that a grant of
a motion to reopen vacates the final order of deportation. . . . Therefore, the grant of a motion
to reopen automatically vacates the initial deportation order because it is based on a record
that the BIA has deemed incomplete.”), overruled on other grounds by Marmolejo–Campos v.
Holder, 558 F.3d 903 (9th Cir. 2009) (en banc); Bronisz v. Ashcroft, 378 F.3d 632, 637 (7th
Cir. 2004) (“[T]he grant of a motion to reopen vacates the previous order of deportation or
removal and reinstates the previously terminated immigration proceedings.”).
But see United States v. Bravo-Muzquiz, 412 F.3d 1052, 1057 (9th Cir. 2005) (“[A]n
alien who had not been legally admitted to enter the United States and who had not applied
for legal status at the time he possessed a firearm was ‘illegally or unlawfully in the United
States’ for purposes of section 922(g)(5). Implicitly this recognizes that had Garcia applied
for legal status prior to his possession of the firearm he would not have been at that time an
alien illegally or unlawfully in the United States.” (citations omitted)); United States v.
Hernandez, 913 F.2d 1506, 1513–14 (10th Cir. 1990) (“Consequently, to be prosecuted under
§ 922(g)(5), an alien seeking amnesty under 8 U.S.C. § 1160 or § 1255 must either receive a
firearm before filing an amnesty application or after such application is denied.”).
9 United States v. Elrawy, 448 F.3d 309, 312–13 (5th Cir. 2006) (quotation marks omit-
ted) (explaining that “this definition is consistent with our description of an illegal alien as
one who is in the United States without authorization” and is consistent with “the term ‘un-
lawful presence,’” which we define “as presence in the United States after expiration of the
period of [authorized] stay” (quotation marks omitted)).
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to society.’” 10 “Illegal aliens are likely to be in that category because they are
likely to maintain no permanent address in this country, elude detection
through an assumed identity, and—already living outside the law—resort to
illegal activities to maintain a livelihood.” 11

We must “give[] primacy to the applicant’s legal status before he files an
application for adjustment of status, as opposed to his current status (permit-
ted to stay in the United States during the pendency of such application).”
Elrawy, 448 F.3d at 314. “[U]nlawful status [does] not change merely by [the]
filing [of an] application for adjustment of status.” Id. Lim attempts to dis-
tinguish his case because his status actually changed to LPR. But, “an alien
who has acquired unlawful or illegal status . . . cannot relinquish that illegal
status until his application for adjustment of status is approved.” Id. Lim did
not “relinquish [his] illegal status until his” motion to reopen was granted—
and that occurred after his arrest. His status at arrest was that of a deportable
alien, so he was in the United States without authorization. 12

10 Id. at 313 (quoting United States v. Orellana, 405 F.3d 360, 366 n.36 (5th Cir. 2005)).
11Id. (quotation marks omitted). In Orellana, we determined that an illegal alien who
had obtained Temporary Protected Status (“TPS”) before being charged under Section 922(g)
was not “unlawfully present” at the time of his arrest. Id. at 366. TPS meant that he did not
“attempt to avoid detection,” “revealed [his] whereabouts to the government,” and was
“authoriz[ed] to seek employment” such that he was “not part of an underground population
of persons, who unable to secure lawful employment, have a greater likelihood to engage in
criminal conduct.” Id. at 368.
Lim claims he is analogous to Orellana because he too did not attempt to avoid detec-
tion, and he revealed his whereabouts to the authorities. Even accepting that as true, in
Orellana we did not base our determination on the fact that Orellana lived his life openly.
Instead, we explained that TPS aliens as a whole are lawfully present such that they can live
openly. Here, Lim lived openly because he allegedly believed he had lawful status. His actual
status, however, was that of an illegal alien, and that status falls squarely within the plain
text of the statute and the type of category from whom Congress sought to prevent the acqui-
sition of firearms.
12 See also United States v. Garcia, 707 F. App’x 231, 234 (5th Cir. 2017) (per curiam)
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In rejecting Lim’s theory, we also look to the felon-in-possession context.
In that context, the Supreme Court examined 18 U.S.C. § 1202(a)(1), which
prohibited possession of a firearm by a person “convicted by a court of the
United States or of a State . . . of a felony.” 13 Looking to the plain language,
the Court determined, “Nothing on the face of the statute suggests a congress-
ional intent to limit its coverage to persons whose convictions are not subject
to collateral attack.” 14 “[I]ts plain meaning is that the fact of a felony
conviction imposes a firearm disability until the conviction is vacated or the
felon is relieved of his disability by some affirmative action.” 15 “Congress
clearly intended that the defendant clear his status before obtaining a fire-
arm,” 16 and that is “consistent with the common-sense notion that a disability
based upon one’s status as a convicted felon should cease only when the convic-
tion upon which that status depends has been vacated.” 17

(“The only dispute over the statute’s application to Garcia is whether Garcia was illegally or
unlawfully in the United States at the time of his arrest.”); United States v. Lucio, 428 F.3d
519, 525 (5th Cir. 2005) (finding that on date of indictment, “the lawfulness (or rather, unlaw-
fulness) of his immigration status [had not been] transformed because he had been accorded
employment authorization and deportation proceedings were stayed”).
13 Lewis v. United States, 445 U.S. 55, 60 (1980).
14 Id. (cleaned up).
15 Id. at 60–61 (“The obvious breadth of the language may well reflect the expansive
legislative approach . . . concerning the problem of firearm abuse by felons and certain
specifically described persons.”).
16 Id. at 64.
17 Id. at 61 & n.5 (emphasis added). See also United States v. Hicks, 389 F.3d 514, 536
(5th Cir. 2004) (“Like the provisions at issue in Lewis and Chambers, nothing in the language
of 18 U.S.C. § 922(g)(8) indicates that it applies only to persons subject to a valid, as opposed
to an invalid, protective order. . . . [Thus, it] violate[s] the plain meaning of 18 U.S.C.
§ 922(g)(8) [to] possess[] firearms and ammunition while . . . subject to a protective order.”);
United States v. Chambers, 922 F.2d 228, 233–34 (5th Cir. 1991) (holding in the context of
§ 922(n) that “the conviction, no matter how invalid, must be in some manner set aside before
the party convicted may lawfully receive a firearm” (citing Lewis, 445 U.S. at 60–65)).
Lim attempts to distinguish Chambers because there the court reviewed whether “a
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The plain text of Section 922(g)(5) similarly does not suggest that it
covers only aliens who are not later found to be legally present. Instead, the
use of the present tense—“is illegally or unlawfully in the United States”—
indicates a concern with the status of the alien at time of arrest. And the
legislative purpose of the statute reflects “that Congress sought to rule broadly
to keep guns out of the hands of those who have demonstrated that they may
not be trusted to possess a firearm without becoming a threat to society.”
Elrawy, 448 F.3d at 313 (quotation marks omitted) (emphasis added).

Someone ordered deported is here unlawfully. Though that decision may
be vacated or reversed, once an alien is deemed deportable, he falls precisely
into a category of persons Congress believes “may not be trusted.” Thus, an
illegal alien must first refute that status before obtaining a firearm, and the
district court did not err in refusing to dismiss the indictment.

IV.
Lim maintains that the district court erred by refusing to allow him to
present evidence of the current state of his immigration proceedings. “The
right to present a complete defense under the Sixth Amendment is an essential
attribute of the adversary system.” United States v. Ramos, 537 F.3d 439, 448
(5th Cir. 2008) (quotation marks omitted). We review alleged violations of that
right de novo, subject to review for harmless error. United States v. Skelton,
514 F.3d 433, 438 (5th Cir. 2008). Rulings on the admissibility of evidence,

state pardon or civil rights restoration respecting a state felony conviction is to be given fully
retroactive effect.” Chambers, 922 F.2d at 233. We refused to find that either would be
retroactive because it was “highly dubious” that “Congress intended to give state officials the
power to pardon for [an] already committed federal offense[]”—the offense of violating section
922(g) by possessing a firearm after a state felony conviction. Id. Here, it would also be
“highly dubious” to assume that Congress “intended to give [the BIA] the power to pardon for
[an] already committed federal offense[].” Id.
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however, are reviewed for abuse of discretion. United States v. DeLeon,
170 F.3d 494, 497 (5th Cir. 1999).

Lim asserts that his immigration status is an element of the offense and
that the ruling violated his Sixth Amendment right to a jury determination on
every element of the crime. The government responds that the proposed evi-
dence was irrelevant because whether Lim was “illegally or unlawfully in the
United States” at the time of the offense is a question of law. According to the
government, the proposed evidence would have created a substantial risk of
unfair prejudice and jury nullification.

To establish a violation of § 922(g)(5), the government must prove “that
(1) the defendant knowingly possessed a firearm that had been shipped or
transported in interstate commerce; and (2) at the time of possession, the
defendant was residing in the United States illegally.” 18 Whether Lim was
“illegally or unlawfully in the United States” at the time of the offense depends
on the legal issue raised in his motion to dismiss the indictment. Whether the
motion to reopen operates retroactively is obviously a question of law. 19 Be-
cause the BIA’s grant of Lim’s motion to reopen had no legal effect on his immi-
gration status on the date of the offense, the evidence he sought to introduce
was irrelevant and potentially confusing to a jury. See FED. R. EVID. 402, 403.
The district court thus did not err in refusing to allow such evidence.

United States v. Lopez, No. 92-2096, 1993 WL 152113, *2 (5th Cir. Apr. 29, 1993);
18

see 5TH CIR. R. 47.5.3 (noting that unpublished opinions issued before January 1, 1996, are
precedent).
19 See United States v. Flores, 404 F.3d 320, 324 (5th Cir. 2005) (“The sole question in
this case, therefore, is a question of law: whether Flores’s application for TPS and subsequent
receipt of temporary treatment benefits cured his illegal entry into the United States for the
purposes of § 922(g)(5)(A).” (emphasis added)).
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V.
Invoking both the Fourth and Fifth Amendments, Lim appeals the
denial of his motion to suppress both the statements he made about the pres-
ence of firearms and the firearms themselves. Lim contends that “there was
not probable cause to search [his] home, he did not consent to the search and
the guns and statements were obtained before the agents advised him of his
Miranda rights.”

“Where a district court has denied a motion to suppress evidence, we
review its factual findings for clear error and its conclusions of law de novo.”
United States v. Ortiz, 781 F.3d 221, 226 (5th Cir. 2015). Our review is
“particularly deferential where denial of the suppression motion is based on
live oral testimony because the judge had the opportunity to observe the
demeanor of the witnesses.” Id. (cleaned up). We “view the evidence most
favorably to the party prevailing below, except where such a view is inconsis-
tent with the trial court’s findings or is clearly erroneous considering the
evidence as a whole.” Id. (quotation marks omitted). We review de novo
whether a defendant waived his Miranda rights. 20

A.
Now we recount the events leading to the confiscation of the firearms.
Though the timeline is murky and the parties sometimes disagree, all concur
in the following: Six ICE officers knocked on Lim’s door at 6 a.m., and Lim
answered the door dressed only in his underwear. After the officers and Lim
identified themselves, Lim complied with a request to step outside and was
placed under arrest and handcuffed with his hands behind him. But no

20 United States v. Hernandez, 200 F. App’x 283, 286 (5th Cir. 2006) (per curiam)
(citing United States v. Cardenas, 410 F.3d 287, 292 (2005)).
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Miranda warning was administered at that time. The officers offered to allow
Lim to return inside to dress, but explained that they would have to accompany
him inside if he did so. Lim assented. At this point, the parties offer slightly
different accounts of what occurred inside the house.

According to Lim, once inside, he was immediately asked whether there
were any weapons in the house, and he answered that there were two guns,
one in the bedroom and one in the laundry room. He was then escorted into
his bedroom (still handcuffed) and asked where the gun was located, and he
indicated a pile of clothes on a shelf. As that occurred, another officer was
performing a security sweep of the house, and Lim’s wife and teenage children
were sequestered in the living room. 21 After the officers secured the gun in the
bedroom, 22 Lim was read his Miranda rights. Lim was then asked where he
had obtained the gun, and he replied that he got it from a friend. Lim then
refused to talk anymore. He dressed (he was uncuffed in order to dress and
then recuffed) and was escorted outside.

Lim’s sixteen-year-old son and fourteen-year-old daughter testified that
the officers first asked their mom if there were weapons in the house, and she
said, “I don’t know.” Then the officers asked Lim, and Lim said yes, one in the
bedroom and one in the laundry room. The officers looked in the bedroom and
laundry room but could not find the guns. Neither child remembers telling an
officer where the gun in the laundry room was located. The daughter does not
even remember ever seeing either gun before.

According to the government, on entering the house, Lim’s wife was

21 For reference, the house is a mobile home.
22 A TriStar NCK-MO Model T-120 9mm semi-automatic pistol.
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spotted. With his wife present, an officer then asked Lim whether there were
any weapons in the house. 23 The officer saw Mrs. Lim’s expression change,
and Mr. Lim “advised hesitantly, yes there’s a gun in the bedroom and he
pointed there’s a gun over there . . . [in] the laundry room.” Another officer
then asked to “secure the house” as Lim’s children began to exit their rooms,
and the officer “wanted to make sure that there were no additional people
coming out of rooms to surprise us.” The officers were unsure whether the
security sweep had been concluded in the rest of the house before they entered
the bedroom, but they knew a sweep had not yet been conducted of the
bedroom.

Four officers accompanied Lim to the bedroom and asked for the location
of the gun, and Lim replied that it was “[o]n the shelf with the clothes.” An
officer read Lim his Miranda rights, 24 then “asked [Lim] where he got the gun,
and he indicated he got it from a friend. And he didn’t want to go any further
than that.” An officer also testified that, because they planned to uncuff Lim,
they would have searched any place “reasonably within grasping or lunging
distance.” 25 Lim was then uncuffed, allowed to dress, recuffed, and escorted
out of the house.

23That officer testified that he “would always ask that question if we’re going into a
house because [he] need[s] to determine if there are any threats that could be posed” and
because “Mr. Lim [would] eventually be unhandcuffed to put his clothes on.”
24 The officer explained that he typically does not “care about a Miranda” in immigra-
tion administrative arrests, because “his case is over and done with on the immigration side.
Nothing he’s going to say either way is going to affect anything that I’m going to do.” Lim
“was read Miranda once [the officer] identified that this case was transitioning from admin-
istrative immigration arrest to a potential gun case.” The officer also said he “would ask
[whether there were guns in the house] of anybody before reading them their Miranda rights,
because [he] want[s] to know . . . for [his] personal safety.”
25An officer testified that the shelf was “conceivably within lunging distance if [Lim]
were not secured.”
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No. 17-30469
At some point, another officer, who overheard vaguely the discussion
with Lim about weapons, began to make small talk with Lim’s kids. 26 The
officer is unsure “if the question may have been asked if there were any other
weapons that we need to know about, and collectively it seemed like it was
common knowledge in the house with the kids . . . the kids definitely . . . sa[id]
there was one in the washroom.” The officer looked in the washroom but “it
wasn’t obvious right off the get-go . . . So [he] asked [the kids] where is it
exactly, and [they] said it was on the side of the dryer or washer.” The officer
explained that he located the gun 27 in a place he “didn’t look initially because
it wasn’t a space big enough for a person to fit in [his] opinion so there was no
reason for [him] to look.”

B.
Lim seeks to suppress the guns, claiming the officers violated his Fourth
Amendment rights by conducting a search without a warrant. He insists that
no consent, probable cause, or exigent circumstances existed to justify the
search. The government proffers several theories to support the validity of the
search, including that (1) Lim gave consent when he agreed to allow the officers
to enter his home; (2) the search was justified under the protective sweep
doctrine; and, (3) Lim consented to the search when he voluntarily responded
to the officer’s questions about whether there were weapons and the location
of the weapon.

26“OFFICER BONNET: “I’m not sure if that question was asked when I was doing
the sweep or if it was before. I’m not sure. I just know at some point I did hear a conversation
about weapons. And then at some point I was being—you know, there was dialect [sic] about
there being another weapon in the area where I was standing, and the kids was basically
pointing to me, telling me it’s over there near my area.”
27 A Marlin Model 6082 22-caliber rifle.
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No. 17-30469
A “search of a dwelling is presumptively unreasonable unless consent is
given or probable cause and exigent circumstances justify the encroachment.”
United States v. Santiago, 410 F.3d 193, 198 (5th Cir. 2005) (emphasis added).
The parties dispute whether the district court denied the motion based on a
protective sweep or voluntary consent theory. We can affirm, however, for any
reason supported by the record. Portillo v. Cunningham, 872 F.3d 728, 734
(5th Cir. 2017).

The officers knew that Lim was an illegal alien and could not lawfully
possess a firearm. Lim’s response indicating he possessed firearms that were
located in the house easily provided probable cause to believe that contraband
was present. 28 Thus, we must review whether there were exigent circum-
stances to justify the search.

Viewing the evidence in the light most favorable to the government as

28 Some other circuits allow the use of an un-Mirandized statement to establish prob-
able cause for a search or seizure under the Fourth Amendment. See United States v. Guillen,
657 F. App’x 690, 692 (9th Cir. 2016) (mem.) (“[S]tatements may be used to determine
whether probable cause existed even if [the defendant] should first have been administered
Miranda warnings.”); United States v. Brinton, 985 F.2d 575 (9th Cir. 1993) (mem.); United
States v. Buhrmaster, 956 F.2d 1168 (9th Cir. 1992) (mem.); United States v. Sangineto-
Miranda, 859 F.2d 1501, 1518 n.10 (6th Cir. 1988); United States v. Patterson, 812 F.2d 1188,
1193 (9th Cir. 1987); United States v. Morales, 788 F.2d 883, 886 (2d Cir. 1986). See also
United States v. Medina, 887 F.2d 528, 532–33 (5th Cir. 1989) (declining “to address the issue
whether information obtained prior to a Miranda warning may be considered in determining
probable cause”). Those circuits reason that the goals of the Fifth and Fourth Amendments
are distinct, that a “Miranda violation is not in and of itself a violation of the Fifth Amend-
ment,” Morales, 788 F.2d at 886, that, absent coercion, “no ‘valid and useful purpose’” sup-
ports “disregarding [a] pre-warned statement” and requiring an “officer to ignore incriminat-
ing admissions in arriving at a conclusion that there is probable cause,” id., and that the
Supreme Court has explained “the Miranda presumption, though irrebuttable for purposes
of the prosecution’s case in chief, does not require . . . their fruits be discarded as inherently
tainted.” See Patterson, 812 F.2d at 1193 (quoting Oregon v. Elstad, 470 U.S. 296, 307 (1985)).
See also United States v. Brathwaite, 458 F.3d 376, 382 n.7 (5th Cir. 2006) (“Introduction of
the nontestimonial fruit of a voluntary statement . . . does not implicate the Self–
Incrimination Clause.”).
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No. 17-30469
the prevailing party, we find that an exigency existed only as to the pistol
discovered in the bedroom. Lim was allowed to return into the house for the
purpose of getting dressed. His clothes were in the bedroom, and he would be
and was eventually uncuffed to facilitate that purpose. Thus, because the offi-
cers were told that a weapon was located in the very room where the arrestee
would be uncuffed, their safety was potentially at risk. 29 Because the search
of the bedroom was justified by probable cause and exigent circumstances, that
search did not violate Lim’s Fourth Amendment rights. The district court did
not err in refusing to suppress the pistol.

The second weapon, however, was located in an area of the house where
Lim was never present during this sequence of events. Though a gun is easily
removable and disposable, we have “consistently held that the presence of a
firearm alone does not create an exigency.” 30 Thus, that theory cannot support
the admission of the rifle discovered in the laundry room.

We therefore review whether a protective sweep supports admission of
the rifle. “The protective sweep doctrine allows government agents, without a
warrant, to conduct a quick and limited search of premises for the safety of the
agents and others present at the scene.” United States v. Mendez, 431 F.3d
420, 428 (5th Cir. 2005). “A protective sweep may even occur after the suspect
is arrested.” United States v. Blevins, 755 F.3d 312, 325 (5th Cir. 2014)
(cleaned up). We determine the validity of a protective sweep by reviewing
whether

29 United States v. Jones, 239 F.3d 716, 720 (5th Cir. 2001) (“The possibility that evi-
dence will be removed or destroyed, the pursuit of a suspect, and immediate safety risks to
officers and others are exigent circumstances that may excuse an otherwise unconstitutional
intrusion into a residence.” (emphasis added)).
30 Id.
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(1) the government agents have a legitimate law enforcement pur-
pose for being in the house; (2) the sweep is supported by a
reasonable, articulable suspicion that the area to be swept harbors
an individual posing a danger to those on the scene; (3) the sweep
is no more than a cursory inspection of those spaces where a person
may be found; and (4) the sweep lasts no longer than is necessary
to dispel the reasonable suspicion of danger and lasts no longer
than the police are justified in remaining on the premises.
Mendez, 431 F.3d at 428 (cleaned up).[ 31]

Assuming arguendo that the protective sweep was proper, 32 such a
sweep would not and did not result in finding the rifle. It was neither in plain
sight nor hiding in a place “where a person may be found.” 33 The officer who
discovered the rifle testified that it was located in a place he did not look
initially because it was not somewhere a person could hide. 34

But the government points out that, in a signed factual basis, Lim
admitted that the rifle was in plain view in the laundry room. 35 Lim responds
that the statement was plainly contradicted by the officer who found the rifle.
Neither side cites authority on whether we must credit a signed factual basis
that is plainly contradicted by the record. 36

See Blevins, 755 F.3d at 326. (“The officers, not knowing what or who was inside,
31

reasonably performed a protective sweep.”).
32 See id. at 325 (“After entering the residence, the authorities may conduct a limited
search for their own protection.”).
33 The pistol likewise would not have been admissible under this theory, as it also was

not in plain sight or in a location where someone could be hiding—it was located on a shelf,
under clothes, wrapped in underwear.
34The officer testified that the rifle was wedged between the wall and the washer and
dryer. In fact, he explained that one of the children had to describe exactly where it was
before he could locate it.
35 The factual basis states, “[O]fficers discovered a Marlin Model 6082, .22 caliber rifle
in plain view in the laundry room.”
36 We know of only one case―unpublished―noting that “whether a contradictory
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No. 17-30469
Typically, we hold defendants to their signed admissions. 37 We are
reviewing, however, whether the decision to deny the motion to suppress was
erroneous. The district court ruled on that motion before entry of the guilty
plea, so the court had the testimony but not the factual basis. Though a defen-
dant can concede a disputed fact in a factual basis, Lim reserved his right to
appeal the suppression decision and withdraw the guilty plea in the event he
is victorious. 38 And, the government’s own witness testified to a contradictory
set of facts. We will not allow the government to avoid its own evidence and
rely on a craftily worded factual basis to justify a potentially unconstitutional
search. A protective sweep cannot support the validity of the search that
located the rifle. 39

The government posits that Lim consented to a search for the weapons.
In its brief on appeal, the government is less than clear on exactly how Lim
consented. It notes that Lim consented to the officer’s entering the house, but
it largely leaves the rest of the dots unconnected. 40 Lim rightly points out,
however, that consent to enter does not equate with consent to search.

“The standard for measuring the scope of a suspect’s consent under the

stipulation can negate a factual basis that is otherwise sufficient. . . is an issue of first impres-
sion,” but not deciding the question because review was for plain error. See United States v.
Estrada, 486 F. App’x 441, 443 (5th Cir. 2012) (per curiam).
37 See Blackledge v. Allison, 431 U.S. 63, 74 (1977) (“Solemn declarations in open court
carry a strong presumption of verity.”).
38 A defendant who enters a conditional plea and “prevail[s] on appeal may then
withdraw the plea.” FED. R. CRIM. P. 11(a)(2).
39 See Blevins, 755 F.3d at 325 (“Evidence found in plain view of the officers while they

are conducting their security sweep is admissible, but evidence recovered beyond the scope
of the protective sweep is not.”).
40At one point, the government asserted that Lim “consented to the protective sweep.”
As explained above, a valid protective sweep would not and did not result in the discovery of
the weapons.
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Fourth Amendment is that of ‘objective’ reasonableness—what would the
typical reasonable person have understood by the exchange between the officer
and the suspect?” Florida v. Jimeno, 500 U.S. 248, 251 (1991). “[F]actual cir-
cumstances are highly relevant when determining what the reasonable person
would have believed to be the outer bounds of the consent that was given.”
United States v. Mendoza-Gonzalez, 318 F.3d 663, 667 (5th Cir. 2003).

A reasonable observer would conclude that Lim’s initial consent to enter
the house extended only to accompanying him to dress and was not carte
blanche approval to search. Therefore, the searches were not within the scope
of Lim’s initial consent.

And Lim did not at any point affirmatively consent to a search. 41 Though
he answered the questions about the presence and location of the weapons,
agreeing that weapons are present does not equate to agreeing to a search for
those weapons. Thus, the rifle was the product of an unlawful search and
should have been suppressed.

C.
Lim invokes the Fifth Amendment to suppress both his answers to the
officers’ questions and the weapons. He claims the officers violated his Fifth
Amendment rights by questioning him before any Miranda warnings. The
government largely ignores the Fifth Amendment contention in its brief on
appeal, so we rely heavily on its response to the motion in the district court.

“Miranda warnings must be administered prior to ‘custodial interroga-
tion.’” United States v. Bengivenga, 845 F.2d 593, 595 (5th Cir. 1988) (en banc).

41Again, we emphasize that even assuming Lim consented to a protective sweep, that
sweep did not result in the discovery of the rifle.
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No. 17-30469
A person is “‘in custody’ for Miranda purposes when placed under formal
arrest.” Id. at 596. There is no dispute that Lim was placed under formal
arrest before the questioning, nor is it disputed that he was not given Miranda
warnings until after the initial questioning. Importantly, the questioning offi-
cer bragged that it was his standard policy not to Mirandize an alien until after
it appeared that criminal charges might be filed.

In the district court, the government asserted that the public safety ex-
ception to Miranda applied to admit Lim’s pre-Miranda responses. As for
Lim’s one post-Miranda response, the government contended that Lim volun-
tarily waived his Miranda rights.

1. Pre-Miranda Responses
“The public safety exception to Miranda allows the admission as evi-
dence of statements given by a defendant before being given Miranda warnings
when ‘a situation posing a threat to the public safety’ exists.” 42 The exception
is “narrow” and “circumscribed by the exigency which justifies it.” 43 We
refused to apply the exception where the police had already swept the house
twice, the occupants were secure, the “immediacy of the situation had passed,”
and “[t]he public did not have access to [the defendant’s] private residence.” 44

42United States v. Brathwaite, 458 F.3d 376, 382 n.8 (5th Cir. 2006) (quoting New
York v. Quarles, 467 U.S. 649, 655–60 (1984)).
43 Id. (quotation marks omitted).
44Id. Compare United States v. Green, 388 F. App’x 375, 379–80 (5th Cir. 2010) (per
curiam) (explaining in dictum that “the facts of this case hardly suggest the conditions of
exigency that justify the application of the exception” where the officers asked about the
presence of guns in a motel room before providing Miranda warnings because the defendant
was placed under arrest outside of the room, no specific public threat existed, and the officers
had time to administer the warnings prior to entering the motel room), and United States v.
Raborn, 872 F.2d 589, 595 (5th Cir. 1989) (“Unlike the situation in Quarles, however, when
the gun was hidden in a place to which the public had access, Raborn’s truck, where the police
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No. 17-30469
Here, the officers either were in the process of conducting a protective
sweep or had not yet performed one when Lim was questioned. There was no
concern for the general safety of the public, given that the public did not have
access to Lim’s residence, and no violent crime had immediately preceded the
arrest. The best theory for application of the public safety exception thus rests
on concern for the officer’s own safety.

But the exception, as first articulated in Quarles, is narrowly drawn to
allow officers to react to emergencies where “spontaneity rather than adher-
ence to a police manual is necessar[y].” 45 The officers had formally arrested

officers believed the gun to be, had already been seized and only the police officers had access
to the truck.”), with Fleming v. Collins, 954 F.2d 1109, 1112–14 (5th Cir. 1992) (en banc)
(finding the public safety exception met where officers responding to a bank robbery placed
in custody two men who were found wrestling near the bank and one of the men, the defen-
dant, was shot, and the officers immediately asked who shot him and where the gun was
located), United States v. Webster, 162 F.3d 308, 332 (5th Cir. 1998) (“[T]he police acted
constitutionally when they asked Webster whether he had any needles in his pockets that
could injure them during their pat down; such questioning[ is] needed to protect the offi-
cers.”), United States v. Roberson, 20 F.3d 1171, 1171 (5th Cir. 1994) (“After discovering the
knife in Roberson’s back pocket, the arresting officer was justified in his inquiry about
additional weapons, and both the gun and Roberson’s response to the officer’s inquiry were
admissible under Quarles.”), United States v. Kelley, 268 F. App’x 304, 305 (5th Cir. 2008)
(per curiam) (“Because the officer’s question was based on his concern about the safety of the
officers on the scene and before the officers had completed a protective sweep of the residence,
the district court did not err in denying Kelley’s motion to suppress.”), United States v. Lee,
188 F. App’x 326, 328 (5th Cir. 2006) (per curiam) (finding the public safety exception met
where, after being arrested, the defendant voluntarily and spontaneously asked if the officers
were looking for his gun, the officers questioned the defendant about the location of the gun
before they Mirandized him because the “questions were based on [a] concern about the safety
of the officers at the scene and the numerous onlookers”), and United States v. Munera-Uribe,
192 F.3d 126, 126 (5th Cir. 1999) (unpublished) (“[P]olice may dispense with Miranda warn-
ings when necessary for their protection. . . . The dangers that law enforcement officials face
from drug dealers and the like are well known, and it was important for the officers to identify
precisely the apartment in which Munera’s cohorts could be found.”).
45Quarles, 467 U.S. at 656–57 (“The police in this case, in the very act of apprehending
a suspect, were confronted with the immediate necessity of ascertaining the whereabouts of
a gun which they had every reason to believe the suspect had just removed from his empty
holster and discarded in the supermarket.” (emphasis added)).
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No. 17-30469
Lim outside his house, so he was fully within their control. The officers and
Lim then jointly agreed to enter the home. There is no indication why the
officers could not take a moment to provide Miranda warnings before enter-
ing. 46 “They obviously had ample time to do so without incurring any risk to
themselves or to the public, and without jeopardizing their mission.” 47 This
case does not raise the type of emergency, volatile situation that the public
safety exception is designed to serve.

Lim’s pre-Miranda answers should have been excluded. We reverse the
district court’s denial of the motion to suppress these answers and remand to
give Lim the option to withdraw his guilty plea on remand. 48

2. The Weapons
The guns located as a result of the Miranda violation do not need to be
excluded under the Fifth Amendment. “‘Introduction of the nontestimonial
fruit of a voluntary statement . . . does not implicate the Self–Incrimination
Clause. The admission of such fruit presents no risk that a defendant’s coerced
statements . . . will be used against him at a criminal trial.’” 49 “Because the
exclusion of unwarned statements . . . is a complete and sufficient remedy for
any perceived Miranda violation, any such fruit need not be suppressed. 50

46 See Green, 388 F. App’x at 380 (“The government does not explain . . . why they
failed to Mirandize Green . . . before they approached and entered the motel room.”).
47 Id.
48 See Brathwaite, 458 F.3d at 383–84; FED. R. CRIM. P. 11(a)(2).
49Brathwaite, 458 F.3d at 382 n.7 (quoting United States v. Patane, 542 U.S. 630, 643
(2004) (plurality opinion)). Given the totality of the circumstances and the standard of
review, we find his responses voluntary. See United States v. Mendez, 885 F.3d 899, 910 (5th
Cir. 2018); Green, 388 F. App’x at 381 (citing Elstad, 470 U.S. at 310).
50Id. (cleaned up); see also Patane, 542 U.S. at 645 (Kennedy, J., concurring) (“Admis-
sion of nontestimonial physical fruits . . . does not run the risk of admitting into trial an
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No. 17-30469
3. Post-Miranda Response
After the officers located the pistol in the bedroom, they administered
Miranda warnings. Lim then answered an officer’s question about where he
had obtained the pistol. Lim claims that answer should additionally be sup-
pressed “because it relies on the illegally obtained pre-Miranda information,
and incorporates that information into the question” and essentially “forced
Mr. Lim to acknowledge his pre-Miranda statements.” In the district court,
the government responded that Lim voluntarily waived his Miranda rights by
answering the question.

The decision in Missouri v. Seibert, 542 U.S. 600, 621 (2004), “requires
the suppression of a post-warning statement only where a deliberate two-step
strategy is used and no curative measures are taken; where that strategy is
not used, the admissibility of postwarning statements continues to be governed
by the principles of” Oregon v. Elstad, 470 U.S. 296 (1985). United States v.
Courtney, 463 F.3d 333, 338 (5th Cir. 2006) (cleaned up). Elstad “allow[s] a
post-warning confession even where the police had previously obtained a pre-
warning confession, so long as the pre-warning confession was voluntary.”
United States v. Nunez-Sanchez, 478 F.3d 663, 668 (5th Cir. 2007).

We first review whether a “two-step interrogation technique was used in
a calculated way to undermine the Miranda warning.” 51 Though the question-
ing officer admitted it was his practice in these cases not to Mirandize arres-
tees right away, he explained that he had that policy because the cases against

accused’s coerced incriminating statements against himself.”); Chavez v. Martinez, 538 U.S.
760, 790 (2003).
51 Seibert, 542 U.S. at 622 (Kennedy, J., concurring in judgment). See also Courtney,

463 F.3d at 338 (“Therefore, we find Seibert’s holding in Justice Kennedy’s opinion concurring
in the judgment.”); Nunez-Sanchez, 478 F.3d at 668.
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No. 17-30469
these arrestees were completed, so he is not investigating or attempting to
elicit incriminating responses. “[N]othing in the circumstances or the nature
of the questioning . . . indicate . . . coercion” or “a deliberate attempt to employ
a two-step strategy.” Nunez-Sanchez, 478 F.3d at 668. “All evidence suggests
that [Lim] was calm and cooperative, and the agents did not act with
aggressiveness or hostility.” See id. at 668−69.

We then turn to the Elstad inquiry, under which we review “whether, in
fact, the second statement was also voluntarily made. As in any such inquiry,
the finder of fact must examine the surrounding circumstances and the entire
course of police conduct with respect to the suspect in evaluating the voluntar-
iness of his statements.” Id. at 669 (quoting Elstad, 470 U.S. at 318). “[A]
statement is involuntary . . . if the tactics employed by law enforcement offi-
cials constitute a Fifth Amendment due process violation and are ‘so offensive
to a civilized system of justice that they must be condemned.’” Hernandez,
200 F. App’x at 287 (quoting Bengivenga, 845 F.2d at 601). “In cases such as
this, a subsequent administration of Miranda warnings to a suspect who has
given a voluntary but unwarned statement ordinarily should suffice to remove
the conditions that precluded admission of the earlier statement.” Nunez-
Sanchez, 478 F.3d at 669 (cleaned up).

Nothing in the circumstances surrounding Lim’s post-Miranda state-
ments suggests he was coerced. In fact, after answering the first post-Miranda
question, Lim felt comfortable enough to invoke his right to remain silent and
refuse to answer any further questions. His single post-Miranda answer is
admissible.

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No. 17-30469
VI.
As we have explained, the result is mixed. The denial of motions to dis-
miss the indictment and to allow evidence of Lim’s immigration status is
AFFIRMED. The denial of the motion to suppress is AFFIRMED in part and
REVERSED in part: The denial of motions to suppress evidence of the pistol
located in the bedroom and to suppress the post-Miranda response is
AFFIRMED; the denial of the motion to suppress evidence of the rifle in the
laundry room and of the pre-Miranda responses is REVERSED. The judgment
of conviction is therefore VACATED and REMANDED for further proceedings
as needed.

27