United States Court of Appeals
UNITED STATES COURT OF APPEALS Fifth Circuit
FIFTH CIRCUIT FILED
February 7, 2007
____________
Charles R. Fulbruge III
No. 05-20549 Clerk
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UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JESUS NUNEZ-SANCHEZ,
Defendant - Appellant.
Appeal from the United States District Court
For the Southern District of Texas
Before KING, GARZA, and PRADO, Circuit Judges.
EMILIO M. GARZA, Circuit Judge:
Jesus Nunez-Sanchez (“Nunez”) is a citizen of Mexico who entered the United States
illegally. Following a jury trial, he was convicted of four counts: alien in possession of
ammunition, alien in possession of firearms, possession with intent to distribute cocaine, and
possession of a firearm in furtherance of a drug trafficking crime. In this appeal, he challenges
whether the arresting agents had probable cause, whether his confession was given voluntarily,
and whether the evidence was sufficient to support the jury’s conclusion that Nunez’s possession
of a firearm was in furtherance of a drug trafficking offense.
I
Agents from the Bureau of Alcohol, Tobacco, and Firearms (“ATF”) and the Bureau of
Immigration and Customs Enforcement (“ICE”) were investigating the purchase of firearms by
illegal aliens at a gun show outside of Houston, Texas. One or two weeks prior to the gun show,
ATF agent James Barger received a tip from a confidential informant who had previously
provided reliable information. The informant told Agent Barger that he had spoken to
individuals who were illegal aliens planning to purchase firearms at the gun show and that these
individuals planned on purchasing the firearms without filling out the required paperwork. On
the day of the gun show, the informant identified Nunez as an illegal alien attempting to
purchase firearms.
As a result of the informant’s tip, the agents closely followed Nunez and his companion,
Adolfo Gerra-Sanchez (“Gerra”), for approximately an hour and a half. The two approached
numerous gun dealers, but Agent Barger testified that they seemed to be avoiding dealers who
required purchasers to complete ATF background check forms. When Nunez and Gerra did
decide on a firearm to purchase, the agents watched as Nunez gave money to Gerra, who then
purchased a .38 handgun. Agent Barger testified that this exchange looked like Gerra was acting
as a “straw purchaser,” where an eligible purchaser buys a firearm on behalf an ineligible
purchaser. He further testified that the use of a “straw purchaser” is a common method used by
illegal aliens to obtain firearms. At the point of sale, Gerra and Nunez did not fill out any
paperwork. The agents also observed Gerra purchase a box of .9 mm ammunition before Nunez
and Gerra left the gun show and headed to the parking lot.
Once in the parking lot, Nunez and Gerra walked toward their car and the agents noticed
Nunez carrying what appeared to be the recently purchased box of ammunition. As Nunez and
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Gerra got in their car, the agents approached them. ATF Agent Teneyuque said, “Stop, police.
We just want to ask you a few questions. You’re under arrest, and stop.” Both she and Agent
Barger had their guns drawn, though the agents kept them at their sides and did not point them at
Nunez and Gerra. Agent Teneyuque told Nunez in English to drop the bag of ammunition.
Because Nunez did not respond, Agent Teneyuque switched to Spanish and Nunez did drop the
bag of ammunition. She then holstered her gun and identified herself as an ATF agent and said
that they wanted to ask Nunez some questions. After Agent Teneyuque identified herself, her
partner, ICE Agent Dirk Daniel, patted down Nunez and asked him for his name, place of birth,
and immigration status. Nunez admitted that he had entered the country illegally.
At this time, Agent Teneyuque told Nunez in Spanish that he was under arrest and
retrieved a Spanish waiver of rights form, which contained in Spanish the Miranda warnings and
waiver section. She asked Nunez if he could read and write Spanish and he said he could. She
then read the form to him. When she was done, she handed the form to him to read himself and
asked if he understood his rights. He said that he did. She then asked if he was willing to waive
his rights. He said that he was and signed the form waiving, at least for a time, his right to an
attorney and right to remain silent.
After Nunez agreed to talk, Agent Teneyuque asked Nunez about his immigration status
again, and he said he had illegally entered the country years ago. During the questioning that
ensued, Nunez also admitted the firearm purchased at the gun show was for him. Nunez was
then told that he was being placed under arrest; he was handcuffed and Agent Daniel removed
Nunez’s wallet and found 12 little bags of cocaine. Nunez admitted the cocaine belonged to
him, but denied that he intended to sell the cocaine. Agent Teneyuque asked whether Nunez had
any other firearms. Nunez said that he kept a rifle in his bedroom and, when asked, gave consent
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to search the room. Before leaving the gun show to go to Nunez’s apartment, Agent Teneyuque
read to Nunez, in Spanish, the consent to search form, which Nunez signed.
Once they got to Nunez’s apartment, the agents got consent to search Nunez’s bedroom
from the apartment’s leaseholder. In the bedroom, there were two beds. Next to the headboard
of Nunez’s bed was a semiautomatic rifle standing upright. Under Nunez’s bed, the agents
found a box containing small bags of cocaine, totally 172.6 grams, numerous empty bags, and a
bottle of baby laxative, which is often used to dilute cocaine thereby increasing the dealer’s
yield. This box of drugs and drug-related materials under the bed was about 18 to 24 inches
from the rifle at the head of the bed. Under the other bed, there were 110 rounds of ammunition
matching the rifle, within a couple of feet from the rifle.
After searching the bedroom, Agent Teneyuque brought Nunez into the kitchen were he
provided both written and oral confessions. In the written confession, Nunez admitted to
entering the country illegally, owning the rifle in the bedroom, and selling drugs for a contact
from Colombia. Orally, he admitted to owning the drugs found in his room.
Following a jury trial, Nunez was convicted of alien in possession of ammunition, 18
U.S.C. §§ 922(g)(5) and 924(a)(2); alien in possession of firearms, 18 U.S.C. §§ 922(g)(5) and
924(a)(2); possession with intent to distribute cocaine, 21 U.S.C. § 841(a)(1) and (b)(1)(C); and
possession of a firearm in furtherance of a drug trafficking crime, 18 U.S.C. § 924(c)(1)(A) and
(c)(1)(B). Nunez was sentenced to 123 months in prison.
II
A
First, Nunez challenges the district court’s denial of his motion to suppress evidence.
This challenge has two parts: whether the agents had probable cause at the time of the arrest and
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whether his first confession to being an illegal alien, prior to receiving Miranda warnings,
tainted the voluntariness of his confession after receiving the Miranda warnings.
“In an appeal from the denial of a motion to suppress, this Court reviews legal questions
de novo and factual findings for clear error.” United States v. De Jesus-Batres, 410 F.3d 154,
158 (5th Cir. 2005), cert. denied, 126 S. Ct. 1020-22 (2006). “In reviewing findings of fact, we
view the evidence in the light most favorable to the party prevailing below.” United States v.
Lopez-Moreno, 420 F.3d 420, 429 (5th Cir. 2005), cert. denied, 126 S. Ct. 1449 (2006). The
party prevailing below in this case was the government. “Also, the trial court's determination
that the facts provided reasonable suspicion or probable cause is reviewed de novo. However, in
carrying out this de novo review, we must ‘give due weight to inferences drawn from those facts
by resident judges and local law enforcement officers.’” Id. at 430 (citing Ornelas v. United
States, 517 U.S. 690, 699 (1996)). Further, we “may affirm the district court's decision on any
basis established by the record.” United States v. Charles, 469 F.3d 402, 405 (5th Cir. 2006).
As an initial matter, we note that there is some question as to when Nunez was actually
placed under custodial arrest. This issue is important to both aspects of the motion to suppress,
since the agents must have had probable cause prior to placing Nunez under arrest and the agents
must have given Nunez the Miranda warnings prior to interrogating him after placing him under
arrest. The government argues that Nunez was not under arrest until he admitted to being an
illegal alien. Nunez argues that he was placed under arrest when the agents approached the car
with their guns drawn and began asking him questions prior to his admission to being an illegal
alien. We need not settle when Nunez was actually placed under arrest, since even if we accept
Nunez’s contention that the arrest occurred when the agents initially approached him, we still
affirm the district court’s decision on both issues.
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The agents must have had probable cause to believe that a crime was committed to arrest
Nunez without a warrant. See United States v. Castro, 166 F.3d 728, 733 (5th Cir. 1999) (en
banc) (“It is well established that under the Fourth Amendment a warrantless arrest must be
based on probable cause.”). “Probable cause exists when the totality of facts and circumstances
within a police officer's knowledge at the moment of arrest are sufficient for a reasonable person
to conclude that the suspect had committed or was committing an offense.” United States v.
Ramirez, 145 F.3d 345, 352 (5th Cir. 1998). The police officer’s knowledge must establish that
there was a “‘fair probability’ that a crime occurred.” United States v. Garcia, 179 F.3d 265,
269 (5th Cir. 1999). “[T]he requisite ‘fair probability’ is something more than a bare suspicion,
but need not reach the fifty percent mark.” Id. “When considering what a ‘reasonable person’
would have concluded, we take into account the expertise and experience of the law enforcement
officials.” Id. at 268.
Nunez argues that the agents lacked probable cause because his actions would only be a
crime if he were an illegal alien and the agents had no reasonable basis for believing that he was
an illegal alien. We agree with the district court in finding that the information known to the
agents established a fair probability that Nunez was an illegal alien and, therefore, that a crime
had been committed, namely possession of ammunition by an illegal alien.
The agents initially relied on an informant who identified Nunez as an illegal alien and
stated that Nunez would attempt to purchase a firearm from a dealer who did not require an ATF
background check. Although the basis of the informant’s information is not on record, nor is
there evidence of his reliability beyond Agent Barger’s statement to that effect, the informant’s
information was specific and corroborated. See Illinois v. Gates, 462 U.S. 213, 244-45 (1983)
(“It is enough, for purposes of assessing probable cause, that ‘corroboration through other
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sources of information reduced the chances of a reckless or prevaricating tale,’ thus providing ‘a
substantial basis for crediting the hearsay.’”) (citing Jones v. United States, 362 U.S. 257, 269,
271 (1960)); see also Florida v. J.L., 529 U.S. 266, 270 (2000) (“As we have recognized,
however, there are situations in which an anonymous tip, suitably corroborated, exhibits
‘sufficient indicia of reliability to provide reasonable suspicion to make the investigatory stop.’”)
(citing Alabama v. White, 496 U.S. 325, 327 (1990)); United States v. Roch, 5 F.3d 894, 898 (5th
Cir. 1993) (“Sometimes independent police work can corroborate details in an informant's tip.”).
Agent Barger observed Nunez and Gerra avoid retailers who required purchasers to fill out ATF
forms, as the informant predicted. Further, he observed Nunez hand money to Gerra
immediately before Gerra purchased the firearm, consistent with one method illegal aliens
commonly use to obtain firearms. Between the informant’s specific and corroborated
information and Agent Barger’s independent observations, the agents could establish a fair
probability that Nunez was an illegal alien. Once the agents saw Nunez carrying what appeared
to be the recently purchased box of ammunition, then there was a fair probability that Nunez was
in violation of 18 U.S.C. §§ 922(g)(5) and 924(a)(2), as an illegal alien in possession of
ammunition. Although this fact was not confirmed until after the arrest took place, it need not be
confirmed until after the arrest took place, so long as the information the agents relied on
established a fair probability that a crime occurred. See United States v. Garcia, 179 F.3d 265,
269 n. 2 (5th Cir. 1999) (“[T]he function of arrest is not merely to produce someone in court for
prosecution but also to enable a police officer who believes that the person has committed a
crime to complete his investigation . . . .”) (citing United States v. Raborn, 872 F.2d 589, 593
(5th Cir. 1989)). Therefore, we agree with the district court finding that there was probable
cause to support the arrest.
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Nunez next argues that his confession to being an illegal alien was not voluntary, even
after he was given Miranda warnings, because he had previously been asked about his
immigration status and admitted to being an illegal alien prior to receiving the Miranda
warnings. Therefore, he seeks to suppress all testimony obtained as a result of his confession.
The district court did suppress the first confession, as not in compliance with Miranda, but
allowed the second confession since it came after the Miranda warnings were given.
Even assuming that Nunez was arrested at the time the agents approached him in the
parking lot, the failure to provide Miranda warnings prior to the first inquiry into his
immigration status did not make his post-warning confession involuntary. There are two
Supreme Court cases setting the constitutional boundaries for such two-stage interrogations. In
Missouri v. Seibert, 542 U.S. 600 (2004), a divided Court refused to allow the post-warning
confession where a “two-step interrogation technique was used in a calculated way to undermine
the Miranda warning.” Id. at 622 (Kennedy, J., concurring in judgment).1 In that case, “[t]he
unwarned interrogation was conducted in the station house, and the questioning was systematic,
exhaustive, and managed with psychological skill.” Id. at 616 (plurality opinion). Both the four
member plurality opinion and Justice Kennedy’s concurring opinion distinguish the facts in
Seibert from the facts in Oregon v. Elstad, 470 U.S. 298 (1985), where the Court allowed a post-
warning confession even where the police had previously obtained a pre-warning confession, so
long as the pre-warning confession was voluntary. Id. at 318. (“[T]here is no warrant for
1
In Missouri v. Seibert, Justice Kennedy provided the fifth vote in a 5-4 decision, and
decided the case on narrower grounds than the majority. “‘It is well established that when we are
confronted with a plurality opinion, we look to that position taken by those Members who
concurred in the judgments on the narrowest grounds.’ Therefore, we find Seibert’s holding in
Justice Kennedy's opinion concurring in the judgment.” United States v. Courtney, 463 F.3d
333, 338 (5th Cir. 2006) (internal citations omitted).
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presuming coercive effect where the suspect's initial inculpatory statement, though technically in
violation of Miranda, was voluntary.”). In Elstad, the police stopped by the suspect’s home to
inform his mother that he would be taken into custody for burglary. While one officer spoke to
the mother, another officer told the suspect that he felt the suspect had committed the burglary.
The suspect responded by admitting that he had been at the scene. Subsequently, the suspect
was taken to the station, where Miranda warnings were administered and the suspect further
confessed to the crime. The Court found that the pre-warning incident “had none of the
earmarks of coercion,” id. at 316, and likely resulted from confusion over when the suspect had
been placed under custodial arrest. Id. at 315-16
We recently interpreted the relationship between Seibert and Elstad by stating, “Seibert
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, ‘[t]he admissibility of
postwarning statements [] continue[s] to be governed by the principles of Elstad.’” United
States v. Courtney, 463 F.3d 333, 338 (5th Cir. 2006) (citing Seibert, 542 U.S. at 622)
(modifications in original).
There is no evidence of a deliberate attempt to employ a two-step strategy in this case.
As the district court found, there was nothing in the circumstances or the nature of the
questioning to indicate that coercion or other improper tactics were used. All evidence suggests
that Nunez was calm and cooperative, and the agents did not act with aggressiveness or hostility.
The district court stated that “the defendant initially had done nothing more than voluntarily
respond to questions as to his name, place of birth, and immigration status.”
As a result, this case is governed by Elstad, under which “[t]he relevant inquiry is
whether, in fact, the second statement was also voluntarily made. As in any such inquiry, the
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finder of fact must examine the surrounding circumstances and the entire course of police
conduct with respect to the suspect in evaluating the voluntariness of his statements.” Elstad,
470 U.S. at 318. Nunez has alleged no facts indicating that coercive tactics were used in
obtaining the second confession and all evidence suggests that the tone of the questioning was
entirely conversational. 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.” Id. at 314.
The agents here did administer the Miranda warnings prior to the second confession and Nunez
is not alleging there was anything deficient about the manner in which the warnings were
administered. Thus, we find that Nunez’s second confession to being an illegal alien was
voluntary and given with informed consent. The district court properly denied the motion to
suppress the second confession.
B
Nunez also challenges the sufficiency of the evidence to support his conviction for
possession of a firearm in furtherance of a drug trafficking offence, 18 U.S.C. § 924(c)(1)(A)
and (c)(1)(B), arguing that there was no evidence that he sold drugs at his home, where the
firearm was found. Nunez was convicted after a jury trial, and “[t]he jury's verdict will be
affirmed if any rational trier of fact could have found that the evidence established the essential
elements of the offense beyond a reasonable doubt. In conducting this inquiry, we must examine
the evidence as a whole and construe it in the light most favorable to the verdict, drawing all
reasonable inferences to support the verdict.” United States v. Charles, 469 F.3d 402, 406 (5th
Cir. 2006) (internal citations omitted).
We have stated that “possession is ‘in furtherance’ of the drug trafficking offense when it
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furthers, advances, or helps forward that offense.” United States v. Ceballos-Torres, 218 F.3d
409, 410-11 (5th Cir. 2000). “This court considers a list of factors in determining whether a
firearm is used ‘in furtherance’ of a drug-trafficking offense: (1) the type of drug activity being
conducted; (2) the accessibility of the firearm; (3) the type of weapon; (4) whether the weapon is
stolen; (5) whether the possession is lawful; (6) whether the firearm is loaded; (7) the weapon's
proximity to drugs or drug profits; and (8) the time and circumstances under which the firearm is
found.” Charles, 469 F.3d at 406 (citing Ceballos-Torres, 218 F.3d at 414-15).
In this case, Nunez had in his bedroom 172.6 grams of cocaine under his bed, small bags
to facilitate distribution, a cocaine dilutant, and over $2,000 in cash. The firearm was a
semiautomatic assault rifle and was next to the bed, about two feet from the drugs. Although
there is no evidence that the firearm was loaded or stolen, the firearm was illegally possessed
and in the bedroom was a box of 110 rounds of ammunition matching the rifle and easily
accessible. This evidence is enough for a rational juror to believe that the firearm was
purposefully kept in a location where drug trafficking activities occurred, namely the storage and
preparation of cocaine to be distributed. A rational juror could find that Nunez used the firearm
to advance these drug trafficking activities. See Ceballos-Torres, 218 F.3d at 415.
III
For the foregoing reasons, we AFFIRM the district court’s judgment.
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