United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
May 15, 2007
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
05-20330
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JUAN ANGEL MARTINEZ,
Defendant-Appellant.
On Appeal from the United States District Court
for the Southern District of Texas
Before REAVLEY, JOLLY, and BENAVIDES, Circuit Judges.
BENAVIDES, Circuit Judge:
Based on a tip, Houston police suspected that the defendant,
Juan Angel Martinez, had witnessed a violent crime and might
possess the weapons used therein. The tipster provided a street
address and indicated that Martinez was staying there with his
girlfriend. Rather than seek a warrant, the police set up a ruse
to draw Martinez out of the house. Martinez and his girlfriend
took the bait, exited the home and drove off in a vehicle,
unaware that they were being watched. Police officers stopped
the vehicle a few blocks away, placed the defendant in the back
of a police car, and then asked his girlfriend for consent to
search her home, which she gave. Police discovered three
firearms inside, but soon learned that the tipster was wrong.
Martinez had not witnessed a violent crime, nor were the guns
used in such a crime. Martinez was charged with being an illegal
alien in possession of firearms, in violation of 18 U.S.C. §§
922(g)(5)(A), 922(g)(1), and 924(a)(2).
Martinez filed a motion to suppress both the guns and any
statements given to police. The district court decided to
suppress the statements but not the guns. After a bench trial,
Martinez was found guilty of being a felon in possession. On
appeal, Martinez again argues that the guns must be suppressed.
Specifically, he claims that the stop was not supported by
reasonable suspicion, and that the guns must be suppressed as the
fruit of that poisonous tree. We agree with Martinez.
I. FACTS AND PROCEDURAL HISTORY
Law enforcement in Houston received a tip that a man named
“Angel” might have been a witness to a quadruple homicide, might
be in possession of the weapons used in the homicide, and might
be planning to flee to Mexico with those weapons. The tipster
stated that Angel was staying with his girlfriend, and provided
her address in Pasadena, Texas. The day after receiving the tip,
the police did not seek a warrant. Rather, six officers set up
surveillance outside the residence. Three or four hours later, a
car drove away from the residence. The officers stopped the car
2
and interviewed the driver, a man named Bernardo, who confirmed
that a man named Angel was in the residence. At the request of
the police, Bernardo agreed to call the residence and ask Angel
to come to the location of the stop to retrieve his car.
Approximately twenty minutes later, Juan Angel Martinez
(“Martinez”) and his girlfriend, Georgina Amatt (“Amatt”), left
the house, totally unaware that they were under surveillance.
The police stopped them a few blocks away. They immediately
placed Martinez in the back of a police cruiser, where he
consented to being transported to the police station for
questioning. Meanwhile, a Spanish-speaking officer obtained
consent from Amatt to search her residence, which resulted in the
discovery of three firearms.
The police quickly learned that Martinez’s middle name was
Angel, but contrary to the tipster’s information, neither
Martinez nor the discovered weapons had anything to do with the
quadruple homicide. Martinez was charged only with being an
illegal alien in possession of firearms and with being a felon in
possession of firearms, in violation of 18 U.S.C. §§
922(g)(5)(A), 922(g)(1), and 924(a)(2). He filed a motion to
suppress the statements given and the evidence seized. The
district court held a lengthy suppression hearing at which both
sides presented the testimony of multiple witnesses. Afterwards,
the district court granted the motion to suppress the statements
but denied the motion to suppress the evidence. The court later
3
conducted a bench trial and found Martinez guilty of being a
felon in possession. The district judge sentenced him to a term
of 92 months plus three years supervised release.
On appeal, Martinez argues that the district court erred in
denying his motion to suppress the weapons discovered at Amatt’s
home. He argues that the informant’s tip was not itself reliable
and specific enough to give rise to a reasonable suspicion that
Martinez had engaged in criminal activity. He adds that the
police might have established the reliability of the information
by taking steps to corroborate it, but they did not adequately do
so. Without reasonable suspicion, he says, the stop of his
vehicle was unlawful, and the firearms must be suppressed as the
fruit of that poisonous tree.
II. STANDARD OF REVIEW
As a preliminary matter, the parties disagree as to the
appropriate standard of review to be applied in this case.
Generally, when considering a motion to suppress evidence under
the Fourth Amendment we review the district court’s factual
findings for clear error and its Fourth Amendment conclusions de
novo. United States v. Gonzalez, 328 F.3d 755, 758 (5th Cir.
2003). In this case, however, the government argues that
Martinez never raised his appellate claim in the district court,
and that we should review it for plain error only. Therefore, we
first consider whether Martinez’s claim was raised below.
4
After a lengthy evidentiary hearing, defense counsel
summarized his arguments to the district judge, one of which was
as follows: “The reasonable suspicion itself wouldn’t be
sufficient, because they didn’t have reasonable suspicion that
Martinez had just committed a crime.” Martinez plainly asserted
that the stop was not supported by reasonable suspicion because
the police could not reasonably suspect that he had just
committed a crime. This requirement comes from a long line of
case law holding that “an investigatory stop would be proper only
if based on reasonable suspicion that ‘criminal activity is
afoot.’” United States v. Roch, 5 F.3d 894, 897 (5th Cir. 1993)
(quoting Terry v. Ohio, 392 U.S. 1, 30 (1968)). Once all the
evidence had been heard, and the arguments made, the district
court explicitly ruled that the stops were supported by
reasonable suspicion. The judge stated that “the stop was
justified, that the information that the officers had was
sufficient basis for the stops of the vehicles.”1
On this record alone, it would seem obvious that our review
of the Fourth Amendment claim, which was presented to and decided
by the district court, would be de novo. However, the government
1
The district judge went on to say, “I credit the officers’
testimony as to the information that they had been given and the
basis on which they made the traffic stops.” Later, when the court
was considering whether or not to suppress the statements, it again
observed that the officers had a “reasonable suspicion of criminal
activity that would have justified the steps they took to stop the
vehicle in the way and in the manner that they did.”
5
argues that Martinez’s challenge to the reasonable suspicion was
not specific enough to alert the court and the government to the
particular concern he raises on appeal. In particular, the
government says that Martinez did not argue in the district court
that the informant’s tip was inadequate to give rise to a
reasonable suspicion of criminal activity. If Martinez had
specifically stated that the informant’s tip was unreliable, says
the government, then it might have re-called its witnesses, or
called new witnesses, to establish the reliability of its
informant or its information. But this the government was
already obligated to do.
The crucial fact in this case is that the government bore
the burden of proving reasonable suspicion. See Roch, 5 F.3d at
897 (“[W]here the facts are undisputed that the arrest and
seizures were made without benefit of warrants of any kind, . . .
the government bears the burden of proving it had a reasonable
suspicion to seize [the defendant].”); see also Terry, 392 U.S.
at 21 (1968) (“[I]n justifying the particular intrusion the
police officer must be able to point to specific and articulable
facts which, taken together with rational inferences from those
facts reasonably warrant that intrusion.”). The primary basis
for that suspicion in this case was the informant’s tip.
Realizing this, the government asked its own witnesses about the
6
informant’s tip on direct exam.2 The government’s complaint,
then, cannot be that it was caught unawares, nor that Martinez
was under some obligation to inform it ahead of time of his
particular concerns. Again, the burden rests with the government
to demonstrate reasonable suspicion, and where that suspicion
hinges on an informant’s tip, part of the government’s burden is
to address the reliability of that information.
It is true that once the government had presented its
evidence, Martinez still needed to make his specific legal
arguments clear to the district court. If he failed to do so, we
would review for plain error only. See United States v.
Maldonado, 42 F.3d 906, 909–13 (5th Cir. 1995). The government,
relying on our holding in Maldonado, asserts that Martinez was
not sufficiently specific. In Maldonado, we considered whether
the defendant had properly raised a Dickerson objection3 to the
police officer’s search. Id. at 909-12. During the pat-down,
the officer discovered a bulge in the defendant’s boot. He
reached in, removed a round package, and opened it to find heroin
2
Unfortunately for the government, none of its witnesses could
speak to the reliability of the informant or the information,
because none had first-hand knowledge (or really any knowledge, for
that matter) of either one. As we discuss in greater detail below,
the record is devoid of any indication whatsoever of the identity
or reliability of the informant.
3
In Minnesota v. Dickerson, 508 U.S. 366 (1993), the Supreme
Court held that an officer conducting a Terry search for weapons
can only seize other contraband that is in plain view while the
officer is searching for a weapon. Id. at 375–77.
7
inside. Id. at 908. At a suppression hearing, defense counsel
argued that the officer lacked probable cause to open the
package, but never argued that Dickerson prevented the officer
from seizing the package in the first place. Id. at 910-912. We
took pains to explain that the two legal issues were distinct,
and concluded, “[t]he district court ruled on the issues
presented it. Had the Dickerson issue been presented, testimony
could have been taken, and argument received, on that issue; and
the district court would have dealt with it.” Id. at 912.
Because it was not, we confined our review to plain error only.
Id.
This case is very different from Maldonado. As we have
said, “the touchstone [of the Maldonado inquiry] is whether the
objection was specific enough to allow the trial court to take
testimony, receive argument, or otherwise explore the issue
raised.” United States v. Burton, 126 F.3d 666, 673 (5th Cir.
1997). In this case, the court not only explored the issue of
the informant’s tip and how it affected the officers’ reasonable
suspicion, but explicitly ruled on it. In finding that there was
reasonable suspicion, the court stated: “I credit the officers’
testimony as to the information they had been given and the basis
on which they made the traffic stops.”
It is true that Martinez did not make the best case to the
district judge for why reasonable suspicion was lacking. The
relevant portion of his argument amounted to little more than a
8
single sentence: “The reasonable suspicion itself wouldn’t be
sufficient, because they didn’t have reasonable suspicion that
Martinez had just committed a crime.”4 However, Martinez plainly
asserted his view that the stop was not supported by reasonable
suspicion because the police did not have a reasonable belief
that Martinez had committed a crime. The district court
considered this argument, though without the benefit of helpful
case law or rhetorical prowess, and ruled against Martinez. This
is enough to preserve the issue for review in our court. On the
4
At oral argument, the government endeavored to make an
additional argument not raised in its brief, that Martinez actually
conceded the reliability of the informant’s tip in his closing
arguments at suppression, when he stated:
The reasonable suspicion itself wouldn’t be sufficient,
because they didn’t have reasonable suspicion that
Martinez had just committed a crime. They had reasonable
suspicion perhaps with respect to other material, other
items that they, as they both testified, knew about the
day before. They had been debriefed the day before on a
confidential informant’s information on a man named Angel
living in the house possibly possessing those guns. No
search warrant was obtained, you had all of that time
period, and instead this pretextual stop without an
actual traffic violation was the manner used to get him
into what was effectively custody.
(emphasis added). Putting aside the fact that the government did
not brief this argument, we still do not find it persuasive. It is
possible to infer from the italicized language that defense counsel
was not challenging the reliability of the informant. However,
there are several plausible inferences from this statement, and in
view of the fact that defense counsel consciously used the word
“perhaps,” we are reluctant to read his statement as a concession
of anything, particularly when it is in the context of a larger
argument challenging the stop as unsupported by reasonable
suspicion.
9
record before us, we are well situated to review the district
court’s Fourth Amendment conclusions de novo, and we now do so.
III. DISCUSSION
A. The police did not have reasonable suspicion to justify
an investigatory stop.
“An investigative vehicle stop is permissible under Terry
only when the officer has a reasonable suspicion supported by
articulable facts that criminal activity may be afoot.” United
States v. Jaquez, 421 F.3d 338, 340–41 (5th Cir. 2005) (per
curiam). An informant’s tip may, in certain cases, provide
reasonable suspicion. This will depend on various factors,
including:
the credibility and reliability of the informant, the
specificity of the information contained in the tip or
report, the extent to which the information in the tip or
report can be verified by officers in the field, and
whether the tip or report concerns active or recent
activity, or has instead gone stale.
United States v. Gonzalez, 190 F.3d 668, 672 (5th Cir. 1999)
(citing Alabama v. White, 496 U.S. 325, 328–32 (1990)); United
States v. Perkins, 352 F.3d 198, 199 (5th Cir. 2003) (citing
same).
The first of these factors, the credibility and reliability
of the informant, deserves particular scrutiny in this case. The
government insists on characterizing the tipster as a
“confidential informant,” but it never introduced any evidence
about the informant whatsoever and made no effort to illustrate
10
his or her reliability in the district court. In fact, the
government elected not to call a single witness who had any
first-hand knowledge of the tip or the informant. They knew only
that the police department had received information “from another
person” about a man named Angel. None of them testified, nor
could they have, about the source of that information, the
reliability of that source, or the specifics of what he or she
said. Thus there is no evidence in the record suggesting any
basis for finding the informant credible, such as, for example,
whether or not the informant had any past dealings with the
police. For our purposes, then, the report is the functional
equivalent of an anonymous tip. To characterize it as anything
else would be to assume the very credibility and reliability that
the government has the burden of proving.
Without establishing the reliability of the informant, the
government had to establish reasonable suspicion based on some or
all of the other factors listed above: the specificity of the
information provided, the extent to which the information is
corroborated by officers in the field, and whether that
information concerns recent activity or has instead gone stale.
At the time of this stop, the police had (1) a tip that a person
named “Angel” was storing weapons that had been used in a crime
in his girlfriend’s house; (2) corroboration by the individual
leaving the specified house that a man named “Angel” was inside;
and (3) visual verification that two people left the residence 20
11
minutes after a phone call was placed asking Angel to pick up his
car, and that those two people drove toward the location where
the pick-up was supposed to occur. Therefore, at the time of the
stop, the only verified information that the police had was that
a man named Angel was in a specified residence. Notably absent,
however, is any verified information that “criminal activity may
be afoot.” Jaquez, 421 F.3d at 340–41.5 Our review of
precedent, both our own and that of the Supreme Court, makes
clear that this is insufficient to give rise to reasonable
suspicion.
The Supreme Court has evinced a strong distrust of anonymous
tips. In particular, it has stated that an anonymous tip that
provides verifiable information as to a person’s identity and
location, without more, is insufficient to justify an
investigative stop. In Florida v. J.L., 529 U.S. 266 (2000), the
Supreme Court considered the constitutionality of a stop based on
an anonymous tip. In that case, the police received a tip from
an unknown caller who said that a young black male, standing at a
particular bus stop and wearing a plaid shirt, was carrying a
5
It bears repeating that the police did not have to
corroborate this information in the field, provided they had some
other basis for believing its truth. In most cases this basis is
the informant, whose reliability is established either by his or
her past dealings with police, or by the specifics of the
information that he or she provides. In the present case, however,
the police had neither, which made the need to corroborate the
little information they did have paramount.
12
gun. Id. at 268. The police arrived at the stop about six
minutes later, identified an individual meeting the description
in the tip, searched him, and found a gun in his pocket. Id. A
unanimous Supreme Court found that the anonymous tip was
insufficient to create reasonable suspicion. Id. at 274.
The Court reasoned that in informant cases, the tip replaces
the “‘unusual conduct which leads [the police officer] to
reasonably conclude in the light of his experience that criminal
activity may be afoot . . . .’” Id. at 270 (quoting Terry, 392
U.S. at 30). When the informant is known, her “reputation can be
assessed,” and she can “be held responsible if her allegations
turn out to be fabricated.” Id. (citing Adams v. Williams, 407
U.S. 143, 146-47 (1972)). In anonymous informant cases, however,
the tip alone “seldom demonstrates the informant’s basis of
knowledge or veracity” about the suspect’s involvement in
criminal behavior. Id. (quoting Alabama v. White, 496 U.S. 325,
329 (1990)). Still, “there are situations in which an anonymous
tip, suitably corroborated, exhibits ‘sufficient indicia of
reliability to provide reasonable suspicion to make the
investigatory stop.’” Id. (quoting White, 496 U.S. at 327).
The J.L. Court concluded that an anonymous informant’s
ability to describe a person’s appearance and location is
insufficient to create a reasonable suspicion of criminal
activity. The Court explained:
An accurate description of a subject’s readily observable
13
location and appearance is of course reliable in this
limited sense: It will help the police correctly identify
the person whom the tipster means to accuse. Such a tip,
however, does not show that the tipster has knowledge of
concealed criminal activity. The reasonable suspicion
here at issue requires that a tip be reliable in its
assertion of illegality, not just in its tendency to
identify a determinate person.
Id. at 272 (citation omitted) (emphasis added). This language
bears directly on the case before us. Absent any information
about the informant, the police had verified information that the
person in the car they stopped was the “Angel” whom the informant
desired to accuse. They had no verified information, however,
that linked Martinez to any criminal behavior. The informant
also provided no verifiable predictive information about
Martinez’s future behavior that would have indicated any “inside
knowledge” about Martinez.6 It is clear to us, then, that J.L.
compels the conclusion that the police did not have the requisite
reasonable suspicion to justify the Terry stop of Martinez. They
had a reasonable basis to suspect that his name was Angel, but
little more.
We find further support for this conclusion in our own
precedent, even without classifying the tip as anonymous. In
United States v. Roch, 5 F.3d 894 (5th Cir. 1993), we considered
6
We note that the tipster did state that he expected Angel to
leave for Mexico with the guns. This is a predictive statement
about future behavior, to be sure, but it was not verified in any
way and thus could not contribute to any reasonable suspicion. In
fact, Martinez’s actions do not indicate any effort to flee for
Mexico or anywhere else.
14
a case virtually indistinguishable from the one at bar. A
confidential informant had told the police that a man named
“Frank” was planning to pass some forged checks and threatened to
kill the next cop that he saw. Id. at 896. According to the
informant, Frank possessed two guns, drove a white and orange
pickup truck, and was staying in a local motel room with his
girlfriend. The informant described Frank as a blond, white male
with tattoos on large portions of his body. Based on the tip,
police set up surveillance on the room that lasted for several
hours until they saw a man and a woman departing the motel in a
white and orange pickup truck. The officers followed the truck
until it pulled into a gas station, at which time police
apprehended the man. They found two guns inside the car. Id.
Roch was charged with being a felon in possession of a firearm.
He moved to suppress the guns, but the district court was
satisfied that there was reasonable suspicion to support the
stop. Id.
We reversed. We noted that the police officers “did not
observe any activity during the surveillance which would support
a finding of reasonable suspicion that Roch was a felon in
possession of a firearm.” Id. at 897. The police did not
observe or uncover any facts that would corroborate Roch’s status
as a felon, nor did they observe him carrying or attempting to
conceal a gun. Id. We continued:
In fact, the surveillance failed to provide reasonable
15
suspicion of any crime. The agents did not see Roch
commit a criminal offense, engage in any questionable
behavior, or break any traffic laws. The only activity
the agents observed was a man and woman leaving the motel
parking lot in a white and orange pickup truck and
driving to a filling station.
Id. at 897–98. The parallels to the instant case are striking.
We could go on to quote Roch at some length, but suffice it to
say that it leads to the conclusion that we have already
foreshadowed, that absent any corroboration of the illegal
activity itself, “the government had no reasonable suspicion that
the criminal activity suggested by the informant was afoot.” Id.
at 899.
There is no relevant difference between Roch and the instant
case that would suggest a contrary result. In fact, the one
major difference between the two only bolsters our conclusion
today. Unlike in the present case, the government actually did
argue that the informant in Roch had “previously given reliable
information that had resulted in warrants and convictions,” and
that the information “was based on direct contact with the
suspect.” Id. Nevertheless, we characterized the tip as
“significantly less detailed than other situations where
reasonable suspicion has been found.” Id. In particular, we
were troubled by the fact that the information did not include
the suspect’s last name, any description of his height and
weight, or the make and model of the truck. Id. As we have
taken pains to point out, in the present case the government did
16
not even attempt to show any reliability on the part of the
informant himself.
In virtually every respect then, our precedent in Roch
compels our decision today, and we find still greater support in
Florida v. J.L. Both cases lead inevitably to the conclusion
that the police in this case did not have reasonable suspicion to
perform an investigative stop of Mr. Martinez. The Government
provides no compelling authority to the contrary, but seems to
rely heavily on the rhetorical point that the police corroborated
“everything that they could corroborate.” Even if this were
true, it is not a legal standard of any kind, and carries no
weight in this court. That the police might corroborate a
mountain of innocent data, such as a person’s identification and
whereabouts, does not provide any basis for executing a Terry
stop on that person. If it did, then Terry itself would be a
dead letter. Only when the police have a reasonable basis to
suspect criminal activity can they justifiably conduct an
investigative stop. In this case there was none.
B. The evidence seized was a “fruit” of the constitutional
violation, and must be suppressed.
Under the fruit-of-the-poisonous tree doctrine, “all
evidence derived from the exploitation of an illegal search or
seizure must be suppressed, unless the Government shows that
there was a break in the chain of events sufficient to refute the
inference that the evidence was a product of a Fourth Amendment
17
violation.” United States v. Rivas, 157 F.3d 364, 368 (5th Cir.
1998). Therefore, we must consider whether the evidence
discovered in Amatt’s home was a “fruit” of the illegal stop, or
whether there was some break in the chain sufficient to purge the
taint of that violation. Notably, the government did not raise
this issue in its brief, nor did it make any showing whatsoever
of a break in the chain of events. Nevertheless, the matter did
come up at oral argument, and we think it wise to address it.
In particular, we will consider whether Amatt’s consent to let
the police search her home served to break the chain of causation
and remove the taint of the illegal stop.
Even though the officers executed an unjustified Terry stop,
“a subsequent consent to search may, but does not necessarily,
dissipate the taint of a prior fourth amendment violation.”
United States v. Jones, 234 F.3d 234, 242 (5th Cir. 2000)
(internal quotation omitted). “When we evaluate consent given
after a Fourth Amendment violation, the admissibility of the
challenged evidence turns on a two-pronged inquiry: 1) whether
the consent was voluntarily and freely given; and 2) whether the
consent was an independent act of free will.” Id. (citing United
States v. Chavez-Villarreal, 3 F.3d 124, 127 (5th Cir. 1993)).
“The first prong focuses on coercion, the second on causal
connection with the constitutional violation.” Chavez-
Villarreal, 3 F.3d at 127. In this case, the defendant focuses
only on the second prong of this analysis, and argues that there
18
was a lack of attenuation between the constitutional violation
and Amatt’s subsequent consent.
“To determine whether the causal chain was broken, we
consider: (1) the temporal proximity of the illegal conduct and
the consent; (2) the presence of intervening circumstances; and
(3) the purpose and flagrancy of the initial misconduct.”
Chavez-Villareal, 3 F.3d at 128. In this case, all three factors
favor the defendant’s position that the causal link was unbroken.
First, there was immediate temporal proximity between the illegal
stop and Amatt’s consent. The Spanish speaking officer obtained
her consent at the scene of the stop, while other officers were
placing Martinez into a police cruiser. Second, there were no
intervening circumstances of any kind that might have broken that
chain. Third, and finally, it seems that one major purpose, if
not the major purpose, of the misconduct was to gain permission
to search the home. See Jones, 234 F.3d at 243 (finding third
factor satisfied where it was “clear that the purpose of the
detention was to search the vehicles for narcotics”); United
States v. Jaquez, 421 F.3d 338, 342 (5th Cir. 2005) (per curiam)
(finding third factor satisfied where “very purpose of her
unlawful stop was to secure his consent to search the vehicle”).
This is clearly borne out by the facts of the case, but the
officers also explicitly told Martinez and Amatt that the purpose
of the stop was to solicit their cooperation in “investigating
19
the quadruple homicide.” To that end, they wanted Martinez to
come down to the station and answer questions, and they wanted
Amatt to give them consent to search her home. Clearly the
government cannot now claim that the consent was independent of
the illegal stop when the stop was designed specifically to
obtain that consent. See Brown v. Illinois, 422 U.S. 590, 605
(1975) (finding “a quality of purposefulness” in illegal arrest
undertaken “for investigation” or for “questioning” and holding
that such purpose supported suppression).
As we have shown, all signs indicate that there was not a
break in the causal chain between the illegal stop and the
subsequent discovery of the evidence in Amatt’s home.
Accordingly, that evidence must be suppressed, and the conviction
and sentence vacated.
C. The constitutionality of 18 U.S.C. § 922(g)(1)
Martinez also argues that 18 U.S.C. § 922(g)(1) is
unconstitutional on its face and as applied to him. He concedes,
however, that this argument is foreclosed by several prior
decisions of this court. E.g., United States v. Guidry, 406 F.3d
314, 318–19 (5th Cir. 2005); United States v. Daugherty, 264 F.3d
513, 518 (5th Cir. 2001); United States v. De Leon, 170 F.3d 494,
499 (5th Cir. 1999). Martinez raises this issue only to preserve
it for further review, and, particularly in light of our holding
today, we need not consider it further at this time.
IV. CONCLUSION
20
For the foregoing reasons, we REVERSE the district court’s
denial of the motion to suppress the evidence seized, VACATE
Martinez’s conviction and sentence, and REMAND for further
proceedings consistent with this opinion. See United States v.
Marshall, 762 F.2d 419, 423 (5th Cir. 1985) (noting that remand,
rather than judgment of acquittal, is appropriate remedy when
reversing district court’s ruling on motion to suppress).
21