United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
July 17, 2007
FOR THE FIFTH CIRCUIT
_____________________ Charles R. Fulbruge III
Clerk
No. 06-50194
_____________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CESAR CHAVEZ-BARRAZA,
Defendant - Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:05-CR-947-ALL
_________________________________________________________________
Before JOLLY, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
Cesar Chavez-Barraza (“Chavez-Barraza”) was convicted by a
jury of possession of marijuana with intent to distribute and of
maintaining an establishment for distribution of marijuana. On
appeal, he argues that the district court erred in denying his
motion to suppress the evidence seized from his property located at
Lettunich Street. We disagree and affirm.
I.
On April 5, 2005, law enforcement officers in El Paso received
a tip from a confidential informant (“CI”) that Chavez-Barraza was
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
storing 4000 pounds of marijuana at his residence at 1306 Twig
Road. The CI led the officers to the house where they waited until
Chavez-Barraza returned home. At this point, Officer Triana spoke
with Chavez-Barraza in Spanish and obtained his consent to search
the residence. Chavez-Barraza signed a written consent form in
Spanish permitting the officers to search the residence.
After obtaining Chavez-Barraza’s consent, the officers
searched the residence at 1306 Twig Road but found no drugs. The
officers did, however, discover a mortgage statement on a night
stand that was for a second property located at 401 Lettunich
Street. The statement was addressed to Chavez-Barraza, his wife
Lorena, his sister Anna, and his brother-in-law Manuel Rivera. The
parties dispute whether the mortgage statement was plainly visible
or mixed into a stack of mail.
Officer Triana placed the mortgage statement in his back
pocket and went outside to speak with Chavez-Barraza. He asked
Chavez-Barraza if he owned any other properties in the area. When
Chavez-Barraza stated that he did not, Triana produced the mortgage
statement. At this point, Triana testified, Chavez-Barraza became
visibly agitated. He told Triana that his sister owned the
Lettunich Street property and that he didn’t know who lived there.
The officers then decided to visit the Lettunich property. Triana
told Chavez-Barraza that he and the other officers were going to go
see the second property, and that Chavez-Barraza could drive
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himself or ride with Triana if he wanted to come along. Chavez-
Barraza voluntarily elected to ride with Triana.
The Lettunich Street property included a single building
divided into two residences. The back residence could not be
accessed from inside the front residence. Chavez-Barraza’s mother,
who lived in the front residence, gave the officers permission to
search her home. They did so and found nothing significant. The
officers then asked Chavez-Barraza for consent to search the back
apartments, which he claimed to be maintaining. Chavez-Barraza
signed a written consent, but he did not have keys to open the
door. One of the officers climbed into the building through an
upstairs window and found approximately 2,700 pounds of marijuana.
The officers arrested Chavez-Barraza, Mirandized him, and
questioned him. Chavez-Barraza confessed that he had rented the
back to men who used it to store marijuana and that he had helped
to unload the drugs.
Chavez-Barraza was indicted by grand jury on one count of
possession with intent to distribute 1,256.54 kilograms of
marijuana, in violation of 21 U.S.C. § 841(a)(1), and one count of
maintaining an establishment for distributing marijuana, in
violation of 21 U.S.C. § 856(a)(2) & (b). Chavez-Barraza filed a
motion to suppress the evidence against him, which the district
court denied without making any factual findings. Chavez-Barraza
was tried by jury and convicted on both counts. The district court
sentenced Chavez-Barraza to 121 months on each count, to be served
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concurrently, and Chavez-Barraza timely appealed. We have
jurisdiction over this appeal under 28 U.S.C. § 1291 and 18 U.S.C.
§ 3742(a).
II.
On appeal, Chavez-Barraza argues that the district court erred
in denying his suppression motion because (1) the discovery and
seizure of the mortgage statement occurred outside the scope of
Chavez-Barraza’s consent; (2) the intervening event of Chavez-
Barraza’s second consent did not break the causal chain; and (3)
Chavez-Barraza’s second consent was involuntary. Because we find
that Chavez-Barraza’s second consent was voluntary, and that it
was an intervening act of free will, we assume without deciding
that the “seizure” of the mortgage statement was a constitutional
violation.
In reviewing a district court’s ruling on a motion to
suppress, “[w]e view the evidence in a light most favorable to the
prevailing party.” United States v. Maldonado, 472 F.3d 388, 392
(5th Cir. 2006). Generally, “[w]hen reviewing a ruling on a motion
to suppress, the court reviews questions of law de novo and
findings of fact for clear error.” United States v. Grant, 349
F.3d 192, 195 (5th Cir. 2003), cert. denied 540 U.S. 1227 (2004).
Because the district court here made no factual findings, this
court may “conduct a more searching review, [but] our analysis will
be guided by the testimony and other evidence adduced at the
suppression hearing.” United States v. Paige, 136 F.3d 1012, 1017
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(5th Cir. 1998). “Since findings were not made, we uphold the
ruling of the Trial Court if there is any reasonable view of the
evidence to support it.” United States v. Montos, 421 F.2d 215,
219 n.1 (5th Cir. 1970).
Generally, “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 the
constitutional violation.” United States v. Dortch, 199 F.3d 193,
200-01 (5th Cir. 1999).1 “Consent to [a subsequent] search may,
but does not necessarily, dissipate the taint of a [prior] fourth
amendment violation.” United States v. Chavez-Villarreal, 3 F.3d
124, 127 (5th Cir. 1993). “The admissibility of the challenged
evidence turns on a two-pronged inquiry: whether the consent was
voluntarily given and whether it was an independent act of free
will.” Id.
We first consider whether Chavez-Barraza’s second consent was
voluntary and conclude that it was.2 Chavez-Barraza was not in
1
Chavez-Barraza argues that because the district court
denied his motion to suppress without explanation, we should remand
for consideration of the “fruit of the poisonous tree” doctrine.
We decline to do so because the record is adequate to support our
review.
2
In evaluating the voluntariness of consent, this court
considers:
(1) the voluntariness of the defendant’s
custodial status; (2) the presence of coercive
police procedures; (3) the extent and level of
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custody at the time his second consent was requested; in fact,
Chavez-Barraza was only present at the Lettunich Street property
because he had chosen to accompany the officers when they left his
residence at Twig Road. These facts indicate that Chavez-Barraza
was voluntarily accompanying the officers and that his consent was
not brought about by coercion on the part of the police.
Furthermore, the circumstances under which the second consent
was obtained indicate that Chavez-Barraza was aware that he could
have declined to consent to the search. The officers searched the
front of the Lettunich Street residence based on the consent given
by Chavez-Barraza’s mother. When they discovered that they could
not reach the entire property from her residence, they then asked
Chavez-Barraza for his consent to search the back residence.
Furthermore, at the Twig Road search, Chavez-Barraza had limited
his consent to a search of the residence, a vehicle, and the
storage area. We conclude that Chavez-Barraza knew that he could
refuse consent and that the consent he gave was voluntary.
We now turn to consider whether Chavez-Barraza’s voluntary
consent was an independent act of free will. To determine whether
the defendant’s cooperation with the police;
(4) the defendant’s awareness of his right to
refuse to consent; (5) the defendant’s
education and intelligence; and (6) the
defendant’s belief that no incriminating
evidence will be found.
United States v. Shabazz, 993 F.2d 431, 438 (5th Cir. 1993)
(internal quotation omitted).
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the causal chain was broken between the presumed constitutional
violation and Chavez-Barraza’s consent, 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-Villarreal, 3 F.3d at
128.
Although the presumed violation and the second consent were
temporally close, the remaining two factors favor a finding that
Chavez-Barraza’s second consent was an independent act of free
will. After the search, Chavez-Barraza was given the option to
stay at Twig Road and chose to accompany the police to the
Lettunich Street property. Chavez-Barraza’s knowledge that he was
free to leave, coupled with his decision not to do so, indicate
that his subsequent consent was an independent act of free will.
Cf. United States v. Jenson, 462 F.3d 399, 407 (5th Cir. 2006)
(noting that there was “no evidence that ... [the defendant] knew
he was free to leave,” while rejecting the government’s argument
for a break in the causal chain).3
Furthermore, the violation here, if indeed a violation
occurred, was not flagrant. Chavez-Barraza does not dispute that
he gave the officers a broad written consent to search the Twig
Road residence for “contraband or other evidence of drug
3
Furthermore, Chavez-Barraza observed the officers request
and obtain his mother’s consent before searching her residence.
This should have indicated to Chavez-Barraza that the officers were
bound to respect his choice.
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trafficking,” but rather contends that his personal papers were not
included in the scope of that consent, and that Officer Triana
unlawfully seized the mortgage statement by placing it in his
pocket and carrying it outside. This conduct was “at worst a ...
minor and technical invasion of [Chavez-Barraza’s] rights.” United
States v. Sheppard, 901 F.2d 1230, 1235 (5th Cir. 1990). We
therefore conclude that Chavez-Barraza’s consent was an intervening
act of free will that broke the causal chain.
III.
The ruling of the district court denying Chavez-Barraza’s
motion to suppress and the judgment of conviction are therefore
AFFIRMED.
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