United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
August 16, 2007
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 06-10636
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
TINA MARIE DELAURIER,
Defendant-Appellant.
Appeal from the United States District Court for the
Northern District of Texas, San Angelo Division
No. 06:05-CR-043
Before HIGGINBOTHAM, GARZA, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Tina Marie DeLaurier was arrested and charged with being a
felon in possession of firearms in violation of 18 U.S.C. §
922(g)(1). She filed a motion to suppress the evidence against
her, claiming that it was obtained pursuant to an unconstitutional
seizure of her person and an unconstitutional search of her
vehicle. The district court held a suppression hearing and ruled
*
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this opinion should not be published and is not precedent except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.
against DeLaurier on all of her Fourth Amendment claims. DeLaurier
then pled guilty to a single count of being a felon in possession.
At sentencing, DeLaurier received the benefit of two points for
acceptance of responsibility, but the government had to expend time
and effort defending the suppression motion, the government did not
move for a third point. See U.S.S.G. § 3E1.1(b). The court
granted DeLaurier the two points and sentenced her to fifty-seven
months in prison, at the top of the guideline range. On appeal,
DeLaurier renews her Fourth Amendment challenges, and argues that
the district court erred in refusing to grant her a third
acceptance point. We AFFIRM.
When faced with a denial of a motion to suppress, we review
factual findings for clear error and Fourth Amendment conclusions
de novo. United States v. Gonzalez, 328 F.3d 755, 758 (5th Cir.
2003). We review the district court’s interpretation and
application of the Sentencing Guidelines de novo, and its factual
determinations for clear error. United States v. Charon, 442 F.3d
881, 887 (5th Cir. 2006).
We agree with the district court that DeLaurier’s Fourth
Amendment claims are meritless. Specifically, we find that the
initial encounter between DeLaurier and the police was consensual,
and that it did not escalate into a full arrest, or even a Terry
stop, until well past the time when the police had probable cause
to believe that a crime had occurred. The record reveals that an
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officer was helping DeLaurier get into her vehicle after she
explained that she had locked her keys inside. During their
conversation, he asked her some questions and requested to see her
identification, both of which are permissible during a consensual
encounter. United States v. Williams, 365 F.3d 399, 404 (5th Cir.
2004) (citing United States v. Drayton, 536 U.S. 194, 200–01
(2002)). As a result of those questions, the officer learned that
DeLaurier had been driving without a license, which then gave him
probable cause to effect an arrest. This probable cause existed
before any seizure or arrest took place. Additional facts in the
record make clear that the subsequent search of DeLaurier’s vehicle
was justified by the automobile exception, which allows police to
search a vehicle if they have probable cause to believe that the
vehicle contains contraband, provided that the car is “readily
mobile” and “found stationary in a place not regularly used for
residential purposes.” United States v. Fields, 456 F.3d 519,
523–24 (5th Cir. 2006) (citations and internal quotation omitted).
Finally, we are not persuaded by DeLaurier’s argument that the
district court erred in denying her a third point for acceptance of
responsibility. See U.S.S.G. § 3E1.1(b). Though that provision
speaks only of the prosecutor’s discretion to file the motion, the
government seems to concede that the federal courts have some
limited power to review it, if only to ensure that the decision is
not based on an unconstitutional motive, such as race or religion.
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See Wade v. United States, 504 U.S. 181, 185–86 (1992) (holding
same in context of motion for substantial assistance). Whatever
the precise limits of the government’s discretion, however, they
are not implicated where, as here, the government was forced to
spend considerable time and effort defending the motion to
suppress, and the defendant has not demonstrated an improper motive
behind the decision.
The judgment and sentence are AFFIRMED.
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