IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 3, 2008
No. 07-50465
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
ANTHONY TIJERINA
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:06-CR-192-1
Before KING, DeMOSS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Anthony Tijerina was convicted, following a jury trial, of possession with
intent to distribute cocaine and possession of a firearm by a person who is both
an unlawful user of and addicted to a controlled substance. Tijerina was
sentenced to concurrent sentences of 41 months of imprisonment and three years
of supervised release. He argues on appeal that the district court erred in
denying his motion to suppress the cocaine and firearms seized from his vehicle
and residence. Tijerina does not contest the legality of the initial traffic stop.
*
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should not be published and is not precedent except under the limited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.
No. 07-50465
However, he asserts that the search of his car violated the Fourth Amendment
because the officers did not have reasonable suspicion to justify a further
extension of the initial traffic stop. He contends that the Government failed to
offer evidence establishing the reliability of the confidential informant (CI) or
that the officers conducted independent police working linking him to criminal
activity prior to the traffic stop.
In reviewing a district court’s denial of a motion to suppress, we review the
district court’s findings of fact for clear error and its conclusions of law de novo.
United States v. Lopez-Moreno, 420 F.3d 420, 429 (5th Cir. 2005) (citation
omitted). We construe all facts in the light most favorable to the government as
the prevailing party. Id. The district court’s determination that the facts
provided reasonable suspicion is reviewed de novo. Id. at 430.
An investigative vehicle stop is permissible under Terry v. Ohio, 392 U.S.
1 (1968), only when the officer has a reasonable suspicion supported by
articulable facts that criminal activity may be afoot. United States v. Martinez,
486 F.3d 855, 861 (5th Cir. 2007). Although a “mere hunch” will not suffice, a
“reasonable suspicion” need not rise to the level of probable cause. Lopez-
Moreno, 420 F.3d at 430. To determine the propriety of such a stop, “[c]ourts
first examine whether the officer’s action was justified at its inception, and then
inquire whether the officer’s subsequent actions were reasonably related in scope
to the circumstances that justified the stop.” United States v. Brigham, 382 F.3d
500, 506 (5th Cir. 2004) (en banc) (citing Terry, 392 U.S. at 19-20).
“A tip, even an anonymous tip, may provide the reasonable suspicion
necessary to justify an investigatory stop.” United States v. Gonzalez, 190 F.3d
668, 672 (5th Cir. 1999) (citing Alabama v. White, 496 U.S. 325, 327-29 (1990)).
“Reasonable suspicion” may be based on information supplied by a confidential
informant if the information posesses “indicia of reliability.” United States v.
Roch, 5 F.3d 894, 898 (5th Cir. 1993); see also Adams v. Williams, 407 U.S. 143,
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No. 07-50465
147 (1972). Whether a tip provides a reasonable suspicion for an investigative
stop depends 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.
Martinez, 486 F.3d at 861 (citations omitted).
The district court determined that the information from the CI provided
a reasonable suspicion for an investigative stop of Tijerina’s vehicle, and we
agree. We find that the district court did not clearly err when it made the
following factual determinations regarding the CI: (1) the tip was not
anonymous, but was rather given by a CI who had been working with the police
for a week; (2) the CI had given the police information regarding other narcotics
activity during that week, the information was corroborated by the police, and
the police believed that information to be reliable; (3) the CI gave unsolicited
information to the police regarding Tijerina’s narcotics activity; (4) the CI
specifically identified Tijerina’s address, his two vehicles, and his picture, all of
which was corroborated by independent police work; (5) the CI told the police
that Tijerina was selling cocaine and that he was setting up a purchase; (6) the
CI participated in a controlled buy of cocaine from Tijerina with the assistance
of the police; (7) the police were present when the CI called Tijerina from a
payphone to initiate the controlled buy; and (8) the police witnessed Tijerina
leave his home and drive towards the location for the controlled buy immediately
after he received the phone call from the CI.
Based on these facts, we find that the police had a reasonable suspicion
that Tijerina was transporting cocaine in his vehicle, so the investigative vehicle
stop was constitutional. Furthermore, the police officers still harbored this
reasonable suspicion at the time they received consent from Tijerina to search
his vehicle. Officer Diaz’s questioning and request for consent to search was
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No. 07-50465
“reasonably related in scope to the circumstances that justified the stop.” See
Brigham, 382 F.3d at 506. Because we conclude that the investigative stop was
constitutional and that Tijerina’s consent was not tainted by a Fourth
Amendment violation, we decline to evaluate the facts of this case under our
“traffic stop” jurisprudence. See Lopez-Moreno, 420 F.3d at 430-31.
Tijerina also argues on appeal that the district court erred in its
determination that he voluntarily consented to the search of his vehicle and
residence. “This court considers six factors in evaluating the voluntariness of
consent to search, all of which are relevant, but no one of which is dispositive or
controlling.” United States v. Solis, 299 F.3d 420, 436 (5th Cir. 2002). The six
factors this court considers are the following:
(1) the voluntariness of the defendant’s custodial status; (2) the
presence of coercive police procedures; (3) the extent and level of the
defendant’s cooperation with the police; (4) the defendant’s
awareness of his or her right to refuse consent; (5) the defendant’s
education and intelligence; and (6) the defendant’s belief that no
incriminating evidence will be found.
Id. at 436 n.21 (citation and internal quotation marks omitted). Because the
investigative stop was constitutional, it is unnecessary to determine whether
Tijerina’s consent was an “independent act of free will.” See United States v.
Khanalizadeh, 493 F.3d 479, 484 (5th Cir. 2007) (citing United States v. Jenson,
462 F.3d 399, 407 (5th Cir. 2006)). The district court made specific findings
concerning all six factors when determining that Tijerina’s consent to search his
vehicle and residence was voluntary. Based on the district court’s credibility
determination, and because there are sufficient facts to support consent, there
is no clear error. See Solis, 299 F.3d at 436-37; United States v. Estrada, 459
F.3d 627, 634 (5th Cir. 2006)
Accordingly, the judgment of the district court is AFFIRMED.
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