IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 92-8622
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UNITED STATES OF AMERICA,
Plaintiff-Appellee
versus
ROBERT FRED ALVAREZ,
Defendant-Appellant
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Appeal for the United States District Court
for the Western District of Texas
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(October 22, 1993)
Before POLITZ, Chief Judge, HIGGINBOTHAM, Circuit Judge and
PICKERING*, District Judge.
PICKERING, District Judge, for the Court.
Appellant Alvarez was convicted in the district court below of
being a previously convicted felon in possession of a firearm in
violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1). The district
court imposed a 235 month term of imprisonment, a 5 year term of
supervised release, and a $50 special assessment.
Prior to trial, Alvarez filed a motion to suppress a gun
seized from a garment bag found in the motel room in which he was
arrested. On appeal, Alvarez contends that the district court
erred in finding that he lacked standing to contest seizure of the
*
District Judge of the Southern District of Mississippi,
sitting by designation.
garment bag and denying his motion to suppress.
On May 21, 1991, police officers of the City of El Paso,
Texas, obtained a parole violator's warrant for Robert Fred
Alvarez. Prior to that date, Alvarez had been spotted driving a
beige 1971 Pontiac Station wagon bearing Texas license plate number
668 XGA. That vehicle was found parked in front of Room 116 at the
All Star Motel at Lomaland and Gateway West in the City of El Paso
at approximately 10:00 A.M. on the morning of May 21 by Officer
Talamentes of the El Paso police department. Talamentes checked
the registry for room 116 and found it registered to "Catherine
James". Alvarez was not registered for any room at the motel.
Thereafter, Talamentes, with the assistance of other officers, set
up surveillance of room 116.
At approximately 11:15 A.M., Alvarez appeared at the open
doorway of room 116. Several minutes later, with Alvarez still
standing at or near the open doorway, Officer Talamentes, Detective
Holland, with other units of the El Paso police department backing
them up, approached Alvarez and informed him he was under arrest.
According to the testimony of Talamentes at the suppression hearing
and at trial, he approached Alvarez at or near the open doorway and
announced, "Police, freeze, you're under arrest!", at which time
Alvarez backed away from the door toward the interior of room 116.
Talamentes and Detective Holland then effected the arrest of
Alvarez by placing him face down on the bed and handcuffing him.
A female, Linda Humble, was also in room 116 at the time of
the arrest of Alvarez. She was removed from the room and placed
under the control of Officer Woodall. Woodall testified at the
suppression hearing that Humble told him the only items in the room
which belonged to her were her purse and a leather jacket and that
everything else belonged to Alvarez. She was allowed to retrieve
her purse and jacket and then was escorted to the police station to
give a statement and then was taken home.
Among the other items in room 116 was a garment bag hanging in
an unenclosed closet area near the bathroom and a gym bag and
numerous items of what appeared to be men's clothing scattered
about. Talamentes and Holland testified at the suppression hearing
and at trial that Alvarez stated that he had nothing in the room,
that everything belonged to his "old lady", and appeared anxious to
leave the room. A police supervisor instructed Holland and
Talamentes to secure the items in the room and take them to the
police station. Holland noticed a bulge in the garment bag and
upon closer inspection discovered a .38 caliber pistol, which the
indictment later charged Alvarez with possessing. At the
suppression hearing, Alvarez testified that the garment bag did not
belong to him. The district judge denied Alvarez's motion to
suppress the pistol as evidence based on Alvarez's abandonment of
the garment bag and thus his lack of standing to assert a privacy
interest therein. We affirm.
This Circuit's standard of review for a motion to suppress
based on live testimony at a suppression hearing is to accept the
trial court's factual findings unless clearly erroneous or
influenced by an incorrect view of the law. United States v.
Muniz-Melchor, 894 F.2d 1430 (5th Cir. 1990), cert. denied, 495
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U.S. 923, 110 S.Ct. 1957, 109 L.Ed.2d 319 (1990)(quoting U.S. v.
Maldanado, 735 F.2d 809, 814 (5th Cir. 1984). The trial court's
conclusions of law on a motion to suppress are reviewed de novo by
this court. See United States v. Richardson, 943 F.2d 547 (5th
Cir. 1991). "Furthermore, we view the evidence in the light most
favorable to the prevailing party." United States v. Piaget, 915
F.2d 138, 140 (5th Cir. 1990)(quoting United States v. Reed, 882
F.2d 147, 149 (5th Cir. 1989)). See also, United States v.
Lanford, 838 F.2d 1351 (5th Cir. 1988). In reviewing a ruling on
a motion to suppress, this Court views the evidence taken at trial
as well as the evidence taken at the suppression hearing. United
States v. Rideau 969 F.2d 1572 (5th Cir. 1992) (en banc).
"Only those persons whose privacy is invaded by a search have
standing to object to it under the exclusionary rule codified in
Rule 41(e), Fed.R.Crim.P." United States v. Colbert, 474 F.2d 174,
176 (5th Cir. 1973). "Further, it is settled law that one has no
standing to complain of a search or seizure of property he has
voluntarily abandoned." Id., (other citations omitted).
It is clear that the abandonment must be voluntary and not
influenced by improper police conduct. See, United States v. Beck,
602 F.2d 726 (5th Cir. 1979); United States v. Maryland, 479 F.2d
566 (5th Cir. 1973); and United States v. Colbert, supra. The
legal presence of the police for investigatory purposes or pursuit
does not render an abandonment involuntary. United States v.
Colbert 474 F.2d at 176. Further, a lawful arrest does not amount
to such compulsion so as to render an otherwise voluntary
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abandonment involuntary. United States v. Maryland, 479 F.2d at
568.
To support his argument that the Court need never reach the
question of standing, Alvarez challenges his arrest claiming that
the police had no authority to enter the motel room to effectuate
the arrest based on only a parole violator's warrant and when they
did so, it violated his legitimate expectation of privacy therein.
See Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387
(1978). See also, Payton v. New York, 445 U.S. 573 (1980).
However, the testimony at the suppression hearing and at trial is
clear that Alvarez was at or near the open doorway of room 116
(within three feet) when the police arrived, and upon their
announcement that he was under arrest, he (Alvarez) backed into the
room and was handcuffed lying face down on the bed. Appellant has
not seriously questioned that the parole violator's warrant was
entirely valid. He has only questioned how the police executed the
warrant. However, Alvarez' version of the arrest incident is
simply not supported by the record.
Appellant's reliance on Minnesota v. Olson, 495 U.S. 91, 110
S.Ct 1684, 109 L.Ed.2d 85 (1990), which held that an overnight
guest in another person's house has a legitimate expectation of
privacy therein, is also misplaced. Olson dealt with a warrantless
arrest of a person, not the seizure of an object which the suspect
had denied owning. The police herein did not enter the motel room
without a warrant based on exigent circumstances as claimed in
Olson. They saw Alvarez in the door, approached him with a valid
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arrest warrant, and executed same. The arrest was lawful. Therefore
the voluntariness of Alvarez' abandonment of the hanging clothes
bag was not tainted by any illegal or improper act by the police in
executing the arrest warrant.
The facts before the district judge at the suppression hearing
support his conclusion that Alvarez voluntarily abandoned the
hanging garment bag and thus had no standing to object to the
search thereof. The district judge's factual findings were not
clearly erroneous nor did he misapply the law.
This matter having been decided on the basis of the standing
of Alvarez to object to the search of the garment bag, the court
does not find it necessary to discuss the appellant's contention
that the search of the garment bag was not incident to an arrest,
or appellee's contention that the search was a valid inventory
search. These issues are left for another day in an appropriate
setting.
For the foregoing reasons, the judgment and conviction of the
district court is AFFIRMED.
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