517 F.3d 279 (5th Cir. 2008), 06-40957, United States v. Mata

Docket Nº:06-40957.
Citation:517 F.3d 279
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Raymond MATA, Defendant-Appellant.
Case Date:February 11, 2008
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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517 F.3d 279 (5th Cir. 2008)

UNITED STATES of America, Plaintiff-Appellee,

v.

Raymond MATA, Defendant-Appellant.

No. 06-40957.

United States Court of Appeals, Fifth Circuit.

Feb. 11, 2008

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Mary Jane Harmon (argued), James Lee Turner, Asst. U.S. Atty., Houston, TX, for U.S.

Edward A. Mallett (argued), Mallett, Guiberson, Saper, Houston, TX, for Mata.

Appeal from the United States District Court for the Southern District of Texas.

Before JOLLY, CLEMENT and OWEN, Circuit Judges.

OWEN, Circuit Judge:

After police uncovered approximately 1,283 kilograms of marijuana and several firearms, Raymond Mata was indicted on four counts: (1) conspiracy to possess with intent to distribute more than 1,000 kilograms of marijuana in violation of 21 U.S.C. §§ 846, 841(a)(1) and 841(b)(1)(A); (2) possession with intent to distribute more than 1,000 kilograms of marijuana, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A); (3) conspiracy to maintain a drug involved premises in violation of 21 U.S.C. §§856(a)(2) and (b) and 846; and (4) knowingly using or possessing a firearm in relation to and in furtherance of a drug trafficking crime in violation of 18 U.S.C. §§ 924(c)(1)(A) and (B)(ii). The district court severed and dismissed counts 2 and 3, without prejudice to re-indictment in the District of Illinois. Mata's pre-trial motion to suppress evidence of the marijuana was denied. After a jury trial, Mata was convicted on Count 1 and acquitted on Count 4. Mata appeals the denial of his pre-trial motion. We affirm the trial court's denial.

I

Immigration and Customs Enforcement ("ICE") agents uncovered a tractor-trailer containing marijuana after a Pharr, Texas business notified police of suspicious behavior. The drugs were hidden within twenty wooden pallets containing Mexican pottery.

The ICE agents learned from the bill of lading that the pottery was destined for Chicago and decided they would attempt to make a controlled delivery to "Jim," the contact person named on the bill of lading. Undercover agents from the Pharr police department drove the truck to Illinois, and Chicago and Illinois police installed transmitting beacons within four of the pallets and parked the truck at a state police facility overnight.

The following morning, the undercover officers drove the truck to the address listed on the bill of lading, which was a Wal-Mart. The undercover officers called "Jim" at approximately 10:00 a.m. to ask for further instructions. "Jim" told the officers to wait. Soon after, the police surveillance team observed two vehicles

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approach the truck. The occupants exited and instructed the undercover officers to follow them to the delivery site, Ray's Auto and Truck Repair, owned by Mata and his wife. The undercover officers arrived at Mata's business at approximately 12:25 p.m. Undisputed testimony described Mata's business as a small lot enclosed by a cyclone fence with barbed wire and a gate, secured by a lock and chain. The lot contained numerous parked automobiles and a brick building with a door and garage door large enough to accommodate trucks.

The truck was admitted to the premises, and Mata and others assisted the undercover officers in unloading the truck inside Mata's garage. Mata signed the bill of lading, and the undercover officers left about 30 minutes after arriving. By this time, approximately twenty-five ICE agents and local police surrounded and surveilled Mata's garage. For approximately two hours, officers watched as numerous vehicles and unknown individuals came and went. Mata left his garage at approximately 2:00 p.m., after the controlled delivery was completed.

Between 2:30 and 2:45 p.m., police officers observed a white box truck preparing to leave Mata's garage. Officers testified that they believed the truck, which had been loaded in the garage, contained some or all of the marijuana. As the truck left Mata's business, the police, fearing the large amount of marijuana could be lost, gave the "take down" signal, quickly blocked traffic, turned on their emergency lights, identified themselves as police, and ordered the individuals standing outside the gate to stop. As the police approached, at least two men fled down the street and two more fled to the rear of the lot. The ICE agents and police were able to detain these fleeing individuals and arrested 7-10 men in total.

Immediately after the raid, special agent Glen Comesanas ordered a "safety personnel sweep" of the garage. At the suppression hearing, Comesanas testified that he was concerned that other suspects, who might be a danger to officers and passers-by, remained inside, but he admitted he had "no idea" one way or the other. At trial, Comesanas testified that roughly five to six officers entered the building to sweep likely hiding spaces. During the sweep, the officers did not find any individuals, but they saw substantial amounts of marijuana and firearms in plain view. After the sweep, the officers left the building, secured the perimeter, and awaited a formal search warrant that agents had attempted to secure that afternoon. This warrant never arrived.

At approximately 5:00 p.m., Mata and his wife arrived at the garage. Mata identified himself as the owner of the garage, and Agent Comesanas testified that Mata gave verbal consent for agents to search the business. Mata, however, refused to sign a "Consent to Search" form, and, according to Comesanas, said: "Maybe I should talk to my lawyer." Agent Comesanas told Mata that he was free to do so. Mata picked up his cell phone, scrolled through several phone numbers, but declined to make a call.

During this conversation, Mata' wife Julia entered the garage. She signed the consent form, at which point officers began searching Mata's garage. According to Agent Comesanas, Mata never withdrew his verbal consent nor did he object to his wife signing the consent form. The officers found marijuana throughout the garage and inside the white box truck. Officers attempted to open a safe but could not. Mata provided the combination and assisted officers in opening the safe. Inside the safe, officers discovered additional firearms. After the search the officers did

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not arrest Mata and at no time during the search was Mata under arrest.

On October 26, 2004, a grand jury returned a superseding indictment charging Mata and others with four counts. The district judge dismissed two of the counts for lack of jurisdiction but without prejudice to re-indictment in Illinois. Mata filed a pre-trial motion to suppress evidence, arguing that the search was warrantless, relied on legally invalid consent, or both. After a hearing, the district court denied the motion and found that (1) the police conducted a valid and legitimate protective sweep and (2) the Matas provided valid legal consent to the search.

After a jury trial, Mata was convicted of conspiracy to possess with intent to distribute more than 1,000 kilograms of marijuana in violation of 21 U.S.C. §§846, 841(a)(1) and 841(b)(1)(A) but acquitted of knowingly using or possessing a firearm in relation to and in furtherance of a drug trafficking crime in violation of 18 U.S.C. §§ 924(c)(1)(A) and (B)(ii). He was sentenced to 156 months in prison, five years supervised release, and fined. Mata timely appealed.

II

Mata contends that the district court erred in denying his motion to suppress evidence discovered during the officers' protective sweep and during the search conducted after Mata returned to his business. First, Mata argues that the Government's reliance on exigent circumstances and consent are pretextual efforts to save an illegal search conducted after they failed to obtain a search warrant. Specifically, Mata argues the Fourth Amendment's "protective sweep" exception is inapplicable here because he alleges the officers lacked any specific, articulable facts required under the exception. Additionally, Mata argues his consent was invalid, irrelevant, the fruit of the illegal seizure, and not free and voluntary. He also argues his wife's consent is invalid because the seizure of the marijuana occurred before she arrived. Finally, he contends that the firearms were the only evidence derived from consent, not the marijuana, and he was acquitted of the weapons charge.

The government contends that the officers' "safety personnel sweep" met a lawful exception to the Fourth Amendment. Thus, the officers lawfully seized the marijuana and firearms in plain view during the sweep. The government also contends that the firearms seized in the safe were seized pursuant to the free and voluntary consent of Mata and his wife.

In an appeal of a denial of a motion to suppress evidence, this Court reviews the District Court's legal conclusions de novo and its findings of fact for clear error.1 Whether consent to a warrantless search is voluntary is a finding of fact reviewed for clear error.2 The Court may affirm a district court's ruling on a motion to suppress on any basis established by the record.3

Warrantless searches are per se unreasonable under the Fourth Amendment, subject to a few specific exceptions.4 The government advances two such exceptions: first, that the initial search was valid because it was incident to arrest and, second,

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that the Matas consented to the search of their property.

A

We first consider the initial sweep of Mata's garage that discovered marijuana and weapons in plain view immediately after the 7-10 individuals were arrested outside the gate leading into the premises. There are three variations of the post-arrest exception potentially applicable...

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