885 F.3d 899 (5th Cir. 2018), 16-41057, United States v. Mendez

Docket Nº:16-41057
Citation:885 F.3d 899
Opinion Judge:KING, Circuit Judge:
Party Name:UNITED STATES of America, Plaintiff-Appellee v. Eligio San Miguel MENDEZ, Defendant-Appellant
Attorney:Eileen K. Wilson, Carmen Castillo Mitchell, Assistant U.S. Attorneys, U.S. Attorney’s Office, for Plaintiff-Appellee. Marjorie A. Meyers, Federal Public Defender, Michael Lance Herman, Assistant Federal Public Defender, Federal Public Defender’s Office, for Defendant-Appellant.
Judge Panel:Before KING, DENNIS, and COSTA, Circuit Judges.
Case Date:March 23, 2018
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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885 F.3d 899 (5th Cir. 2018)

UNITED STATES of America, Plaintiff-Appellee


Eligio San Miguel MENDEZ, Defendant-Appellant

No. 16-41057

United States Court of Appeals, Fifth Circuit

March 23, 2018

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Appeal from the United States District Court for the Southern District of Texas, John D. Rainey, U.S. District Judge

Eileen K. Wilson, Carmen Castillo Mitchell, Assistant U.S. Attorneys, U.S. Attorney’s Office, for Plaintiff-Appellee.

Marjorie A. Meyers, Federal Public Defender, Michael Lance Herman, Assistant Federal Public Defender, Federal Public Defender’s Office, for Defendant-Appellant.

Before KING, DENNIS, and COSTA, Circuit Judges.[*]


KING, Circuit Judge:

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Eligio San Miguel Mendez was one of the targets of a gang and narcotics investigation. Officers secured a search warrant for his residence but were unable to arrange for a SWAT team to assist them. As a result, they decided to wait for him to leave the residence before moving in for the search. Once he left, the officer leading the search directed nearby officers to stop his vehicle and detain him while the search was underway. The Government does not contest on appeal that the stop was in violation of Bailey v. United States, 568 U.S. 186, 133 S.Ct. 1031, 185 L.Ed.2d 19 (2013). After the officers detained Mendez, they found a revolver in his car. The search team later discovered ammunition and an empty Glock pistol case in the residence. Mendez was then arrested for being a felon in possession of a firearm and interrogated at a police station. He told officers where they could find the pistol, and he confessed to ownership of the firearms and ammunition. Before trial, Mendez moved to suppress all of the Government’s evidence, except for the ammunition found during the execution of the search warrant. The district court suppressed the revolver, but admitted the pistol and Mendez’s statements. Mendez was convicted following a jury trial of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). He now appeals the admission of the statements, arguing that they were tainted by the unlawful stop and search of his vehicle. We conclude that the connection between the unlawful stop and search and Mendez’s subsequent statements was sufficiently attenuated and AFFIRM Mendez’s conviction and sentence.


In January 2015, Special Agent Richard Russell of the Texas Department of Public Safety (" DPS" ) started investigating the Tango Corpitos gang in Corpus Christi. The investigation quickly led Russell to Eligio San Miguel Mendez. Russell discovered that Mendez had, in his words, " quite an extensive criminal history." During the investigation, Russell, working undercover, and a confidential source allegedly bought narcotics from Mendez on several occasions. Russell testified at the suppression hearing that Mendez sold narcotics from a property that was partially a mechanic shop and partially a residence. Mendez lived there with his father, girlfriend, and child.

Russell secured a search warrant for Mendez’s residence on February 18, 2015, which he planned to execute two days later. Russell had obtained a no-knock warrant based on information that Mendez was dangerous and " very unstable." Mendez was a suspect in a drive-by shooting, and Russell saw bullet holes in vehicles around his residence. Russell was also aware of Mendez’s extensive criminal history and believed that Mendez had firearms at the residence. At the suppression hearing, Russell testified that he tried to find a SWAT team to assist in the search. His efforts were ultimately unsuccessful. The DPS SWAT team was unavailable. Although the Corpus Christi Police Department’s SWAT team initially agreed to help, two of its members were shot the day before the search while executing a narcotics search warrant at another residence nearby.

Unable to secure a SWAT team, Russell instead decided to surveil Mendez’s residence and execute the warrant only once he had left. And so Russell parked his

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unmarked car across the street from Mendez’s residence at 8:30 in the morning on February 20. An entry team and two marked Corpus Christi police cars were stationed a short distance away, out of sight of the residence. Russell waited an hour and a half for Mendez to leave. During that time, he saw Mendez engage in what he believed, based on his training and experience, to be hand-to-hand drug transactions.

Mendez finally left the residence with his girlfriend around 10:00 a.m. As soon as Mendez left the residence, Russell told the entry team to move in and start the search. Russell then contacted the marked units and told them to stop Mendez. Russell immediately began to follow Mendez, who, according to Russell, " was moving pretty quick." Once the marked units caught up, Russell pulled over to the side and let them pass him. The marked units ultimately stopped Mendez less than one minute after he left his residence, roughly a half-mile away. Russell returned to the residence after he saw the marked units stop Mendez.

Officer Adam Thurman— one of the officers who stopped Mendez— testified at the suppression hearing. He explained that he stopped Mendez solely because Russell asked him to. He had not seen Mendez commit any traffic violations and had no reason to believe that he was carrying contraband. Nor was there any indication that Mendez was returning to the residence. Thurman knew, however, that DPS believed that Mendez was armed and dangerous, and he attended Russell’s pre-search briefing. After he stopped Mendez, Thurman frisked him and detained him in the back of Thurman’s vehicle. The officers detained Mendez’s girlfriend in a separate vehicle. Thurman then did a " security sweep" of Mendez’s vehicle. He opened a purse that he found on the floorboard in front of the passenger seat. Inside, he found an object wrapped tightly in a blue bandana. The object felt like a pistol or revolver, but Thurman did not unwrap the bandana or inspect the object. That object turned out to be a revolver, fully loaded with five rounds. During this time, Thurman asked Mendez for identifying information but did not question him about anything else.

Thurman drove Mendez back to the residence once it had been secured. During the search, officers discovered loose ammunition and an empty Glock pistol case.1 After officers completed the search, they transported Mendez to the DPS office, where they placed him under arrest and interrogated him.

Juan Hernandez, an agent of the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives (" ATF" ), interrogated Mendez along with DPS agent David Poland and testified at the suppression hearing. The agents advised Mendez of his

Miranda rights, which he agreed to waive. Hernandez testified that Mendez told officers that the revolver found in the vehicle belonged to him. Hernandez told Mendez that he had not been able to search the residence thoroughly and asked Mendez to tell him what the search team had found. According to Hernandez, Mendez told him that the search team should have found some ammunition and a Glock pistol. Based on Mendez’s statements, Russell and Hernandez returned to the residence to search for the pistol. Mendez’s father, who lived at the residence, consented in writing to the search. Russell and Hernandez quickly

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found the pistol, as well as additional rounds of ammunition, in the place Mendez told them it would be.

A grand jury returned a one-count indictment charging Mendez with being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). On June 10, 2015, the district court entered a scheduling order requiring all discovery to be completed within 20 days. Mendez filed his motion to suppress on September 1, 2015. He requested that the district court suppress any and all evidence and statements acquired during and as a result of the stop, including Mendez’s statements to Hernandez and Poland. He argued that the revolver, statements, and evidence found during the second search were all " fruit" of the unlawful stop and should be suppressed unless the Government could demonstrate attenuation. The district court held a suppression hearing during which the Government called three witnesses: Thurman, Russell, and Hernandez. Mendez called no witnesses. His counsel cross examined Thurman and Russell, but declined to cross examine Hernandez. The court took the matter under advisement and invited Mendez to submit supplemental briefing, which he did.

The court subsequently granted the motion in part and denied it in part. Specifically, the court held that the stop of Mendez nearly a half-mile from his home was unlawful under Bailey v. United...

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