IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 18-40645

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

CHARLIE GUSTAVO HUERTA,

Defendant-Appellant

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 4:17-CR-64-1

Before KING, SOUTHWICK, and ENGELHARDT, Circuit Judges.

PER CURIAM:*

Charlie Gustavo Huerta was convicted, following a bench trial, of one 

count of possession with intent to distribute cocaine and cocaine base and one 

count of possession of a firearm, during, in relation to, and in furtherance of a 

drug trafficking crime. Huerta appeals the district court’s denial of his motion 

to suppress evidence seized from his motel room and his vehicle, arguing that 

such evidence was obtained via a search warrant which was inappropriately 

 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

May 7, 2019

Lyle W. Cayce

Clerk

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supported by observations made during an improper protective sweep in 

violation of the Fourth and Fourteenth Amendments. Specifically, Huerta 

contends that the protective sweep of his motel room exceeded the permissible 

bounds of a protective sweep in that no exigent circumstances existed to justify 

the warrantless entry into the room, no arrest was made in conjunction with 

the sweep, and the protective sweep went beyond merely looking for dangerous 

persons. 

Generally, and as proposed by Huerta, when reviewing a denial of a 

motion to suppress evidence, this court reviews factual findings for clear error 

and the ultimate constitutionality of law enforcement action de novo. United 

States v. Perez, 484 F.3d 735, 739 (5th Cir. 2007). However, where, as here, the 

motion to suppress was delegated to a magistrate judge, and the aggrieved 

party failed to file objections to the magistrate judge’s report and 

recommendation, despite being notified of the consequences of a failure to so 

object, our review is for plain error only. See Douglass v. United Servs. Auto. 

Ass’n, 79 F.3d 1415, 1420-23, 1428-29 (5th Cir. 1996), superseded by statute on 

other grounds, 28 U.S.C. § 636(b)(1). To establish plain error, Huerta must 

show (1) an error that has not been affirmatively waived (2) that is clear or 

obvious and (3) that affects his substantial rights. See Puckett v. United States, 

556 U.S. 129, 135 (2009). If he makes such a showing, we have the discretion 

to correct the error but will do so only if (4) it seriously affects the fairness, 

integrity, or public reputation of judicial proceedings. Id.; see also RosalesMireles v. United States, 138 S. Ct. 1897, 1904-05 (2018). Plain error is a 

“stringent and difficult” standard. United States v. Mendez, 885 F.3d 899, 908 

(5th Cir. 2018). In our review of the proceedings, we are not limited to the 

evidence presented at the hearing on the motion to suppress and may consider 

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the entire record. See United States v. Basey, 816 F.2d 980, 983 n.1 (5th Cir. 

1987).

We note initially that Huerta has not addressed the district court’s 

alternative ruling that even if probable cause had been insufficient, the 

evidence should not be suppressed because law enforcement acted in good faith 

reliance on the search warrant. Accordingly, Huerta has abandoned this issue 

on appeal. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993). 

Notwithstanding that the failure to address the district court’s alternative 

ruling constitutes sufficient grounds for affirmance, we address Huerta’s 

arguments. 

Exigent circumstances constitute an exception to the Fourth 

Amendment’s warrant requirement. Brigham City v. Stuart, 547 U.S. 398, 403 

(2006). In determining whether sufficient exigency existed to justify the 

search, we look to the totality of the circumstances. Missouri v. McNeely, 569 

U.S. 141, 149 (2013). We employ a non-exhaustive five-factor test to determine

whether exigent circumstances existed: “(1) the degree of urgency involved and 

the amount of time necessary to obtain a warrant; (2) the reasonable belief that 

contraband is about to be removed; (3) the possibility of danger to the police 

officers guarding the site of contraband while a search warrant is sought; (4) 

the information indicating that the possessors of the contraband are aware 

that the police are on their trail; and (5) the ready destructibility of the 

contraband and the knowledge that efforts to dispose of it and to escape are 

characteristics in which those trafficking in contraband generally engage.” 

United States v. Aguirre, 664 F.3d 606, 611 (5th Cir. 2011) (citation omitted). 

We will “not second guess the judgment of experienced law enforcement officers 

concerning the risks of a particular situation.” United States v. Menchaca-

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Castruita, 587 F.3d 283, 290 (5th Cir. 2009) (internal quotation marks and 

citation omitted). 

In this case, reviewing for plain error, we cannot say the warrantless 

entry into Huerta’s room was unreasonable. First, law enforcement was 

dispatched to the Motel 6 based on information that motel maids had seen 

drugs and a gun in Huerta’s room. Furthermore, this particular Motel 6 had a 

reputation for being a location for regular criminal activity and officers were 

regularly dispatched there on reports of illegal activity. It also would have been 

dangerous to officers guarding the site to stand by and wait while a search 

warrant was obtained. Together, these circumstances support a finding that

an exigency existed that justified a warrantless entry into the room. See

United States v. Silva, 865 F.3d 238, 242 (5th Cir. 2017); United States v. Jones, 

239 F.3d 716, 720-22 (5th Cir. 2001); United States v. Shannon, 21 F.3d 77, 81-

82 (5th Cir. 1994). Thus, the district court’s conclusion was not plainly 

erroneous. See Puckett, 556 U.S. at 135.

Moreover, the record supports a finding that the protective sweep 

following officers’ entry into Huerta’s room was properly limited in scope. See

Silva, 865 F.3d at 243-44; United States v. Mata, 517 F.3d 279, 286 (5th Cir. 

2008). The search lasted no longer than two minutes and was limited to only 

those places where an individual might hide, such as the bathroom, shower 

area, and closet. Furthermore, despite Huerta’s arguments to the contrary, a 

protective sweep need not always be incident to an arrest. United States v. 

Gould, 364 F.3d 578, 584 (5th Cir. 2004) (en banc), abrogated in part on other 

grounds by King, 563 U.S. at 461-70; see also Mata, 517 F.3d at 286. Thus, we 

find no error, plain or otherwise, in the district court’s denial of Huerta’s 

motion to suppress. Having found that the initial search of the motel room did 

not constitute a violation of Huerta’s Fourth Amendment rights, there is no 

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need to address Huerta’s arguments regarding the validity of a search warrant 

based upon information gathered from an allegedly illegal search.

Accordingly, the judgment of the district court is AFFIRMED.

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