* District Judge of the Southern District of Mississippi,

sitting by designation.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 92-8622

_____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee

versus 

ROBERT FRED ALVAREZ,

Defendant-Appellant

_________________________

Appeal for the United States District Court

for the Western District of Texas

_________________________

(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
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
-3-

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
-4-

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
-5-

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
-6-

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.