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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-40070

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

DANIEL LONGORIA

Defendant-Appellant

Appeal from the United States District Court 

for the Southern District of Texas

USDC No. C-08-321

Before KING, BARKSDALE, and ELROD, Circuit Judges.

PER CURIAM:*

Convicted for possession of a firearm by a convicted felon, Daniel Longoria

contests the denial of his suppression motion. At issue is only the voluntariness

of his consenting to his home being searched, which led to the firearms’

discovery. AFFIRMED.

I.

The following facts were developed at the evidentiary hearing for

Longoria’s suppression motion. In May 2008, Texas Department of Public Safety

United States Court of Appeals

Fifth Circuit

F I L E D

March 15, 2010

Charles R. Fulbruge III

Clerk

Case: 09-40070 Document: 00511051802 Page: 1 Date Filed: 03/15/2010
No. 09-40070

2

Sergeants Rickel and Pauska set up surveillance outside a duplex in Corpus

Christi, Texas, looking for Adam Anderson, a fugitive, to execute on him a felony

arrest warrant for drug-related offenses. In addition, there was a pending

motion to revoke his probation. The Sergeants believed Anderson resided in the

upstairs apartment of that duplex. The Sergeants were also aware that

Longoria, whom the Sergeants believed to be acquainted with Anderson, resided

in the downstairs apartment and was a convicted felon (on parole) for possession

of a controlled substance. 

During their surveillance, the Sergeants observed a white male wearing

a baseball cap and driving a black pickup truck depart from the rear of the

duplex. Sergeant Rickel testified that the driver resembled Anderson, whom the

Sergeant had met the previous year. The Sergeants, in separate, unmarked

vehicles, decided to follow the truck. After they began doing so, the truck’s

driver accelerated and began driving recklessly, causing the Sergeants to believe

the driver was Anderson and was attempting to evade them. The Sergeants

eventually lost contact with the truck. Sergeant Rickel then decided to return

to the duplex. 

When he arrived there, Sergeant Rickel observed the same truck parked

in the driveway. A neighbor informed him that two people had run from the

truck into the downstairs apartment. Sergeant Rickel notified Sergeant Pauska

that the truck had returned to the duplex and also radioed for additional

Officers. Once Sergeant Pauska and other Officers arrived, all of the Officers

positioned themselves at the front and back doors of the downstairs apartment.

They knocked on both doors, identified themselves as state police, and ordered

that the door be opened. In addition, Sergeant Pauska shouted, “Adam, open the

door. We know you’re inside. Open the door or we’re going to come in and get

you”. (Emphasis added.) 

Case: 09-40070 Document: 00511051802 Page: 2 Date Filed: 03/15/2010
No. 09-40070

3

Longoria, whose first name is Daniel, not Adam, opened the back door of

the apartment, which led into a small kitchen area. The Officers observed both

Longoria and Andrea Nicole Mitchell in the kitchen. At this point, out of

caution, the Officers had drawn their weapons but were holding them to their

side, not pointing them at Longoria or Mitchell. Sergeant Rickel then ordered

them to lie down on the floor and asked where Adam (Anderson) was. Longoria

acknowledged he knew Anderson, but stated he was not in the apartment. The

Officers then asked Longoria whether anyone else was in the apartment.

Longoria responded: “No, there’s not. You can look if you want”. (Emphasis

added.)

As a result, the Officers entered and conducted a protective search to

ensure no one else was there. Neither Longoria nor Mitchell had been

handcuffed. During the search, Sergeant Pauska found a box labeled

ammunition within a clear container inside the bedroom closet, but he did not

then open the box. Next, Sergeant Rickel telephoned the Bureau of Alcohol,

Tobacco, Firearms, and Explosives (ATF) for assistance. When ATF Agents

arrived, the Officers and ATF Agents opened the above-referenced box and found

ammunition. In plain sight inside the closet, the Officers also found a clear bag

of methamphetamine. 

The Officers then asked Longoria’s permission to search for further

contraband. This time, however, Longoria refused to give either oral or written

consent. Sergeant Rickel then returned to his office to draft an affidavit in

support of a search warrant, while the other Officers remained with Longoria

and Mitchell in the apartment. Sergeant Rickel returned with a search warrant

and gave Longoria a copy, and the Officers asked him if he had any other

contraband. Longoria led the Officers to three firearms. 

Longoria was charged with one count of being a felon in possession of three

firearms, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). He filed a motion

Case: 09-40070 Document: 00511051802 Page: 3 Date Filed: 03/15/2010
No. 09-40070

4

to suppress evidence, claiming: his consent for the Officers to enter and search

his apartment was involuntary; and, therefore, the search violated his Fourth

Amendment rights. The court then held the above-referenced evidentiary

hearing to determine whether the consent was voluntary.

In denying Longoria’s suppression motion, the district court concluded that

the Government met its burden of proof with respect to the reasonableness of the

warrantless search. The court found, after considering the factors provided in

United States v. Jenkins, 46 F.3d 447, 451 (5th Cir. 1995), discussed infra, that

Longoria voluntarily consented to the Officers’ searching his residence without

a warrant. 

In finding his consent voluntary, the court found: when the Officers

knocked on Longoria’s door, they shouted, “Adam, open up”; and they did not

direct their command to Daniel Longoria. (As noted, the Officers knew Longoria

resided in the apartment.) Further, the court found that, once Longoria opened

the door, the Officers made no attempt to enter the apartment, nor did they even

request to do so. Instead, the court found that the Officers asked, “Where’s

Adam?”. The court found, by implication, that this confirmed to Longoria that

they were interested only in locating Anderson. Longoria then, without being

asked, gave the Officers permission to enter the apartment to determine no one

else was inside.

The court relied on its past experience with Longoria in determining that

he possessed sufficient education and intelligence to know of his right to decline

consent. The court also noted, as evidence of Longoria’s awareness of his right

to privacy and to refuse consent, the cameras Longoria had placed around his

home to secure it from the presence of others. As further evidence of this

awareness, the court noted that, after the Officers discovered the box of

ammunition and the bag of methamphetamine, Longoria refused consent to any

additional search of his apartment. The court acknowledged that the Officers’

Case: 09-40070 Document: 00511051802 Page: 4 Date Filed: 03/15/2010
No. 09-40070

5

ordering Longoria and Mitchell to lie on the floor appeared somewhat coercive

but stated that these actions were not so coercive as to force Longoria to give

consent to search the apartment.

Following the denial of his suppression motion, Longoria waived his right

to a jury trial and was convicted following a short bench trial on stipulated facts.

He was sentenced to, inter alia, 112 months’ imprisonment. 

II.

A warrantless search is presumptively unreasonable unless the search

falls into an exception to the Fourth Amendment’s warrant requirement. United

States v. Karo, 468 U.S. 705, 717 (1984). Needless to say, one well-settled

exception is a search conducted pursuant to consent. Schneckloth v. Bustamonte,

412 U.S. 218, 219 (1973). In challenging the denial of his suppression motion,

Longoria maintains his consent was involuntarily given as a result of the

Officers’ coercive tactics. (In other words, he does not claim he was seized, in

violation of the Fourth Amendment, inside his home. Nor does he claim the

conduct of the Officers, including the ATF Agents, exceeded the scope of any

consent that he might have given to locate Anderson.)

“When reviewing the district court’s denial of a suppression motion, we

review conclusions of law de novo and findings of fact for clear error; the

evidence is viewed in the light most favorable to the prevailing party.” United

States v. Gibbs, 421 F.3d 352, 356–57 (5th Cir. 2005). “[T]he question whether

consent to a search was in fact ‘voluntary’ or was the product of duress or

coercion, express or implied, is a question of fact to be determined from the

totality of all the circumstances”. Jenkins, 46 F.3d at 451 (quoting Schneckloth,

412 U.S. at 227) (alteration in original); see also United States v. Ponce, 8 F.3d

989, 997 (5th Cir. 1993) (citing United States v. Gonzales, 842 F.2d 748, 754 (5th

Cir. 1988)) (“As the district court’s resolution of the voluntariness issue is a

finding of fact, it is reviewed only for clear error.”). In that regard, if the

Case: 09-40070 Document: 00511051802 Page: 5 Date Filed: 03/15/2010
No. 09-40070

6

Government relies upon consent, it “has the burden of proving by a

preponderance of the evidence that consent was freely and voluntarily given”.

Ponce, 8 F.3d at 997 (citing United States v. Hurtado, 905 F.2d 74, 76 (5th Cir.

1990) (en banc)).

For determining whether, under the totality of the circumstances, consent

was given voluntarily, our court has enumerated six relevant factors: 

(1) the voluntariness of the defendant’s custodial status; (2) the

presence of coercive police procedures; (3) the extent and level of the

defendant’s cooperation with the police; (4) the defendant’s

awareness of his right to refuse to consent; (5) the defendant’s

education and intelligence; and (6) the defendant’s belief that no

incriminating evidence will be found. 

Jenkins, 46 F.3d at 451 (quoting United States v. Olivier-Becerril, 861 F.2d 424,

426 (5th Cir. 1988)). No one of these factors is dispositive. Id.

To hold the district court clearly erred in finding Longoria consented

voluntarily to the initial search of his home, our court must “on the entire

evidence [be] left with a firm and definite conviction that a mistake has been

committed”. United States v. Gomez-Moreno, 479 F.3d 350, 354 (5th Cir. 2007)

(quoting In re Missionary Baptist Found. of Am., Inc., 712 F.2d 206, 209 (5th Cir.

1983)). In other words, “[i]f the district court’s account of the evidence is

plausible in light of the record viewed in its entirety, the court of appeals may

not reverse it even though convinced that had it been sitting as the trier of fact,

it would have weighed the evidence differently”. United States v. Charon, 442

F.3d 881, 890–91 (5th Cir. 2006) (quoting United States v. Harris, 434 F.3d 767,

773 (5th Cir. 2005). 

A.

 To support his claim that the district court erred in making its findings

regarding consent, Longoria relies primarily on United States v. Morales, 171

F.3d 978 (5th Cir. 1999), in which our court held defendants did not voluntarily

Case: 09-40070 Document: 00511051802 Page: 6 Date Filed: 03/15/2010
No. 09-40070

7

consent to officers’ entry and search. Longoria’s reliance on Morales, however,

is misplaced. 

In Morales, Fort Worth police officers received an anonymous “911” call,

reporting that two Hispanic males were unloading cocaine from flatbed trucks

at Milagro’s Botanica. Id. at 980. Four officers arrived at the scene, but they did

not see any flatbed trucks or Hispanic males in the area. Id. After checking the

registration of a pickup truck parked in front of Milagro’s and, finding the

vehicle was registered to a man with a Hispanic surname, the officers proceeded

to investigate the warehouse behind Milagro’s, from which they heard loud

banging noises. Id.

Upon seeing two individuals opening crates inside the warehouse, the

officers began banging on the front door, and shouted, “Fort Worth Police: Open

the door”. Id. The Morales court stated that “[t]he loud banging on the door, the

tone of voice, its volume, and the authoritative manner unmistakably showed

that the officers issued an order as opposed to a request to open the door”. Id.

When one of the individuals inside the warehouse opened the door, the officers

“immediately rushed in with their weapons drawn and arrested the

[individuals]”. Id. at 981. Morales held that the individuals inside the

warehouse did not give voluntary consent for the officers to enter. Id. at 983.

Unlike the facts of Morales, the Officers standing outside Longoria’s

apartment did not make a categorical demand to whomever was inside to open

the door. Instead, the Officers shouted, “Adam, open the door”. In addition, they

did not rush inside immediately after the door was opened. When Longoria

opened the door, in contrast to Morales, the Officers remained outside the

apartment until Longoria gave them permission to enter. Based on these facts,

the Officers’ actions here do not closely resemble those in Morales.

Case: 09-40070 Document: 00511051802 Page: 7 Date Filed: 03/15/2010
No. 09-40070

8

B.

An examination of the six Jenkins factors for determining voluntariness

confirms that, under the totality of the circumstances, the district court did not

clearly err in finding Longoria’s consent voluntary.

1.

The first factor, the voluntariness of Longoria’s custodial status, cuts the

most strongly against finding voluntariness. Once the door was opened,

Longoria and Mitchell immediately were ordered onto the floor by Officers with

their weapons drawn. Further, the Officers had completely surrounded the

duplex and had even parked police vehicles on the front lawn of the duplex.

These actions do not indicate that Longoria’s custodial status was voluntary. As

previously stated, however, no one factor is determinative. 

2.

The second Jenkins factor, the presence of coercive police procedures, also

weighs against voluntariness. When the Officers ordered Longoria and Mitchell

on the floor, they did so while their weapons were drawn—but not pointed at

Longoria or Mitchell— after completely surrounding the duplex. As noted, the

district court stated that these actions seemed unnecessarily coercive.

On the other hand, it is quite understandable why the Officers would have

been extremely cautious. Indeed, when an officer is questioning an individual

at the side of a vehicle, the individual will often be asked to place his hands on

the hood of the vehicle to ensure the officer’s safety. Our court has previously

held that such precautions do not violate an individual’s Fourth Amendment

rights when an officer has a “reasonable, articulable suspicion that criminal

activity is afoot”. United States v. Jordan, 232 F.3d 447, 448 (5th Cir. 2000)

(citing Terry v. Ohio, 392 U.S. 1, 30 (1968)). Moreover, our court has also stated

that even handcuffing an individual does not automatically convert an

investigatory detention into an arrest requiring probable cause. Id. at 450

Case: 09-40070 Document: 00511051802 Page: 8 Date Filed: 03/15/2010
No. 09-40070

9

(citing United States v. Sanders, 994 F.2d 200, 206 (5th Cir. 1993)). Here,

neither Longoria nor Mitchell had been handcuffed. 

3. 

The third factor is the extent and level of Longoria’s cooperation with the

police. When the Officers began knocking on the door, they shouted, “Adam,

open the door”. As stated supra, this was not a categorical order that whomever

was inside must open the door. Rather this statement was targeted directly at

Anderson, whom the Officers believed to be inside. Yet, Longoria chose to

cooperate with the Officers and opened the door. Longoria also immediately

complied with the Officers’ instructions by lying on the floor. Further, as the

district court noted, by allowing the Officers to come inside his home to search

for Adam Anderson before they asked to do so, Longoria was fully cooperating

with the Officers. His cooperation with them, especially his offering to let them

search the apartment, strongly suggests Longoria was acting voluntarily.

4.

The fourth factor, Longoria’s awareness of his right to refuse consent,

weighs heavily in favor of finding voluntariness. Indeed, Longoria clearly

demonstrated his knowledge of this right by later refusing, as discussed above,

to allow the Officers to search his apartment further after they discovered the

box of ammunition. Moreover, the district court explained that, based on

Longoria’s prior appearances before that court, Longoria was familiar with the

criminal system and understood his right to refuse consent.

5.

The fifth factor concerns Longoria’s education and intelligence. The

district court found, based on its prior above-described experience with Longoria,

that he possessed sufficient education and intelligence to understand his right

to refuse consent. Nothing in the record disputes Longoria’s education and

intelligence were sufficient to understand this right.

Case: 09-40070 Document: 00511051802 Page: 9 Date Filed: 03/15/2010
No. 09-40070

10

6.

The last factor, Longoria’s belief that no incriminating evidence would be

found, also weighs in favor of voluntariness. Longoria’s weapons were not

discovered in the middle of his apartment. Nor were they even found during the

initial protective search. The box of ammunition found in the closet was inside

a clear plastic container. The Officers only discovered the box because it was

visible through that container. It is certainly possible that Longoria was

unaware the box of ammunition was in plain view. From the evidence in the

record, Longoria could have easily believed no incriminating evidence would be

found when the Officers searched the apartment for Anderson.

In sum, after considering the Jenkins factors, including reviewing the

evidence in the light most favorable to the Government, and based on the

totality of the circumstances, we are not left with a “firm and definite conviction

that a mistake has been committed”. See Gomez-Moreno, 479 F.3d at 354.

Therefore, the district court did not clearly err in finding Longoria’s consent was

voluntary.

III.

For the foregoing reasons, the judgment is AFFIRMED.

Case: 09-40070 Document: 00511051802 Page: 10 Date Filed: 03/15/2010