### IN THE UNI TED STATES COURT OFAPPEALS FOR THE FIF TH CIRCUIT

No. 11-10902 Summary Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee

v. MARK THOMAS ANTHONY, Defendant-Appellant

Appeal from the United States District Court for the Northern District of Texas USDC No. 3:10-CR-13-1

Before REAVLEY, JOLLY, and DAVIS, Circuit Judges. PER CURIAM: * Mark Thomas Anthony pleaded guilty to theft or receipt of stolen mail, but reserved his right to appeal th e denial of his motion to suppress evidence. Anthony contends on appeal that he was “seized” within the meaning o f th e Fourth Amendment as soon as the officers parked their patrol unit perpendicular to his vehicle, thereby preventing him from leaving the scene and

o rdering him to stand in front of the police unit. He asserts that th e o f f i c e r s

were not merely asking questio n s , b ut had “clearly exercised their authority over U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D Sep tem ber 7 , 20 12 Lyle W . Cayce Clerk

Purs uant to 5 TH C IR

. R. 47.5 , the court hasd ete rm inedthat this op inion sho uld not * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t forth in 5 T H C IR

. R. 47.5 .4. Case: 11-10902 Document: 00511978610 Page: 1 Date Filed: 09/07/2012No. 11-10902

[him] immediately upon their initial contact and he complied with their instructions.” Anthony points to Officer Drummond’s testimony that Anthony

was not free to leave once h e w a s dir e c t e d to stand in front of the police unit. Anthony contends that, contrary to the district c o urt’s findings, the initial encounter between him and the officers constituted a Terry stop. 1 When reviewing a denial o f a m otion 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) (citation omitted). Officer Campbell approached Anthony in a public parking lot to ascertain his identity while Officer Drummo n d stayed in the patrol car checking the vehicle’s registration. There was no testimony that the officers brandished their
weapons o r th at Anthony was handcuffed prior to being placed under arrest. There was also no testimony that Anthony was advised that he could not leave the area. Anthony is correct that the officers parked their unit perpendicular to his vehicle. However, contrary to Anthony’s asserti o n s , Officer Drummond testified that the unit w a s parked several feet away from Anthony’s and there

was still room for Anthony to leave, as well as “room for vehicles to pass between [them].” Further, Officer Drummond’s subjective i ntentions as to whether Anthony was free to leave once he was asked to stand in front of the police unit is not determinative of whether there was a seizure within the meaning of the Fourth Amendment. See United States v. Mask, 3 3 0 F

. 3 d 330, 336 (5th Cir. 2003). Given the totality of the circumstances, the officers’ conduct was not sufficiently coercive to transform the consensual encounter into a detention. See United States v. Drayton, 536 U.S. 194, 204-05 (2002); see also United States v. G a l b erth , 846 F.2d 983, 989 (5th Cir. 1988). Thus, the district court did not clearly err in finding that the initial encounter was not a seizure within the

Ter ry v. Ohio , 392 U. S. 1 (196 8). 1
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Fourth Amendment. See United States v. Hernandez , 279 F.3d 302, 306 (5th Cir. 2002). Nevertheless, ev e n if the district court’s finding was clearly erroneous, there was ample evidence in the record that the o f f i c e r s possessed reasonable suspicion sufficient to conduct an investigatory stop. The area the officers were patrolling was known to be a high crime area, parti c u l arly with regard to the burglary of vehicles. Anthony’s behavior was suspicious in that he was lying with his feet outside the vehicle and working under th e d a s hb o ard. Also, the officers observed another person standing nearby the vehicle. Anthony stresses the fact that he had been staying in the hotel for several months and compares the hotel to his residence. However, at the time of the stop, it was unknown to the officers whether Anthony was staying in the hotel or a transient involved in the perpetration of a crime. The particular and articulable facts, taken together with rational inferences from those facts, r e a s onably warranted the officers to conduct an investigatory stop. See United States v. Michelletti , 13 F.3d at 838, 840 (5th Cir. 1994) (en banc). Furth e r , th e a ctions taken by the officers were reasonable under the circu mstances and related to dispelling their belief whether they were witnessing a burglary in progress. See United States v. Brigham , 382 F.3d 500, 507 (5th Cir. 2004) (en banc). As such, the district court did not err in finding that the stop of Anthony by the officers was valid under Terry

. See id. at 506. Anthony challenges the district court’s finding that his girlfriend, Ashley Engel, had actual or apparent authority to consent to the search of his property, particularly the blue tote bag, and the seizure of car keys found in the hotel room in which she was also found. The ho t e l r o o m was rented in Engel’s name, she signed a consent for m giving the officers permission to search the entire premises of the one-room hotel room, the blue tote bag was found in plain view

on a shelving area that lacked doors, and there was no indication on the bag that it belonged to Anth o ny. Based on these circumstances, it was not clearly
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erroneous for the district court to find that Engel h a d actual or apparent authority to give consent to a search of the room, including the blue tote bag and keys. See Illinois v. Rodrig u ez , 4 9 7 U

. S. 177, 186 (1990); United States v. Navarro , 169 F.3d 228, 232 (5th Cir. 199 9). Finally, Anthony contends that, under the “fruit o f the poisonous tree doctrine,” evidence from the hotel room and statements he made to authorities should have been suppressed due to his unlawful detention and th e illegal search of his vehicle. The Governme nt c o ntends that although proper, the officers’ decision to impound and search Anthony’s vehicle is irrelevant because Engel’s voluntary consent to search the hotel room cures any taint of a prior Fourth Amendment violation. Anthony does not contest the district court’s finding that Engel’s consent

was voluntary. Consequently, we foc u s o n wh e ther the “consent was an independent act of free will;” in doing so we consider “1) the temporal proximity of the illegal conduct a n d the consent; 2) the presence of intervening circumstances; a n d 3 ) the purpose and flagrancy of the initial misconduct.” United States v. Jones, 234 F.3d 234, 243 (5th Cir. 200 0) (citation omitted). Even if the was a prior Fourth Am e ndment violation, Anthony is not entitled to relief. Engel did not witness the arrest of Anthony nor the search of his vehicle. Engel was approached by two officers and voluntarily consented to the search of the hotel room in which she was found. Further, the district court adopted the Government’s version of events which did not reflect any f l a gr a nt official misconduct. Th u s , b ased on the evidence presented at the hearing, E n gel’ s volunt ary consent dissipated the taint of any alleged Fourth Amendment violation regarding the search and sei z ur e o f Anthony’s truck. See Jones , 234 F .3d at 242; United States v. Richard , 994 F.2d 244, 252 (5th Cir. 1993). A s such, his argument that evidence seized f r o m the room should have been

su p p r e ssed as fruit of the poisonous tree fails. Because there was no Fourth Amendm e nt violation in connection with the seizure of the stolen mail,
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Anthony’s argument that the inculpatory statements h e m a de with respect to the stolen mail should be suppressed as “fruits of the poisonous tree” also fails. See United States v. Scroggins , 599 F.3d 433, 446 (5th Cir. 2010). Accordingly, the judgment of the district court is AFFIRMED.

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