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. 08-50563

UNITED STATES OF AMERICA,

Plaintiff–Appellee,

v.

MANUEL MUNIZ,

Defendant–Appellant.

Appeal from the United States District Court 

for the Western District of Texas

USDC No. 1:07-CR-172-3

Before DAVIS, OWEN, and HAYNES, Circuit Judges.

PER CURIAM:*

Manuel Muniz appeals the district court’s evidentiary rulings involved in

his conviction for conspiracy to possess with intent to distribute

methamphetamine and conspiracy to possess with intent to distribute

cocaine. We affirm. 

United States Court of Appeals

Fifth Circuit

F I L E D

July 14, 2009

Charles R. Fulbruge III

Clerk
No. 08-50563

2

I

Muniz and eight other co-defendants were indicted for conspiracy to

possess with intent to distribute 500 grams or more of methamphetamine in

violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. The indictment alleged

that the conspiracy existed from June 2005 until the date of the indictment.

Subsequent to the first indictment, the Government obtained a superseding

indictment against Muniz only. This indictment charged him with conspiracy

to possess with intent to distribute 500 grams of cocaine and 500 grams of

methamphetamine and amended the period of conspiracy from an unknown date

in 2000 to October 4, 2007, the date Muniz was arrested. 

Before trial, Muniz filed a motion to suppress evidence of cocaine

possession collected during a 2001 traffic stop on the ground that the search was

conducted in violation of his Fourth Amendment rights. Muniz also filed a

motion to suppress evidence collected during a March 12, 2007 search of his

home on the ground that the search warrant was not supported by probable

cause. The district court held an evidentiary hearing and denied both motions.

At trial, the prosecution called six of Muniz’s alleged co-conspirators.

Three of them had been indicted in federal court (Mark Copeland, Danny Walton

and Andrew Harris) and two in state court (Aaron Condron and Christopher

Appleton). The sixth, Chad Regeon, was an unindicted co-conspirator

cooperating with the investigation.

Five of the six witnesses testified that Muniz sold them methamphetamine

or cocaine. Copeland testified that he bought small amounts of cocaine twice

from Muniz and a small amount of methamphetamine once. Walton testified

that he purchased a total of between one and one-and-one-half ounces of

methamphetamine from Muniz between November 2006 and January 2007.

Condron testified that he bought cocaine from Muniz until 2001 and

methamphetamine after Muniz returned from Iraq in 2005. Regeon and
No. 08-50563

3

Appleton likewise testified that they purchased both cocaine and

methamphetamine frequently.

Several cooperating witnesses also testified that they went with Muniz to

Austin to purchase methamphetamines from his supplier. Regeon testified that

he was with Muniz in Austin when Muniz closed a drug deal, although he did

not actually see the transaction occur. Regeon also claimed that Muniz told him

that on a trip the previous week, Muniz had tossed drugs wrapped in camouflage

out of the car because he believed a traffic stop was imminent. Regeon claimed

he and Muniz searched for the drugs on their way home from Austin. 

The Government also called six law-enforcement officers, including Special

Agent Raymond Rivera, Officer Ty Tully of the McCulloch County Sheriff’s

Department, and Lieutenant Brian Baxter. Rivera testified that he drove Muniz

to Austin after he was arrested in Brady and that, during the drive, he heard

Muniz state that Muniz knew he was being investigated and was the target of

a conspiracy case and that Muniz had someone checking for warrants. Officer

Tully testified to conducting a traffic stop of Muniz in 2001 during which Tully

discovered Muniz with five to six grams of cocaine, a small scale, and other

miscellaneous items. Muniz was arrested and charged with possession of

cocaine in Texas state court, but the charge was later dismissed. Officer Baxter,

who coordinated the investigation, chiefly testified about the fruits of the March

12, 2007 search of Muniz’s home. The search recovered evidence such as small

ziploc baggies, a manual for a digital scale, a military notebook containing

names and phone numbers of people Baxter was investigating, checks showing

cash withdrawals of $12,500, a letter from Muniz’s mom cautioning him about

getting a lawyer, various firearms, and an alleged “cutting agent” (a whitish

powder or crystalline substance). 

Muniz called six witnesses at trial. Four of these witnesses were National

Guard soldiers who served with Muniz in Iraq or participated in weekend
No. 08-50563

United States v. Brigham, 382 F.3d 500, 506 n.2 (5th Cir. 2004) (en banc). 

1

United States v. Ibarra, 493 F.3d 526, 530 (5th Cir. 2007). 2

 392 U.S. 1 (1968). 3

Id. at 19-20. 

4

4

training with him. They testified that they did not see Muniz use drugs in Iraq

or in training for deployment. Muniz also called Eric Ortega, his best friend, and

Kayla Guajardo, his girlfriend. Both said they had never seen Muniz use or deal

drugs. The Government then cross-examined Ortega and Guajardo concerning

Muniz’s prior arrests for assault, DWI, and evading arrest, among others. The

district court overruled Muniz’s objection to the cross-examination of Ortega but

Muniz did not renew his objection during the questioning of Guajardo. 

A jury convicted Muniz of conspiracy and the court sentenced Muniz to 235

months imprisonment. Muniz timely appealed.

II

When reviewing the denial of a motion to suppress, this court reviews

findings of fact for clear error and conclusions of law de novo. We consider all 1

the evidence at trial, “not just that presented before the ruling on the

suppression motion, in the light most favorable to the prevailing party.”2

A

Muniz argues that the district court erred when it denied his motion to

suppress the evidence of the 2001 traffic stop. Traffic stops are analyzed under

the framework set forth by the Supreme Court in Terry v. Ohio. Under Terry,

3

to comply with the Fourth Amendment, an officer’s action at a traffic stop must

(1) be justified at its inception and (2) reasonably relate in scope to the

circumstances which justified the stop. Regarding the second prong, this court 4

has previously held that a detention may not exceed the scope of the initial stop
No. 08-50563

United States v. Jenson, 462 F.3d 399, 404 (5th Cir. 2006). 5

United States v. Mask, 330 F.3d 330, 334, 337 (5th Cir. 2003). 

6

See United States v. Sanchez-Pena, 336 F.3d 431, 441 (5th Cir. 2003) (“So long as ‘a 7

reasonable person would feel free to decline the officers’ requests or otherwise terminate the

encounter,’ it is consensual.” (quoting United States v. Drayton, 536 U.S. 194, 202 (2002))).

United States v. Brown, 102 F.3d 1390, 1394-97 (5th Cir. 1996); see also Ohio v.

8

Robinette, 519 U.S. 33, 39-40 (1996) (holding that a rule requiring an officer to inform

detainees that they are free to go before a consent to search is deemed voluntary was

inappropriate and that instead “the proper inquiry necessitates a consideration of all the

circumstances surrounding the encounter” (citation and internal quotation marks omitted)).

5

unless additional reasonable suspicion arises in the course of the stop and before

the initial purpose of the stop has been fulfilled.5

Muniz concedes that Officer Tully’s initial stop was a valid traffic stop for

failure to properly signal a lane change but argues that Tully’s subsequent

questioning after the purpose of the traffic stop ended was an unreasonable

detention. The district court determined that Officer Tully’s questioning of

Muniz occurred during a consensual encounter and that the Fourth Amendment

did not apply. A district court’s determination that an exchange with a police

officer constitutes a consensual encounter, rather than a seizure implicating

Fourth Amendment protections, is a factual finding reversible only for clear

error.

6

After Officer Tully completed the warrants check and issued a warning

citation, he gave Muniz back his driver’s license. At this point, a reasonable

person would believe that the traffic stop had ended and that he would be free

to terminate the encounter. Contrary to Muniz’s contention, Officer Tully was 7

not required to inform Muniz that the legal detention had concluded. Although 8

Officer Tully thereafter immediately began to question Muniz to “take consent

or develop reasonable suspicion,” this follow-on questioning did not change the
No. 08-50563

See Sanchez-Pena, 336 F.3d at 443. 

9

 462 F.3d 399 (5th Cir. 2006). 10

 310 F.3d 336 (5th Cir. 2002). 11

 234 F.3d 234 (5th Cir. 2000). 12

 199 F.3d 193 (5th Cir. 1999). 13

See Jenson, 462 F.3d at 407; Santiago, 310 F.3d at 343; Jones, 234 F.3d at 243; 14

Dortch, 199 F.3d at 202. 

See Jenson, 462 F.3d at 402-03; Santiago, 310 F.3d at 338-39; Jones, 234 F.3d at 237- 15

38; Dortch, 199 F.3d at 195-96. 

6

consensual encounter into an illegal detention. The district court did not clearly 9

err in its determination that the post-Terry-stop questioning was a consensual

encounter. 

Muniz argues that our previous decisions in United States v. Jenson,

10

United States v. Santiago, United States v. Jones, and United States v. 11 12

Dortch require a different conclusion. But in each of these cases, the officers 13

failed to return a driver’s license taken in furtherance of the initial stop.14

Additionally, in each case the officers involved began their initial questioning of

the defendants before the traffic stop was complete and continued the same line

of questioning after the purpose for the initial traffic stop had been fulfilled.15

In contrast, Officer Tully returned all of Muniz’s paperwork, including his

driver’s license, and did not begin asking questions concerning suspected

narcotics activity until after the initial Terry stop had ended. Therefore, unlike

in Muniz’s cited cases, Officer Tully’s questioning and subsequent consensual

search did not illegally prolong the initial Terry stop.

Based on our conclusion that the questioning was not part of an illegal

detainment but rather a consensual encounter, we need only determine whether

Muniz voluntarily consented to the search of his person and vehicle. The
No. 08-50563

United States v. Mendenhall, 446 U.S. 544, 557 (1980) (citation omitted). 16

Jenson, 462 F.3d at 406. 17

7

question whether Muniz’s consent was voluntary or was the product of duress

or coercion, express or implied, “is to be determined by the totality of all the

circumstances and is a matter which the Government has the burden of

proving.” 

16

Voluntariness is determined by examining six separate factors: (1) the

voluntariness of Muniz’s custodial status; (2) the presence of coercive police

procedures; (3) the extent and level of Muniz’s cooperation with the police;

(4) Muniz’s awareness of his right to refuse consent; (5) Muniz’s education and

intelligence; and (6) Muniz’s belief that no incriminating evidence will be

found. The Government asserts, and Muniz does not contest, that Officer Tully 17

returned Muniz’s driver’s license and provided a warning citation, that Officer

Tully did not use any coercive police procedures, that Muniz cooperated with

Officer Tully, and that the tone of the conversation was subdued. Under these

circumstances, the district court’s determination that Muniz’s consent was

voluntary was not clearly erroneous. Accordingly, the district court properly

denied Muniz’s motion to suppress the evidence obtained during the 2001 traffic

stop. 

B

Muniz contends that the district court erred by failing to suppress the

evidence gathered during the March 2007 search of Muniz’s home because the

magistrate judge signing the warrant could not have had a substantial basis for

concluding that probable cause existed. “In considering a Fourth Amendment

challenge to a seizure conducted pursuant to a search warrant, we ask first

whether the seizure falls within the good-faith exception to the exclusionary
No. 08-50563

United States v. Davis, 226 F.3d 346, 350 (5th Cir. 2000). 

18

United States v. Cherna, 184 F.3d 403, 407 (5th Cir. 1999). 19

United States v. Leon, 468 U.S. 897, 922 (1984). 20

Id. at 922-923 (citation and footnotes omitted). 21

Id. at 923. 

22

Id. 

23

8

rule.” If the good-faith exception applies, “we end our analysis and affirm the 18

district court’s decision to deny the motion to suppress.”19

The Supreme Court has held that evidence obtained by officers in

objectively reasonable good-faith reliance upon a search warrant is admissible,

even though the warrant was unsupported by probable cause. “Nevertheless, 20

the officer’s reliance on the magistrate’s probable-cause determination and on

the technical sufficiency of the warrant he issues must be objectively reasonable,

and it is clear that in some circumstances the officer will have no reasonable

grounds for believing that the warrant was properly issued.” These 21

circumstances include when (1) the issuing-judge “was misled by information in

an affidavit that the affiant knew was false or would have known was false

except for his reckless disregard of the truth,” (2) the issuing-judge “wholly

abandoned his judicial role” in such a manner that “no reasonably well trained

officer should rely on the warrant,” (3) the underlying affidavit is “so lacking in

indicia of probable cause as to render official belief in its existence entirely

unreasonable,” or (4) the warrant is “so facially deficient . . . that the executing

officers cannot reasonably presume it to be valid.”22

Muniz contends that the good-faith exception is not available to

Lieutenant Baxter because the warrant was based on an affidavit “so lacking in

indicia of probable cause as to render belief in its existence entirely

unreasonable.” Muniz first argues that the information contained in the 23
No. 08-50563

See United States v. Freeman, 685 F.2d 942, 951 (5th Cir. 1982) (“Although probable 24

cause may exist at one point to believe that evidence will be found in a given place, the passage

of time may (without additional newer facts confirming the location of the evidence sought)

render the original information insufficient to establish probable cause at the later time.”). 

United States v. Alvarez, 451 F.3d 320, 332 (5th Cir. 2006) (quoting United States v.

25

Pena-Rodriguez, 110 F.3d 1120, 1130 (5th Cir. 1997)). 

United States v. Blount, 123 F.3d 831, 836 (5th Cir. 1997) (en banc). 

26

9

affidavit was stale.

While the temporal proximity of information in an affidavit affects the

probable cause inquiry, when “the information of the affidavit clearly shows a 24

long-standing, ongoing pattern of criminal activity” this court is “more tolerant

of dated allegations.” Baxter’s affidavit included information gleaned over the 25

six months he investigated Muniz before seeking a warrant. The warrant

included information from two identified and five confidential informants who

had dealings with Muniz involving the transportation and distribution of illicit

drugs. Baxter’s interviews of these informants occurred continuously over the

six-month period, the latest of which was nine days before Baxter sought the

search warrant. Based on the information provided by these informants alleging

continuous drug activity by Muniz, the district court did not clearly err in

determining that the information in the affidavit was not stale. 

Muniz also argues that the affidavit lacked probable cause because the

informants were unreliable. “There is no set requirement that all tips be

corroborated by subsequent police investigation in order to be considered

credible. Whether subsequent corroboration is necessary must be determined

in the light of the totality of the circumstances presented by the particular set

of facts.” 

26

Baxter’s affidavit included information describing both general and

specific incidents of drug trafficking, details of which were corroborated by

Baxter’s own investigative efforts, fellow officers, or other informants. Based on
No. 08-50563

United States v. Sumlin, 489 F.3d 683, 688 (5th Cir. 2007). 27

United States v. West, 58 F.3d 133, 141 (5th Cir. 1995) (quoting United States v.

28

Wells, 525 F.2d 974, 976 (5th Cir. 1976)). 

10

the information provided by seven informants and Baxter’s own investigation,

the district court did not clearly err when it determined that Baxter’s affidavit

was not so lacking in indicia of probable cause as to render good-faith reliance

on the warrant unreasonable. Accordingly, we conclude that the good-faith

exception applies and that the district court properly denied Muniz’s motion to

suppress the evidence obtained during the March 2007 search of his home. 

III

Muniz argues that the district court erred in permitting the Government

to cross-examine Muniz’s best friend, Eric Ortega, and his girlfriend, Kayla

Guajardo, regarding Muniz’s prior arrests. Because Muniz objected to the

questioning of Ortega, we review the district court’s decision to permit Ortega’s

cross-examination for abuse of discretion. There is a dispute as to whether 27

Muniz’s failure to object to the Government’s cross-examination of Guajardo in

the district court changes our standard of review from abuse of discretion to

plain error. We decline to decide this issue because regardless of the standard

applied, any error by the district court as to the cross-examination of Ortega or

Guajardo was harmless.

“[O]nce a witness has testified concerning a defendant’s good character, it

is permissible during cross-examination to attempt to undermine his credibility

by asking him whether he has heard of prior misconduct of the defendant which

is inconsistent with the witness’ direct testimony.” However, there are limits 28

on this type of cross-examination. “First, the government must have a good faith

factual basis for the alleged prior misconduct. Second, the incidents must be
No. 08-50563

Id. (footnote omitted).

29

See Huddleston v. United States, 485 U.S. 681, 685 (1988) (requiring courts to 30

examine first whether character evidence under Rule 404(b) is probative of material issues

other than character).

United States v. Hasting, 461 U.S. 499, 508, 510-11 (1983) (noting that “there can be 31

no such thing as an error-free, perfect trial” and denying reversal because the error was

harmless beyond a reasonable doubt).

11

relevant to the trial.” 

29

A review of the record reveals nothing in Muniz’s direct examination of

Ortega or Guajardo that provided grounds for the prosecutor to cross-examine

them about Muniz’s character. The defense’s questioning of these witnesses

focused solely on whether they had seen Muniz use or sell drugs. Neither Ortega

nor Guajardo expressed an opinion about Muniz’s character. The fact that

Ortega and Guajardo had a special relationship with Muniz does not, on its own

accord, open the door for the prosecution to cross-examine them about Muniz’s

prior offenses. 

The prosecution’s questions did not relate to any issue other than Muniz’s

character and fail the threshold inquiry under Federal Rule of Evidence 404(b).30

Therefore, the prior incidents are not relevant to the trial and the district court

erred in allowing the prosecution’s line of questioning. However, after reviewing

the entire record and the evidence against Muniz, we conclude that the jury

would have returned a guilty verdict against Muniz even without the prejudicial

testimony. Accordingly, the error was harmless. 

31

* * *

AFFIRMED.