IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-50879

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

MIGUEL GUEVARA,

Defendant - Appellant

Appeal from the United States District Court 

for the Western District of Texas 

USDC No. 1:10-CR-224-1

Before SMITH, BARKSDALE, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Pursuant to his conditional guilty-plea conviction for possession of a stolen

firearm, in violation of 18 U.S.C. § 922(j), Miguel Guevara challenges the denial

of his motion to suppress evidence (firearms, photographs, and incriminating

statements). At issue is the lawfulness of the search of Guevara’s vehicle,

including his standing vel non to challenge the search of a stolen camera found

in that vehicle. AFFIRMED. 

United States Court of Appeals

Fifth Circuit

F I L E D

November 2, 2011

Lyle W. Cayce

Clerk

 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.

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No. 10-50879

I.

On 24 February 2010, police officers executed a search warrant at a store

suspected of actively taking in stolen electronics. As part of the operation,

officers maintained the appearance of the store’s being open for business,

because this provided the opportunity to gather information from any persons

who entered.

Guevara approached the door of the store; and, as he entered, he was

waved in by one of the officers and told, “we need to talk”. There were eight to

12 officers in the store, all of whom wore police identification, but only two were

in close proximity to Guevara. As they had done with all others who entered,

these two officers asked Guevara for his name and date-of-birth in order to

conduct a warrant check. Guevara provided this information to them and no

warrants were found. On the other hand, the check revealed Guevara had been

arrested for burglary. 

The officers next asked for consent to search Guevara’s vehicle. Guevara

gave oral consent and then signed a written consent form, which stated he had

been fully advised of his rights and understood he could refuse consent and

withdraw it at any time. 

The officers searched Guevara’s vehicle and found, inter alia, a digital

camera which was turned off. The officers turned it on and began viewing the

stored photographs. The first officer examined them and saw none of Guevara.

The second officer viewed the photographs and recognized some of the

individuals in them. He telephoned one of the individuals and was advised her

home had been burglarized and her digital camera had been stolen. It was later

confirmed that the camera in Guevara’s vehicle was hers. 

This information, inter alia, led officers to find stolen firearms. Guevara

was indicted for possession of one or more stolen firearms. He moved to suppress

evidence (firearms, photographs, and incriminating statements) stemming from

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the claimed improper search of his vehicle, including of the camera. Both officers

who had obtained consent and searched the vehicle testified at the hearing on

the motion. 

In a detailed order, the motion was denied. United States v. Miguel

Guevara, Order on Motion to Suppress, No. 1:10-CR-224-1 (W.D. Tex. 27 May

2010). Guevara then entered into a plea agreement, conditioned on his reserving

the right to challenge the suppression-motion ruling. 

II.

Guevara contends: he was illegally detained by police; his consent was not

given voluntarily; he has standing to challenge the search of the camera found

in his vehicle; and the police exceeded the scope of his consent by searching the

camera. Therefore, according to Guevara, the subsequently found evidence was

“fruit of the poisonous tree”, e.g., United States v. Martinez, 486 F.3d 855, 864

(5th Cir. 2007), and must be suppressed. 

For a suppression-motion denial, our court reviews the “factual

determinations for clear error and [the] ultimateFourth Amendment conclusions

de novo”. E.g., United States v. Gonzalez, 328 F.3d 755, 758 (5th Cir. 2003)

(internal citations and quotation marks omitted). The evidence is viewed in the

light most favorable to the prevailing party. Id.

A.

Interactions with police can be classified in three categories: consensual

encounters, Terry stops, and arrests. E.g., United States v. Cooper, 43 F.3d 140,

145-46 (5th Cir. 1995). Guevara contends his encounter was not consensual but

rather a seizure, requiring at least reasonable suspicion. 

The district court’s determination of whether a seizure occurred is a

finding of fact, reviewed for clear error. United States v. Valdiosera-Godinez, 932

F.2d 1093, 1098 (5th Cir. 1991). “A finding is clearly erroneous when although

there is evidence to support it, the reviewing court on the entire evidence is left

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with the definite and firm conviction that a mistake has been committed.”

United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948). The district court

found: “The encounter . . . was very clearly a consensual encounter”. United

States v. Miguel Guevara, Order on Motion toSuppress, No. 1:10-CR-224-1 (W.D.

Tex. 27 May 2010). 

Guevara contends this finding was clearly erroneous because: police

waved him into the store–he claims they did so coercively–and told him “we need

to talk”; the store was small and contained around a dozen identifiable police

officers; Guevara was only 18-years-old; and he was questioned by two officers. 

Under these circumstances, Guevara contends the police have “convey[ed] a

message that compliance with their request is required” and, thus, no reasonable

person would “feel free to decline the officers’ request”. Florida v. Bostick, 501

U.S. 429, 435, 437 (1991).Our court examines the following non-exclusive factors

for determining whether a consensual encounter occurred: “(1) the threatening

presence of several police officers; (2) the display of a weapon by an officer; (3)

physical touching of the person of the citizen; and (4) the use of language or tone

of voice indicating that compliance with an officer’s request was compelled”.

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

There is no evidence weapons were brandished or officers touched

Guevara. Furthermore, only two officers talked with him; most of the remaining

officers were inventorying the store. Guevara was questioned the same way all

other individuals who had entered the store were questioned. No evidence

shows officers told him he could not leave or threatened him in any way. Under

the above factors, and viewing the evidence in the light most favorable to the

prevailing party, the consensual-encounter finding was not clearly erroneous. 

B.

Our court considers six factors when deciding the voluntariness vel non of

consent: (1) voluntariness of the custodial status; (2) coerciveness of the

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procedures employed; (3) the degree of cooperation with police; (4) awareness of

the right to refuse consent; (5) the individual’s education-level and intelligence;

and (6) the belief no incriminating evidence will be found. E.g., United States v.

Torres-Borunda, 269 F. App’x 431, 432-33 (5th Cir. 2008); United States v.

Shabazz, 993 F.2d 431, 438 (5th Cir. 1993). The district court’s ruling on consent

to search vel non is a finding of fact, reviewed for clear error. E.g., TorresBorunda, 269 F. App’x at 433; Shabazz, 993 F.2d at 438; United States v. Botello,

991 F.2d 189, 194 (5th Cir. 1993).

As discussed, the encounter was consensual and thus weighs in favor of

voluntary consent. Concerning procedures employed, the district court found: 

“[T]here is no evidence any coercive police procedures were used”. United States

v. Miguel Guevara, Order on Motion to Suppress, No. 1:10-CR-224-1 (W.D. Tex.

27 May 2010). Guevara fails to offer evidence showing this finding is clearly

erroneous. RegardingGuevara’s cooperation, no evidence is offered rebutting the

district court’s finding that he “cooperated fully”. Id. There is, also, no evidence

rebutting the finding that he was “clearly aware of his right to refuse consent”.

Id. Finally, Guevara offers no evidence relating to his belief incriminating

evidence would be found. Id. Guevara’s age and education level are not enough

to show the district court clearly erred in its voluntary-consent finding. 

C.

Nevertheless, the question remains whether the search of the camera

found in Guevara’s vehicle exceeded the scope of his consent to search that

vehicle. Before reaching that question, Guevara must, of course, have standing

to contest that search. The district court concluded Guevara lacked standing

because he did not lawfully possess the camera. Id. Such a conclusion is

reviewed de novo. E.g., Gonzalez, 328 F.3d at 758. 

The “capacity to claim the protection of the Fourth Amendment depends

. . . upon whether the person who claims the protection of the Amendment has

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a legitimate expectation of privacy in the invaded place”. Rakas v. Illinois, 439

U.S. 128, 143 (1978); United States v. Parks, 684 F.2d 1078, 1082 (5th Cir. 1982).

A subjective expectation of privacy is legitimate if it is “one that society is

prepared to recognized as reasonable”. Rakas, 439 U.S. at 143-44. 

Our court has held there is no legitimate expectation of privacy either in

a stolen vehicle, United States v. Langford, 838 F.2d 1351, 1353 (5th Cir. 1988),

or in articles one has no right to possess, such as contraband, United States v.

Pringle, 576 F.2d 1114, 1119 (5th Cir. 1978). Other circuits have ruled on

situations more analogous to the one at hand. The First Circuit held no

legitimate expectation of privacy existed in the film of a camera defendant did

not own. United States v. Hilton, 619 F.2d 127, 133 (1st Cir. 1980) (no

expectation of privacy if no possessory or proprietary interest in film). More

recently, the Sixth Circuit held defendant lacked standing to challenge the

search of a camera and its film found in a vehicle he had stolen. United States

v. Stamper, 91 F. App’x 445, 455-56 (6th Cir. 2004) (society would not recognize

such an expectation of privacy as legitimate). 

Guevara’s attempts to distinguish these cases are unavailing: that the

search occurred hundreds of miles from the border and that he exercised

dominion over the camera does not alter the analysis regarding any privacy

expectation. Any expectation of privacy in the camera and its stored

photographs–all of other people and none taken by him–would not be recognized

by society as reasonable. 

Accordingly, Guevara lacks standing to challenge the camera’s being

searched. Therefore, the scope of his consent for the search of the camera is not

in issue. 

III.

For the foregoing reasons, the judgment is AFFIRMED.

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