### IN THE UNI TED STATES COURT OFAPPEALS FOR THE FIF TH 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 hi s 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 hi s m otion to suppress evidence (firearms, photographs, and incriminating statements). At issue is the lawfulness of th e search of Guevara’s vehicle, including his standing vel non to challenge the search of a stolen camera found in that vehicle. AFFIRMED. 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 Novembe r 2, 2 011 Lyle W . Cayce Clerk

Pursua nt to 5 T H C IR

. R. 47.5 , the court hasd ete rm inedthat this op inion s houldnot * 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: 10-50879 Document: 00511652900 Page: 1 Date Filed: 11/02/2011No. 10-50879 I. On 24 February 2010, police officers executed a search warrant at a store suspected of active ly taking in stolen electronics. As part of the operation, officers maintained the appearance of the store’s being o pen for business, because this provided the opportunity to gather i nf o r mation from any persons who entered. Guevara approached the door of the stor e ; a n d , as he entered, he was waved in by one of the officers and told , “we need to talk”. Ther e were eight to 12 officers in the store, all of whom wore police identification, but only two were in close proximity to Gueva r a . A s 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 inf o r m a tion 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 b e e n f u lly advised of his rights and understood he could refuse consent a n d withdraw it at any time. The officers searched Guevara’s vehicle and found, inter a l i a , a digital

camera which was turned off. The officers turned it on and began vi e w i n g 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 testif i e d a t 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 s u ppression-motion denial, our court reviews the “factual determinations for cl e ar error an d [th e] ulti m at e Fourth Am en d m e nt conclusions de novo”. E.g. , Uni t e d St a tes 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 polic e c a n 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 i s 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 def

i nit e 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 encounte r . . . was very clearly a consensual encounter”. United States v. Miguel Guevara , Order on Motio n to S up p re s s , No . 1:10-CR-224-1 (W.D. Tex. 27 May 2010). Guevara contends this finding was clearly erroneous be c a u s e : 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 th ese circumstances, Guevara contends the police have “convey[ed] a
m essage that compliance with their request is required” and, thus , no re a s o n ab l e person would “feel free to decline the officers’ request”. Florida v. Bostick , 501 U.S. 429, 4 3 5 , 4 3 7 ( 1 9 9 1 )

. O ur 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 w e a p on 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. 200 3). There is no evid ence 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 evi d e n ce shows officers told him he could not leave or threatened him in any way. Under the above fa ctors, 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) voluntari n e s s 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); U n ited 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 e rr o r . 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 discusse d , th e 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 evi d e n c e showing this finding is clearly

erroneous. Re gar din g Gu evar a’ s co op eration, 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 n o 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 searc h o f the camera foun d i n G u e v ara’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 s e ar c h

. The district court concluded Guevara lacked standing because he di d n o t 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 i s “o n e 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 o n e h a s no right to possess, such as contraband, United States v. Pringle , 576 F.2d 1114, 1 1 1 9 ( 5th Cir. 1978). Other circuits have ruled on situations more analogous to the one at han d

. Th e First Circuit held no legitimate expectation of privacy existed in the film of a camera defendant did not o w n . U

n i t e d 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 t o c hallenge the search of a camera and its film found in a vehicle he had sto len. 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 th ese cases are unavailing: that the search occurre d h u n dreds of miles from the border and that he exercised dominion ove r th e camera does not alter the analysis regarding any privacy expectation. Any expectation of privacy in the c a m e r a 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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