IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-40085

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

MANUEL MONTEMAYOR,

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 2:15-CR-239-1

Before STEWART, Chief Judge, and CLEMENT and SOUTHWICK, Circuit 

Judges.

PER CURIAM:*

Manuel Montemayor entered a conditional guilty plea to being a felon in 

possession of a firearm and ammunition and was sentenced to 50 months in 

prison. He appeals the denial of his motion to suppress the evidence. He 

argues that the warrantless search of his truck and the backpack contained 

therein, which led to the discovery of the firearm and ammunition, was illegal 

 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

November 21, 2016

Lyle W. Cayce

Clerk

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No. 16-40085

2

because the third party who consented to the search, his wife, Monica 

Banuelos, did not have actual or apparent authority to do so.

When reviewing a denial of a motion 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). A finding is clearly erroneous only if the court is left with a “definite 

and firm conviction that a mistake has been committed.” United States v. 

Hernandez, 279 F.3d 302, 306 (5th Cir. 2002). This standard is particularly 

deferential where “denial of a suppression motion is based on live oral 

testimony . . . because the judge had the opportunity to observe the demeanor 

of the witnesses.” United States v. Gibbs, 421 F.3d 352, 357 (5th Cir. 2005)

(internal quotation marks and citation omitted). In addition, we view the 

evidence “most favorably to the party prevailing below, except where such a 

view is inconsistent with the trial court’s findings or is clearly erroneous 

considering the evidence as a whole.” United States v. Shabazz, 993 F.2d 431, 

434 (5th Cir. 1993).

Although warrantless searches are per se unreasonable under the 

Fourth Amendment, there are certain well-established exceptions to that 

warrant requirement. United States v. Guzman, 739 F.3d 241, 245-46 (5th Cir. 

2014). Voluntary consent provided by a person with authority to grant such 

consent is one such exception. United States v. Tompkins, 130 F.3d 117, 121 

(5th Cir. 1997). Valid consent from a third party, rather than from the person 

whose property was seized, requires proof that “the third party had either 

actual or apparent authority to consent.” United States v. Gonzales, 121 F.3d 

928, 938 (5th Cir. 1997), overruled on other grounds by United States v. 

O’Brien, 560 U.S. 218 (2010). 

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The district court found that the testimony set forth at the suppression 

hearing established that Banuelos had actual and apparent authority to 

consent to the search of the truck and the backpack. That finding was 

supported by the evidence that, inter alia, Banuelos was and remains 

Montemayor’s wife; Banuelos and Montemayor lived together at the address 

to which the officers responded; Banuelos claimed that the title was registered 

in her name, and the officers believed her, although that was later disproven; 

Banuelos was a co-owner of the truck since she signed the note to finance its 

purchase; Banuelos was a named insured on the automobile insurance policy;

Banuelos had operated the truck before when she needed to; the truck was 

parked in the driveway of the home occupied by Banuelos and Montemayor; 

Banuelos knew that Montemayor kept a gun in the backpack; Banuelos knew 

that Montemayor usually kept the backpack in their bedroom closet; 

Montemayor did not attempt to hide the backpack from Banuelos, either when 

it was inside the home or inside the truck; and Montemayor had not locked the 

truck during the altercation, had not locked it when the officers arrived, and 

did not request that it be locked when he was driven out of view of the truck.

In light of the foregoing, Montemayor has not demonstrated that the 

district court erred by concluding that Banuelos had authority to consent. See 

Gonzales, 121 F.3d at 938; Shabazz, 993 F.2d at 434. Consequently, the 

judgment is AFFIRMED.

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