IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-40018

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

RODOLFO HIRAM GONZALEZ-QUESADA,

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 5:14-CR-123

Before DAVIS, JONES, and GRAVES*, Circuit Judges.

PER CURIAM:**

Pursuant to a written plea agreement, Rodolfo Hiram Gonzalez-Quesada 

(Gonzalez) pleaded guilty to possession of a firearm by an illegal alien. He

reserved his right to appeal the denial of a motion to suppress evidence seized 

in a warrantless search of his home. On appeal, Gonzalez contends that, even 

 

* Judge Graves concurs in the judgment only.

** 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

October 8, 2015

Lyle W. Cayce

Clerk

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assuming that he and his wife Vilma consented to the search that revealed the 

gun, their consent was not voluntary.

We review factual findings and credibility determinations for clear error, 

and legal conclusions are reviewed de novo. United States v. Oliver, 630 F.3d 

397, 405 (5th Cir. 2011). Where, as here, the district court denied the motion 

based on live testimony at a hearing, review is particularly deferential. See id. 

We review the evidence in the light most favorable to the Government as the 

prevailing party. See id.

A warrantless search of a person’s home is presumptively unreasonable, 

and the Government must show that the search falls within an exception to 

the warrant requirement. United States v. Aguirre, 664 F.3d 606, 610 (5th Cir. 

2011). Consent is such an exception. Schneckloth v. Bustamonte, 412 U.S. 218, 

219 (1973). Whether consent was voluntary is a factual question determined 

under the totality of the circumstances. Id. at 227.

We recognize six factors relevant to voluntariness under the totality of 

the circumstances; none is alone dispositive. The factors are (1) the suspect’s 

custodial status; (2) coercive police procedures; (3) the suspect’s cooperation 

with the police; (4) the suspect’s awareness that he can refuse consent; (5) the 

suspect’s intelligence and education; and (6) the suspect’s belief that nothing 

incriminating will be found. See United States v. Jenkins, 46 F.3d 447, 451 

(5th Cir. 1995).

These are the pertinent facts found by the district court, and Gonzalez 

has not shown them to be clearly erroneous. United States Border Patrol 

agents ascertained that Gonzalez was in the United States illegally, and 

Gonzalez was arrested and handcuffed in his driveway. After asking Gonzalez 

if there were any illegal aliens, drugs, or weapons in the house, an agent 

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repeatedly asked Gonzalez if the agents could enter the house and “check for 

more people.” Each time he asked, Gonzalez said they could. 

Agents walked Gonzalez to his front door and had him call for his mother 

and his wife, Vilma. Vilma allowed the agents to come in. An agent asked 

Vilma if there were illegal aliens, weapons, or drugs in the home, and she said 

there was a gun in a bedroom. She then led agents to a lockbox on a shelf in 

the bedroom closet. With Vilma’s consent, agents opened the box and found an 

automatic pistol with magazine and ammunition.

The district court properly required the Government to prove voluntary

consent. Regarding the six factors as applied to Gonzalez, he was clearly 

arrested and in full custody of the agents. This factor weighs against 

voluntariness but is not alone conclusive. See United States v. Smith, 543 F.2d 

1141, 1146 (5th Cir. 1976). Nothing in record shows that the agents engaged 

in coercive conduct. Although an agent repeated his requests for consent, 

Gonzalez never refused, and the agent testified that he simply wanted to make 

it as clear as possible that Gonzalez was giving consent. Further, Gonzalez

was cooperative at all times.

Nothing conclusively shows that Gonzalez was aware of his right to 

refuse to consent, but this also is not determinative. See United States v. Davis, 

749 F.2d 292, 296 (5th Cir. 1985). Gonzalez’s previous “experience in the 

criminal justice system” served to offset any failure to advise him of his right 

to refuse consent. United States v. Ponce, 8 F.3d 989, 998 (5th Cir. 1993). 

Neither is there any suggestion that Gonzalez was lacking in intelligence or 

education. Finally, Gonzalez did not expect agents to find anything illegal, as 

shown by his saying, “El que nada debe nada teme,” which was translated as 

“The one that owes nothing has nothing to fear.” His “belief that no 

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incriminating evidence would be found supports the validity of the consent.” 

Davis, 749 F.2d at 296.

Vilma’s consent was also voluntary under the six factor test. Even if 

Vilma was “seized for Fourth Amendment purposes,” it is significant that she 

“was not in official custody when consent to search was given.” Ponce, 8 F.3d 

at 997. Nothing suggests that agents exerted any coercion on Vilma, and she 

was cooperative at all times. Whether she was aware that she could refuse 

consent is unclear but not determinative. See Davis, 749 F.2d at 296. Nothing 

suggests Vilma suffered from a lack of education or intelligence, and whether 

she knew at the time of the search that the gun was incriminating is not 

significant in the totality of the circumstances here.

Gonzalez fails to show that the district court clearly erred by finding that 

his consent and Vilma’s consent were voluntary. See Oliver, 630 F.3d at 405. 

The judgment is AFFIRMED.

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