Andrew O. Wirmani, Esq., Assistant U.S. Attorney, U.S. Attorney's Office, Dallas, TX, for Plaintiff-Appellee.
Kevin Joel Page, Douglas Anthony Morris, Esq., Federal Public Defender's Office, Dallas, TX, for Defendant-Appellant.
Appeal from the United States District Court for the Northern District of Texas.
Before HIGGINBOTHAM, OWEN, and HIGGINSON, Circuit Judges.
HIGGINSON, Circuit Judge.
Albert Guzman was convicted, following a stipulated bench trial, of being a felon in possession of a firearm. He appeals the denial of his motion to suppress evidence. Because the district court expressly declined to make factual findings that may have had a determinative impact on the outcome of the suppression hearing, we vacate the conviction and sentence and remand for further findings to ascertain, inter alia, whether the police officer asked Guzman for consent to search his car.
FACTS AND PROCEDURAL HISTORY
On May 11, 2010, Dallas police officers Daniel Warren Foster and George Garcia arrived at a house in response to a tip that methamphetamines were being sold there. Guzman was sitting in the driver's seat of a tan 1998 Dodge Intrepid parked in the driveway. He exited the car when the officers approached. Foster testified at the suppression hearing that he " struck up a conversation" with Guzman, who was " very cooperative." Guzman said he was at the house to see a friend, and added that he had recently been released from prison. Foster told Guzman that the officers had received drug complaints regarding the house and had been told that buyers parked in the driveway.
According to Foster, he then asked Guzman if there were drugs in the car and whether he could search the car for drugs. Guzman said that Foster could search the car, that there were no drugs, but that there was a handgun in the car. According to Foster, Guzman did not seem " particularly" anxious, and he " said it was his dad's gun."  Foster searched the car and found a semiautomatic handgun under the driver's seat. The officers did not find drugs in the car or on Guzman's person.
Foster and Garcia took Guzman to the police car, read him his Miranda rights, and conducted a recorded interview. At some point, Foster and Garcia checked Guzman's criminal history and found that he had eight prior felony convictions. During the recorded interview, Guzman admitted to knowingly possessing the gun, said he had it for protection, and repeated that it was his father's. He said he had previously shot the gun " not at anyone but just shooting it off." Guzman said the car belonged to him and was given to him by his wife. Foster did not ask Guzman to " reaffirm" his consent to the search during the interview.
During the recorded interview, the following exchange took place:
Foster: Like I was saying, we have had ongoing complaints about drugs being sold out of this house, and you are sitting back here behind [it]. In particular there's buyers that are supposed to come and go from where you are sitting. We see you there. You know, we come and talk to you. And you are real cool. We ask you if there are any drugs in the car, and you tell us no, but there's a gun.
Guzman: Yeah, that's ... that's what I said, that's why I was honest with you, right, ...