Appeal
from the United States District Court for the Southern
District of Texas
Before
KING, DENNIS, and COSTA, Circuit Judges. [*]
KING,
CIRCUIT JUDGE.
Eligio
San Miguel Mendez was one of the targets of a gang and
narcotics investigation. Officers secured a search warrant
for his residence but were unable to arrange for a SWAT team
to assist them. As a result, they decided to wait for him to
leave the residence before moving in for the search. Once he
left, the officer leading the search directed nearby officers
to stop his vehicle and detain him while the search was
underway. The Government does not contest on appeal that the
stop was in violation of Bailey v. United States,
568 U.S. 186 (2013). After the officers detained Mendez, they
found a revolver in his car. The search team later discovered
ammunition and an empty Glock pistol case in the residence.
Mendez was then arrested for being a felon in possession of a
firearm and interrogated at a police station. He told
officers where they could find the pistol, and he confessed
to ownership of the firearms and ammunition. Before trial,
Mendez moved to suppress all of the Government's
evidence, except for the ammunition found during the
execution of the search warrant. The district court
suppressed the revolver, but admitted the pistol and
Mendez's statements. Mendez was convicted following a
jury trial of being a felon in possession of a firearm, in
violation of 18 U.S.C. § 922(g)(1). He now appeals the
admission of the statements, arguing that they were tainted
by the unlawful stop and search of his vehicle. We conclude
that the connection between the unlawful stop and search and
Mendez's subsequent statements was sufficiently
attenuated and AFFIRM Mendez's conviction and sentence.
I.
In
January 2015, Special Agent Richard Russell of the Texas
Department of Public Safety ("DPS") started
investigating the Tango Corpitos gang in Corpus Christi. The
investigation quickly led Russell to Eligio San Miguel
Mendez. Russell discovered that Mendez had, in his words,
"quite an extensive criminal history." During the
investigation, Russell, working undercover, and a
confidential source allegedly bought narcotics from Mendez on
several occasions. Russell testified at the suppression
hearing that Mendez sold narcotics from a property that was
partially a mechanic shop and partially a residence. Mendez
lived there with his father, girlfriend, and child.
Russell
secured a search warrant for Mendez's residence on
February 18, 2015, which he planned to execute two days
later. Russell had obtained a no-knock warrant based on
information that Mendez was dangerous and "very
unstable." Mendez was a suspect in a drive-by shooting,
and Russell saw bullet holes in vehicles around his
residence. Russell was also aware of Mendez's extensive
criminal history and believed that Mendez had firearms at the
residence. At the suppression hearing, Russell testified that
he tried to find a SWAT team to assist in the search. His
efforts were ultimately unsuccessful. The DPS SWAT team was
unavailable. Although the Corpus Christi Police
Department's SWAT team initially agreed to help, two of
its members were shot the day before the search while
executing a narcotics search warrant at another residence
nearby.
Unable
to secure a SWAT team, Russell instead decided to surveil
Mendez's residence and execute the warrant only once he
had left. And so Russell parked his unmarked car across the
street from Mendez's residence at 8:30 in the morning on
February 20. An entry team and two marked Corpus Christi
police cars were stationed a short distance away, out of
sight of the residence. Russell waited an hour and a half for
Mendez to leave. During that time, he saw Mendez engage in
what he believed, based on his training and experience, to be
hand-to-hand drug transactions.
Mendez
finally left the residence with his girlfriend around 10:00
a.m. As soon as Mendez left the residence, Russell told the
entry team to move in and start the search. Russell then
contacted the marked units and told them to stop Mendez.
Russell immediately began to follow Mendez, who, according to
Russell, "was moving pretty quick." Once the marked
units caught up, Russell pulled over to the side and let them
pass him. The marked units ultimately stopped Mendez less
than one minute after he left his residence, roughly a
half-mile away. Russell returned to the residence after he
saw the marked units stop Mendez.
Officer
Adam Thurman-one of the officers who stopped Mendez-
testified at the suppression hearing. He explained that he
stopped Mendez solely because Russell asked him to. He had
not seen Mendez commit any traffic violations and had no
reason to believe that he was carrying contraband. Nor was
there any indication that Mendez was returning to the
residence. Thurman knew, however, that DPS believed that
Mendez was armed and dangerous, and he attended Russell's
pre-search briefing. After he stopped Mendez, Thurman frisked
him and detained him in the back of Thurman's vehicle.
The officers detained Mendez's girlfriend in a separate
vehicle. Thurman then did a "security sweep" of
Mendez's vehicle. He opened a purse that he found on the
floorboard in front of the passenger seat. Inside, he found
an object wrapped tightly in a blue bandana. The object felt
like a pistol or revolver, but Thurman did not unwrap the
bandana or inspect the object. That object turned out to be a
revolver, fully loaded with five rounds. During this time,
Thurman asked Mendez for identifying information but did not
question him about anything else.
Thurman
drove Mendez back to the residence once it had been secured.
During the search, officers discovered loose ammunition and
an empty Glock pistol case.[1] After officers completed the
search, they transported Mendez to the DPS office, where they
placed him under arrest and interrogated him.
Juan
Hernandez, an agent of the U.S. Bureau of Alcohol, Tobacco,
Firearms and Explosives ("ATF"), interrogated
Mendez along with DPS agent David Poland and testified at the
suppression hearing. The agents advised Mendez of his
Miranda rights, which he agreed to waive. Hernandez
testified that Mendez told officers that the revolver found
in the vehicle belonged to him. Hernandez told Mendez that he
had not been able to search the residence thoroughly and
asked Mendez to tell him what the search team had found.
According to Hernandez, Mendez told him that the search team
should have found some ammunition and a Glock pistol. Based
on Mendez's statements, Russell and Hernandez returned to
the residence to search for the pistol. Mendez's father,
who lived at the residence, consented in writing to the
search. Russell and Hernandez quickly found the pistol, as
well as additional rounds of ammunition, in the place Mendez
told them it would be.
A grand
jury returned a one-count indictment charging Mendez with
being a felon in possession of a firearm, in violation of 18
U.S.C. § 922(g)(1). On June 10, 2015, the district court
entered a scheduling order requiring all discovery to be
completed within 20 days. Mendez filed his motion to suppress
on September 1, 2015. He requested that the district court
suppress any and all evidence and statements acquired during
and as a result of the stop, including Mendez's
statements to Hernandez and Poland. He argued that the
revolver, statements, and evidence found during the second
search were all "fruit" of the unlawful stop and
should be suppressed unless the Government could demonstrate
attenuation. The district court held a suppression hearing
during which the Government called three witnesses: Thurman,
Russell, and Hernandez. Mendez called no witnesses. His
counsel cross examined Thurman and Russell, but declined to
cross examine Hernandez. The court took the matter under
advisement and invited Mendez to submit supplemental
briefing, which he did.
The
court subsequently granted the motion in part and denied it
in part. Specifically, the court held that the stop of Mendez
nearly a half-mile from his home was unlawful under
Bailey v. United States, 568 U.S. 186, 199-200
(2013).[2] Accordingly, it suppressed the revolver
and the ammunition found therein. The district court reached
a different conclusion regarding Mendez's statements and
the evidence from the second search. It held that the
Government had demonstrated attenuation because Mendez's
lawful arrest for being a felon in possession of ammunition
was a "break in the chain of events from his detention
incident to the search warrant." Thus, the district
court did not exclude Mendez's statements or the evidence
found during the second search.
Mendez
was convicted following a jury trial during which excerpts
from his custodial interview were played. The district court
sentenced him to 84 months of incarceration and three years
of supervised release. Mendez now appeals the ruling on the
motion to suppress. He argues that the district court erred
by basing its finding of attenuation solely on his
intervening arrest. Although we conclude that the district
court likely erred by considering only Mendez's
intervening arrest, we nonetheless conclude that the
Government sufficiently demonstrated attenuation.
II.
The
parties disagree about the standard of review. On review of a
motion to suppress, we typically review the district
court's factual findings for clear error and its legal
conclusions de novo. See, e.g., United States v.
Hernandez, 670 F.3d 616, 620 (5th Cir. 2012). A factual
finding "is clearly erroneous if we are 'left with a
definite and firm conviction that a mistake has been
committed.'" Id. (quoting United States
v. Scroggins, 599 F.3d 433, 440 (5th Cir. 2010)). Where,
as here, the district court heard live testimony, our review
is particularly deferential. See, e.g., United
States v. Tovar, 719 F.3d 376, 384 (5th Cir. 2013).
"In addition to deferring to [] the district court's
factual findings, the court must 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.'" Scroggins, 599 F.3d at 440
(quoting United States v. Shabazz, 993 F.2d 431, 434
(5th Cir. 1993)). Thus, the ...