United States Court of Appeals Fifth Circuit F I L E D REVISED August 13, 2007 May 16, 2007 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk
No. 05-41369
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
RAUL JAVIER STEVENS; ALEJANDRO STEVENS
Defendants - Appellants
Appeals from the United States District Court for the Southern District of Texas, Brownsville
Before KING, GARZA, and PRADO, Circuit Judges.
KING, Circuit Judge:
Defendants-appellants Alejandro Stevens and Raul Stevens
challenge their convictions and sentences resulting from the
discovery by law enforcement agents of approximately 300 pounds
of marijuana in the backyard shed of the house in which they
resided. Because Alejandro Stevens pleaded guilty and failed to
preserve the right to appeal the district court’s pretrial denial
of his motion to suppress, we AFFIRM his conviction and sentence.
We also AFFIRM Raul Stevens’s conviction and sentence, concluding
that the district court correctly denied Raul Stevens’s motion to
suppress, that Raul Stevens may not raise an ineffective assistance of counsel claim on direct appeal, and that the
district court did not commit Booker error in imposing his
sentence.
I. FACTUAL AND PROCEDURAL BACKGROUND
In the course of investigating narcotics smuggling activity
in Brownsville, Texas, Special Agent Robert Mossman of the U.S.
Immigration and Customs Enforcement (“ICE”) became aware of a
plan to transport approximately 300 pounds of marijuana out of
Brownsville. A confidential informant working with ICE agents
had two meetings with a woman named Johanna Espinosa in which
Espinosa and the informant made arrangements for the informant to
transport the marijuana. ICE agents observed the meetings and
listened to the conversations at the meetings through a wire worn
by the informant. The first meeting, during which Espinosa
phoned “George” and then “Raul” for information, revealed that
the informant would be driving the marijuana to Georgia and that
he would be paid $10,000 for the job.
A second meeting occurred the next day when the informant
met Espinosa and another man, George, to finalize the
arrangements for transporting the marijuana. The informant
brought empty produce boxes in which to pack the marijuana for
transport. After meeting with Espinosa, George and the informant
left the second meeting together in the informant’s car, with
George driving. As George drove the car, he engaged in erratic
-2- driving, or “heat runs,” where he made quick U-turns and pulled
into driveways and parking lots to see if he was being followed.
After about forty minutes of heat runs, George and the informant
met two men in a Ford Expedition in a supermarket parking lot.
The identity of the driver of the Expedition was unknown; he was
later identified as defendant-appellant Alejandro Stevens.
Alejandro Stevens assisted George and the informant in
transferring the produce boxes from the informant’s car to the
Expedition. The boxes were to be taken to the marijuana stash
house to be loaded with the marijuana.
After loading the boxes into the Expedition, George and the
informant returned to the original meeting location with
Espinosa, again engaging in heat runs along the way. Espinosa
confirmed that the boxes were being taken to the stash house for
loading, and she told the informant that she would call him when
the boxes were loaded. Meanwhile, ICE agents followed the
Expedition, which eventually arrived at 2994 Dana (the “Dana
house”) in Brownsville, Texas, after engaging in heat runs.
Agents believed that the marijuana was located at the Dana house
and would be loaded into the empty produce boxes. A surveillance
team directed by Agent Mossman watched the Dana house from
several locations, including the side of the house, an alley
behind the house, and a school across the street. That night,
the surveillance team observed people going back and forth from
the house to a shed in the backyard. Agent Mossman terminated
-3- the surveillance at 9:30 p.m. that night.
Agent Mossman’s team of agents planned to attempt to gain
consent to search the home the following morning at 9:00 a.m.
Surveillance agents arrived at the house around 8:00 a.m. and
notified the “consent team” before 9:00 a.m. that three people
had left the house in the Expedition. The surveillance team did
not know at the time who was in the car, but they later learned
that the driver was defendant-appellant Raul Stevens and that the
two passengers were Raul Stevens’s daughter and defendant-
appellant Alejandro Stevens, his adult son. Raul Stevens dropped
off his daughter at a local college. While the surveillance team
followed the Expedition, the consent team, including Agent
Mossman, arrived at the house to attempt to gain consent. Agents
believed that there was someone in the house because there was a
car in the driveway. However, no one answered the door.
Agent Mossman, still at the house, remained in radio and
phone contact with the surveillance team following the
Expedition. He ran the Expedition’s registration and learned
that it was registered to Raul Stevens at the Dana house address.
The surveillance team told Agent Mossman that the Expedition was
on 12th Street in Brownsville driving toward the bridge to
Mexico. Concerned that the car was driving into Mexico, Agent
Mossman instructed the surveillance agents to make a traffic stop
and to ask Raul Stevens if he would consent to a search of the
Dana house and return to the Dana house to undertake the search.
-4- The Expedition was being followed by Agent Gentry driving one
unmarked car and Deputy Silva driving another unmarked car.
Deputy Martinez accompanied Deputy Silva. As the two officials
followed the Expedition in their cars, they attempted to avoid
detection by alternating the lead car position and by
alternatively turning off the route taken by the Expedition.
Agent Gentry informed Deputy Silva that he saw the Expedition
make an illegal lane change while Deputy Silva was driving on
another street. However, it was Deputy Silva and Deputy Martinez
who executed the traffic stop of the Expedition. They did so by
turning on the car’s siren, pulling along side of the Expedition,
showing Deputy Martinez’s sheriff’s badge to the driver, and
asking him to pull over.
Deputy Silva approached the car and asked the driver, Raul
Stevens, for his driver’s license and proof of insurance. Agent
Gentry pulled up behind the Expedition as Deputy Silva asked for
these items. Without informing him of the traffic violation,
Deputy Silva then informed Raul Stevens that a customs agent,
Agent Gentry, wanted to speak to him. Agent Gentry approached
Raul Stevens and informed him that they were conducting a
narcotics investigation, that there were agents at the Dana
house, and that they thought that there were “things . . . going
on at his house.” According to Agent Gentry, he asked for
consent to search the house, and Raul Stevens consented to the
search. Agent Gentry then asked Raul Stevens if he would
-5- accompany him back to the house, and Raul Stevens agreed to do
so. Raul Stevens accompanied Agent Gentry to Gentry’s vehicle
and got in the front seat. On their way to the house, Agent
Gentry explained to Raul Stevens that agents believed that there
were narcotics in the house. He asked him if his son, Alejandro
Stevens, was involved in narcotics, and Raul Stevens replied that
he didn’t know.
When Raul Stevens arrived at the house with Agent Gentry,
Agent Mossman was at the house with an additional six officers.
Agent Mossman told Raul Stevens about what the agents had seen
during the surveillance of the house and asked for his consent to
search the house. At the suppression hearing, Raul Stevens
denied giving consent, but Agent Mossman and Agent Gentry
testified that Raul Stevens verbally consented to the search.
They also testified that when they asked him to sign a consent
form, he again said that they could search the house but that he
would not sign anything. The door to the house was locked, but
Raul Stevens produced the keys to the house and unlocked and
opened the door.
Agent Mossman and Raul Stevens then entered the house. Raul
Stevens cooperated in the search, directing Agent Mossman to his
office, where agents found an AK-47, a small machine pistol, a
shotgun, three handguns, thousands of rounds of ammunition,
bullet-proof vests, and laser sights for assisting a shooter in
focusing on a target. Agents also found a pound of marijuana in
-6- the office with the guns and six grams of cocaine in Raul
Stevens’s bedroom.
While still inside the house, Agent Mossman asked Raul
Stevens if he could also search the shed in the backyard behind
the house. The door from the house to the backyard was locked,
but Raul Stevens produced the key and unlocked the door so they
could enter the yard. Agent Mossman observed two locked doors on
the shed. Raul Stevens informed Agent Mossman that both locked
doors led to the same area within the shed. Raul Stevens then
produced the key to the locked shed door and unlocked it. After
searching the room in the shed and finding no drugs, canine
inspectors determined that a piece of plywood was sealing another
door inside the shed and confirmed that the second external door
provided entry into this room. The agents removed the plywood,
opened the door, and found approximately 306 pounds of marijuana.
Alejandro Stevens remained at the scene of the traffic stop
with Deputy Silva and Deputy Martinez when Raul Stevens left with
Agent Gentry. According to Deputy Silva, Alejandro Stevens asked
if he could leave the traffic stop, and Deputy Silva said “no.”
While Alejandro Stevens waited, he spoke on his cell phone. He
then asked Deputy Silva if he could wait inside the Expedition.
Deputy Silva said “yes,” and Deputy Silva and Deputy Martinez
waited in the Expedition with him. After agents at the house
found the drugs, Agent Mossman told Deputy Silva and Deputy
Martinez to bring Alejandro Stevens to the house.
-7- Both Raul Stevens and Alejandro Stevens were placed under
arrest and handcuffed at the house. They were not given Miranda
warnings at this time. Agents placed them in the living room,
where Raul Stevens sat on a couch about ten feet from Alejandro
Stevens, who sat in a chair. Agent Mossman testified that he
told them, “[I]f you guys want to talk to me, you know where I
am.” Agent Mossman waited outside. Another agent came outside
and told Agent Mossman that Alejandro Stevens wanted to talk to
him. Agent Mossman went inside and asked Alejandro Stevens what
he wanted to talk about. Alejandro Stevens said that he could
tell him where there were stash houses containing thousands of
pounds of marijuana if Agent Mossman would help him. Agent
Mossman asked him where the stash house was, and Alejandro
Stevens told him it was in Mexico. Agent Mossman testified that
Raul Stevens then told him that the cocaine in the bedroom
belonged to him. According to Agent Mossman, Raul Stevens made
this statement voluntarily and not in response to any
questioning.
After the search of the house was completed, agents took
Raul Stevens and Alejandro Stevens to the ICE office, where Agent
Mossman testified that they were given their Miranda warnings.
After their warnings were read, Alejandro Stevens repeated the
same information that he told Agent Mossman at the Dana house
about the stash houses. Raul Stevens again claimed ownership of
the cocaine and everything in the house but disclaimed ownership
-8- of the marijuana found in the shed.
The grand jury indicted Alejandro Stevens and Raul Stevens
on three counts. Count One charged each with conspiracy to
possess with intent to distribute approximately 139 kilograms
(306 pounds) gross weight of marijuana in violation of 21 U.S.C.
§§ 846, 841(a)(1), and 841(b)(1)(B). Count Two charged each with
possession with intent to distribute the same in violation of 21
U.S.C. §§ 841(a)(1) and 841(b)(1)(B) and 18 U.S.C. § 2. Count
Three charged each with possession with intent to distribute a
quantity exceeding 100 kilograms or more of marijuana within 1000
feet of a public elementary school in violation of 21 U.S.C.
§§ 841(a)(1) and 860.
Alejandro Stevens filed a pretrial motion requesting the
district court to suppress statements made and physical evidence
seized at the Dana House. Raul Stevens also filed a pretrial
motion to suppress all evidence seized as the result of the
search of the house and all statements he made after his arrest.
After a hearing, the district court denied each defendant’s
motion to suppress. Alejandro Stevens then pleaded guilty to
Count Two in exchange for the government dismissing Counts One
and Three. This agreement was entered into at Alejandro
Stevens’s rearraignment hearing without a written plea agreement
preserving his right to appeal the denial of his motion to
suppress. Raul Stevens proceeded to a jury trial and was
convicted on all three counts.
-9- The district court sentenced Alejandro Stevens to serve a
term of 110 months in the custody of the Bureau of Prisons and
five years’ supervised release and ordered a $100 special
assessment. On the same day, the court sentenced Raul Stevens to
serve a total of 274 months in the custody of the Bureau of
Prisons followed by eight years of supervised release. Raul
Stevens’s Presentence Report (“PSR”) reflected a base offense
level of 28, for which the corresponding sentence range is 87 to
108 months’ imprisonment. The PSR recommended enhancements
resulting in a total offense level of 35, for which the
corresponding sentencing range is 210 to 262 months’
imprisonment. The government moved for an upward departure, and
the district court did so on the basis of the large cache of
loaded weapons in the house as well as the proximity of those
weapons to an elementary school and crosswalk. The court
additionally ordered Raul Stevens to pay a $14,000 fine and a
$300 special assessment.
Alejandro Stevens now appeals the district court’s denial of
his motion to suppress. Raul Stevens likewise appeals the
district court’s denial of his motion to suppress. Raul Stevens
additionally claims ineffective assistance of counsel and
challenges his sentence on the basis of Booker error.
II. SUPPRESSION ISSUES
A. Standard of Review
-10- In an appeal from the denial of a motion to suppress, we
review the district court’s factual findings for clear error and
the district court’s ultimate conclusion as to the
constitutionality of the law enforcement action de novo. United
States v. Chavez-Villarreal, 3 F.3d 124, 126 (5th Cir. 1993). If
a particular suppression argument is not made to the district
court, however, our review is for plain error. United States v.
De Jesus-Batres, 410 F.3d 154, 158 (5th Cir. 2005). We view the
evidence introduced at the suppression hearing in the light most
favorable to the prevailing party, which in this case is the
government. United States v. Santiago, 310 F.3d 336, 340 (5th
Cir. 2002).
B. Alejandro Stevens’s Motion to Suppress
Alejandro Stevens argues that the district court erred when
it denied his motion to suppress because law enforcement
officials obtained physical evidence from the Dana House and
statements from him in violation of his Fourth and Fifth
Amendment rights. The government responds that Alejandro Stevens
entered into an unconditional guilty plea and therefore waived
his right to appeal the district court’s denial of his motion to
suppress.
When a defendant enters a voluntary and unconditional guilty
plea, the plea has the effect of waiving all nonjurisdictional
defects in the prior proceedings. United States v. Wise, 179
-11- F.3d 184, 186 (5th Cir. 1999); United States v. Bell, 966 F.2d
914, 915 (5th Cir. 1992). That waiver includes any further
objection to evidence admitted pursuant to a district court’s
denial of a motion to suppress. Wise, 179 F.3d at 186. A
defendant may enter a conditional guilty plea, however, and
preserve the right to appeal a district court’s adverse ruling on
a pretrial motion. See FED. R. CRIM. P. 11(a)(2). Rule 11
provides that a conditional plea must be made in writing and
consented to by the prosecution and the district court. See id.;
see also Wise, 179 F.3d at 186. Rule 11(a)(2)'s requirements of
government consent and court approval reflect that a defendant
has no absolute right to plead conditionally. Wise, 179 F.3d at
187. “The government and the court are free to reject a
conditional plea for any reason or no reason at all.” Bell, 966
F.2d at 916.
Rule 11(h) allows for variance from Rule 11(a)(2)’s
technical conditional plea requirements when the variance “does
not affect substantial rights.” FED. R. CRIM. P. 11(h). We have
excused harmless variances under Rule 11(h) where “the record
clearly indicates that the defendant intended to enter a
conditional guilty plea, that the defendant expressed the
intention to appeal a particular pretrial ruling, and that
neither the government nor the district court opposed such a
plea.” United States v. Santiago, 410 F.3d 193, 197 (5th Cir.
2005), cert. denied, 126 S. Ct. 1565 (2006); accord Wise, 179
-12- F.3d at 187 (allowing variance from Rule 11(a)(2) when “the
spirit of [Rule 11(a)(2) is] fulfilled by a clear indication on
the record of the defendant’s intention to appeal particular
pretrial rulings, and the acquiescence of both the prosecution
and the court”). For example, in Santiago we excused a
defendant’s variance from Rule 11(a)(2)’s technical requirements
and permitted an appeal where the record showed that the district
judge acknowledged the defendant’s reservation several times, the
government withdrew its initial objections to the defendant’s
reservation, the government submitted a factual basis sheet with
handwritten revisions stating that the defendant preserved his
right to appeal, and the district judge stated at the
rearraignment hearing that the defendant did not have to refer to
the factual basis sheet in order to preserve his right to appeal.
Santiago, 410 F.3d at 197-98. By contrast, in Wise we concluded
that a defendant did not fulfill the “spirit” of Rule 11(a)(2)
where the defendant’s written plea agreement contained no
reservation of any kind, at the plea hearing the district judge
orally reviewed the terms of the unconditional plea agreement,
and both the defendant and his lawyer confirmed that there was no
other agreement between the defendant and the government. Wise,
179 F.3d at 187.
Alejandro Stevens concedes that when he pleaded guilty to
Count Two in exchange for the government’s dismissing Counts One
and Three, he did not explicitly preserve his right to appeal the
-13- district court’s denial of his motion to suppress in a written
plea agreement in conformance with Rule 11(a)(2). He argues,
however, that the record shows that he has fulfilled the “spirit”
of Rule 11(a)(2) according to our decisions in Santiago and Wise.
Alejandro Stevens points to two statements in the record as proof
of his intention to enter into a conditional plea. First, in
response to questioning from the district judge about the genesis
of the plea agreement at the rearraignment hearing, the
government’s counsel stated that he “presumed” that Alejandro
Stevens’s attorney had approached the government about a plea to
preserve Alejandro Stevens’s right to appeal the ruling on his
motion to suppress. Second, Alejandro Stevens’s PSR incorporated
his post-plea written statement that he “accept[ed]
responsibility for possession of marihuana seized . . . subject
to his motion to suppress.” Alejandro Stevens urges that these
statements show that he and the government had a common
understanding that he would appeal and his attorney simply
“misspoke” when he later stated that there was no limitation on
the waiver of appeal.
These two statements, when viewed in light of the
rearraignment and sentencing hearings in their entirety, are
insufficient to establish that Alejandro Stevens reached any
agreement with the government to enter a conditional plea. To
the contrary, the record unambiguously shows that Alejandro
Stevens and his attorney denied that there was a conditional
-14- plea. Moreover, the record clearly shows that the government and
the district court never consented to a conditional plea.
At Alejandro Stevens’s rearraignment hearing, there was a
misunderstanding among government attorneys as to whether
Alejandro Stevens would plead to Count Two or Count Three. In an
effort to resolve the misunderstanding and proceed with the
hearing, the district judge questioned the government as to how
the plea had evolved, and the government recounted its
“presumption” as to why Alejandro Stevens had approached the
government to arrange a plea. The district judge recessed the
hearing after her questioning failed to resolve the
misunderstanding. When the hearing resumed, the district judge
orally reviewed Alejandro Stevens’s plea agreement and
specifically asked Stevens, his attorney, and the government
attorney about the scope of the plea agreement. All three
individuals confirmed that the only agreement between the parties
was that Counts One and Three would be dropped in exchange for
the plea to Count Two.
These affirmations establish that despite the government’s
statement that it “presumed” that Alejandro Stevens approached it
to discuss preserving his right to appeal, no such agreement
materialized. Moreover, at Alejandro Stevens’s later sentencing
hearing, the district judge directly asked Alejandro Stevens’s
attorney and the government attorney whether there was a
limitation on the waiver of appeal, and each attorney answered
-15- “no.” Alejandro Stevens’s unilateral post-plea statement in the
PSR cannot overcome the unanimous disclaimer of any agreement
between Stevens and the government beyond that to drop Counts One
and Three in exchange for a plea to Count Two. Because there is
no indication in the record that the government or the district
court consented to a conditional plea, we conclude that Alejandro
Stevens’s plea was unconditional. Cf. Bell, 966 F.2d at 917
(concluding that there was no conditional plea where there was no
written agreement to preserve an issue for appeal, no express
acquiescence by the government, and no statement by the district
judge approving a conditional plea); Wise, 179 F.3d at 187
(concluding that there was no conditional plea where district
court orally confirmed that the written plea agreement which
contained no reservation was the entire agreement between the
parties).
Because Alejandro Stevens pleaded guilty and failed to
preserve his right to appeal the district court’s denial of his
motion to suppress, we affirm his conviction and sentence.
C. Raul Stevens’s Motion to Suppress
Raul Stevens contends that the district court erred in
denying his motion to suppress evidence and statements. First,
he denies ever consenting to the search and contends that the
search is illegal on that basis. Second, he asserts that even if
he did consent, his statement of consent was given pursuant to
-16- police questioning while he was in custody but before his Miranda
warnings were read to him. He argues that because his Miranda
warnings had not been read to him before he was asked for
consent, his statement granting consent is inadmissible. Third,
he asserts in the alternative that any consent was given while he
was illegally detained, and therefore his consent was not the
product of his free will.
1. Consent to Search
Raul Stevens first denies consenting to the search of the
Dana house and urges that all physical evidence seized during the
warrantless search is therefore inadmissible. The issue of
whether a defendant consented to a search is a question of fact
to be determined by the totality of the circumstances. United
States v. Harrison, 918 F.2d 469, 473 (5th Cir. 1990). Our
review is thus for clear error. Id. “Where the judge bases a
finding of consent on the oral testimony at a suppression
hearing, the clearly erroneous standard is particularly strong
since the judge had the opportunity to observe the demeanor of
the witnesses.” United States v. Solis, 299 F.3d 420, 436 (5th
Cir. 2002) (quoting United States v. Kelley, 981 F.2d 1464, 1470
(5th Cir. 1993)). A factual finding is clearly erroneous if,
although there is evidence to support it, after viewing the
record we are “left with the definite and firm conviction that a
mistake has been committed.” United States v. U.S. Gypsum Co.,
-17- 333 U.S. 364, 395 (1948).
The district court found that Raul Stevens voluntarily
consented to the search of his home while on the front porch of
the Dana house. Raul Stevens denies that he gave agents consent
to search his home. He does not challenge the voluntariness of
his consent but rather disputes the fact of consent. Beyond his
own denial of consent, the only evidence that he points to in
support of his argument is the fact that he refused to sign a
consent form authorizing the search of his home.
The district court did not clearly err in concluding that
Raul Stevens granted consent to search his home. The district
court credited the testimony of Agents Mossman and Agent Gentry.
Agent Mossman testified at the suppression hearing that he
requested consent from Raul Stevens while on the porch of the
home and that Raul Stevens verbally agreed to the request. Agent
Mossman further testified that he then asked Raul Stevens to sign
a consent form, but Raul Stevens responded that he would not sign
a form. Nevertheless, Raul Stevens repeated his verbal consent.
According to Agent Mossman’s testimony, Raul Stevens then used
his house key and opened the locked front door of the house.
After they entered the home together, Raul Stevens assisted
officers in locating weapons in the office. They walked through
the home to the back door, and Raul Stevens unlocked the back
door so that officers could access the backyard. Finally, Agent
-18- Mossman testified that Raul Stevens used his keys again to open
the locked door of the backyard shed.
Agent Gentry, who drove Raul Stevens from the traffic stop
to the Dana house, provided testimony consistent with that of
Agent Mossman. Agent Gentry testified that he was on the front
porch of the house when Agent Mossman requested consent and that
Raul Stevens gave consent to the search. Agent Gentry also
testified that after being asked to sign a consent form, Raul
Stevens replied, “[Y]ou can search the house, but I’m not signing
anything.” Agent Gentry further testified that both the door to
the home and the backyard shed were locked and that Raul Stevens
produced the keys for each locked door and accompanied the agents
as they entered the home.
Accordingly, the record shows that the district court did
not clearly err in concluding that Raul Stevens consented to the
search of his home.
2. Admissibility of Statements Granting Consent to Search
In Miranda v. Arizona, 384 U.S. 436, 444 (1966), the Supreme
Court held that in order to preserve the Fifth Amendment’s
privilege against self-incrimination, law enforcement officials
must inform a suspect in custody of his right to remain silent,
that any statement he makes may be used as evidence against him,
and that he has a right to retain counsel or have counsel
appointed for him. Statements obtained during a custodial
-19- interrogation without the benefit of adequate warnings under
Miranda are generally inadmissible. Missouri v. Seibert, 542
U.S. 600, 608 (2004). An individual is “in custody” for purposes
of Miranda “when placed under formal arrest or when a reasonable
person in the suspect's position would have understood the
situation to constitute a restraint on freedom of movement of the
degree which the law associates with formal arrest.” United
States v. Bengivenga, 845 F.2d 593, 596 (5th Cir. 1988) (en
banc).
Raul Stevens urges that his right to receive Miranda
warnings was triggered at the traffic stop when he was questioned
by Agent Gentry. He argues that Deputy Silva detained him
pursuant to a pretextual traffic stop and that he was taken into
custody at the point that Deputy Silva “surrendered” him to Agent
Gentry for questioning. He further argues that any statement of
consent made at the Dana house is inadmissible because it was
given while he was in custody and pursuant to questioning by
Agent Mossman, but without the benefit of Miranda warnings. He
contends that because the statement consenting to the search is
inadmissible, the illegal drugs and weapons discovered during the
subsequent search of his home and backyard shed are inadmissible
as fruit of the poisonous tree.1 The government responds that
1 Raul Stevens’s argument mentions in passing that he claimed ownership of the cocaine found in the bedroom before being given his Miranda rights. However, he develops no argument for the exclusion of this statement, and in particular, advances
-20- Miranda warnings were not applicable at the traffic stop because
the traffic stop was legitimate and, under Berkemer v. McCarty,
468 U.S. 420, 439-40 (1984), questioning a person at a routine
traffic stop is not “custodial interrogation” triggering the
right to Miranda warnings. The government further argues that
Raul Stevens consented to the search before he left the traffic
stop and was not “in custody” when he arrived at the Dana house
because he voluntarily left the traffic stop with Agent Gentry.
Because Raul Stevens raises his Miranda-based argument for
the suppression of his statement of consent for the first time on
appeal, we review for plain error. Under the plain error
standard of review, we make three initial determinations:
(1) whether the district court committed error; (2) whether the
error is “clear and obvious”; and (3) whether the error affects
substantial rights. United States v. Avants, 278 F.3d 510, 514
(5th Cir. 2002) (citing United States v. Olano, 507 U.S. 725, 732
(1993)). If these three conditions are satisfied, we have
discretion to reverse the district court if we conclude that the
error “seriously affect[s] the fairness, integrity, or public
reputation of judicial proceedings.” Olano, 507 U.S. at 732
(quoting United States v. Young, 470 U.S. 1, 15 (1985)); see also
no argument that the admission of the statement affected his substantial rights under the Olano framework. Inadequately briefed issues are deemed abandoned. United States v. Charles, 469 F.3d 402, 408 (5th Cir. 2006) (citing Dardar v. Lafourche Realty Co., 985 F.2d 824, 831 (5th Cir. 1993)).
-21- Avants, 278 F.3d at 514.
Assuming arguendo that Raul Stevens was “in custody” for
Miranda purposes when he consented to the search, under the first
prong of plain-error review, we consider whether the court erred
by admitting evidence seized pursuant to that consent. We
conclude that it did not.
The failure of officials to give Miranda warnings before
asking for consent does not prohibit the use of a defendant’s in-
custody statements granting consent to a search. See United
States v. Garcia, 496 F.2d 670, 675 (5th Cir. 1974); see also
United States v. Dancy, 861 F.2d 77, 80 (5th Cir. 1988) (holding
that Miranda warnings are not required to validate in-custody
consent searches). A statement granting “consent to a search
. . . is neither testimonial nor communicative in the Fifth
Amendment sense.” WAYNE R. LAFAVE, JEROLD H. ISRAEL, & NANCY J. KING,
CRIMINAL PROCEDURE § 3.10 (4th ed. 2004). As we explained in
Garcia, a statement of consent is properly scrutinized under the
Fourth Amendment rather than the Fifth Amendment2:
In a fifth amendment context a defendant’s statements, in and of themselves, present the potential constitutional evil. For purposes of the fourth amendment . . . it is an unreasonable search that is to be condemned, not the use of the defendant’s
2 Raul Stevens does not argue that his consent was not valid under a Fourth Amendment voluntariness standard. Rather, he narrowly argues that his statement of consent is inadmissible under the Fifth Amendment because he had not received his Miranda warnings.
-22- statements proving consent to a search. A search and seizure produces real and physical evidence, not self-incriminating evidence. Our task under the fourth amendment is to test the reasonableness of a search and exclude evidence procured unreasonably. . . . Therefore, Miranda’s ratio decidendi which was enunciated to strengthen the fifth amendment’s function in preserving the integrity of our criminal trials should not be superimposed ipso facto to the wholly different considerations in fourth amendment analysis.
496 F.2d at 675. Other courts considering the question have
similarly concluded that statements of consent are not
testimonial within the meaning of the Fifth Amendment.3
Further, the instant case is unlike United States v. Green,
272 F.3d 748, 752 (5th Cir. 2001), where we held that asking an
arrested defendant to disclose the location of firearms and open
3 See, e.g., United States v. McClellan, 165 F.3d 535, 544 (7th Cir. 1999) (“[A] request for consent to search is not an interrogation within the meaning of Miranda because the giving of such consent is not a self-incriminating statement.”) (internal quotations omitted); United States v. McCurdy, 40 F.3d 1111, 1118 (10th Cir. 1994) (“An officer's request to search a defendant's automobile does not constitute interrogation invoking a defendant's Miranda rights.”); People v. Thomas, 12 Cal. App. 3d 1102, 1110-11 (Cal. Ct. App. 1970) (“The fact that the search leads to incriminating evidence does not make the consent testimonial.”); see also United States v. Payne, 119 F.3d 637, 643-44 (8th Cir. 1997) (“Miranda rights affect the integrity of the truth finding process in a criminal trial, but Fourth Amendment rights go to the right of privacy and to be left alone. As the purposes of the two protections are different, it would be unreasonable to require Miranda warnings before a request for permission to search. Instead, the fact that Miranda warnings were not given will simply be a factor to consider under the voluntariness test.” (internal citations omitted)); but see Oregon v. Williams, 432 P.2d 679, 683 (Or. 1967) (“In effect, the request to search is a request that defendant be a witness against himself which he is privileged to refuse under the Fifth Amendment.”).
-23- cases containing those firearms after he had been given his
Miranda warnings and had requested counsel was “custodial
interrogation” resulting in testimonial acts inadmissible under
the Miranda doctrine. In this case, there were no such
testimonial acts, even where Raul Stevens produced the key to the
Dana house and unlocked the door. The record shows that Raul
Stevens gave verbal consent and unlocked the door to the house in
response to Agent Mossman’s request to search the house. This is
unlike the request in Green to disclose the location of firearms,
which was a question likely to elicit an incriminating response.
Id.
Accordingly, we conclude that the district court did not err
in admitting the evidence seized in the search of the Dana house
pursuant to Raul Stevens’s un-Mirandized statement of consent.
Even if, arguendo, there was error, it was not “clear and
obvious.”
3. Consent Pursuant to an Illegal Detention
Finally, Raul Stevens asserts that even if he did consent to
the search, his consent was not voluntary if it was given
pursuant to an illegal detention. “Consent to search may, but
does not necessarily, dissipate the taint of a fourth amendment
violation.” Chavez-Villarreal, 3 F.3d at 127. Raul Stevens
asserts in conclusory fashion that he was illegally detained and
that there were no intervening circumstances between his illegal
-24- detention and his statement of consent to remove the taint of the
illegal detention. The reasonableness of a traffic stop is a
conclusion of law, Harrison, 918 F.2d at 473, and because Raul
Stevens raised the legitimacy of the traffic stop below, our
review is de novo, Chavez-Villarreal, 3 F.3d at 126.
The reasonableness of traffic stops and investigative
detentions of motorists who are suspected of criminal activity is
analyzed under the framework established in Terry v. Ohio, 392
U.S. 1 (1968). See United States v. Sharpe, 470 U.S. 675, 682
(1985) (applying Terry analysis to stop of vehicles suspected of
transporting drugs); Harrison, 918 F.2d at 472 (applying Terry
analysis to night-time stop of vehicle driving without lights
after it was observed driving away from rural airstrip where
airplane suspected of carrying illegal drugs had landed); United
States v. Valadez, 267 F.3d 395, 397-98 (5th Cir. 2001) (applying
Terry analysis to stop of vehicle for two suspected traffic
violations). Under Terry, we determine the reasonableness of an
investigative stop by examining: (1) whether the officer’s action
of stopping the vehicle was justified at its inception, and (2)
whether the officer’s actions were reasonably related in scope to
the circumstances that justified the stop. Terry, 392 U.S. at
19-20; Valadez, 267 F.3d at 398.
Raul Stevens raises two arguments for why his detention was
illegal. Raul Stevens first articulates that his detention was
unlawful because the initial traffic stop based on the illegal
-25- lane change was pretextual. But it is well established that
“[s]o long as a traffic law infraction that would have
objectively justified the stop had taken place, the fact that the
police officer may have made the stop for a reason other than the
occurrence of the traffic infraction is irrelevant for purposes
of the Fourth Amendment.” Goodwin v. Johnson, 132 F.3d 162, 173
(5th Cir. 1998) (emphasis added) (citing Whren v. United States,
517 U.S. 806 (1996)). The district court credited Agent Gentry’s
testimony and concluded that the traffic stop was objectively
reasonable because Raul Stevens made an illegal lane change. The
record supports this conclusion, and at oral argument Raul
Stevens admitted that he did not dispute that he changed lanes
illegally. Therefore, his first argument has no merit.
Second, at oral argument, Raul Stevens argued that his
detention became unreasonable (and therefore illegal) under
Terry’s second prong because the basis for the traffic stop was
the illegal lane change but the subsequent actions of the
officers were not reasonably related to the illegal lane change
justifying the stop. His argument, however, ignores the district
court’s conclusion that the stop was independently valid under
Terry because officers were aware of sufficient articulable facts
to form a reasonable suspicion that the Expedition was involved
in criminal activity apart from the illegal lane change. Giving
a pretextual traffic violation as the reason for a stop does not
invalidate an otherwise justified stop. Cf. Harrison, 918 F.2d
-26- at 472 (stopping vehicle for articulated reasons of driving above
speed limit and without lights was not illegal where officer
independently had reasonable suspicion that vehicle was
trafficking drugs). Important to our decision is the fact that
Raul Stevens does not argue under Terry’s first prong that
officers did not have reasonable suspicion to justify the stop
based on their surveillance of the Dana house and the meetings
between Espinosa, Alejandro Stevens, and the informant. Even
more important is the fact that he does not argue under Terry’s
second prong that the subsequent actions of the officers exceeded
the scope of this independent justification for stopping the
vehicle. Inadequately briefed issues are deemed abandoned.
Charles, 469 F.3d at 408 (citing Dardar, 985 F.2d at 831).
Concluding that none of Raul Stevens’s arguments for
suppression is availing, we affirm the district court’s denial of
his motion to suppress.
III. INEFFECTIVE ASSISTANCE OF COUNSEL
Raul Stevens claims, for the first time on appeal, that he
was denied his Sixth Amendment right to effective assistance of
counsel at trial when his attorney failed to raise the violation
of his right to be given Miranda warnings during custodial
interrogation. He also raises a number of other errors he
contends his attorney made to support his argument that his
attorney failed to achieve an objective standard of
-27- reasonableness under the standard set forth by Strickland v.
Washington, 466 U.S. 668, 669 (1984).
As a general rule, we do not review Sixth Amendment claims
of ineffective assistance of counsel on direct appeal unless they
were adequately raised in the trial court. United States v.
Gibson, 55 F.3d 173, 179 (5th Cir. 1995). Because the trial
court is the proper place to develop the record necessary for the
resolution of ineffective assistance of counsel claims, only in
“rare cases where the record allow[s] us to evaluate fairly the
merits of the claim” will this court resolve ineffective
assistance issues on direct appeal. United States v. Palmer, 122
F.3d 215, 221 (5th Cir. 1997).
Raul Stevens concedes he did not raise his ineffective
assistance of counsel claim at trial. Nevertheless, he urges
that this is one of those “rare cases” where the record allows us
to evaluate the merits of his claim. We disagree. Where a claim
of ineffective assistance of counsel has not been raised below,
the exception to our general rule of non-review is typically
satisfied only where the actual claim was raised and developed in
a post-trial motion to the district court. Compare Gibson, 55
F.3d at 179 (granting an exception to the general rule of non-
review on direct appeal because the defendant’s post-trial
motions in the district court raised allegations of trial
counsel’s deficiencies), with United States v. Wallace, 32 F.3d
921, 930 (5th Cir. 1994) (dismissing ineffective assistance of
-28- counsel claim on direct appeal even where the claim was mentioned
at trial because the record was not sufficiently developed), and
United States v. Gonzalez, 436 F.3d 560, 581 (5th Cir. 2006)
(dismissing ineffective assistance of counsel claim on direct
appeal even where record showed counsel’s failure to object
because actual claim had not been raised and developed below).
In this case, the record is not sufficiently developed with
respect to Raul Stevens’s ineffective assistance of counsel claim
to justify an exception to our general rule of non-review.
Accordingly, we deny relief on Raul Stevens’s present ineffective
assistance of counsel claim without prejudice to his right to
pursue the claim in collateral review.
IV. SENTENCING
The district court imposed enhancements to Raul Stevens’s
sentence for obstruction of justice, his role in the offense, and
for committing the offense while on supervised release. Relying
on United States v. Booker, 543 U.S. 220 (2005), Raul Stevens
objected to these enhancements below and now re-urges that the
district court violated the Sixth Amendment by enhancing his
sentence based on facts not found by the jury beyond a reasonable
doubt.
Booker error occurs when the sentencing judge bound by
mandatory United States Sentencing Guidelines (“Guidelines”)
increases the defendant’s sentencing range based on facts not
-29- found by the jury or admitted by the defendant. United States v.
Mares, 402 F.3d 511, 518 (5th Cir. 2005), cert. denied, 126 S.
Ct. 43 (2005). But under Booker, “with the mandatory use of the
Guidelines excised, . . . [t]he sentencing judge is entitled to
find by a preponderance of the evidence all the facts relevant to
the determination of a Guideline[s] sentencing range.” Id. at
519. Raul Stevens was sentenced under the post-Booker advisory
Guidelines system, and the record indicates that the district
judge was aware of the Guidelines’ advisory nature. There was
therefore no Booker error in Raul Stevens’s sentencing.
V. CONCLUSION
For the foregoing reasons, Alejandro Stevens’s and Raul
Stevens’s convictions and sentences are AFFIRMED.
-30-