United States v. Alvarez

United States Court of Appeals
for the Fifth Circuit

No. 20–40171
Summary Calendar

United States of America,

Plaintiff—Appellee,

versus

Sherlock Alvarez,

Defendant—Appellant.

Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:19–CR–352–4

Before Davis, Stewart, and Dennis, Circuit Judges.
Per Curiam:*
Sherlock Alvarez pleaded guilty, pursuant to a conditional plea
agreement, to making a false statement in connection with the acquisition of
a firearm and was sentenced to six months of imprisonment. He argues that

*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
United States Court of Appeals
Fifth Circuit
FILED
December 18, 2020

Lyle W. Cayce
Clerk
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the district court erred in denying his motion to suppress evidence. We
AFFIRM.
I. Facts & Procedural History
Alvarez was charged in a superseding indictment with conspiracy to
make a false statement during the purchase of a firearm (Count One) and
making a false statement during the purchase of a firearm (Count Eight).
Alvarez filed a motion to suppress all evidence discovered and statements
made during the traffic stop that led to his arrest.
A suppression hearing was held before a magistrate judge. James
Medina, a police officer, and Agent Ramon Roldan, an agent with the Bureau
of Alcohol, Tobacco, Firearms, and Explosives (ATF), testified about the
traffic stop and arrest. Officer Medina received a call indicating that a
passenger in a white Ford Mustang had possibly purchased a firearm. He
followed the Mustang and pulled it over after he observed the driver
committing a traffic violation. Alvarez and another individual were in the
backseat of the vehicle, co–defendant Carlo Salazar was in the front
passenger seat, and co–defendant Sergio Perez was the driver. Perez initially
told Officer Medina that there were no drugs or weapons in the vehicle, but
soon after told him that he had just purchased a firearm and placed it in the
trunk of the car. After obtaining Perez’s consent, Officer Medina opened the
trunk and observed a box big enough to hold a large weapon. Officer Medina
called Sergeant Luna, an ATF agent, to inform him that there was a gun in
the vehicle. Salazar told Officer Medina that he purchased the rifle for
protection, which Officer Medina thought was implausible as he believed
rifles were not typically purchased for protection.
After this point, Sergeant Luna arrived at the scene and contacted
ATF. The officers asked the passengers to exit. When ATF agents arrived,
they walked with Salazar to an open grassy area to begin discussions with each
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of the vehicle’s occupants, without giving Miranda warnings. Agent Roldan
testified that he had observed Salazar, who appeared to be a young teenager,
nervously leaving a gun store. Agent Roldan testified that, in his experience,
there was a pattern of individuals recruiting teenagers to purchase firearms
that end up in Mexico, also known as “straw purchases.” The agents
interviewed the passengers and decided to transport them to the police
station.
The magistrate judge issued a Report and Recommendation. In it, she
determined that Officer Medina’s reasonable suspicion of a traffic violation
supported the initial stop, that the duration of the stop was reasonable, and
that the roadside questioning was not a custodial interrogation requiring
Miranda warnings. Accordingly, the magistrate judge recommended that
Alvarez’s motion to suppress be denied. After its independent review, the
district court denied Alvarez’s motion.
Pursuant to a conditional plea agreement, Alvarez pleaded guilty to
Count Eight of the superseding indictment. As part of the agreement, he
reserved the right to appeal the denial of his motion to suppress. The district
court accepted the plea and sentenced Alvarez to six months of
imprisonment, followed by three years of supervised release, including six
months of home confinement. Alvarez appeals.
II. Standard of Review
On appeal from a district court’s ruling on a motion to suppress, this
court reviews factual findings for clear error and its conclusions of law de
novo, viewing the evidence in the light most favorable to the prevailing party.
United States v. Pack, 612 F.3d 341, 347 (5th Cir. 2010), modified on other
grounds on denial of reh’g, 622 F.3d 383 (5th Cir. 2010). “Factual findings are
clearly erroneous only if a review of the record leaves [us] with a definite and
firm conviction that a mistake has been committed.” United States v. Hearn,
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563 F.3d 95, 101 (5th Cir. 2009) (internal quotation marks omitted). Whether
the record demonstrates reasonable suspicion is a question of law that we
review de novo. United States v. Jaquez, 421 F.3d 338, 341 (5th Cir. 2005).
Likewise, the question of “whether Miranda’s guarantees have been
impermissibly denied to a criminal defendant, assuming the facts as
established by the trial court are not clearly erroneous, is a matter of
constitutional law, meriting de novo review.” United States v. Harrell, 894
F.2d 120, 122–23 (5th Cir. 1990).
III. Discussion
By failing to adequately brief the issue, Alvarez has abandoned any
argument that the initial stop based on a suspected traffic violation was
unconstitutional.
1
See United States v. Scroggins, 599 F.3d 433, 446–47 (5th
Cir. 2010) (noting that a party waives an argument by failing to adequately
brief it on appeal, and that it is insufficient to merely mention a legal theory).
Alvarez argues that the stop was unduly prolonged. He maintains that
Officer Medina did not have adequate information at the time that the
computer checks came back clean to provide reasonable suspicion necessary
to prolong the detention. As part of a traffic stop, an officer can request “a
driver’s license and vehicle registration . . . and . . . run a computer check on
both.” United States v. Brigham, 382 F.3d 500, 508 (5th Cir. 2004). An officer
may also seek to identify and run computer checks on passengers and ask
questions about the purpose and itinerary of the trip, or ask questions on
subjects completely unrelated to the circumstances that caused the stop if
such questions do not extend the stop’s duration. Pack, 612 F.3d at 350–51.
“If the officer develops reasonable suspicion of additional criminal activity

1
The only mention Alvarez makes of the validity of the stop at its inception is the
following phrase: “Even if the original basis for the stop was justified, . . .”
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during his investigation of the circumstances that originally caused the stop,
he may further detain [the vehicle’s] occupants for a reasonable time while
appropriately attempting to dispel this reasonable suspicion.” Id. at 350.
“Reasonable suspicion is a low threshold and requires only some minimal
level of objective justification.” United States v. Castillo, 804 F.3d 361, 367
(5th Cir. 2015) (internal quotation marks omitted).
We agree with the district court that Officer Medina had reasonable
suspicion to prolong the stop. Officer Medina had received a report that a
passenger in the Mustang had possibly just purchased a weapon. Officer
Medina testified that Perez and Salazar both initially misrepresented that
there was not a weapon in the car. He also doubted Salazar’s claim that he
bought an AR–type rifle for protection. An untruthful answer can “create[]
further suspicion justifying continued detention.” United States v. Andres,
703 F.3d 828, 834 (5th Cir. 2013). Further, Officer Medina explained that he
knew ATF was investigating possible illegal firearms purchases made by
passengers in a white vehicle. Taken together, these factors are adequate to
provide reasonable suspicion of criminal wrongdoing. Officer Medina had
knowledge of all these factors by the time he finished running the four
passengers’ information. The stop was not unreasonably prolonged.
Alvarez also argues that he should have been Mirandized before
officers conducted a field interrogation. Incriminating statements made by a
suspect during a custodial interrogation when they have not first received
Miranda warnings generally are inadmissible. Missouri v. Seibert, 542 U.S.
600, 608 (2004). Whether a suspect is in custody for Miranda purposes is an
objective determination that looks to (1) the circumstances surrounding the
interrogation, and (2) whether, given the circumstances, “a reasonable
person [would] have felt he or she was at liberty to terminate the
interrogation and leave.” United States v. Wright, 777 F.3d 769, 774 (5th Cir.
2015) (internal quotation marks omitted). This court has considered key
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factors in considering whether or not an individual was in custody, including
(1) “the length of the questioning”; (2) “the location of the questioning”;
(3) “the accusatory, or non–accusatory, nature of the questioning”; (4) “the
amount of restraint on the individual’s physical movement”; and (5)
“statements made by officers regarding the individual’s freedom to move or
leave.” Id. at 775.
Here, the magistrate judge weighed all of the foregoing factors against
Alvarez, specifically reasoning that (1) although the detention lasted about an
hour, Alvarez was one of four suspects and was only questioned for a short
period of time; (2) the questioning took place in an open–air location beside
a heavily trafficked highway; (3) the open–ended questions directed at
Alvarez were non–accusatory; (4) Alvarez was standing out in the open and
was not physically restrained; and (5) no statements were made
demonstrating that Alvarez was not free to leave or that he was required to
answer the agents’ questions. After agreeing with one of Alvarez’s
objections, the district court ultimately concluded that four of the five factors
demonstrated that he was not in custody, and that one factor, the lack of
statements made by officers about Alvarez’s freedom to leave, was neutral.
Alvarez cites to two cases where the Supreme Court determined that
police questioning amounted to a custodial interrogation, neither of which
involved similar circumstances. See Florida v. Royer, 460 U.S. 491, 503–06
(1983) (holding that a suspect was effectively seized after police retrieved his
checked baggage from the airline without his consent and asked him to
accompany them to a room for an airport interrogation); Dunaway v. New
York, 442 U.S. 200, 203, 218–19 (1979) (holding that a suspect was arrested
when he was taken by police car from a house to a police station interrogation
room without probable cause). Alvarez additionally argues that the
questioning was custodial as he was forced out of the car and that the officers
and agents did not inform him that he was free to leave or that he was cleared
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by the warrant check. There is no hard-and-fast requirement that a suspect
be told that he is free to leave in a non-custodial interview, and some amount
of restraint is permissible. See United States v. Ortiz, 781 F.3d 221, 230 (5th
Cir. 2015) (holding that a suspect was not in custody where he was not
explicitly told he was free to leave, was briefly handcuffed during a frisk, and
was questioned in a police vehicle in a public place). We agree with the
district court’s assessment of the five factors. The district court did not err
in determining that the interview of Alvarez was not custodial and that
Miranda warnings were not required.
IV. Conclusion
For the foregoing reasons, we AFFIRM the district court’s denial of
Alvarez’s motion to suppress.
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