USA v. Jason Ybarra

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UNPUBLISHED OPINION FILED. [10-50105 Affirmed ] Mandate pull date is 11/09/2010 for Appellant Jason Alan Ybarra [10-50105]

USA v. Jason Ybarra

Doc. 0

Case: 10-50105

Document: 00511267272

Page: 1

Date Filed: 10/19/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 10-50105 S u m m a r y Calendar October 19, 2010 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t if f -A p p e lle e v. J A S O N ALAN YBARRA, D e fe n d a n t -A p p e lla n t

A p p e a l from the United States District Court fo r the Western District of Texas U S D C No. 7:09-CR-190-1

B e fo r e REAVLEY, DENNIS, and CLEMENT, Circuit Judges. P E R CURIAM:* J a s o n Alan Ybarra appeals his conditional guilty plea conviction and s e n te n c e for distribution of cocaine base. As part of his plea agreement, Ybarra s p e c ific a lly reserved the right to appeal the denial of a motion to suppress c o c a in e base and other evidence seized during a search of his house. Ybarra a r g u e s on appeal that there was no showing of exigent circumstances, and the s e a r c h was per se unreasonable because the officers did not knock and announce t h e m s e lv e s or present a warrant. He challenges the district court's finding that
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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Dockets.Justia.com

Case: 10-50105

Document: 00511267272 Page: 2 No. 10-50105

Date Filed: 10/19/2010

o ffic e r s did nothing more than conduct a protective sweep of the house prior to t h e issuance of a warrant. W h e n a district court's factual findings on a motion to suppress are based o n live testimony at a suppression hearing, we will accept those findings unless t h e y are "clearly erroneous or influenced by an incorrect view of the law." United States v. Jackson, 596 F.3d 236, 239-40 (5th Cir.) (internal quotation m a r k s and citation omitted), cert. denied, 130 S. Ct. 2126 (2010). The existence o f exigent circumstances is a factual finding reviewed for clear error. United S ta te s v. Maldonado, 472 F.3d 388, 392 (5th Cir. 2006). In evaluating exigent c ir c u m s t a n c e s , we consider "the appearance of the scene of the search in the c ir c u m s t a n c e s presented as it would appear to reasonable and prudent men s t a n d in g in the shoes of the officers." United States v. Rodea, 102 F.3d 1401, 1 4 0 5 (5th Cir. 1996)(internal quotation marks and citation omitted). When r e a s o n a b le minds may disagree, we will "not second guess the judgment of e x p e r ie n c e d law enforcement officers concerning the risks of a particular s it u a t io n ." United States v. Menchaca-Castruita, 587 F.3d 283, 290 (5th Cir. 2 0 0 9 ) (internal quotation marks and citation omitted). Under the circumstances o f this case, we conclude that the district court did not clearly err in finding that o ffic e r s were justified in arresting Ybarra and conducting a protective sweep p r io r to obtaining a warrant. See United States v. Rico, 51 F.3d 495, 501-505 (5 t h Cir. 1995)(finding that exigent circumstances justified search of a house a ft e r suspects were arrested outside as they prepared to depart in a vehicle s u s p e c t e d to contain contraband). The district court's determination that officers d id nothing more than conduct a protective sweep of the house prior to issuance o f the warrant is likewise not clearly erroneous. Jackson, 596 F.3d at 239-40. A F F IR M E D .

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