USA v. Gerard Smith


UNPUBLISHED OPINION FILED. [16-30272 Affirmed and Remanded] Judge: CDK , Judge: JLD , Judge: GJC Mandate pull date is 02/16/2017 for Appellant Gerard Lathan Smith [16-30272]

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Case: 16-30272 Document: 00513850408 Page: 1 Date Filed: 01/26/2017 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 16-30272 Summary Calendar United States Court of Appeals Fif h Circuit FILED January 26, 2017 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. GERARD LATHAN SMITH, Defendant-Appellant Appeal from the United States District Court for the Middle District of Louisiana USDC No. 3:14-CR-106-1 Before KING, DENNIS, and COSTA, Circuit Judges. PER CURIAM: * Gerard Lathan Smith was convicted of one count of possession with intent to distribute 500 grams or more of cocaine following a bench trial on stipulated facts. In this appeal, he challenges the district court’s denial of his motion to suppress evidence seized during a warrantless search of his truck. He contends that his consent to the search was involuntary and the product of implicit coercion by the searching officer. 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. * Case: 16-30272 Document: 00513850408 Page: 2 Date Filed: 01/26/2017 No. 16-30272 “A search conducted pursuant to consent is excepted from the Fourth Amendment’s warrant and probable cause requirements.” United States v. Solis, 299 F.3d 420, 436 (5th Cir. 2002). “The voluntariness of consent is a question of fact to be determined from a totality of the circumstances” and is reviewed for clear error. Id. (internal quotation marks and citation omitted). We analyze the following six factors to determine whether consent to a search was voluntarily given: (1) the voluntariness of the defendant’s custodial status; (2) the presence of coercive police procedures; (3) the extent and level of the defendant’s cooperation with the police; (4) the defendant’s awareness of his right to refuse to consent; (5) the defendant’s education and intelligence; and (6) the defendant’s belief that no incriminating evidence will be found. Id. at 436 & n.21 (internal quotation marks and citation omitted). In this case, following an evidentiary hearing and review of a recording of the traffic stop, the district court determined that Smith voluntarily consented to the search because there was no evidence of police coercion and he was informed several times of his opportunity to refuse consent. The district court’s finding of voluntariness based on the totality of circumstances is a reasonable view of the evidence See Solis, 299 F.3d at 436 & n.21; United States v. Scroggins, 599 F.3d 433, 440 (5th Cir. 2010). Smith’s reargument of the six factors on appeal fails to establish “a definite and firm conviction that a mistake has been made.” Scroggins, 599 F.3d at 440. His analogy to United States v. Zavala is inapposite because that case turned on specific circumstances not present here. See 459 F. App’x 429, 433-36 (5th Cir. 2012). There is a clerical error in the judgment. Smith pleaded not guilty and his guilt was determined by the court after a bench trial, but the judgment erroneously reflects that he pleaded guilty. The case is remanded for correction 2 Case: 16-30272 Document: 00513850408 Page: 3 Date Filed: 01/26/2017 No. 16-30272 of this error. FED. R. CRIM. P. 36; see United States v. Garcia, 604 F.3d 186, 191-92 (5th Cir. 2010). AFFIRMED and REMANDED with instruction. 3

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