USA v. Fernando Deleon, III

Filing

UNPUBLISHED OPINION FILED. [16-40675 Affirmed] Judge: EHJ, Judge: JLW, Judge: EBC. Mandate pull date is 05/25/2017 for Appellant Fernando Adame Deleon III [16-40675]

Case: 16-40675

Document: 00513979958

Page: 1

Date Filed: 05/04/2017

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 16-40675
Summary Calendar

United States Court of Appeals
Fifth Circuit

FILED
May 4, 2017
Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
FERNANDO ADAME DELEON, III,

Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 6:14-CR-89-1
Before JONES, WIENER, and CLEMENT, Circuit Judges.
PER CURIAM: *
Fernando Adame Deleon, III, was indicted for possession of a firearm
and ammunition by a convicted felon.

He proceeded to a bench trial on

stipulated facts and was found guilty of the charge. The court sentenced
Deleon to 70 months of imprisonment, to be followed by three years of
supervised release. Deleon preserved the right to appeal the denial of his
motion to suppress evidence seized from a warrantless search of his vehicle.

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-40675

Document: 00513979958

Page: 2

Date Filed: 05/04/2017

No. 16-40675
Deleon asserts that the warrantless search of an automobile is permitted
only where it is impractical for police to obtain a warrant. He characterizes
this language as a “reasonable practicability test” and states that the test must
be met in order for the automobile exception to apply. Deleon argues that it
was reasonably practicable for the officers to obtain a search warrant in his
case and that, because a warrant was not obtained, the search of his vehicle
was in violation of the Fourth Amendment. He does not contest the existence
of reasonable suspicion or probable cause for his detention; nor does he contest
the existence of probable cause to search the vehicle.
When reviewing a denial of a motion to suppress evidence, we review
“factual findings for clear error and the ultimate constitutionality of law
enforcement action de novo.” United States v. Robinson, 741 F.3d 588, 594
(5th Cir. 2014). “A warrantless search is presumptively unreasonable unless
it falls within an exception to the Fourth Amendment’s warrant requirement.”
United States v. Guzman, 739 F.3d 241, 245-46 (5th Cir. 2014).
The automobile exception provides that “where there was probable cause
to search a vehicle ‘a search is not unreasonable if based on facts that would
justify the issuance of a warrant, even though a warrant has not been actually
obtained.’” Maryland v. Dyson, 527 U.S. 465, 467 (1999) (quoting United States
v. Ross, 456 U.S. 798, 809 (1982)). Contrary to Deleon’s assertion, the Supreme
Court has specifically stated that that the automobile exception does not
require a finding of exigency that would prevent officers from obtaining a
warrant. Dyson, 527 U.S. at 465-67.
Therefore, the district court correctly found that the automobile
exception applied when there was probable cause to justify the search of the
vehicle. See Dyson, 527 U.S. at 465-67.

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Document: 00513979958

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Date Filed: 05/04/2017

No. 16-40675
We do not address Deleon’s argument that the automobile exception was
inapplicable because his car was not readily mobile, as that issue is raised for
the first time in his reply brief and thus is considered waived. See United
States v. Stanford, 823 F.3d 814, 851 n.54 (5th Cir.), cert. denied, 137 S. Ct.
453 (2016).
The judgment of the district court is AFFIRMED.

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