United States v. Torres de Lopez

Case: 22-50505 Document: 00516640140 Page: 1 Date Filed: 02/09/2023 United States Court of Appeals for the Fifth Circuit ____________ United States Court of Appeals Fifth Circuit No. 22-50505 Summary Calendar FILED ____________ February 9, 2023 Lyle W. Cayce United States of America, Clerk Plaintiff—Appellee, versus Maria Torres de Lopez, Defendant—Appellant. ______________________________ Appeal from the United States District Court for the Western District of Texas USDC No. 3:21-CR-1385-1 ______________________________ Before Higginbotham, Graves, and Ho, Circuit Judges. Per Curiam: * Maria Torres de Lopez was convicted by a jury of conspiracy to harbor aliens and sentenced to six months of imprisonment. On appeal, Torres de Lopez argues that the district court erred in denying her motion to suppress all evidence obtained following a warrantless search of her home. Border _____________________ * This opinion is not designated for publication. See 5th Cir. R. 47.5. Case: 22-50505 Document: 00516640140 Page: 2 Date Filed: 02/09/2023 No. 22-50505 Patrol agents approached Torres de Lopez’s home after receiving a tip from a confidential informant that illegal immigrants were being housed there. Torres de Lopez argues that the agents lacked a warrant and probable cause to search her home, rendering the information gathered during the search, seizure, and interview illegal under the Fourth Amendment. We uphold a district court’s ruling on a motion to suppress “if there is any reasonable view of the evidence to support it.” United States v. Michelletti, 13 F.3d 838, 841 (5th Cir. 1994) (en banc). Torres de Lopez also argues that “the use of an unnamed cooperating witness, who was unavailable for cross- examination” at trial, violates the Confrontation Clause of the Sixth Amendment. This court reviews preserved Confrontation Clause claims de novo, subject to a harmless error analysis. United States v. Noria, 945 F.3d 847, 853 (5th Cir. 2019). Torres de Lopez preserved her claim by raising this objection at trial. “Federal courts have recognized the ‘knock and talk’ strategy as a reasonable investigative tool when officers seek to gain an occupant’s consent to search or when officers reasonably suspect criminal activity.” United States v. Jones, 239 F.3d 716, 720 (5th Cir. 2001). A person is seized for Fourth Amendment purposes “only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” United States v. Mendenhall, 446 U.S. 544, 554 (1980). While the officers initiated a knock and talk encounter with Torres de Lopez, there is no evidence that a seizure occurred. Because Torres de Lopez was not seized, her Fourth Amendment rights were not implicated, and the officers did not have to articulate reasonable suspicion or probable cause. See United States v. Valdiosera-Godinez, 932 F.2d 1093, 1099 (5th Cir. 1991). While the officers did not enter or search Torres de Lopez’s home initially, they did eventually search the home for the passport of one of the subjects. However, the agents asked for permission to do so, and Torres de Lopez 2 Case: 22-50505 Document: 00516640140 Page: 3 …

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