Filed: Sep. 11, 2020
Latest Update: Sep. 12, 2020
Summary: Case: 18-41023 Document: 00515561792 Page: 1 Date Filed: 09/11/2020 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED September 11, 2020 No. 18-41023 Lyle W. Cayce Summary Calendar Clerk United States of America, Plaintiff—Appellee, versus Bruce Harold Hendler, Defendant—Appellant. Appeal from the United States District Court for the Southern District of Texas USDC No. 2:17-CR-388-1 Before Higginbotham, Jones, and Costa, Circuit Judges. Per C
Summary: Case: 18-41023 Document: 00515561792 Page: 1 Date Filed: 09/11/2020 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED September 11, 2020 No. 18-41023 Lyle W. Cayce Summary Calendar Clerk United States of America, Plaintiff—Appellee, versus Bruce Harold Hendler, Defendant—Appellant. Appeal from the United States District Court for the Southern District of Texas USDC No. 2:17-CR-388-1 Before Higginbotham, Jones, and Costa, Circuit Judges. Per Cu..
More
Case: 18-41023 Document: 00515561792 Page: 1 Date Filed: 09/11/2020
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
September 11, 2020
No. 18-41023 Lyle W. Cayce
Summary Calendar Clerk
United States of America,
Plaintiff—Appellee,
versus
Bruce Harold Hendler,
Defendant—Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:17-CR-388-1
Before Higginbotham, Jones, and Costa, Circuit Judges.
Per Curiam:*
Bruce Harold Hendler pleaded guilty to possession of child
pornography in violation of 18 U.S.C. § 2252(a)(4)(B), reserving his right to
appeal the district court’s denial of his motion to suppress. Hendler was
arrested after a search of his van by two police officers revealed electronic
*
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opinion should not be published and is not precedent except under the limited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.
Case: 18-41023 Document: 00515561792 Page: 2 Date Filed: 09/11/2020
No. 18-41023
devices that contained images of child pornography that Hendler ultimately
admitted he had downloaded.
We review the denial of a suppression motion “in the light most
favorable to the prevailing party.” United States v. Hernandez, 670 F.3d 616,
620 (5th Cir. 2012). The district court’s legal conclusions, including whether
the officers had reasonable suspicion to conduct a Terry stop, are reviewed de
novo. Ornelas v. United States,
517 U.S. 690, 699 (1996). Its factual findings
are reviewed for clear error. United States v. Pawlak,
935 F.3d 337, 346 (5th
Cir. 2019).
Hendler first argues that the district court erred in concluding that the
arresting officers had reasonable suspicion to detain and question him.
Officers may briefly detain an individual on the street for questioning “if they
have a reasonable suspicion that criminal activity is afoot.” United States v.
Michelletti, 13 F.3d 838, 840 (5th Cir. 1994) (en banc) (citing Terry v. Ohio,
392 U.S. 1, 30 (1968)). Such a detention is lawful if the officer “can point to
specific and articulable facts” supporting a reasonable belief “that a
particular person has committed, is committing, or is about to commit a
crime.” United States v. Monsivais,
848 F.3d 353, 357 (5th Cir. 2017)
(quotation omitted).
In this case, one of the arresting officers testified at the suppression
hearing that his suspicions regarding Hendler arose after he was provided
with information from a credible witness that Hendler possessed child
pornography, he observed Hendler interact with a young girl at a church, he
learned of Hendler’s email address which he believed was suggestive of
pedophilia, and he drew on his experience investigating pedophilia-related
offenses. Because the officer was able to point to specific and articulable facts
to support his reasonable belief that Hendler possessed child pornography,
see Monsivais, 848 F.3d at 357, the officer was entitled to detain Hendler to
confirm or dispel those suspicions, see United States v. Brigham,
382 F.3d 500,
2
Case: 18-41023 Document: 00515561792 Page: 3 Date Filed: 09/11/2020
No. 18-41023
511 (5th Cir. 2004) (en banc). Accordingly, Hendler fails to show any error
in this regard.
Hendler next contends that the district court erred in determining that
the plain-view exception to the warrant requirement applied to various
electronic devices that were laying on a lounge chair at the outset of the
officers’ questioning of Hendler. We need not reach this question, however,
as the images of child pornography at issue were discovered on an electronic
device seized during a search of Hendler’s van. There is nothing in the
record to indicate that the other devices on the lounge chair contained
incriminating evidence or that the officers’ seizure of those devices led to, or
resulted in, the discovery of any evidence under the “fruit of the poisonous
tree” doctrine. See Segura v. United States, 468 U.S. 796, 804 (1984).
The officers did recover incriminating evidence from Hendler’s van,
however. So we must address his argument that he never voluntarily
consented to its search. A warrantless search is presumptively unreasonable,
subject to certain exceptions, such as voluntary consent. See United States v.
Santiago, 410 F.3d 193, 198 (5th Cir. 2005). In evaluating the voluntariness
of consent, we consider:
(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. (quotation omitted).
Here, the balance of the factors supports the district court’s finding
that Hendler voluntarily consented to the search of his van. Hendler arguably
did not feel free to terminate the encounter because the officers retained
possession of his electronic devices. But they did not employ coercive police
procedures to induce Hendler’s consent, Hendler was extremely
3
Case: 18-41023 Document: 00515561792 Page: 4 Date Filed: 09/11/2020
No. 18-41023
cooperative, and the officers told Hendler on several occasions that he was
entitled to withhold his consent. Given that, the district court did not clearly
err in determining that his consent was voluntary.
Finally, Hendler contends that he was subjected to a custodial
interrogation and, because the arresting officer failed to administer a Miranda
warning, any incriminating statements should have been suppressed. The
Supreme Court has defined custodial interrogation as “questioning initiated
by law enforcement officers after a person has been taken into custody or
otherwise deprived of his freedom of action in any significant way.” Miranda
v. Arizona, 384 U.S. 436, 444 (1966). “A suspect is . . . in ‘custody’ for
Mirada purposes when placed under formal arrest or when a reasonable
person in the suspect’s position would have understood the situation to
constitute a restraint on freedom of movement of the degree which the law
associates with formal arrest.” United States v. Wright,
777 F.3d 769, 774 (5th
Cir. 2015) (quotation omitted).
Hendler was not isolated, physically restrained, or coercively
questioned—the hallmarks of a custodial interrogation. To the contrary,
Hendler was questioned outside in a public area of a trailer park by officers
who spoke to him calmly and professionally, and who never told him that he
was under arrest or that he was not permitted to leave. Hendler thus fails to
show that he was subject to a custodial interrogation.
The district court’s suppression ruling has ample record support.
Pawlak, 935 F.3d at 346 (“We uphold a district court’s denial of a
suppression motion if there is any reasonable view of the evidence to support
it.”). We therefore AFFIRM.
4
