United States v. Ho

ment offers in cases securities seek “consent

or authorization in respect of security,” [a]

and we cannot Congress conclude that in- bring

tended to all such communications purview

within the of the securities laws.

V

In summary, policies of the United

States securities laws do not override the

parties’ choice of forum and law for resolving

disputes Indeed, this case. because Lloyd’s Plan for Reconstruction and Renewal

is neither a security nor solicitation

respect security, of a Plan is not regulat-

ed the United States securities laws. For

these reasons we vacated the district court’s

August order our August 27,

1996 order and remanded this case with in-

structions to the district court to dismiss the

action.

REVERSED AND REMANDED WITH

INSTRUCTIONS.

UNITED America, STATES

Plaintiff-Appellee, HO,

Al Dac also known as Ai Dac

Ho, Defendant-Appellant.

No. 95-30919.

United States Court of Appeals,

Fifth Circuit.

Aug. 1996. Horn, Higgin- A. Stephen Annette

Michele Attorney, Office son, Assistant U.S. Orleans, LA, Attorney, New for U.S. III, the Fed- Kelly, Office John Claude Orleans, LA, for Defender, New

eral Public HO, defendant-appellant. POLITZ, Judge, and JOLLY Chief

Before BARKSDALE, Judges. Circuit JOLLY, Judge: Circuit E. GRADY Fourth in this addressed sole issue and seizure search warrantless Amendment proba- police officer case is whether Ho Ho before A1 Dac to arrest ble cause his voluntary to search his revoked explicit portfolio. During Based on the and his the search of the blank, suppression hearing, portfolio, we on a from the conclude Officer Simone focused shape the time Ho white card the withdrew size immediately struggled credit card. the officer did cause to Ho, portfolio the lawfully thus retrieve when the officer found arrest could not contin- the card. Officer that portfolio ue warrantless search of Simone testified it was as that obvious Ho did not want him to look a search incident to arrest. The evidence portfolio attempted further at the when Ho Ho obtained after revoked his consent was portfolio. to retrieve the The officer was search, the fruit of an unconstitutional able, however, retаin Upon to we rul- therefore reverse district court’s investigation further of the white ing suppress, on Ho’s to motion vacate Ho’s card, Officer Simone discovered that the card plea guilty, pro- of and remand for further magnetic strip had a on the back. The offi- ceedings opinion. not inconsistent with this possession cers then arrested Ho for aof credit card. After counterfeit arrested Ho, the officers rest searched the of morning February 20, 1995, On the of portfolio and found another similar blank Lieutenant Gerard Simone and another offi- card, along credit with seventeen counterfeit cer, members of the New Orleans Interna- pieces paper travelers checks and of several Airport tional Narcotics Interdiction of Unit appeared with what to be credit card account Office, the Jefferson Sheriffs were Parish numbers on them. conducting a of flight surveillance a from Los Angeles.1 The officers alerted to the defen- II dant, Ho, passenger flight, Al Dac a on the charged Ho was with of one count briskly because he walked con- down the transporting a fraudulent credit card in in course, carry-on luggage, no and made knowing terstate commerce and one count of attеmpt no to claim luggage. checked possessing ly counterfeit securities. He filed Ho, The approached officers identified them- suppress a motion to the fruits what he selves, produce and asked Ho to his ticket. illegal by was an asserted search conducted one-way Ho produced purchased a ticket argued Officer Ho Simone. that the search with cash. Ho consented to a search of his illegal was because Simone did not a person, a including small leather he initially warrant and Ho did not consent to carrying. Ho told the officers that he government opposi search. The filed would be in approximately New Orleans for motion, tion to Ho’s and the district court two bringing weeks and his sister was suppression conducted a hearing at which luggage his flight. a later both Officer Simone and Ho testified. At the day, next a

The concerned hearing, citizen advised conclusion for Ho counsel purchased argued Simone that Ho had a cash if even Ho had consented to the one-way search, Angeles depart- effectively airline ticket to Los withdrew that consent ing morning at 8:15 attempting a.m. Officer Si- to retrieve the mone, officers, accompanied by two other probа Officer Simone before the officer had approached flight as boarding. Ho ble cause to continue the search without Ho’s gave Ho his consent to a search of his consent and without a warrant.2 (5th Cir.1995), 1. The argued officers of Narcotics Unit Interdiction 699 Ho this claim “in routinely incoming conduct open surveillances responded, court” and the district court "I flights Angeles Angeles' from Los because of Los understand that. think it is in for order to major point a status as distribution for narcotics. point [sic] to out me. I take it in to consider- Tr., added). (emphasis ation as well." at 47 argues 2. The apply dissent that we should Second, unlike the defendant in v. plain etror standard to this claim because Ho Maldonado, 906, (5th Cir.1995), 42 F.3d 910-11 presents appeal. it for the first time on We are the record reveals Ho established the factual complete at a loss to understand how the dissent basis his examination of Officer preserved can claim that the matter was not the district court. Third, Simone. See the state failed to infra. unlike the defendant in argument raise the dissent's error Alvarado-Saldivar, 697, United States v.

935 98, 109-11, Kentucky, Rawlings v. 448 motion to U.S. denied Ho’s district court 2556, 2564, (1980); com- 100 65 L.Ed.2d 633 summarily that it was S.Ct. suppress, stating Hernandez, weighing F.2d deny after the United States the motion pelled to (5th Cir.1987), denied, 484 Ho then U.S. credibility of the two witnesses. indictment, (1988), plea guilty to 98 L.Ed.2d entered ability appeal long as the fruits of search upon his incident conditioned sup- unnecessary support proba of his motion the arrest are district court’s denial toHo ten ble cause for the at 109-11 press. The court sentenced arrest. U.S. “If imprisonment be followed & at 2564 & n. 6. n. S.Ct. months’ timely supervised arresting cause and years three release. officers lacked invalid, appeal. filed notice of arrest evidence discovered as subject suppression the is result of arrest to the the ‘fruit’ under Fourth Amendment as Ill illegal of an F.3d at arrest.” 59 512. begin our consideration this We Simone’s search Ho’s continued premise that “warrantless appeal from the of consent therefore after the revocation was per are se unreason searches seizures probable if officer had constitutional the narrowly they fall a able unless within few to Ho.3 The sole for us to cause arrest exceptions.” v. Carde defined had address is thus whether Officer Simone (5th Cir.1993), nas, 1139, 1147 cert. F.3d 9 at time probable cause to arrest Ho the — -, 2150, denied, 128 114 S.Ct. U.S. Ho his consent.4 revoked (1994). exception such to L.Ed.2d 876 One requirement for searches the warrant exists A to а United States v. incident lawful arrest. (5th

Barlow, 85, Cir.), 17 89 cert. de F.3d is “Probable cause determined — nied, -, 130 U.S. objective an test: it established cannot be (1994). 88 A warrantless arrest L.Ed.2d subjective by showing police simply that the probable United must based on cause. be ly probable cause existed....” believed (5th Wadley, v. 59 F.3d 512 Cir. States 737, 744 Cooper, States v. 949 F.2d United 1995). (5th 975, 112 Cir.1991), denied, cert. 504 U.S. (1992). 2945, 119 L.Ed.2d 569 S.Ct. challenged in Although the search for arrest immediately prior to Probable cause a warrantless this occurred case totality of and cir- arrest, when the facts prevent not the search from exists this does arrest, police within officer’s knowl- incident a lawful cumstances being considered to rule, court; "discovery” on the Seventh Circuit's Mason this it addressed the claim the brief to cf. Pulliam, 1977) point- Cir. v. F.2d 429 Although is 557 merits. the dissent correct explor- (holding does not re ing preclude that revocation of consent that "this does not our out copies quire government ing sponte," to of business we find the state’s return this issue sua revocation), strongly we find it suggests that records taken unnecessary to raise it the “failure" before today. is properly to to do so Jachimko claim be state itself considered the distinguishable present preserved appeal case because for felt nei- and that state case, illegal “sandbagged” appeal. in that nature the substance "ambushed” nor on ther view, therefore, plants, readily totally marijuana apparent was on first inapt to review our illegal sight. card was The nature for error. this claim Second, gov immediately here. obvious acknowledges must government that Officer Simone relies the Seventh Circuit's ernment 3. The Jachimko, probable cause of criminal ac have established in United States v. F.3d decision 296, (7th Cir.1994), tivity consent in argue at the time of the revocation of to that because Third, we already card. con order to have seized the had “discovered” card officer case, consent, probable subsequent ‍​‌‌‌​‌​​​​​‌​​‌​​​​‌​‌‌‌​​‌​‌​‌​‌‌​​​​​‌‌​​‌‌‌‌​‍this on the facts of Ho clude before revoked prob justify seizure of the card mirrors cause seizure of the card from warrantless stated, cause to arrest Ho. valid. court in Jachimko able The suspect his valid does not withdraw "Where sup- upon during the illegal 4. Based the facts adduced to a substances search before discovered, finding pression hearing, court’s district are the consent remains valid voluntarily search is not consented are as evidence.” and the substances admissible omitted). (citation clearly yet to erroneous. Id. We have address one, however, edge the moment of are the arrest which the officer acted warrant, for a reasonable to con- sufficient government without a bears suspect clude had committed or proving ultimate burden of officer committing Although offense. cause. Id. requires than more a bare suspicion wrongdoing, requires ‘sub- B stantially than less evidence that sufficient support a conviction.’ The district court’s order refers Wadley, 59 (quoting F.3d at 512 credibility denying choices motion to Muniz-Melchor, States suppress. Although credibility choices were (internal (5th Cir.) omitted), citation crucial to the issue of initial a review denied, 923, 110 1957, 109 495 U.S. S.Ct. dispute of the record reveals no material as (1990)). L.Ed.2d facts and circum necessary legal the facts to resolve the light “must stances be viewed in of the obser question cause that is us vations, knowledge, training of the law today. Officer Simone testified that Ho had enforcement officers involved in the warrant- revoked his consent5 when the officer first (citation less search.” 894 F.2d at 1438 omit plastic portfol located the white card in the ted). probable of a existence cause is io.6 He also testified that he did not the find question mixed of fact and law. 59 at F.3d magnetic strip on the back of the card until findings 512. We review the support factual after had revoked consent.7 the his As ing probable the district court’s cause deter undisputed, only facts are us before mination for clear error. Id. The ultimate legal is the district court’s ultimate determi probable cause, however, determination of is nation that Officer Simone had question subject a of law to de novo review. cause to arrest Ho on discovery based of Id. piece plastic a white of shape the size and of A normally defendant bears the a credit card in Ho’s proving preponderance burden of a record, In reviewing the question, of challenged that evidence search or sei course, subjec- is not zure Officer Simone whether unconstitutional. v. Roch, tively Cir.1993) believed—as he stated on ex- (citing 5 F.3d 897 redirect Fuente, amination he United States v. De 8—that had La 548 F.2d cause be- (5th Cir.), nom., sub fore Ho Cooper, denied Stewart revoked consent. States, Instead, question 744. U.S. at is whether “the (1977)). 53 L.Ed.2d In totality a case such as of facts and circumstances within 7. Officer Simone testified: 6. Officer Simone testified: 5. A consent which waives Fourth Amendment Tr., at 20. Mason, 557 F.2d at 428-29. rights may A. That's correct. card and noticed the after card after he ther? you A. Q. you card. Q. Q. grab Yes, to look at it had He consenting Was it obvious to Officer, you regained consented, it, opened it be was. isn’t limited, attempted at that at it control that true that it further? qualified, magnetic strip you point already point clear at the it? you pull and he he did not want discovered the or withdrawn. examined anything you point away attempted he was on the when fur- 8.Officer Simone testified: Tr., Tr., at 20-21. plastic, A. mind to seize the credit card? back from the you saw was a blank A. Size and Q. A. That’s correct. saw, the front A. Q. tried to Q. Before A. When I first found the magnetic strip Q. at 23. Yes, folder when looked at it It was Whenever Mr. Ho A blank you already So, ^[*] pull did before he tried to I did. you you piece it totally Hi shape of away, position tried to discovered I blank white card. ^[*] card? of a credit plastic? credit after rear of it. controlled pulled when ^[*] I pull card? regained card when it white you card; cause in ifc and found away, is [sic] control examined piece ^[*] correct. all it, your you all he of fraudulent, fact, suspect- saw the knowledge [revocation at the moment [his] card. ed it was a fraudulent credit person to a reasonable sufficient we]re or was had committed [Ho] conclude added). Tr., Although (emphasis 21-22 at Wadley, F.3d at committing an offense.” backpedal an effort to Simone made supports record agree that the We can 512. admitting discovery of after that it was the that a reasonable legal conclusion strip him magnetic led to believe knowledge experi- Simone’s with Officer fraudulent, still plastic that the card was he suspicion dis- have had some ence would —as say nothing specific more than that “it could probable cause to believe— tinguished from type some of contraband was obvious was plastic was fraudulent piece of that the white something” “suspected” it was he of consent. Ho’s revocation Furthermore, Officer Simone fraudulent. report that his arrest indicated that testified testimony as A of Officer Simone’s review knew the card was fraudulent after in the clearest tones reveals a whole magnetic strip:9 discovering the strip magnetic to his deter- importance of the you Q. your report, isn’t it true when On card was fraudulent. mination that the day, you say the events of the government, Offi- detailed direct examination gaining you ex- after control the folder testified: cer Simone card, you magnetic amined the noticed the you noticed the small white Q. When you indiсated to strip on the rear and this found, you did know what card of a nature? this card was fraudulent was, police your experience as a A. That’s correct. officer? Tr., deny, away 21-22. He did not back those cards past I encountered

A. In the blank, attempt explain this critical admis- one, from or like that which were and cards Thus, whole, taken as a Officer Si- sion. magnetic strips on the rear had the testimony legal conclu- mone’s dictates later determined And were them. discovery magnetic strip that the of the sion credit cards. be fraudulent his consent was an essen- after Ho revoked added). Tr., Crucially, (emphasis at 11 probable cause determina- tial element of the factors, specific based testimony reveals the with Officer Simone’s tion for an officer experience, which would on Officer Simone’s experience. knowledge and fraud- that the card was a conclusion warrant conclusion factors also buttress the Other cross-examination, he testified: On ulent. person Si- a reasonable with Officer true, Q. an examination Isn’t it knowledge would not experience and mone’s you card, struggle the brief where after that crim- probable cause to believe have had magnetic strip, indicated to saw activity when Ho revoked inal was afoot was contraband? that this government, on whom consent. A. That’s correct. justify this war- placed to the burden was Q. after he made All that occurred search, Roch, present- rantless consenting to this search? he was not clear plastic card why a white explanation no ed card a shape it was of a credit I first located the the size and A. When alone, give standing is sufficient type portfolio, of contraband or it was some obvious to be- person probable cause I controlled the something, that is when a reasonable The a fraudulent credit card. that it is lieve folder. was— strip Q. ^[*] It was after ^[*] that was the indication the examination of the ^[*] :¡í (cid:127) ^[*] that this metal si* absence locks on hotel “swipe” cards striking in the gates and of evidence garages, light room in our modern on this doors, telephones and check ubiquity of point office society buildings, especially plastic —for plain on one side. cashing often are Well, past I had encountered in the A. —which no Second, almost were, government elicited shape and cards the same size part police report of the record. is not 9. The gauge from which to the extent of REMAND for further proceedings not incon- knowledge

Officer Simone’s experience sistent with this opinion. fact, in the area of credit card fraud. REVERSED, VACATED and REMAND- government presented no information about ED. his career other than his service in the Nar- cotics Interdiction Unit at the time of the BARKSDALE, RHESA HAWKINS Third, arrest. as member of the Narcotics Judge, Circuit dissenting: Unit, Officer Simone was on the lookout for My dissent rests on three bases: the con- drugs and not counterfeit credit cards.10 In sent revocation cause issue the vein, clear, the same it is also based on Ho’s majority dispositive finds preserved was not encounter with Officer previous Simone the court; in district proba- Officer Simone had day, that suspected Officer Simone Ho of ble cause to arrest Ho before consent revoca- drug trafficking, fraud; not credit card tion; and, least, very at the the white words, other predicate there was no back- seen, possibly seized, card the Officer ground in investigation support before revocation is admissible. At a mini- criminal Fourth, character of the card. Offi- mum, this case should be remanded for fur- cer Simone did not arrest Ho until after he finding ther fact suppression on the ques-

regained control of the actually tions. magnetic strip discovered the on the back of the card. I. starts in right direction

IV by agreeing with thе district court that Ho consented to the search of his emphasize We cause is And, it concludes that he did not revoke that more suspicion” than a “bare of wrongdoing. consent until after seen, Officer Simone had Viewing whole, the record as a we are con words, blank, its the front of “a white government vinced that the satisfy did not plastic card the shape size and of a credit burden of proving that a reasonable card.” rulings These crucial are determina- with Officer knowledge experi Simone’s newly tive of the raised issue embraced ence would have had cause to arrest majority. Unfortunately, it takes a Ho when Ho revoked consent based on the wrong turn. totality of facts and circumstances within Of ficer knowledge Simone’s at that time. The II. unlawful, being arrest it follows that all evi pursuant dence obtained to the search inci ‍​‌‌‌​‌​​​​​‌​​‌​​​​‌​‌‌‌​​‌​‌​‌​‌‌​​​​​‌‌​​‌‌‌‌​‍ appeal This presents yet another instance arrest, dent to that including the search im of a expenditure sizeable of all too scarce mediately prior arrest, judicial is inadmissible resources because a suppression is- as the fruit of an unlawful search.11 Wadley, being sue is raised for the first time on 59 F.3d at 512. We therefore appeal. REVERSE This new issue should have been the district ruling court’s on the motion initially to court, resolved in district where evi- suppress, plea VACATE guilty, and presented tested, dence is instead of 10. We important think this distinction is Smith, because ond Circuit’s decision in United States v. piece plastic (2d would have Cir.), denied, had much less 875, 643 F.2d 942 454 U.S. significance immediate criminal to a reasonable (1981). 102 S.Ct. 70 L.Ed.2d 182 The court knowledge experience with the of an in exigent Smith held justified circumstances day-to-day officer whose activities focused on airplane passenger’s warrantless search of an investigating illegal drug trafficking. bag because “Smith was about to leave with the flight.” evidence in hand on the 643 F.2d at case, alternative, however, government 11. In the 945. Unlike this argues for search in appeal supported the first time Smith exigent by probable on circum- cause. Id. justified government stances Because continued search of Ho’s did not have portfolio after Ho revoked his consent cause before because Ho revoked exigent his Ho was flight about to leave on Ange- justify to Los subsequent circumstances did not war- government les. The primarily relies on the Sec- rantless search of Ho.

939 basis, develop to factual defendant failed majority has base its here, to where ruling by argument, or secure district experience with make own holding, part, in on its issue, stated, there is no basis for court on that this is cards. As oft plastic the use — denied, so), cert. railroad; way appellate court to do nor is way to run a no , 742, 133 L.Ed.2d 691 short, newly U.S. system. judicial our run — Maldonado, (1996); 42 States v. F.3d United only for should be reviewed raised issue Cir.1995) (5th (reviewing for 909-12 error. on plain error raised for first time issue alternative, existed probable cause In the suppression motion and appeal from denial of revoca- instant of consent Ho at the to arrest noting court did not address that district of the tion, thereby permitting the seizure presented); issue because was alterna- In the further evidence. challenged Basey, 816 F.2d Cir. States v. been tive, had the blank card because 1987) (refusing ground to consider merits seized, revocation, seen, possibly trial suppression for raised at but not it is admissible. pretrial suppress). motion contesting suppression Simply put, A. motion, required is not the Government sole “[t]he states The disprove every possible on advance and basis Amendment war- in this Fourth addressed might which the defendant demonstrate case is whether and seizure search rantless or seizure. See Maldo unreasonable search to ar- police officer had (if nado, pre defendant F.3d Ho revoked his volun- A1Dac Ho before rest court issue raised for first sented district (revoca- portfolio” tary to search appeal, could have been time on cause). But, is an this pre-probable tion received, taken, argument could have been claim, time presented for first alternative issue); have ruled on and district could court appeal. on Neumann, also United States F.2d see court, asserts, as in district (en banc) (8th Cir.1989) (declining majori- any point. consent at he did not urged ap ground suppression for review rejects claim. Ho's alternative ty easily this to, presented nor peal that was neither ruled cause— position court, stating by, “[i]f —revocation upon district Accord- preserved in district court. was not by way ground raised [defendant] had plain error. review ingly, should we motion, the district court could have pretrial There is none. reasonableness search determined the government could ... [and] and seizure justify 1. attempted ... the seizure” requirement), warrant exception an under by majority, As detailed denied, 949, 110 495 U.S. rt. S.Ct. ce normally bears burden defendant [a] (1990). 2210, 109 536 L.Ed.2d by of the evi- proving preponderance a challenged or seizure that the search dence why reasons of several obvious This is one such as a case was unconstitutional. “must be suppress to evidence a motion one, however, act- in which the this officer to trial”. prior Fed.R.CRIM.P. raised warrant, government a ed without 12(b)(3). “constitute^] to do so Failure proving that ultimate burden of bears 12(f). See United waiver”. Fed.R.Crim.P. cause. the officer (5th 733, Harrelson, F.2d 738 705 States v. Cir.1983) (“[fjailure sup omitted.) pre-trial for (Citations But, to move obviously, the Gov particular ground assert a suppres pression, or to by the burden is framed ernment’s motion, operates as a issue(s) suppression waiver by presented the defendant to sion grants relief for court v. Alva unless district court. See United States district (5th shown”); rado-Saldivar, 697, States Knez good cause Cir. 62 F.3d 699-700 Cir.1992) (5th (“[a] 394, ek, 1995) 397 964 F.2d (reviewing plain for error factual not court does abuse discretion appeal denial of district first time on raised for 12(f) denying suppression motion, under Rule noting where suppression 940 solely ground

motion on the that the defen being] er than system allowed to defeat the comply pretrial dant faded to proce with seeding mysterious the record with refer dures”); Schwartz, United States v. ... hoping 535 F.2d ences stage to set the for an (2d Cir.1976) 160, (“failure 163 to ambush assert a should the ensuing ruling fail to suit”); particular ground рre-trial suppression in a City Hampton, Beaudett v. 775 1274, (4th Cir.1985) operates motion right as a waiver of F.2d (appellate to 1278 challenge subsequent permit courts should not “fleeting admission of evi references denied, preserve ground”), questions dence on that appeal”), 430 cert. de U.S. nied, 1088, (1977). 1475, 475 U.S. S.Ct. 51 L.Ed.2d (1986). L.Ed.2d 729 line, Along this the district court’s local against It is backdrop that this record rules in when effect the motion was filed must carefully be reviewed to determine required except motions “[a]ll those whether the pre-probable revocation cause during hearing made or trial which being properly preserved issue was in district properly recorded into the court record shall court. The obviously concludes that in writing.” be made Unif.Looal Rules of was; it states the United States District Courts for the [ a]t the [suppression] conclusion Eastern, Middle, and Western Districts of hearing, counsel argued for Ho that even if (1995). Louisiana 2.04E Those rules re- search, Ho had consented to the he effec quired further that accompanied motions be tively withdrew attempting that consent “(1) by a containing memorandum a concise portfolio retrieve the from Officer Si statement of in support reasons of the mo- mone before the officer had (2) tion, and citations of the authorities on to continue the search without Ho’s con copies which [the movant] relies or of these sent and without a warrant. authorities.” Unif. Looal Rules of .the may While this have been District Courts what Ho’s counsel Eastern, Middle, thinking, say, or intended to or was and Western Districts of (1995). moving saying, toward Louisiana 2.05 this is not what he said, as hereinafter in numbing, shown but Likewise, we do require, nor can we nonetheless necessary, detail. expect, mindreaders, district judges to be or Ho’s supporting motion and memorandum conjure should, might, issues that never mention the revocation been raised. See United States v. Rodri Instead, cause issue. those district court guez, Cir.1994) (internal papers assert “one the officers took quotation omitted) (“one marks and citation portfolio Ho”, the small from Mr. and that obvious, of the salutary, and most purposes the Officer then error rule is to enforce the opened permission without requirement parties object to errors at through and rifled its contents. Once in timely trial in a provide manner so as to office, thoroughly the officer searched judge opportunity trial to avoid or correct everything in Never was any error, and thus avoid the costs of rever permission fоr, given. search asked nor sal”); see McCoy also v. Massachusetts In (1st stitute Technology, 950 (1) F.2d papers Those then stated: “[w]ith- Cir.1991) (“Overburdened judges trial cannot out a warrant Mr. search expected be to be mind readers. If and in claims the absence cause and merely are insinuated rather than actually exigent circumstances, validity the court, in articulated the trial we depends will ordinari search on purported Mr. con- ly preserved (2) refuse to deem appel sent”; them government’s “[i]t is bur- review.”), denied, late prove consent; U.S. 112 den to Supreme numerous (1992); S.Ct. 118 L.Ed.2d 545 Pater Court cases have held that to show that son-Leitch Co. v. Massachusetts voluntary Mun. consent was it is insufficient for Co., (1st Wholesale Elec. prosecution prove a mere submission Cir.1988) (party duty spell (3) has “to out to a claim authority”; that, of lawful and arguments squarely distinctly ... [rath- because he was detained the officers leave, regain portfolio. The then not and did not Officer testi- Ho “could not free to that, card, portfolio; at best first located the “[w]hen [he] to a search of his fied consent of a show of merely acquiesced type in the face contra- it was obvious was some worst, simply portfolio was authority. something, At I band or that is when сontrolled folder”, then, that, taken from him.” and admitted he saw was a credit card”. He “[all] blank that, response stated The Government’s only upon seeing mag- denied that it was arrest, depar- at the day of the Ho was thought strip netic that he the card was that, gate; ture redirect, following fraudulent. collo- On [ n]oting plane was due to leave at quy ensued: moment, requested con Lt. Simone freely again. HO to search HO once sent Q you questions [Ho’s counsel] asked was gave his consent. As Officer Simone pulled portfolio about when Mr. Ho searching the leather folder he had small you. you going back from When were possession previ in HO’s on the observed through the and discovered day, plastic white ous he found blank you piece plastic, the white did know magnetic strip on one side. card with pulled at this time it back before he Immediately located Simone after Officer that that was a fraudulent credit card? the blank white credit HO folder, A I it from the I When removed out grabbed the leather Simone’s folder suspected that it was. experience, From his Simone hands. Q pulled Mr. Ho Whenever plastic card to be a coun knew the white position you back from the when exam- credit card. terfeit you already ined and disсovered the added.) short, prior (Emphasis piece plastic, you white did suppression hearing, it was the Government your in mind to seize subject revoca- presented of consent the credit card? tion. Yes, A I did. response, In its the Government addressed determining whether the con- the factors for Ho testified on direct examination given voluntarily, urged sent was flight when he was about to board his return posses- contraband was found Ho’s “[o]nce Angeles, to Los sion, cause to ar- the officers me[,] up grabbed came Officer Simone Ho, incident to the and that the search rest” just grabbed my me from behind and fold- arrest, in which the additional contraband said, He give to me. said er. back found, proper. said, my flight come with me and reply did not file a to the Government’s said, with me leaving right now. He Come Therefore, proceeding into the response. exactly you up I’ll fuck or—this is —or hearing, basis he had raised for right here. was that challenging the search and seizure noted, any point. not consented at As he had gave any shape, Ho denied that he consent response the fact surfaced Government’s form or fashion. during that Ho revoked his testimony, ques- court Following Ho’s search, the more narrow issue—that of but tioned Officer Simone: not be- pre-probable cause —was revocation paraphernalia Q ... Describe to me the the start of the fore the district court at being stuff that identified as hearing. fixing up a credit would be used for to the start of at the hear- Prior card? ing, not alert the district court to this Ho did it, way I can describe show A The best issue, orally. writing either piece of Ho, you a card and the Simone, developed by credit As then testified. shape size and plastic is the same exact majority, on cross- the Officer stated writing or strip a credit card and with no magnetic a as examination that he found nothing that nature on it. On the of of the card after Ho tried on the back magnetic just it it strip, day [day rear of has they second of arrest] as have to do like a credit card would. with either a verbal physical confrontation or confrontation. that And is what is sort onof Q many you How of those did see in his my only mind here. That that.” portfolio? attorney responded Ho’s just card, he did not just A He had one one blank consent, one, interjected concede but the court words, totally blank. In other if I “implausible”. that it found Ho’s version It correctly, recall it was all filled out like it stated that was regular “concerned about the actu- card with no indication it was taking al portfolio”, event of the over of the fraudulent until the second officer and that it was concerned that the other two identified it as a fraudulent card. at officers the scene had not testified in Now, Q going without into other de- support of Officer Simone’s version. guess really tail I don’t because it is pertinent, anything was there else in hearing ending, As the following was it, portfolio you as described key colloquy ensued: your curiosity signal caused to arise or THE COURT: I find [Officer Simone’s way something some this was quite to be only version] credible. The perceived impro- could be to be an problem I have with it is the actual mo- priety of some kind? mentary hopping of place what took day. Putting second immediately. just my A Not into own It was consid- the one it, eration obviously of what pretty blank card. was exceptional procedure of the officer not to Among things, questioned other the court be at least somewhat concerned about the (two) the Officer about other officers assist- fact guy again. that here is this I can see ing day, including him that participation their may how he have been a little fire in his proximity to Ho. The Officer testified eye as far as going what is on the second that the two offiсers would have heard his day thing now. And the concerning that is conversation with Ho. is,me I don’t story plausible. find Mr. Ho’s Argument presented. was then The Gov- I also am concerned about the actual event ernment credibility stated that a call was at taking over It’s hand —it advanced consent and search inci- just something got I have to think about. arrest, dent to police Ho advanced “abusive fact, And I will. It’s sort of after the but beating up officers on an innocent man.” certainly if—and is clear to both counsel The Government noted also when the on both guess sides—that I if not con- portfolio, Officer searched the he at “look[ed] cerned, giving at least thought some card, white credit [saw] the front. fact that the other two officers who could recognizes He aas counterfeit credit card. supported the events of the second had, Ho knows he has been pull tries to day as turning had to do with the back.” It reminded the court that “[t]he over or not of the on the volun- testify officer point just did at the he saw tary basis are not going here. But I’m plain white credit experience, from his take that got say as find it. I’ve he knew it awas counterfeit credit card and going play part is my some delibera- had cause to arrest at that [Ho] tions about the matter. time.” It interplay did not mention the your [Ho’s counsel]: understand concern. magnetic later strip. observed may, If I point. one While we abso- final argued Ho’s counsel accepting lutely consent, even don’t concede the initial true, the Officer’s version as giving portfolio, Government according to Officer lost, Simone, because the proba- Officer did not have opened portfolio, once he ble cause lawyer to arrest. As point he piece plastic. saw a apparently beginning to address the issue of point It was at that when Mr. Ho tried to interjected the court grab that this back. accepted It why questioned Simone, doctrine withdrawal consent. That that he was “interested in events of unequivocal was an act. present that. I other officers at the understand search was THE COURT: point testify [to] is in order think it called to as to the circumstances for it in to consider- search, out to me. take that perhaps ques- the which calls into ation as well. management by tion the this case the Nevertheless, added.) government. considering (Emphasis testimony the substance of the offered and importance to whether the revo- Of critical witnesses, credibility the of the this сourt pre- was pre-probable cation cause issue compelled deny is the motion. that, although the fact at the end of served is hearing, “with- the Ho’s counsel mentioned sum, the order addresses Ho’s consent”, which the district court drawal of contention that he never consented to out”, ... counsel “point[ed] Ho’s noted search. The court did not address far the discuss, point identify, much less the did not pre-probable more narrow revocation cause by majority when dispositive found —that And, order, subsequent issue. to the Ho’s withdrawn, the Officer did counsel did not move the court to reconsider arrest, much that cause to less on the basis of this more narrow issue. He lacking because the Offi- probable cause was presented did not raise this issue until it was strip. magnetic seen the cer had not then appeal for the first time on as alternative True, supra, the Government its as noted position. urged probable cause at the argument had revocation; but, again, magnetic time of appeal, acknowledges On the Government strip factor had not been mentioned. Con- prove voluntary it had the burden to view, majority’s presented in its trary to the urges that consent and Ho so consented to emphasized portions of above note agrees upon It search. quotation not reflect that the narrow issue do it, giving Ho was free to withdraw dispositive found was either retroactively but maintains that Ho could not to, acknowledged by, presented the dis- do so once the contraband was found. It trict court. urges attempt then when Ho did Surely, upon it was not incumbent regain portfolio, the Officer had seen the present newly surfaced Government card and cause to arrest Ho existed. among competing point, point so lost contend, does not howev shifting that Ho’s The Government versions about consent er, pre-probable it. the rec- the revocation counsel didn’t mention Nor does But, any post-hearing follow-up by ord contain not raised in district court. issue was counsel, supplement such as a to the preclude exploring does not our this sua motion, advancing presses Maldonado, the issue he here sponte. 42 F.3d at 912 & n. See for the first time—revocation (reviewing raised for first time on issue magnetic strip had not cause because the suppress appeal from denial of motion to been seen. though did not error even Government was not raised in district contend presented That the issue at hand wаs not Pierre, .court); United States v. adequately amply district court (5th Cir.) (en banc) (“The 1311 n. one-paragraph order de- demonstrated argue government’s failure to the correct nying suppression motion. It stated appeal ... standard of review on does not pertinent part: measuring argument prevent us from government presented the review”), ‍​‌‌‌​‌​​​​​‌​​‌​​​​‌​‌‌‌​​‌​‌​‌​‌‌​​​​​‌‌​​‌‌‌‌​‍against appropriate standard of present at time of one of three officers denied, 280, 121 506 U.S. alleged illegal of the search. This officer (1992); States v. Vonts L.Ed.2d 207 consented to testified the defendant Cir.) (en banc) teen, F.2d where the con- the search (“no power to our party has the control found. that the [Ho] traband was testified review”; party sug if standard of neither grabbed portfolio from him and officer standard, the review gests appropriate through it No rifled without his consent. proper stan- ing court must determine the other witnesses testified. Neither of the 944 denied, own), 1223, 52(b); plain

dard on its cert. 505 U.S. error. Fed.R.Crim.P. United (1992). 3039, 120 Calverley, 112 S.Ct. L.Ed.2d 908 States v. 37 F.3d at 162-64. so, doing analyze increasingly we four famil- repeatedly, require stated As has been we Olano, iar factors. United States v. 507 U.S. developed in district issues be court and 725, 732, 1770, 1776-77, 113 S.Ct. 123 presented appeal. not be for the first time on (1993); Calverley. L.Ed.2d 508 adequately must framed and Issues be devel “[djevia- “error”; there must be an oped supporting analysis factually, with of law, legal tion from a rule is ‘error’ unless points of the concomitant for the trier of Olano, fact, rule has been waived.” 507 U.S. at entity making all-important 732-33, Second, 113 choices, S.Ct. at 1777. the error credibility invariably which choices “plain”; “‘[pjlain’ synonymous must be [is] suppress, arise on motions so that ” or, equivalently, with ‘clear’ ‘obvious.’ Id. legal precedent presented supple can be 734, Third, at 113 S.Ct. at 1777. the error necessary; if mented so for reasons of id., (inter- must rights”, “affec[t] substantial fairness, fundamental one not side is am quotation omitted); nal “[njormally, marks sandbagged; judicial bushed or and so that ease, although perhaps every in not the de- efficiency economy are not sacrificed specific showing fendant must make a requiring issues to be sent back to district prejudice satisfy ‘affecting See, substantial developed fully. court to be e.g., more 52(b)”, rights’ prong 735, of Rule id. at 113 Calverley, United v. States 37 F.3d fourth, (5th Cir.1994) (en banc) (internal final, at S.Ct. 1778. The factor quotation discretion; omitted) (the appellate concerns an court’s “[i]f marks and footnote rule that ‘plain’ forfeited error is and ‘affect[s] right failure to assert a in the trial court rights,’ Appeals substantial thе Court of has likely will result its forfeiture “is founded authority correction, to order but is not re- upon considerations of fairness to the court quired plain to do so.” Id. A forfeited error parties public and to the and of the interest affecting rights substantial should be correct- bringing litigation to an end after fair “seriously ed if the error affeet[s] the fair- opportunity has present been afforded to all — ness, integrity public reputation judicial denied, fact”), issues of law and U.S. ” proceedings.’ Id. at -, 113 S.Ct. at 1779 (1995); 115 S.Ct. 131 L.Ed.2d 145 Atkinson, (quoting United States v. 297 U.S. Rodriguez, 15 F.3d at 417 157, 160, 391, 392, (internal 56 S.Ct. 80 L.Ed. 555 quotation marks and citation omit- (1936)). ted) (“one obvious, salutary, of the and most purposes plain error rule is to enforce Ho, assuming As concerns even “error” requirement parties object to errors rights”, that “affected substantial the error timely at provide trial manner so as to certainly “plain” was not “clear” —it judge opportunity trial to avoid or or “obvious”. very The issue turns on de- error, correct and thus avoid the costs of tailed, quickly facts, developed, temporal reversal”). as our court past, has stated in the “[f]or a properly fact plain be asserted as

2. appeal, error on arising must be one out- The district finding court’s that the Gov side of the power district court’s to resolve.” proving voluntary Alvaradо-Saldivar, ernment met its burden of United States v. 62 F.3d only 700; is reviewed for clear error. see City also Robertson v. Plano Gonzales, E.g., 413, Texas, Cir.1995) (“be- United States v. 79 F.3d (5th Cir.1996). And, had the cause the nature the claimed error is a properly preserved fact, cause issue been question in dis possibility that such a court, trict that issue would be reviewed finding de could rise to the level of obvious error — States, novo. Ornelas v. required part U.S. to meet of the standard for -, -, 1657, 1659, 134 remote”). L.Ed.2d error is (1996). noted, As even if these first three factors

But, when, here, satisfied, as an issue is raised for are we still have discretion not to appeal, first time on we ruling certainly review reverse. The district court’s that should that [Ho] not rise to the level of those conclude had committed or does corrected, go committing those that to the heart of an offense.” be United States v. ensure, Cir.1995). judicial Wadley, proceedings seek to ac- what But, standard, protect misapplies complish, preserve this which in- —substantial subjective objective components. fairness. volves and fundamental reaching objective Before “reasonable instance, contrary, in To the this it is our person” component, subjective compo- judicial system that has been abused. This totality nent must be considered —“the of fact, really question narrow which should facts and circumstances within Officer Si- change the result reached the district Restated, knowledge”. mone’s whether the court, permitted should not be to undo all probable upon Officer had cause to arrest Ho proceedings that has been done in the to seeing being the card and consent revoked Accordingly, because there is no date. cannot be answered in isolation from the error, suppression ruling should be af- surrounding circumstances. firmed. officers, Simone, including The had con- B. day ducted surveillance the before and had assuming pre-proba- walking Even the revocation been alerted to Ho because he was being unusually pace ble cause issue is not raised for the at an fast when he deboarded appeal, flight Angeles, on there his though first time was from Los even at cause for Ho’s arrest the time of revoca- had arrived on schedule New Orleans. As testified, walking tion. Officer Simone Ho was fast, “very, very, extremely fast.... conflicting Faced with two versions of the walking looked like he was so fast he almost incident, district court made mandat- jog”. important, start[ed] to More Ho car- credibility accepted ed choice and Officer portfolio ried a small and had not that Ho to Simone’s version “consented any luggage; bought checked he had a one- portfolio search of the where the contraband ticket; way visiting cash he claimed to be found”, rather than Ho’s that “the officer weeks, friends for two but could or would not grabbed him and rifled them; name and he claimed that his sister majori- through it without his consent.” The bringing luggage would be his on a later ty finding concludes that this consent was not flight. clearly erroneous. response After discovered Officer the blank Officer Simone testified card, card-shaped plastic inquiring why ques- white credit Ho to Ho the officers were him, by trying regain port- tioning they they revoked consent his stated that nar- were control, folio. The Officer retained looked at cotics detectives and had noticed that he had magnetic strip, flight Angeles the back of the saw the arrived on a from Los and was preparing depart airport and arrested Ho. without luggage. granted request Ho their to search majority The holds that the lacked Officer portfolio; they nothing found his note. Ho arrest when the Officer saw the card and Ho revoked consent. It arrest), morning (day The next looking holds also that Officer Simone’s at purchased Simone was informed that Ho had regain card the back of the after Ho tried to one-way Angeles. cash return ticket to Los an unlawful search because airport morning, although Ho was at the consent had been revoked and there- he had said he would be in New Orleans for fore, during the evidence found the subse- weeks, stopped two him Officer Simone quent suppressed. search should have been flight gate outside the area as the was start- ing Upon asking furnishes the standard for to board. the Officer Ho totality why returning Angeles cause: whether “the of facts he was to Los so soon, explained fight and circumstances within that he had had a [Officer Simone’s] knowledge trip at the moment of with his sister and had decided to cut his [revocation that Ho’s we]re sufficient for reasonable short. Officer Simone testified they typically type marking. “didn’t seem reasonable to me bear some explanation (This Mends, visiting why argu- judicial intra-panel dispute if he was notice/fact yet would splendid example why ment with the sister cancel entire another is- plans.” timely presented sues must be to the fact finder, so that can be hashed out and story leading The district court found Ho’s opportunity resolved after both sides have an so, up implausible, to the search to be evidence, put appellate and so that obviously, Surely, did Officer Simone. judicial grasp courts don’t have to notice implausibility must be considered assess- cards.) straws, instance, plastic or in this But, ing probable evaluating in cause. the subjective knowledge, majority the Officer’s Whereas it would be most unusual for such give adequate weight fails to to these critical blank, completely a card to be the fact that circumstances, surrounding focusing instead “swipe” by all ma- the cards mentioned the narrowly on the moment when he saw the jority magnetic strip would have a indicates card. that the “total blankness” of one side of a type shape card of this and arouses more moment, focusing majori- Even on that the suspicion magnetic strip than a on the other. ty probable underestimates the cause for ar- Moreover, light testimony in of the Officer’s point. seeing rest at that It holds that nothing that he found of note in the plastic blank white front of the card would previous day, when he searched it the it is cause; probable not alone establish in obvious the card was not then only was established after the Officer saw the back, magnetic strip post-revocation. on the But, testified, as the Officer when he “first fact, This when considered with the other card, located the it was obvious that it was circumstances, including past the Officer’s contraband”; type some point, at that all cards, encounters with fraudulent credit piece plastic he saw was a blank the size implausible explanation why he was shape aof credit card. The Officer leaving day, after one after almost that, testified when he noticed the he 2,000-mile flight, initially when he offi- told experience knew what it was from his aas visit, planned sup- cers he two-week because, police past officer “[i]n [he had] ports proba- a conclusion that the Officer had encountered those cards and cards like that seeing magnetic strip. ble cause one, blank, magnetic which were had the Accordingly, disagree major- I must with the strips on the rear of them. And were ity probable that Officer Simone had cause later determined to be fraudulent credit only upon seeing strip. later cards.” majority unfaMy The criticizes the Gov- The fact that the card was blank indicated failing testimony ernment for to elicit contraband; and, that it Officer gauge which to the extent of Officer Simone’s though magnetic strip even supрorted his knowledge experience in the area of opinion, this does not diminish the existence circle; credit card fraud. have full We come upon seeing cause the Officer’s why required we are back to Ho was the card’s blank front in those circumstances. present pre-probable the revocation moment, thought

At that he had issue. Because Ho did not raise that issue in cause; and, totality of the facts and court, district had no Government reason light subjective in circumstances of his anticipate testimony that such would be- knowledge were more than sufficient for come critical when the issue was later raised reasonable to reach the conclu- same Maldonado, appeal. for the first time on See sion. (“[T]he 42 F.3d at 912 district court ruled on majority judicial The presented takes it. [revocation notice the issues Had the ubiquity plastic “swipe” presented, cards in modern cause] issue been but, society; contrary concerns, taken, testimony to its argu- like- could have been judicial received, issue; wise take notice that cards are ment on that and the these district seldom, it.”) very, very ever, side; if blank on one court would have dealt with line, majority posits Along that same cаuse to arrest Ho as of con- revocation, sent the white was a member blank card seen because Officer Simone unit, time day-to-day activi- Officer is admissible in of the narcotics whose nevertheless, evidence even if investigating illegal drug traf- the other items ties focused on in (Surely, are not. if much even ficking, the card would have had admissible, card is will at significance criminal to him. Simone less immediate testify least be able to at trial about the front Again, because did not raise the issue of the card he observed before court, consent revo- not on district the Government was cation.) sidesteps its note 3 notice that about the Officer’s ex- admissible, whether at least the card is stat- perience with credit card fraud was neces- ing unnecessary issue, that it is to reach this Nevertheless, sary. he testified on direct Pulliam, though even it cites Mason v. past examination encoun- “[i]n (5th Cir.1977), discussing F.2d 426 one, tered those cards and cards like that primarily upon point by case relied for this blank, magnetic strips which were had the Government, Jachimko, States they the rear of them. And were later deter- (7th Cir.1994). 19 F.3d 296 And, mined to be fraudulent credit cards.” cross-examination, that, “in he testified beyond We need not look Mason to know past I had encountered cards the same that, prior because the Officer saw the card were, fact, fraudulent, shape that in size and revocation, to consent the card is admissible. card, suspected saw the was a fraudulent granted agent’s request Mason an IRS to states, majority again credit card.” The remove and examine Mason’s business rec- unfairly, “mak[ing] that the most Officer was days agent ords. Several after the obtained but, backpedal” testimony; an effort to in his records, he refused Mason’s demand for development the absence of further of this their return. subject explained by is Ho’s failure to raise returning Our court affirmed Mason’s rec- impos- an the issue. The demands copies ords and all made after the demand proof ‍​‌‌‌​‌​​​​​‌​​‌​​​​‌​‌‌‌​​‌​‌​‌​‌‌​​​​​‌‌​​‌‌‌‌​‍sible burden of from the Government Noting for return. can limit- be by requiring anticipate present it to evi- ed, withdrawn, qualified, rejected in dence on an issue that was not raised that, agent’s permit- contention when Mason district court. papers him examining ted to take the encounter, The circumstances of the in copying, waived Mason forever his Fourth conjunction subjective with Officer Simone’s rights any underlying Amendment rea- knowledge being of such blank cards coun- expectations privacy. sonable Id. at 428. cards, objective terfeit credit meet the test held, however, court Our Mason’s with- probable for a reasonable to find drawal of consent and reinvoeation of his Wadley, cause for Ho’s arrest. See rights Fourth Amendment did “not affect the at 512. validity agent’s] prior [the actions to the right notice that his

time he received C. papers gone.” retain Mason’s Id. at 429. Accordingly, it held that district court “[t]he It is well remember that the Fourth correctly require refused to the return of protects only against Amendment “unreason- copies prior by Mason’s made the demand seizure; obviously, able” search and attorney.” holding applies Id. This to the protections consent lowered the offered (and seized, possibly card the Officer saw as See, e.g., that Amendment. Schneckloth infra) prior to discussed Ho’s consent revo- Bustamonte, 218, 219, 412 U.S. cation. No more need be said. (1973) (consent 2043-44, 36 L.Ed.2d 854 beyond specifically exceptions “one of the established Even if we need to look our circuit others, requirements of both a warrant and law to that of Jachimko and the case cause”). end, upon provide Toward that even which it relies a sound basis for assuming arguendo permitting both that the revocation аt least the admission of the card. majority erroneously distinguishes cause issue was raised dis- The Ja- court, illegal trict and that did not chimko on three bases: that there the Officer Simone (marijuana plants) asking the substance another box. Without for further

nature of card; box; readily apparent, agent opened unlike that of the the second acknowledges that government that “the Of- agent inside was a can in which the found a ficer Simone must have established plastic bag containing clear cocaine. activity of criminal at the time of the appeal, Dyer On asserted his consent revocation of consent order have seized luggage extended to his and the first card”; “that, on the facts of this box, containing and not to the second box case, probable justify cause to seizure of the cocaine. The held Seventh Circuit card mirrors cause to arrest Ho.” suspect “where a does not withdraw his valid upon Jachimko and the case which it illegal consent to a search for substances expressly do not turn on obvious relies ille- discovered, are the consent re- Jachimko, gality of the item. an infor- mains valid and the substances are admissi- provided mant information to the DEA about ble as еvidence.” Id. at 816. The admissibil- engaged marijuana persons indoor cultiva- ity of Ho’s card is confirmed tion, but did not know of Jachimko’s involve- Seventh Circuit cases. supplied DEA ment. The the informant with alternative, recording device and alert button after In the even if Jachimko and arranged purchase marijuana plants Dyer illegality turn on the obvious suspect. item, The informant and the sus- distinguish- that does not make them house; pect upon entered Jachimko’s able. Officer Simone testified “[w]hen activated, being agents alert knocked on [he] first located the it was obvious it it, opened door. He but tried to Jachimko’s type something”, was some contraband or agents close when the identified them- only upon finding and denied that it was arresting selves. After Jachimko and the magnetic strip thought that he the card was suspect, agents searched the house fraudulent. marijuana plants. seized disagreement As for the second area of on granted The district court Jachimko’s mo- subissue, this seen before revocation unlike suppress plants. tion to The Seventh majority, I do not read the Government’s analysis Circuit vacated and remanded for “acknowledg[ing] brief as that Officer Si- doctrine, under the “consent once removed” probаble mone must have established cause (or informant) applicable agent “the when activity of criminal at the time of the revoca- express entered at the invitation someone tion of consent order to have seized the consent, authority point with at that estab- that, card.” The Government asserts “once probable lished the existence of cause found, Ho contraband was could not then search, an effectuate arrest or and immedi- retroactively scope withdraw limit the ately help summoned from other officers.” Jachimko, the search.” It then cites (internal quotation Id. at 299 cita- marks and that, holding suspect “where a does not with- omitted). tion illegal draw his valid consent to search for remanded, Because the case was the court discovered, substances before are commented also on Jachimko’s consent revo- consent remains valid and the substances are contention, that, noting “if cation Jachimko Jachimko, admissible as evidence.” 19 F.3d attempted to withdraw his consent after [the (emphasis original) (citing at marijuana plants, informant] saw the 816). Restated, Dyer, v. 784 F.2d at States (em- could not withdraw his consent.” Id. pre-consent Jachimko looks to revоcation added). phasis support, it relied on its “discovery”, pre-consent revocation “sei- Dyer, decision in v. statements, Following these zure”. Gov- (7th Cir.1986). that, ernment does state “at the time Ho Dyer luggage being attempted grab

After consented to his from searched, hands, agents already discovered a box. When Simone’s Officer Simone it, Dyer responded suspect asked what was that it cause to the card was part, gave permission was an automobile fraudulent and to seize the card from Ho’s Inside, open agent possession.” the box. I an alternative found read this as seizure, expía- not as a further Amendment defining basis for within its “unreason- nation of Jachimko. ableness” standard. majority’s

Finally, the conclusion “on case, probable justi- the facts of this cause to III. fy seizure of the card mirrors seizure, uphold would or at least the to arrest Ho” is erroneous for two reasons. (and admissibility of the white card seen the evidence indicates seized) possibly before revocation of consent. consent, already revoked the Officer had else, If nothing I would reopen remand to card, by removing seized the it from the suppression hearing, so that evidence can be The Officer testified cross-ex- facts, missing received on the uncertain or that, “[w]hen amination first located the [he] such as whether Officer Simone seized the type it was obvious it was some Therefore, card before consent was revoked. something, contraband or is when I I respectfully dissent. added.) (Emphasis controlled the folder.” you He was asked on redirect: “When were

going through and discovered piece plastic,

the white did know pulled

this time before he it back that that

was a card?” fraudulent credit The Officer responded, I removed it “When

folder, suspected (Emphasis that it was.”

added.) America,

If, UNITED STATES of indicates, as this the card Plaintiff-Appellee, was seized before Ho revoked again Officer did not need cause to (Once post-arrest. again, seize it would ULLOA, Defendant-Appellant. best, Mario least, say

have been for this fact issue to have been in district court. clarified No. 95-50302. Doubtless, been, it would the revo- proper- cation cause issue been Appeals, United States Court of raised.) ly if Accordingly, Ho did not revoke Fifth Circuit. his consent before the card was seized Aug. 1996. Officer, his consent remains valid and the seized card is admissible. my agreeing

The second basis for

“probable justify cause to seizure of the card

mirrors cause to arrest Ho” is be- dramatically

cause Ho’s consent alters the

landscape. willing I am not to concede suspected illegal

when item to be is seen search,

during subject post- it is

consent revocation seizure if

cause, supra, as that term is defined existed My seize when first seen. research point. contrary,

reveals no case on To the

see, Guzman, e.g., United States (9th ‍​‌‌‌​‌​​​​​‌​​‌​​​​‌​‌‌‌​​‌​‌​‌​‌‌​​​​​‌‌​​‌‌‌‌​‍Cir.1988) (“evidence found sup-

before [consent] revocation will not be short,

pressed”). cause is not gateway for the admission of evidence during

found a consent search. To so hold contrary applying

runs the Fourth

Case Details

Case Name: United States v. Ho

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Aug 29, 1996

Citation: 94 F.3d 932

Docket Number: 95-30919

Court Abbreviation: 5th Cir.