Opinion
No. 10-50470 Summary Calendar.
March 31, 2011.
Joseph H. Gay, Jr., Assistant U.S. Attorney, U.S. Attorney's Office, San Antonio, TX, for Plaintiff-Appellee.
Albert A. Flores, Law Office of Albert A. Flores, San Antonio, TX, for Defendant-Appellant.
Appeal from the United States District Court for the Western District of Texas, USDC No. 2:07-CR-786-l.
Before BARKSDALE, DENNIS, and OWEN, Circuit Judges.
Michael Scott McAuley pleaded guilty conditionally to transporting child pornography and was sentenced, inter alia, to 188 months' imprisonment. He reserved his right to appeal the denial of his motion to suppress evidence discovered on his external computer hard drive during a warrantless search at a border checkpoint.
Arguably, because this search occurred at a border checkpoint, McAuley's consent was not required to conduct the warrantless search. See United States v. Arnold, 533 F.3d 1003, 1008 (9th Cir. 2008) ("[Reasonable suspicion is not needed for customs officials to search a laptop or other personal electronic storage devices at the border".). In the light of the following, however, we need not decide whether the search was constitutionally permissible as a routine search under the border-search doctrine. See United States v. Montoya de Hernandez, 473 U.S. 531, 538, 105 S.Ct. 3304, 87 L.Ed.2d 381 (1985).
The district court's finding that McAuley consented to the search is reviewed for clear error. E.g., United States v. Pickett, 598 F.3d 231, 233 (5th Cir. 2010) (reviewing legal conclusions de novo; factual findings for clear error). McAuley, among others, testified at the hearing on his suppression motion. The factual findings underlying the district court's conclusion that McAuley voluntarily consented to the search were not clearly erroneous. See United States v. Mata, 517 F.3d 279, 291 (5th Cir. 2008) (noting defendant did not withdraw verbal consent despite his refusal to sign consent form); United States v. Garza, 118 F.3d 278, 283 (5th Cir. 1997) ("We will not second guess the district court's factual findings as to the credibility of witnesses."); United States v. Alfaro, 935 F.2d 64, 67 (5th Cir. 1991) (finding defendant's conduct not unequivocal act or statement of withdrawal). Because McAuley waived his Fourth Amendment rights, the search was constitutionally permissible. See Mata, 517 F.3d at 290.
AFFIRMED.