U.S. v. Maldonado

• Decision Date: 12 December 2006
• Docket Number: No. 04-51293.,04-51293.
• Citation: 472 F.3d 388
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jose Alejandro MALDONADO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

472 F.3d 388

UNITED STATES of America, Plaintiff-Appellee, v. Jose Alejandro MALDONADO, Defendant-Appellant.

No. 04-51293.

United States Court of Appeals, Fifth Circuit.

December 12, 2006.

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Joseph H. Gay, Jr., Asst. U.S. Atty., Mark Randolph Stelmach, Asst. U.S. Atty. (argued), San Antonio, TX, for Plaintiff-Appellee.

Alberto M. Ramon (argued), Law Office of Alberto M. Ramon, Eagle Pass, TX, for Defendant-Appellant.

Appeal from the United States District Court for the Western District of Texas.

Before JOLLY, DAVIS and WIENER, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

Defendant-appellant Jose Alejandro Maldonado (Maldonado) appeals his conviction for conspiracy to distribute marijuana in violation of 21 U.S.C. § 846. Maldonado asserts that the district court erred in (1) denying his motion to suppress evidence as seized in violation of the Fourth Amendment¹ and (2) in admitting evidence of his prior arrest. We affirm.

I.

On May 30, 2003, agents planned to execute an arrest warrant for Gerardo Castillo (Castillo), Maldonado's alleged co-conspirator. Agents did not know where Castillo was located, but they had his cell phone number. An agent called Castillo and asked him if he would be willing to "move two squares" (street slang for transporting two kilograms of cocaine). Castillo agreed, but refused to meet the agent in a public place as the agent suggested. Instead, Castillo asked the agent to come to the trailer home "where he was staying." The agent agreed. The agents were unaware that the trailer was Maldonado's residence. Castillo gave the phone to Maldonado and asked him to give the caller directions, which included only a physical description of the trailer and how to find it by following various landmarks. The agent did not know anything about the person who gave him directions, only that he was Castillo's "friend."

Approximately 20 to 30 minutes later, Castillo called the agent back stating that he had something else to do and asking the agent to hurry up and get there. The agent told Castillo that he would be there shortly. Approximately eight agents arrived at the trailer soon thereafter and established surveillance. When the agents arrived at the trailer at approximately 4:30 P.M., they were not certain they were at the correct location. The agents instructed an undercover agent to drive up to the trailer and honk his horn. At this time, a couple of agents were approximately 100 yards away in a parked vehicle.

When the undercover agent honked his horn, Castillo came out of the trailer and got into the undercover vehicle. Agents then swarmed in and arrested Castillo in the driveway. Two agents approached the trailer to cover all sides. While Castillo was being arrested, one agent noticed someone open the trailer door, peek out, and then quickly close the door. The agents were in front of the trailer and had very little cover because the trailer sits in an open area with only a telephone pole to afford cover. Police insignia were visible on the agents' vests and jackets.

An agent approached the trailer door, yelled to the individual inside that they were police executing an arrest warrant, and opened the door. Maldonado exited and an agent placed him on the ground. As other agents were rushing inside the trailer, Maldonado was asked whether anyone else was inside. Maldonado indicated in Spanish that no one else was in the trailer. Agents swept the trailer, looking in places where a person could be hiding to make sure no one else was inside the trailer who could attack them. During this sweep, in the master bedroom closet, they discovered and seized several packages in plain view that appeared to be narcotics. These packages contained approximately 314 pounds of marijuana.

Before trial, Maldonado moved the district court to suppress the introduction of any evidence relating to the seized marijuana on Fourth Amendment grounds. The district court found that the protective sweep by the agents was justified by exigent circumstances and denied Maldonado's motion to suppress. After a jury trial, Maldonado was found guilty of conspiracy to distribute marijuana and was sentenced to 120 months imprisonment with 5 years of supervised release. Maldonado appeals his conviction.

II.

Maldonado first challenges the district court's denial of his motion to suppress the evidence obtained in the warrantless entry. The district court explained that the agents' entry into the trailer was motivated by exigent circumstances because the agents feared for their safety and that the agents did not create the exigency.

When reviewing a district court's ruling on a motion to suppress, we accept the court's factual findings unless clearly erroneous or influenced by an incorrect view of the law. United States v. Foy, 28 F.3d 464, 474 (5th Cir.1994). The presence of exigent circumstances is a finding of fact reviewed for clear error. United States v. Richard, 994 F.2d 244, 248 (5th Cir.1993). We view the evidence in a light most favorable to the prevailing party. United States v. Laury, 985 F.2d 1293, 1314 (5th Cir.1993). We may consider not only the evidence from the suppression hearing, but also evidence presented during the trial. United States v. Rico, 51 F.3d 495, 504 (5th Cir.1995). We review questions of law, including whether the district court's ultimate conclusions of Fourth Amendment reasonableness are correct, de novo. United States v. Paige, 136 F.3d 1012, 1017 (5th Cir.1998).

Warrantless entry into a home is presumptively unreasonable. Payton v. New York, 445 U.S. 573, 587, 100 S.Ct. 1371, 1380, 63 L.Ed.2d 639 (1980). However, we have upheld warrantless protective sweep searches based upon exigent circumstances. See United States v. Watson, 273 F.3d 599 (5th Cir.2001). Nevertheless, where agents create the exigency, the warrantless activity is per se unreasonable and any evidence obtained thereby must be suppressed. United States v. Webster, 750 F.2d 307, 328 (5th Cir.1984).

"A `protective sweep' is a quick and limited search of premises, incident to an arrest and conducted to protect the safety of police officers or others. It is narrowly confined to a cursory visual inspection of those places in which a person might be hiding." Maryland v. Buie, 494 U.S. 325, 327, 110 S.Ct. 1093, 1094, 108 L.Ed.2d 276 (1990). The protective sweep doctrine may apply even if the arrest occurs outside the home. See Watson, 273 F.3d 599; see also United States v. Merritt, 882 F.2d 916, 921 (5th Cir.1989); Kirkpatrick v. Butler, 870 F.2d 276 (5th Cir.1989).

Maldonado does not assert that the agents exceeded the acceptable scope of a protective sweep. Maldonado argues that the agents' entry into the trailer was invalid because they lacked a search warrant, no exigent circumstances were present and even if exigent circumstances were present, the agents created any exigency.

A.

The government has the burden of proving the existence of exigent circumstances. Rico, 51 F.3d at 501. To justify a protective sweep, the government must show "articulable facts which, taken together with rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene." Buie, 494 U.S. at 334, 110 S.Ct. at 1098. Exigent circumstances include hot pursuit of a suspected felon, the possibility that evidence may be removed or destroyed, and danger to the lives of officers or others. Richard, 994 F.2d at 247-48. There is no set formula for determining when exigent circumstances justify a warrantless entry. United States v. Blount, 123 F.3d 831, 837 (5th Cir.1997). In evaluating exigency, we "consider the appearance of the scene of the search in the circumstances presented as it would appear to reasonable and prudent men standing in the shoes of the officers." United States v. Rodea, 102 F.3d 1401, 1405 (5th Cir.1996) (internal quotations and citation omitted). If reasonable minds could differ, we do "not second-guess the judgment of experienced law enforcement officers concerning the risks of a particular situation." Blount, 123 F.3d at 838 (internal quotation marks and citation omitted).

The government argues that the agents' protective sweep was carried out in order to ensure that they and their colleagues would not come under fire from other individuals inside the trailer. Under the facts and circumstances present in this case, we conclude that the district court did not err in concluding that a reasonable officer would have been legitimately concerned for his safety and that of others on the scene during the arrest. The facts in the record and the rational inferences from those facts would warrant "a reasonably prudent officer in believing that the area to be swept harbor[ed] an individual posing a danger to those on the arrest scene." Buie, 494 U.S. at 334, 110 S.Ct. at 1098.

Castillo was arrested in the driveway. This is near enough to the trailer to place the agents in immediate danger. See Rico, 51 F.3d at 501. "[I]f you are standing around in the front yard arresting people in the driveway, you need to make sure that there is not assistance to him by people in other parts of the premises." Id. (internal quotation marks and citation omitted). This is of particular concern in this case because the agents were exposed in an open area in front of the trailer with only a telephone pole to afford cover. The area surrounding the trailer had no structures or vegetation. Agent Shuttleworth, United States Immigration and Customs Special Agent, explained that cover behind the agents' vehicles was also not an option because the cars were not parked where the agents could effectively cover two sides of the trailer.

In addition to the lack of adequate cover, as Castillo was being arrested, the agents observed Maldonado peek outside and then close the trailer door. We have...