598 F.3d 997 (8th Cir. 2010), 09-1890, United States v. Cisneros-Gutierrez

Docket Nº:09-1890, 09-2590, 09-2728.
Citation:598 F.3d 997
Opinion Judge:WOLLMAN, Circuit Judge.
Party Name:UNITED STATES of America, Appellee, v. Alfonso CISNEROS-GUTIERREZ, Appellant. United States of America, Appellee, v. Gerardo Cisneros-Gutierrez, Appellant. United States of America, Appellee, v. Alfredo Cisneros-Gutierrez, Appellant.
Attorney:Cenobio Lozano, Jr., Harrisonville, MO, for appellant Alfonso Cisneros-Gutierrez. John G. Gromowsky, The Gromowsky Law Firm, LLC, Kansas City, MO, for appellant Geraldo Cisneros-Gutierrez. Bruce C. Houdek, Kansas City, MO, for appellant Alfredo Cisneros-Gutierrez. Amy B. Marcus, Asst. U.S. Atty.,...
Judge Panel:Before WOLLMAN, RILEY, and MELLOY, Circuit Judges.
Case Date:March 23, 2010
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 997

598 F.3d 997 (8th Cir. 2010)

UNITED STATES of America, Appellee,

v.

Alfonso CISNEROS-GUTIERREZ, Appellant.

United States of America, Appellee,

v.

Gerardo Cisneros-Gutierrez, Appellant.

United States of America, Appellee,

v.

Alfredo Cisneros-Gutierrez, Appellant.

Nos. 09-1890, 09-2590, 09-2728.

United States Court of Appeals, Eighth Circuit.

March 23, 2010

Submitted: Dec. 16, 2009.

Page 998

[Copyrighted Material Omitted]

Page 999

[Copyrighted Material Omitted]

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Cenobio Lozano, Jr., Harrisonville, MO, for appellant Alfonso Cisneros-Gutierrez.

John G. Gromowsky, The Gromowsky Law Firm, LLC, Kansas City, MO, for appellant Geraldo Cisneros-Gutierrez.

Bruce C. Houdek, Kansas City, MO, for appellant Alfredo Cisneros-Gutierrez.

Amy B. Marcus, Asst. U.S. Atty., Kansas City, MO (Matt J. Whitworth, U.S. Atty., Lucinda S. Woolery, Asst. U.S. Atty., on the brief), for appellee.

Before WOLLMAN, RILEY, and MELLOY, Circuit Judges.

WOLLMAN, Circuit Judge.

Alfonso Cisneros-Gutierrez (Alfonso) and Gerardo Cisneros-Gutierrez (Gerardo) entered conditional pleas of guilty to charges of conspiracy to distribute methamphetamine and possession of firearms in furtherance of a drug trafficking crime. Alfredo Cisneros-Gutierrez (Alfredo) entered a conditional plea of guilty to a charge of conspiracy to distribute methamphetamine. They each reserved the right to appeal the district court's 1 denial of

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their motions to suppress evidence and statements obtained pursuant to the searches of multiple residences. We affirm.

I.

During a drug investigation in 2007, law enforcement officers searched three residences in Kansas City, Missouri. Based on information from a confidential informant, Special Agent Mark King of Immigration and Customs Enforcement set up surveillance of 323 South Brighton Avenue on July 12, 2007. Additional officers joined King, and they decided to conduct a " knock-and-talk." 2 The officers approached the residence and knocked on the door, which was then opened by Justino Ruiz-Ramos. After entering the common entry way to the apartments, the officers asked Ruiz-Ramos for consent to search the apartment, to which Ruiz-Ramos responded by saying that he did not live there. While police were trying to determine if Ruiz-Ramos lived at the apartment, Salvador Jesus Velasco-Saldana opened the door, identified himself as the sole resident, and consented to a search of the premises. The search revealed methamphetamine, Animed MSM (a substance commonly used to cut methamphetamine), a digital scale, a firearm, and ammunition. The officers interviewed Ruiz-Ramos the following day and were told that Gerardo had sold him three pounds of crystal methamphetamine, which Gerardo's brother had delivered. Ruiz-Ramos did not know the brothers' exact address, but he drew a map detailing the location of their residence.

Based on that information, King, Detective Luis Ortiz of the Kansas City, Missouri Police Department Gang Unit, and five or six other officers performed a knock-and-talk at 430 Donnelly Avenue at 6:30 a.m. on July 24, 2007. When Ortiz and King knocked on the door, Miguel Angel Garcia-Bobadilla answered the door and the officers identified themselves as law enforcement, explaining that they were conducting a narcotics investigation. In response to their request, Garcia-Bobadilla told the officers that they could enter. Once inside, the officers asked Garcia-Bobadilla if anyone else was in the residence and were told that no one else was present. The officers requested and received permission to verify that this was the case. During a protective sweep, Ortiz encountered Alfredo and Dehli Hernandez-Pena moving between rooms. Questioning ensued and Alfredo and Garcia-Bobadilla said that they lived in the apartment. They gave verbal and written consent to search the residence. The written form was in English, and Ortiz explained the form in Spanish. According to the officers, they did not brandish their weapons during this encounter. A search of the premises resulted in the recovery of more than 230 grams of methamphetamine and approximately six pounds of a cutting agent.

Alfredo recounts the search differently. According to Alfredo, Ortiz had his gun drawn when Garcia-Bobadilla opened the door. Alfredo claims that Ortiz pointed the gun at Garcia-Bobadilla, forcing him to walk backwards into the living room. The officers proceeded to enter the apartment and search the premises without consent. Ortiz threatened Garcia-Bobadilla and Alfredo that the officers would search the house regardless of whether they signed the consent form. According to Alfredo, he felt that he did not have a right to leave the house. Alfredo signed the consent

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form. Garcia-Bobadilla also signed the consent, believing that he had no other option.

It is uncontroverted that while the search was being conducted, Hernandez-Pena told Ortiz that she wanted to cooperate. She informed Ortiz that Alfredo's brothers lived at another house in Kansas City, that they possessed large quantities of illegal narcotics and several firearms, and that they served as enforcers for the drug trafficking organization. Hernandez-Pena stated that she had been to the residence and had seen the drugs and weapons. Ortiz and another detective drove Hernandez-Pena to the vicinity of the home to confirm its location for the officers, and she identified 3907 East 12th Terrace as the brothers' residence.

Once the location was confirmed, the officers who had searched the Donnelly Avenue location came to East 12th Terrace. Ortiz and King approached the front door and the other officers deployed to the sides and back of the residence to intercept anyone who might flee the house. Ortiz and King knocked on the front door and Gerardo answered through a closed glass window adjacent to the front door. Ortiz, speaking in Spanish, identified himself and King as law enforcement officers and explained that they were conducting a narcotics investigation. Gerardo acted confused and repeatedly asked the officers who they were and what they wanted.

While talking to Gerardo through the window, Ortiz saw Alfonso inside the house. Gerardo was speaking to Alfonso as well. Ortiz saw Alfonso enter the kitchen, immediately return in the direction from which he had come, re-enter the kitchen with three large plastic bags, and then begin washing an unknown substance down the kitchen sink. Ortiz told King and Sergeant Jay Pruetting that " something is getting flushed" down the sink. King then looked through the window at the top...

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