U.S.A v. Cisneros-gutierrez
| Citation | 598 F.3d 997 |
| Decision Date | 23 March 2010 |
| Docket Number | No. 09-2728.,No. 09-2590,No. 09-1890,09-1890,09-2590,09-2728. |
| Parties | 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. |
| Court | United States Courts of Appeals. United States Court of Appeals (8th Circuit) |
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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.
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's1 denial oftheir motions to suppress evidence and statements obtained pursuant to the searches of multiple residences. We affirm.
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 GarciaBobadilla 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 GarciaBobadilla 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 consentform. Garcia-Bobadilla also signed the consent, believing that he had no other option.
It is uncontroverted that while the search was being conducted, HernandezPena 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 of the front door and saw Alfonso hurriedly leave the kitchen and enter the southwest bedroom. Alfonso exited the bedroom carrying an unknown object to an area on the west side of the residence, out of the officers' field of vision. Alfonso repeated this action one more time before convening with Gerardo. Alfonso or Gerardo eventually opened the door.
The officers entered the house with their guns drawn, handcuffed Alfonso and Gerardo, and conducted a protective sweep. During the cursory sweep, the officers observed plastic bags containing numerous empty zip-lock storage bags in the kitchen sink, a plastic bag containing a crystal-like substance on the floor in a bedroom, a bundle of United States currency, an electronic money counter and assault-style rifles. The officers detained Gerardo and Alfonso and applied for and received a state search warrant for the residence. The ensuing search produced 5880 grams of methamphetamine, more than $160,000 in cash, and four firearms.
Alfredo and Alfonso were individually questioned by Ortiz and King at police headquarters after being informed of their Miranda rights and signing Miranda waiver forms. Both Alfredo and Alfonso made inculpatory statements.
Alfredo, Alfonso, and Gerardo, along with three other defendants, were indicted on a variety of charges. Each defendant filed a motion to suppress, which the magistrate judge recommended denying. The district court adopted the report and recommendations and each brother entered a conditional guilty plea. Alfredo was sentenced to 240 months' imprisonment; Alfonso was sentenced to 195 months' imprisonment, 135 months for conspiracy to distribute methamphetamine and 60 months for possession of firearms in furtherance of a drug trafficking crime; Ger-ardo was sentenced to 180 months' imprisonment.
Alfredo appeals, arguing that the evidence found at 430 Donnelly Avenue and the statement he made should be suppressed because: the consent to search was the product of coercion and not voluntarily given and the protective sweep was unnecessary because the police chose to enter the residence. Alfonso and Gerardo appeal the denial of their motions to suppress the evidence seized at 3907 East 12th Terrace, raising a number of issues. Additionally, Alfonso contends that the statements he made were tainted by the illegal search and that the district court erred in the imposition of the five-year consecutive sentence for possession of a firearm in furtherance of a drug crime.3
We review the district court's factual determinations underlying the denial of a motion to suppress for clear error and its legal conclusions de novo. United States v. Hogan, 539 F.3d 916, 921 (8th Cir.2008).
Alfredo contends that consent to search the Donnelly Avenue residence was involuntarily given as a result of police coercion, rendering it unconstitutional. A warrantless search of a residence does not violate the Fourth Amendment if voluntary consent has been given by a resident. Schneckloth v. Bustamonte, 412 U.S. 218 222, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). Consent is voluntary if it is "the product of an essentially free and unconstrained choice by its maker, " rather than the "product of duress or coercion, express or implied." Id, at 225, 93 S.Ct. 2041.
Whether consent was voluntarily given "is a question of fact to be determined from the totality of the circumstances." Id. at 227, 93 S.Ct. 2041. In determining voluntariness, the...
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