U.S. v. Barrera

• Citation: 464 F.3d 496
• Decision Date: 05 September 2006
• Docket Number: No. 05-40460.,05-40460.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Juan Gerardo BARRERA, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 496

464 F.3d 496

UNITED STATES of America, Plaintiff-Appellee, v. Juan Gerardo BARRERA, Defendant-Appellant.

No. 05-40460.

United States Court of Appeals, Fifth Circuit.

September 5, 2006.

Matthew James Rinka (argued), Laredo, TX, James Lee Turner, Asst. U.S. Atty., Houston, TX, for U.S.

Cynthia Eva Hujar Orr (argued), Goldstein, Goldstein & Hilley, San Antonio, TX, for Barrera.

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

Before KING, STEWART and DENNIS, Circuit Judges.

CARL E. STEWART, Circuit Judge:

Juan Gerardo Barrera ("Juan") was indicted for possession of a firearm by a convicted felon. In the trial court, he moved to suppress the evidence that formed the basis for his arrest, arguing that, by entering his home without a warrant for his arrest, probable cause, or other lawful authority, law enforcement officers violated his Fourth, Fifth, Sixth, and Fourteenth Amendment rights. The district court denied Juan's motion to suppress and sentenced him to fifty-seven months imprisonment to be followed by three years of supervised release. Juan appeals, renewing the merits of his previous motion to suppress and arguing that the law enforcement officers who entered his residence did not conduct sufficient due diligence and, therefore, had no reasonable belief that his brother Jose Humberto Barrera ("Jose") lived at the residence or was inside when they executed the arrest warrant at Juan's home. For the following reasons, we affirm the district court's denial of the motion to suppress, holding it was not clearly erroneous.

FACTUAL AND PROCEDURAL BACKGROUND

The following events transpired as a result of a warrant received and executed by Deputy United States Marshal Alejandro Ramos ("Ramos") for Jose Barrera; Juan, Jose's brother and the subject of this appeal, was never the focus of Ramos's investigation. Ramos testified at Juan's suppression hearing that, on October 9, 2003, he attempted to execute an arrest warrant for Juan's brother, Jose, a drug trafficker known to carry a weapon. In compiling research on Jose, Ramos discovered that Jose's official address, as reported by his probation officer, was 1222 St. Patrick Street, the home of Jose's mother. A visit to that address revealed that Jose no longer lived there.

Ramos later learned that Jose had been arrested earlier that year at 1209 St. Michael Street ("St.Michael") and that a bail bondsman through which Jose had made bond confirmed that Jose had given the St. Michael address as his place of residence. Furthermore, a Laredo police officer told Ramos that Jose was known to drive an orange Hummer, an orange Corvette or a pearl Escalade and that after Jose's Hummer was stolen and recovered, Juan had paid to retrieve it from the impound.

After gathering this information, Ramos acted fast,¹ relying primarily on his leads and conducting little further research regarding Jose's whereabouts. On October 9, 2003, the Laredo Police Department ("LPD") advised Ramos that all three vehicles suspected to belong to Jose were at the St. Michael location. While in route to St. Michael, the LPD informed Ramos that one of the Barrera brothers had left the residence in the Corvette. Therefore, when Ramos saw the Corvette, he conducted a traffic stop; the stop revealed that the driver was Mauro Barrera ("Mauro"), the brother of Juan and Jose. Mauro agreed to accompany Ramos and approximately five other law enforcement officers back to the St. Michael residence; Mauro explained that the house belonged to Juan, who was present at the residence, but that he had not seen Jose.

Thereafter, the officers arrived at the residence and surrounded it. There was no answer to the officers' knocking on the door, nor did anyone respond to a phone call made by Mauro to the residence. After approximately fifteen minutes had elapsed, Juan answered the door wrapped in a towel. He was surprised to see the officers and began backing away from the door with his hand behind his back. As Juan stepped backwards, Ramos heard something drop, but was unable to see what it was. Officer Jorge Medina of the LPD ("Medina") then advised Juan to step to the side and to identify the item that was dropped.²

At that point, Officers Medina and Chavez entered the residence without seeking permission and retrieved the firearm from the floor. Juan was cooperative; he made no attempt to close the door and gave Ramos permission to search his residence. His consent, however, was sought by Ramos after the officers had already entered the residence. Juan also advised the officers that Jose was in Cancun, Mexico. A search of Juan's residence did not lead the officers to Jose; however, the officers observed what was later determined to be $10,000 on Juan's bed and a closed briefcase containing a firearm inside a closet in the bedroom. At that point, Ramos asked Juan if he was on probation or had a criminal history and Juan advised Ramos that he was on probation for attempted murder. Before that conversation, Ramos was unaware that Juan had a felony conviction. Ramos then notified ATF Agent David Martinez³ that weapons had been found at Juan's residence and continued searching Juan's residence.

Thereafter, Juan was indicted for possession of a firearm by a convicted felon. He moved to suppress the evidence that formed the basis for his arrest, arguing that, by entering his home without a warrant for his arrest, probable cause, or other lawful authority, law enforcement officers violated his Fourth, Fifth, Sixth, and Fourteenth Amendment rights. At the suppression hearing, Medina testified that it was he who told Ramos that Jose previously had been arrested at the St. Michael residence, and that he did so prior to the search of the residence in October 2003. Medina also explained that he had not observed Jose at that address since his arrest in May 2003. Moreover, Medina stated that when Juan opened the door, Medina identified himself and Juan began to back away from the door with his right hand next to his right leg. Though Medina explained that he did not see what Juan held in his hand, he testified that he believed Juan had moved back because he was wearing a towel, until he heard a "clank." Medina testified that, at that point, he stepped inside the doorway to recover the firearm for safety purposes.

During Ramos's testimony at the suppression hearing, he pointed out, in addition to the factual occurrences at Juan's residence, that he was aware that the presence of a handgun inside a residence alone is not a sufficient basis to justify entering a residence; however, Ramos explained that because he had an arrest warrant for an individual, he actually did not need permission to enter the residence. Therefore, Ramos clarified his statement, stating that his asking permission to enter Juan's residence was not required by law but instead was a personal practice and if Juan had not given him permission to search his home, Ramos would have searched it anyway. Finally, Ramos testified that when he entered the residence, he: (1) did not believe that there was a possibility that any evidence would be removed or destroyed if he had to wait for a search warrant; (2) was not in hot pursuit of a suspect; and (3) did not believe that there was an immediate risk to the officers based on activity inside the residence.⁴

The district court ultimately denied the motion to suppress, even though it found that Juan did not give the officers consent to enter his residence and no exigent circumstances justified entry into the residence. It held that the arrest warrant for Jose was sufficient to allow the officers to enter Juan's residence. The court reasoned that because Ramos had received information that (1) on or prior to October 9, 2003, Jose had been arrested at the St. Michael location; (2) a bail bondsman had reported that Jose previously had listed the St. Michael location as his residence; (3) Jose's other known address was no longer valid; and (4) a Laredo police officer had advised that vehicles known to be used by Jose were present at the St. Michael location, it was reasonable for Ramos to believe that it was highly probable that Jose resided at and might be found at the St. Michael address.

The court found it inconsequential that, in hindsight, the information that Jose lived at the residence may have been incorrect, even though Jose had not been seen at the residence since May 2003. The court stated that "what makes the search or entry into the home valid was the fact that they were executing a valid arrest warrant, although for someone else, but once they have a legal right to enter the home and they talked to [Juan], and he admits that he had possession of the gun and had dropped the gun and they find the gun, I think one thing leads to another and validates legally whatever flowed from that." The district court also denied Juan's motion to reconsider the motion to suppress, essentially reiterating its previous ruling.

After a stipulated bench trial, the court found Juan guilty of possession of a firearm by a convicted felon. A probation officer prepared a Presentence Report (PSR) setting Juan's base offense level at 24. After reducing Juan's base offense level by three levels for acceptance of responsibility, Juan's total offense level of 21 and criminal history category of III yielded a guidelines range of imprisonment of 46 to 57 months of imprisonment. The district court sentenced Juan to 57 months of imprisonment to be followed by three years of supervised release. Juan filed a timely notice of appeal.

DISCUSSION

A. Standard of Review

When reviewing a district court's ruling on a motion to suppress, this court reviews questions of law de novo and factual findings for clear error. United States v. Dortch, 199 F.3d 193, 197 (5th Cir.1999). This court views the evidence in the light most favorable to the party who prevailed in the district court. Id.

Further...