U.S. v. Cruz-Mendez

• Decision Date: 06 November 2006
• Docket Number: No. 05-4296.,05-4296.
• Citation: 467 F.3d 1260
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Manuel De Jesus CRUZ-MENDEZ, also known as Manuel Bosquez-Murrieta, also known as Jesus Romero, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

467 F.3d 1260

UNITED STATES of America, Plaintiff-Appellee, v. Manuel De Jesus CRUZ-MENDEZ, also known as Manuel Bosquez-Murrieta, also known as Jesus Romero, Defendant-Appellant.

No. 05-4296.

United States Court of Appeals, Tenth Circuit.

November 6, 2006.

Theodore R. Weckel, Salt Lake City, Utah, for Defendant-Appellant.

Karen M. Fojtik, Assistant United States Attorney (Brett Tollman, United States Attorney, with her on the brief), Salt Lake City, Utah, for Plaintiff-Appellee.

Before HARTZ, EBEL, and McCONNELL, Circuit Judges.

HARTZ, Circuit Judge.

Manuel de Jesus Cruz-Mendez was convicted in the United States District Court for the District of Utah on a charge of illegal reentry into the United States after a bench trial on stipulated evidence. See 8 U.S.C. § 1326. On appeal he challenges the district court's denial of his motion to suppress evidence because of alleged violations of the Fourth Amendment. We have jurisdiction under 28 U.S.C. § 1291 and affirm the conviction and sentence. We hold that (1) the law-enforcement officers' "knock and talk" was not a Fourth Amendment intrusion; (2) the district court did not clearly err in finding that Mr. Cruz-Mendez's girlfriend, Olga Armenta, consented to the officers' entrance into the living room of her apartment; (3) the cellular phone observed by the officers in the apartment living room was in plain view; (4) the district court did not clearly err in finding that Ms. Armenta consented to a search of the bedroom; and (5) the officers had probable cause to arrest Mr. Cruz-Mendez. Because we conclude that there were no Fourth Amendment violations, we need not address whether a violation would require that Mr. Cruz-Mendez's identity be suppressed.

I. BACKGROUND

We summarize the evidence offered at the suppression hearing in the light most favorable to the district court's decision. See United States v. Hunnicutt, 135 F.3d 1345, 1348 (10th Cir.1998). On December 17, 2004, Department of Homeland Security (DHS) Agent Leslie Derewonko received a phone call from a female concerning a man named Manuel Cruz-Mendez. The caller said that he had previously been deported, he had several previous narcotics convictions, and her husband had seen him at a particular address in Provo that morning. That address turned out to be an apartment rented by Mr. Cruz-Mendez's girlfriend, Ms. Olga Armenta.

Agent Derewonko asked fellow DHS Security Agent Carlos Gamarra to meet him at the apartment, and also contacted the Provo Police Department so that he and Agent Gamarra, who were in civilian clothes, could have uniformed officers with them.

At 8:00 a.m. Agents Derewonko and Gamarra, along with Officer Brian Moore of the Provo Police Department, went to the apartment. Ms. Armenta's brother answered their knock on the door. He was putting on his coat and about to leave. The officers introduced themselves but did not enter the apartment. When Agent Derewonko asked the brother for identification, he produced a green card. Ms. Armenta, who gave her name as Olga, was sitting in the room behind her brother; she was dressed in pajamas. One of the officers asked Ms. Armenta and her brother whether they knew a Manuel Cruz-Mendez. Both responded that they did not know him and that there was no one else in the apartment.

After this brief exchange the officers left the apartment and returned to the parking lot. Officer Moore spoke with Provo Police Officer Brad MacFarlane, who said that a few days earlier he had received a call from an anonymous female who had provided the same information received by Agent Derewonko. The caller had further stated that Mr. Cruz-Mendez was staying with his girlfriend, Olga. Officer MacFarlane also told Officer Moore that he understood that there was a Salt Lake City arrest warrant on a narcotics charge for a Mr. Manuel Cruz.

The officers saw Ms. Armenta's brother leave the apartment shortly after they received this information. The officers, now accompanied by Officer MacFarlane, returned to the apartment at 8:20 a.m. and knocked again. Ms. Armenta answered the door. Agent Derewonko told Ms. Armenta that the officers had received information that she and Mr. Cruz-Mendez's girlfriend had the same name. She again said that there was no one else in the apartment. Agent Derewonko then asked Ms. Armenta if the officers could step into the apartment because of the cold weather, and she invited them in.

Once inside, Agent Derewonko asked Ms. Armenta for identification to confirm her name. She stated that it was in her car and left the apartment to get it. As she retrieved it, the officers waited outside her apartment. They did not enter again until she returned with a Utah driver's license, when she again let them in.

At 8:35 a.m. one of the Provo police officers ran a check on Ms. Armenta's license; it was valid. Agent Derewonko then asked if he could look into the bathroom for the safety of the officers. Ms. Armenta consented, so Agent Derewonko, with Ms. Armenta following him, inspected the bathroom. When the pair returned to the living room, she found the other officers looking at pictures in the living room. Ms. Armenta expressed her displeasure that they were looking around the living room and at the pictures, but she did not ask them to leave.

Agent Derewonko then asked Ms. Armenta what her immigration status was. When she said that she was a legal resident, he requested documentation. She went to her bedroom to get proof, but refused to allow Agent Derewonko to come with her. When she returned with her green card, he made a telephone call to verify its immigration number. Agent Derewonko then asked if he could search the apartment, and she refused. Agents Derewonko and Gamarra repeated this request one or two more times, but she continued to refuse. She said that they could search only if they had a warrant. Agent Gamarra explained the procedure for obtaining a warrant (including preparation of an affidavit for review by the United States Attorney and then submission to a judge for approval) and that she could be arrested for harboring if Mr. Cruz-Mendez were found in the apartment. (The district court's narrative of its findings says that "Agent Gamarra then told her that if the officers were not permitted to search the apartment, he would obtain a warrant." R. Doc. 48 at 7 (District Court Memorandum Decision and Order of July 1, 2005 (District Court Decision)) (emphasis added). But the testimony at the suppression hearing, including Ms. Armenta's testimony, indicates that the officers spoke only of seeking a warrant. In any event, the conclusions we reach in this case do not turn on the distinction between a statement by the officers that they would get a warrant and a statement that they would seek a warrant.) Ms. Armenta asked some questions about the warrant procedure and then said, "[F]ine, go get a search warrant." R. Vol. II at 122. Although she testified that the officers threatened that if they got a warrant they would break the doors and take everything out of the closet, they denied that they made such a threat, testifying that they had said only that they could look anywhere a person could hide. The district court believed the officers.

The officers were about to leave to seek a warrant when Officer Moore noticed a black jacket on a love seat next to the officers. To him this "seemed suspicious because a male had just left putting a coat on, but yet we've got another male's jacket laying [sic] as though they are preparing to leave or had just come in." Id. at 186. He then "shined his flashlight on the jacket and noticed a cell phone protruding from the pocket. While he did not touch the jacket, he bent over, shined a flashlight on the phone, and inspected the phone." R. Doc. 48 at 7 (District Court Decision). The name "CRUZ" was etched (perhaps with a ballpoint pen) on the phone. Officer Moore then drew Agent Gamarra's attention to the phone; Agent Gamarra was able to see the word "CRUZ" without the flashlight and without touching the jacket.

Noticing that the officers had seen the cellular phone, Ms. Armenta became upset. She directed Agent Gamarra outside, where she confirmed that Mr. Cruz-Mendez was in the bedroom closet. She told Agent Gamarra that he could search the bedroom, but she asked the officers to pretend to enter without her consent because she was afraid of Mr. Cruz-Mendez.

After securing the rest of the apartment, Agents Gamarra and Derewonko found Mr. Cruz-Mendez hiding under a pile of clothes in the bedroom closet. They arrested him and read the Miranda warnings. He gave his name as Manuel Cruz-Mendez. About 25 or 30 minutes had passed since the officers first entered the apartment; a Provo Police Department Call for Service report indicates that, in the words of Officer Moore, they were "completely done" by 9:00 a.m. R. Vol. II at 195. The officers later discovered that the arrest warrant from Salt Lake City was not for Mr. Cruz-Mendez but for a man named Manuel Camarillo Cruz.

Mr. Cruz-Mendez was charged with illegal reentry under 8 U.S.C. § 1326. He moved to suppress all evidence in the case, claiming violations of the Fourth Amendment. After conducting an evidentiary hearing, the district court issued a written decision and order holding that Mr. Cruz-Mendez had standing to contest the officers' search but denying his motion to suppress evidence.

Mr. Cruz-Mendez was found guilty on August 17, 2005, after a bench trial on stipulated evidence. He was sentenced to a term of 57 months in federal prison.

II. DISCUSSION

When reviewing a district court's denial of a motion to suppress, we consider the totality of the circumstances and view the evidence in the light most favorable to the government. See Hunnicutt, 135 F.3d at 1348. "We accept the district court's factual findings unless those findings are clearly erroneous." United States v. Villa-Chaparro, 115 F.3d 797, 801 (10th Cir. 1997).

A. "Knock and...