U.S. v. Gomez-Moreno

• Decision Date: 12 February 2007
• Docket Number: No. 05-20921.,05-20921.
• Citation: 479 F.3d 350
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Delia GOMEZ-MORENO, also known as Delia Moreno Gomez, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

479 F.3d 350

UNITED STATES of America, Plaintiff-Appellee, v. Delia GOMEZ-MORENO, also known as Delia Moreno Gomez, Defendant-Appellant.

No. 05-20921.

United States Court of Appeals, Fifth Circuit.

February 12, 2007.

John Richard Berry (argued) and James Lee Turner, Asst. U.S. Attys., Houston, TX, for U.S.

Gerald Robert Fry (argued), Houston, TX, for Gomez-Moreno.

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

Before JOLLY, HIGGINBOTHAM and DENNIS, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

Delia Gomez-Moreno appeals the district court's denial of her motion to suppress evidence obtained during a search of her residence for illegal aliens. Because the federal agents and police officers impermissibly created the conditions that they deemed to be exigent circumstances for warrantless entry into the residence, and because Gomez-Moreno's consent for a second search of the residence was not an independent act of free will, we REVERSE the district court's denial of Gomez-Moreno's motion to suppress, VACATE Gomez-Moreno's sentence, and REMAND for proceedings not inconsistent with this opinion.

I.

At the motion to suppress hearing, Immigration and Customs Enforcement ("ICE") agent Gary Renick testified that sometime between 3:30 and 4:30 p.m. on Sunday, February 27, 2005, he began surveillance of 3806 Kennon in Houston, Texas. The surveillance responded to an anonymous telephone call stating that twenty to thirty illegal aliens would be at the residence that day. The residence consisted of two buildings: a main house in the front (the "front house") and a second, smaller house in the back that looked like a garage but had been converted into living quarters (the "back house").

During the surveillance, Renick observed two men and a woman by the front corner of the house. According to the district court, Renick believed these individuals were acting as "lookouts." Renick also observed a lot of traffic at the residence, including a Ford Thunderbird that arrived and departed several times, suggesting to him the transportation of illegal aliens. From his vantage point, Agent Renick could not identify the individuals entering or leaving the residence in the vehicles. Renick requested that a helicopter view the property.

Renick had been working for ICE and its predecessor for eight and a half years. He testified that illegal aliens are typically stored as a group in a stash house until a relative pays the smuggler's fee. He believed that the Thunderbird's activity at the residence was consistent with vehicle activity at most stash houses. Based on his training, he believed that the residence was probably a stash house.

ICE special agent Christian Kaufman testified that he met Renick at 4:30 p.m. at a small park one block across from the residence. By 5:45 or 6:00 p.m., several other agents arrived at the park until there were approximately ten to twelve agents and police officers (collectively "officers") at the park. While the officers were assessing the situation, a man walked past the officers, looked at them, walked to a vacant lot across the street, and then ran in the direction of the 3806 Kennon residence. Renick testified: "So we were thinking maybe he saw us and was going to go tell them. So we decided we needed to just go ahead and go over there." Renick admitted, however, that he could not say if the man actually ran to the 3806 Kennon residence, nor did the district court make any findings on the matter. Renick testified that they decided to approach the residence to secure the exits to the front and back houses and to conduct a "knock and talk" to ask if any illegal aliens were present.

It was approximately 6:45 p.m. when the ten to twelve armed officers arrived at the residence to conduct a "knock and talk," at which time the helicopter also arrived above the residence. Kaufman and several others headed to the front door of the front house, while Renick and others proceeded to the back house. Several officers remained in the general area surrounding the two houses.

As they approached the front house, Kaufman and the officers with him were clearly identified as "Police" and "Department of Homeland Security." When they knocked on the front door, they received no answer, but they could hear people moving inside. One of the officers checked the door knob, which was locked. Kaufman, upon hearing a "commotion" in the backyard, made his way to the back.

Meanwhile, Renick, his partner, and a police officer knocked on the door to the back house, announcing "Police! Police! Open the door." They also clearly were labeled "Police." Through a window, Renick's partner could see "a lot of people" inside. No one responded or opened the door to the back house. Instead, upon the officers' knocking, the lights went out inside, and the officers could hear sounds from inside like that of people pushing against the door to barricade it.

At about this time, a man exited the front house through a back door but stopped when he saw the officers. Seeing the officers, the man turned and ran back inside. Kaufman and several officers drew their weapons and followed the man into the front house to protect the officers and any illegal aliens from any potential armed smugglers. They quickly secured the front house, bringing all twelve occupants out to the backyard. With their weapons drawn, the officers ordered everyone on the ground. ICE agent Juan Castillo testified that most of the persons detained were handcuffed, although Gomez-Moreno was not handcuffed. At the officers' request, the helicopter shined its search light on the backyard to light up the area.

In the backyard, Gomez-Moreno identified herself as the owner. She was cooperative and agreed to speak with the officers. Renick gave her an oral Miranda warning but did not state that she was under arrest. He asked her if there were more illegal aliens in the back house, and she replied affirmatively. Renick testified that he then told her, "We're going to get in that door one way or another."¹ Apparently a transition was occurring from "knock and talk" to "knock down and search." Gomez-Moreno, however, offered to talk to the people inside, who complied with her request to open the door. Shortly thereafter, the interior ceiling of the back house caved in, revealing additional illegal aliens hiding in the attic. The officers secured the back house, bringing out thirteen people.

At approximately 7:30 p.m., after the officers secured both houses, agent Castillo brought Gomez-Moreno into the dining room and asked her to sign a written consent form giving the officers permission to search the premises. She complied. The officers conducted a second search of the residence and found money, receipts, and a "pollo list."

Later that evening, Castillo took Gomez-Moreno to the ICE office and questioned her. At the ICE office, Castillo read Gomez-Moreno her Miranda rights and wrote down a statement that she gave and then signed. Gomez-Moreno stated that she rented the back house to Nemecio Rubio for $700 per month; that she was aware that he used the back house to house illegal aliens; and that on the day before the raid, she agreed to house fourteen illegal aliens in her home for $50 per alien.

In the district court, Gomez-Moreno moved to suppress evidence obtained as a result of the search of her residence. The district court denied her motion and found her guilty of conspiracy to harbor illegal aliens in violation of 8 U.S.C. § 1324(a)(1)(A)(iii). On appeal, Gomez-Moreno only appeals the denial of her motion to suppress.

II.

In an appeal of a denial of a motion to suppress evidence, this Court reviews the district court's legal conclusions de novo and its findings of fact for clear error. United States v. Keith, 375 F.3d 346, 348 (5th Cir.2004). "A finding of fact is clearly erroneous `when although there is evidence to support it, the reviewing court on the entire evidence is left with a firm and definite conviction that a mistake has been committed.'" In re Missionary Baptist Found. of Am., Inc., 712 F.2d 206, 209 (5th Cir.1983) (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948)). If, however, there are virtually no contested facts, our review is essentially de novo. United States v. Vega, 221 F.3d 789, 795 (5th Cir.2000).

Warrantless searches of a person's home are presumptively unreasonable unless the person consents, or unless probable cause and exigent circumstances justify the search. United States v. Jones, 239 F.3d 716, 719 (5th Cir.2001). The burden is on the government to establish circumstances justifying a warrantless search. United States v. Wallen, 388 F.3d 161, 164 (5th Cir.2004). We may affirm a district court's ruling on a motion to suppress on any basis established by the record. United States v. Ibarra-Sanchez, 199 F.3d 753, 758 (5th Cir.1999).

A.

The first question is whether the officers acted with probable cause and under exigent circumstances when they initially raided and searched Gomez-Moreno's home. However, we need not determine whether the officers acted with probable cause because we conclude that the exigent circumstances arose because of the conduct of the officers.

The presence of exigent circumstances is a finding of fact reviewed for clear error. Jones, 239 F.3d at 719-20. To determine whether exigent circumstances existed, we look to the following non-exhaustive list of factors:

1. the degree of urgency involved and the amount of time necessary to obtain a warrant;

2. the reasonable belief that contraband is about to be removed 3. the possibility of danger to the police officers guarding the site of contraband while a search warrant is sought;

4. information indicating that the possessors of the contraband are aware that the police are on their trail; and

5. the ready destructibility of the contraband and the knowledge that efforts to...