U.S. v. Howard, 96-50211

• Decision Date: 07 February 1997
• Docket Number: No. 96-50211,96-50211
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Roddy HOWARD, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 70

106 F.3d 70

UNITED STATES of America, Plaintiff-Appellee, v. Roddy HOWARD, Defendant-Appellant.

No. 96-50211.

United States Court of Appeals, Fifth Circuit.

Feb. 7, 1997.

Richard L. Durbin, Jr., Asst. U.S. Attorney, Joseph H. Gay, Jr., Office of the United States Attorney, San Antonio, TX, for plaintiff-appellee.

David L. Botsford, Austin, TX, for defendant-appellant.

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

Before GARWOOD, DAVIS and STEWART, Circuit Judges.

STEWART, Circuit Judge:

Police entered Roddy Howard's home without a warrant, searched the home, found contraband, and arrested him. These events culminated a seven-month narcotics investigation, in which an agent for the Drug Enforcement Agency (DEA), Gary Hildreth, spearheaded the effort. Howard was charged with conspiracy to distribute cocaine

and possession with intent to distribute cocaine. Howard moved to suppress the evidence seized from the warrantless entry into his home, arguing that the officers had time to secure a search warrant, exigent circumstances did not exist, and that assuming exigencies justified the warrantless entry, those exigencies were manufactured by the Government. After the district court denied Howard's motion on the ground that exigent circumstances existed, Howard conditionally pled guilty to the charges against him. Because we find that the Government did not manufacture the exigent circumstances that justified the officers' warrantless entry into Howard's home, we affirm.

BACKGROUND

In the course of investigating a cocaine and marijuana smuggling operation, DEA agent Gary Hildreth arrested a suspect in possession of 220 pounds of marijuana. The suspect agreed to cooperate and reported that controlled substances were kept at defendant Roddy Howard's residence. From January through June 1995, Howard's residence was under spot surveillance. As a result of this surveillance, the suspicions aroused by the cooperating witness were confirmed: Officers observed narcotics-related pedestrian and vehicular activity at Howard's home. Tony Hall was then arrested in July 1995 with a load of marijuana he claimed belonged to the organization run by the person who allegedly owned the house--a federal fugitive living in Mexico.

Hall agreed to assist the DEA in negotiating a purchase of cocaine from Craig Hillis, a person Hall identified as working with Howard. A "reverse sting" took place on August 9, 1995. Agent Hildreth placed Hillis under surveillance at 10 a.m. that morning. Hall called Hillis and arranged a meeting with him. The two agreed that Hillis would bring enough money to purchase five kilograms of cocaine. Hillis was then seen going to Howard's house, where he stayed a short time. Apparently, the officers did not expect Hillis to stop off at Howard's residence before proceeding to the drug buy. Hillis then went to his girlfriend's house and then to the meeting with Hall. Hillis gave Hall $10,000 in exchange for five kilograms of cocaine. Hillis was arrested.

Hillis immediately agreed to cooperate with the DEA. He told the DEA that Howard was storing a large quantity of marijuana in a freezer at Howard's house and that Howard was the source of the money Hillis used to purchase the cocaine. Hillis also told the DEA that he was supposed to return to Howard's house with one kilogram of the cocaine.

Agent Hildreth then ordered Howard's residence placed under surveillance. Prior to Hildreth's arrival at the house, officers stopped a vehicle, apparently some distance from the house, although there is no direct testimony on this point. When Hildreth arrived, he was informed that a second vehicle, "directly beside the residence in view of the residence," 2 Rec. at 47, was stopped while leaving Howard's house and cocaine had been found, id. at 12-13. Agent Hildreth did not know why the officers stopped the second vehicle in front of Howard's house. In addition, Hildreth testified that when he arrived at the house, a small crowd had gathered at the scene of the stop. Howard's neighbor, Charles Rudolph, testified that the small crowd consisted of police officers. Agent Hildreth testified that at that point, he was concerned that Howard would notice the commotion and attempt to destroy evidence. Hildreth also stated that although he knew that Howard had a problem with his vision, he did not know how many people were inside Howard's house, and he feared for the safety of the officers.

Accordingly, Agent Hildreth decided to make a warrantless entry to secure the premises. Backed by six or seven officers, Hildreth knocked on the door. Although Hildreth could not recall whether he pushed Howard inside or brought him outside the residence when Howard answered, Hildreth stated that he took hold of Howard for Hildreth's safety. Howard's neighbor Charles Rudolph testified that Hildreth pulled Howard outside, put him on the ground, and handcuffed him back inside.

Agents then conducted a protective sweep of the house to determine if anyone else was

present. Although the agents found no one else in the house, cocaine and other paraphernalia were in plain view within the residence. Hildreth testified that although Howard appeared to be under the influence of some substance, Howard was lucid, alert, and seemed capable of understanding what was happening. Hildreth advised Howard of his rights and questioned him about the purchase of five kilograms of cocaine. Howard responded that he had sought only one kilogram. Hildreth then asked for Howard's consent that the residence be searched and Howard orally agreed. Howard thereafter signed a written consent form. With Howard's assistance, agents found marijuana in a freezer in the garage.

PROCEDURAL HISTORY

Howard was indicted for conspiracy to distribute cocaine and possession with intent to distribute cocaine. Howard moved to suppress his statement and the physical evidence seized in the search of his residence. The district court held an evidentiary hearing, and the motion was denied. Howard then entered a conditional plea of guilty and was sentenced to 57 months imprisonment, 5 years of supervised release, and fined $20,000. This appeal followed.

STANDARD OF REVIEW

"We review a district court's denial of a motion to suppress by viewing the facts in the light most favorable to the prevailing party," which in this case is the Government. United States v. Rico, 51 F.3d 495, 500 (5th Cir.), cert. denied, --- U.S. ----, 116 S.Ct. 220, 133 L.Ed.2d 150 (1995) (citing United States v. Shannon, 21 F.3d 77, 81 (5th Cir.), cert. denied, 513 U.S. 901, 115 S.Ct. 260, 130 L.Ed.2d 180 (1994)). We will reverse a district court's factual findings only if those findings are clearly erroneous. Id. We will conclude that a factual finding is clearly erroneous "when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." Anderson v. City of Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985). We review questions of law de novo. United States v. Rico, 51 F.3d at 500.

DISCUSSION

Howard makes three arguments on appeal. First, he claims that the warrantless entry by Agent Hildreth and his fellow officers violated the Fourth Amendment because exigent circumstances did not exist. Second, Howard contends that even if exigent circumstances justified the officers' warrantless entry, the exigency was manufactured by the officers themselves. Finally, Howard argues that he did not voluntarily consent to the search of his home, therefore rendering the seized items and incriminating statement fruit of the poisonous tree.

We hold that exigent circumstances justified the officers' warrantless entry into Howard's home, and that those exigencies were not manufactured by the Government. We also conclude that Howard voluntarily consented to the search of his home.

I. EXIGENT CIRCUMSTANCES

Although a warrantless entry into a home is presumptively unreasonable, exigent circumstances may justify a warrantless entry. United States v. Rico, 51 F.3d at 500-01. In Rico, we examined five factors that guide us in determining whether exigent circumstances justify a warrantless entry:

(1) the degree of urgency involved and 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 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 dispose of narcotics and to escape are characteristic behavior of persons engaged in the narcotics traffic.

51 F.3d at 501 (footnote and quotation omitted).

Whether exigent circumstances exist is a question of fact, reversible only if the district court's factual findings are clearly erroneous. United States v. Richard, 994 F.2d 244, 248 (5th Cir.1993). We look to the totality of the circumstances surrounding the officers' actions, mindful that our review is "more akin to examining a video tape by instant replay than to examining a snapshot." United States v. Rico, 51 F.3d at 501. Accordingly, we "review the entirety of the agents' investigative tactics, particularly those leading up to the exigency alleged to have necessitated the protective sweep." Id. The Government bears the burden of demonstrating exigent circumstances existed. Id. (citing United States v. Thompson, 700 F.2d 944, 946 (5th Cir.1983)).

Taken together, Hildreth's testimony, the district court's order denying Howard's motion to suppress, and the Government on appeal provide five exigent circumstances that purportedly justified Hildreth's warrantless entry into Howard's home: (1) Hildreth had probable cause to believe that illegal drugs and drug...