United States v. Aguirre, No. 10–50999.

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtPATRICK E. HIGGINBOTHAM
Citation664 F.3d 606
PartiesUNITED STATES of America, Plaintiff–Appellee, v. Sherry AGUIRRE, Defendant–Appellant.
Docket NumberNo. 10–50999.
Decision Date13 December 2011

664 F.3d 606

UNITED STATES of America, Plaintiff–Appellee,
Sherry AGUIRRE, Defendant–Appellant.

No. 10–50999.

United States Court of Appeals, Fifth Circuit.

Dec. 13, 2011.

[664 F.3d 608]

Joseph H. Gay, Jr., Elizabeth Berenguer (argued), Asst. U.S. Attys., San Antonio, TX, for Plaintiff–Appellee.

Margaret Loraine Schmucker (argued) (Court–Appointed), Austin, TX, for Defendant–Appellant.

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



Sherry Aguirre was convicted of using a communications facility to facilitate a drug trafficking crime in violation of 21 U.S.C. § 843(b). On appeal Aguirre challenges the district court's denial of her motion to suppress evidence, claiming that the search and seizure of her cell phone was tainted by law enforcement officers' illegal entry into a home where she was a guest. We conclude that the officers' entry was justified by exigent circumstances, that the search and seizure of Aguirre's cell phone occurred under the authority of a valid

[664 F.3d 609]

warrant, and affirm the judgment of the district court.


The search and seizure of Sherry Aguirre's cell phone was a link in the chain of events that unfolded in the wake of the arrest of Arnold Mendoza. Mendoza became a subject of surveillance by the Drug Enforcement Agency after making a controlled sale of cocaine to a police informant. The day of Mendoza's arrest, the agents watching him had reason to believe that he would make another drug deal that evening. Seeing him leave his mobile home at 6:30 P.M. in a tan H2 Hummer, they alerted the local sheriff. A deputy stopped the Hummer for a traffic violation. Mendoza unsuccessfully fled. Marijuana was in plain view and the ensuing search of the vehicle also found nine ounces of cocaine.

Approximately one hour after Mendoza's arrest, several law enforcement officers returned to his residence for an investigative “knock and talk.” They knocked on the front door of the mobile home and announced themselves. They received no verbal response. Instead, they saw an occupant look at them through the window, watched that person retreat, and heard several persons “scuffling” and moving hurriedly inside towards the back of the residence. These veteran officers quickly concluded that the occupants were likely destroying drugs and other evidence of narcotics. In response, the officers did not await a warrant or consent to search, but immediately entered the home. During their protective sweep of the residence they found marijuana and drug paraphernalia in plain sight, as well as several plastic baggies floating in the toilet in a bathroom towards the back of the residence. The toilet bowl's water was still rotating from a recent flush.

The officers detained Aguirre and two other occupants of the mobile home for two hours while DEA Special Agent David Friday obtained a search warrant. Warrant in hand the officers uncovered cocaine, marijuana, six marijuana pipes, three grinders, three digital scales, fourteen cell phones, one shotgun, and one revolver. Aguirre's cell phone was lying in plain view on her bed and was one of the phones seized. It was protected by a password that Aguirre provided to the agents. A search of its text messages uncovered several communications discussing “white” and “green,” terms believed to refer to cocaine and marijuana, respectively.

Aguirre moved to suppress all evidence obtained in the search of the mobile home, including her cell phone and its incriminating text messages. 1 The district court denied the motion by written order, concluding that the officers' warrantless entry into Mendoza's home was justified by exigent circumstances, and that the search and seizure of Aguirre's cell phone was proper both as a search incident to her arrest and pursuant to a valid warrant. The court also found the evidence in any event was admissible under the good-faith

[664 F.3d 610]

exception to the exclusionary rule. Reserving her right to appeal, Aguirre pleaded guilty to using a communications facility—her cell phone—to facilitate a drug-trafficking crime in violation of 21 U.S.C. § 843(b). She was sentenced to twenty-four months imprisonment, one year supervised release, and a special assessment of $100. This appeal followed.


Our review of a district court's denial of a motion to suppress is limited. We may affirm on any basis established by the record, 2 considering the evidence presented at the suppression hearing “in the light most favorable to the prevailing party.”3 A determination of probable cause is a legal conclusion that we review de novo,4 while the existence of exigent circumstances is a factual finding we review for clear error.5 Under this “highly deferential” standard,6 we must uphold the district court's ruling so long as it is supported by “any reasonable view of the evidence.”7


Aguirre first argues that the law enforcement officers' warrantless entry into the mobile home violated the Fourth Amendment, an illegality tainting the search and seizure of her cell phone. The district court concluded that the officers' entry was justified under the exigent circumstances doctrine and implicitly determined that there was probable cause for the entry.

Under the Fourth Amendment, a warrantless search of a person's home is presumptively unreasonable, and it is the government's burden to bring the search within an exception to the warrant requirement.8 Exigent circumstances is such an exception. It is available only on a showing by the government that the officers' entry into the home was supported by probable cause and justified by an exigent circumstance.9 “[N]o amount of probable cause can justify a warrantless search or seizure absent [such] exigent circumstances.”10 In other words, even if the officers had probable cause to search the mobile home, they had to have exigent circumstances to enter without a warrant.

Police officers have probable cause to search a residence if “under the ‘totality of the circumstances ... there is a fair probability that contraband or evidence of a crime will be found in a particular place.’ ” 11 In making this determination,

[664 F.3d 611]

we may consider information learned by the officers during the knock and talk that preceded their entry into the home.12 The record contains sufficient evidence to establish that the officers' entry into the mobile home is supported by probable cause. 13 At the time that the law enforcement officers decided to conduct the knock and talk, they had good reason to believe that they would find narcotics and evidence of drug dealing in the mobile home. They had just arrested Mendoza, a resident of the home, seizing several ounces of cocaine and marijuana in his possession. It signifies that when arrested Mendoza was driving directly from the mobile home, creating a likelihood that he possessed these drugs while at the residence. The officers, aware that Mendoza had previously sold drugs to an informant, had reason to believe that when arrested he was in route to conduct another sale to that informant. Based on their training and experience, the officers knew that drug dealers often keep assets and drug paraphernalia at their residences. Together this information established a nexus between the mobile home and Mendoza's illegal drug-related activities.

The officers' entry without a warrant was also justified by the need to halt destruction of evidence. In determining the presence of exigent circumstance, we employ a non-exhaustive five factor test: “(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) the 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 dispose of it and to escape are characteristics in which those trafficking in contraband generally engage.”14

DEA Special Agent David Friday testified at the suppression hearing that after the officers announced themselves at the front door, they “observed someone look out the window. And then we heard shuffling, scuffling sound inside the trailer.” The agents' training and prior experience with drug cases suggested that the sudden noises they were hearing were due to the occupants' attempts to destroy evidence when they learned that law enforcement had come to their door.

[664 F.3d 612]

The facts of this case resemble those in Newman, in which we concluded that police officers' warrantless entry into a home was justified by the exigent circumstances and probable cause. The officers there knew that a drug dealer frequented the residence. When they approached the residence they saw suspicious movement behind the curtains, they received no verbal response to their knock, and they observed a resident...

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