United States v. Albarado, 020614 FED5, 13-10107
| Opinion Judge | PER CURIAM |
| Party Name | UNITED STATES OF AMERICA, Plaintiff - Appellee v. NICHOLAS ALBARADO, Defendant-Appellant UNITED STATES OF AMERICA, Plaintiff - Appellee v. JOSHUA CISNEROS, Defendant-Appellant |
| Judge Panel | Before KING, CLEMENT, and GRAVES, Circuit Judges. |
| Case Date | February 06, 2014 |
| Court | United States Courts of Appeals, U.S. Court of Appeals — Fifth Circuit |
Appeals from the United States District Court for the Northern District of Texas USDC No. 1:11-CR-58
Nicholas Albarado and Joshua Cisneros appeal from the denial of their motions to suppress evidence seized from a residence. For the reasons that follow, we AFFIRM.
I. Factual and Procedural Background
Nicholas Albarado and Joshua Cisneros were indicted on multiple counts including conspiracy to distribute methamphetamine, possession with intent to distribute methamphetamine, possession with intent to distribute cocaine, possession with intent to distribute marijuana, and possession of a firearm in furtherance of a drug trafficking crime. Before trial, they moved to suppress the drug and gun evidence seized from a residence in Abilene, Texas. They argued that, following an initial "knock and talk, " law enforcement agents had entered the residence without a warrant, without probable cause, and in the absence of any exigent circumstances.
A hearing was held on the defendants' suppression motions. Ismael Jaimes, an agent with the Abilene Police Department, Special Operations Division, testified at the hearing. He testified that, on the morning of August 30, 2011, he and his partner planned to approach the subject residence to conduct a "knock and talk" investigation. This was based on a tip that another agent had received from a confidential informant, who claimed that the residence was a marijuana stash house for the "Mexican Mafia" organization. Agent Jaimes stated that he had been unaware of this residence or its occupants prior to receiving the tip. However, he testified that he knew that the Mexican Mafia was a dangerous organization, that its members were involved in drug- and firearms-related crimes, and that its members and other narcotics traffickers often possessed firearms near any drugs.
The agents arrived at the residence in an unmarked car, wearing plain clothes, and with police badges visible around their necks. Albarado answered their knock. Agent Jaimes testified that he immediately noticed a "strong odor" of burning and fresh marijuana coming from inside the residence. He also testified that he immediately recognized Albarado from prior drug investigations and that he knew from another confidential informant that Albarado was involved with the Mexican Mafia and the sale of illegal drugs.
Agent Jaimes showed Albarado his badge and identified himself and his partner as police officers. When asked if he lived at the residence, Albarado answered no. Agent Jaimes then asked if the agents could come inside and speak with Albarado, but Albarado replied that he could not give them permission to enter because he was not the owner of the residence. The agents then asked to speak with the owner. Albarado replied that he would have to retrieve her from the back of the residence.
Albarado turned away and tried to close the door. The agents stopped the door from closing and entered the residence. Agent Jaimes testified that they entered to prevent the destruction of evidence and for safety reasons. On cross-examination, Agent Jaimes acknowledged that Albarado did not appear to be a threat at that time and made no attempt to flee.
Once inside, the agents followed Albarado to the door of a bedroom, where he called out to a woman lying on the floor, who was later identified as Ana Mar Landini. When Landini stood up, the agents identified themselves and showed her their badges. Agent Jaimes told Landini why they were at the residence, said that he could smell marijuana, and asked if there was more marijuana in the house. Landini replied that the residents had smoked marijuana the previous evening and that there was "a little bit" left over. She surrendered a partially smoked marijuana cigarette. Agent Jaimes said he did not believe Landini's explanation due to the strong odor of "fresh" marijuana in the residence. When asked if anyone else was inside, Landini roused Joshua Cisneros off the bedroom floor. The agents then escorted everyone back into the living room.
Agent Jaimes explained why the agents were at the residence, read everyone their rights, and asked for consent to search the residence for more marijuana. Albarado and Cisneros said they could not give consent since they did not live there, and Landini said she could not give consent because her roommate was not present. Agent Jaimes then called for another agent to come to the residence to assist while he left to prepare a search warrant application. The residents were not handcuffed, and they were allowed to play video games while they waited.
After the warrant was obtained and executed, the agents found approximately 324.6 grams of methamphetamine, 52 grams of cocaine, 678 grams of marijuana, three firearms, scales, a cutting agent, and more than $5, 700 in cash. Agent Jaimes denied conducting any search of the residence prior to obtaining the warrant.
Based on this testimony, and the parties' arguments, the district court denied the motions to suppress. The district court found that the entry was justified by safety concerns and that the agents conducted a limited protective sweep of the residence. Albarado then pleaded guilty to one count of possession...
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