UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 01-40300
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
OSCAR BARRIENTOS,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
(B-00-CR-402-1)
November 5, 2001
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Concerning his bench trial conviction for aiding and abetting
possession with intent to distribute 771 kilograms of marijuana,
Oscar Barrientos asserts the district court erred in denying his
motions to suppress (statements and the marijuana). “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 (here,
the government), accepting the district court’s factual findings
unless clearly erroneous, and considering all questions of law de
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
novo.” United States v. Rico, 51 F.3d 495, 500 (5th Cir.), cert.
denied, 516 U.S. 883 (1995).
Simply put, a vehicle suspected of being used for drug
trafficking was seen at Barrientos’ residence; when Agents
returned, they found it at an adjoining residence. After a consent
search of the latter property, the Agents entered Barrientos’
property by using a gate between the two properties.
Barrientos contends Agents violated his Fourth Amendment
rights by, without a warrant, entering his fenced yard and
approaching his door. The Government counters that the Agents were
engaged in a permissible “knock and talk” strategy. “[We] have
recognized the ‘knock and talk’ strategy as a reasonable
investigative tool when officers seek to gain an occupant’s consent
to search or when [, as in the case at hand,] officers reasonably
suspect criminal activity”. United States v. Jones, 239 F.3d 716,
720 (5th Cir. 2001) (citing United States v. Tobin, 923 F.2d 1506,
1511 (11th Cir. 1991)), cert. denied, 70 U.S.L.W. 3237 (Oct. 1,
2001). Moreover, we have held police did not violate the curtilage
of a fenced-in apartment by approaching its front door after
passing through an open gate: (1) that was devoid of a door bell,
knocker, or any indication permission to enter was required; and
(2) that the police could reasonably have believed was the
principal means of access to the apartment. See United States v.
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Thomas, 120 F.3d 564, 571-72 (5th Cir. 1997), cert. denied, Harmon
v. United States, 522 U.S. 1061 (1998).
The situation in the case at hand is quite different, as
evidence indicates: (1) the gate through which the agents entered
was not a public access, but rather an access to a neighbor’s yard;
and (2) the fence contained postings warning the property was
private and guarded by a dog. We need not decide, however, whether
these distinctions make a difference for Fourth Amendment purposes;
any Fourth Amendment violation stemming from the approach was cured
by Barrientos’ consent. “[A] subsequent consent to search may, but
does not necessarily, dissipate the taint of a [prior] fourth
amendment violation”. United States v. Jones, 234 F.3d 234, 242
(5th Cir. 2000) (citations and internal quotations omitted;
alteration in original). “When we evaluate consent given after a
Fourth Amendment violation, the admissibility of the challenged
evidence turns on a two-pronged inquiry: 1) whether the consent was
voluntarily given; and 2) whether the consent was an independent
act of free will.” Id.
The district judge found no credible evidence that the consent
given was not voluntary. “To determine whether the consent was an
independent act of free will ... we must consider: 1) the temporal
proximity of the illegal conduct and the consent; 2) the presence
of intervening circumstances; and 3) the purpose and flagrancy of
the initial misconduct.” Id. at 243. The facts militate for a
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determination that Barrientos’ consent was an independent act of
free will.
Next, Barrientos asserts the subsequent search of his property
exceeded the scope of his consent. He did not move in district
court, however, to suppress on this ground. Appellate review for
suppression claims not raised in district court is waived. See,
e.g., United States v. Chavez-Valencia, 116 F.3d 127 (5th Cir.
1997); FED. R. CRIM. P. 12(b)(3),(f).
AFFIRMED
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