United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
For the Fifth Circuit December 12, 2006
Charles R. Fulbruge III
Clerk
No. 04-51293
UNITED STATES OF AMERICA,
Plaintiff-Appellee
VERSUS
JOSE ALEJANDRO MALDONADO,
Defendant-Appellant
Appeal from the United States District Court
For the Western District of Texas
Before JOLLY, DAVIS and WIENER, Circuit Judges.
W. EUGENE DAVIS, Circuit Judge:
Defendant-appellant Jose Alejandro Maldonado (Maldonado)
appeals his conviction for conspiracy to distribute marijuana in
violation of 21 U.S.C. § 846. Maldonado asserts that the district
court erred in (1) denying his motion to suppress evidence as
seized in violation of the Fourth Amendment1 and (2) in admitting
1
On appeal, the government seeks to question Maldonado’s
standing to complain of the allegedly illegal seizure. As the
government raised no issue of standing below, we decline to
evidence of his prior arrest. We affirm.
I.
On May 30, 2003, agents planned to execute an arrest warrant
for Gerardo Castillo (Castillo), Maldonado’s alleged co-
conspirator. Agents did not know where Castillo was located, but
they had his cell phone number. An agent called Castillo and asked
him if he would be willing to “move two squares” (street slang for
transporting two kilograms of cocaine). Castillo agreed, but
refused to meet the agent in a public place as the agent suggested.
Instead, Castillo asked the agent to come to the trailer home
“where he was staying.” The agent agreed. The agents were unaware
that the trailer was Maldonado’s residence. Castillo gave the
phone to Maldonado and asked him to give the caller directions,
which included only a physical description of the trailer and how
to find it by following various landmarks. The agent did not know
anything about the person who gave him directions, only that he was
Castillo’s “friend.”
Approximately 20 to 30 minutes later, Castillo called the
agent back stating that he had something else to do and asking the
agent to hurry up and get there. The agent told Castillo that he
would be there shortly. Approximately eight agents arrived at the
trailer soon thereafter and established surveillance. When the
consider its contentions in this regard and accordingly assume,
as all parties did in the district court, that Maldonado has
standing.
2
agents arrived at the trailer at approximately 4:30 P.M., they were
not certain they were at the correct location. The agents
instructed an undercover agent to drive up to the trailer and honk
his horn. At this time, a couple of agents were approximately 100
yards away in a parked vehicle.
When the undercover agent honked his horn, Castillo came out
of the trailer and got into the undercover vehicle. Agents then
swarmed in and arrested Castillo in the driveway. Two agents
approached the trailer to cover all sides. While Castillo was
being arrested, one agent noticed someone open the trailer door,
peek out, and then quickly close the door. The agents were in
front of the trailer and had very little cover because the trailer
sits in an open area with only a telephone pole to afford cover.
Police insignia were visible on the agents’ vests and jackets.
An agent approached the trailer door, yelled to the individual
inside that they were police executing an arrest warrant, and
opened the door. Maldonado exited and an agent placed him on the
ground. As other agents were rushing inside the trailer, Maldonado
was asked whether anyone else was inside. Maldonado indicated in
Spanish that no one else was in the trailer. Agents swept the
trailer, looking in places where a person could be hiding to make
sure no one else was inside the trailer who could attack them.
During this sweep, in the master bedroom closet, they discovered
and seized several packages in plain view that appeared to be
3
narcotics. These packages contained approximately 314 pounds of
marijuana.
Before trial, Maldonado moved the district court to suppress
the introduction of any evidence relating to the seized marijuana
on Fourth Amendment grounds. The district court found that the
protective sweep by the agents was justified by exigent
circumstances and denied Maldonado’s motion to suppress. After a
jury trial, Maldonado was found guilty of conspiracy to distribute
marijuana and was sentenced to 120 months imprisonment with 5 years
of supervised release. Maldonado appeals his conviction.
II.
Maldonado first challenges the district court’s denial of his
motion to suppress the evidence obtained in the warrantless entry.
The district court explained that the agents’ entry into the
trailer was motivated by exigent circumstances because the agents
feared for their safety and that the agents did not create the
exigency.
When reviewing a district court’s ruling on a motion to
suppress, we accept the court’s factual findings unless clearly
erroneous or influenced by an incorrect view of the law. United
States v. Foy, 28 F.3d 464, 474 (5th Cir. 1994). The presence of
exigent circumstances is a finding of fact reviewed for clear
error. United States v. Richard, 994 F.2d 244, 248 (5th Cir.
1993). We view the evidence in a light most favorable to the
4
prevailing party. United States v. Laury, 985 F.2d 1293, 1314 (5th
Cir. 1993). We may consider not only the evidence from the
suppression hearing, but also evidence presented during the trial.
United States v. Rico, 51 F.3d 495, 504 (5th Cir. 1995). We review
questions of law, including whether the district court’s ultimate
conclusions of Fourth Amendment reasonableness are correct, de
novo. United States v. Paige, 136 F.3d 1012, 1017 (5th Cir. 1998).
Warrantless entry into a home is presumptively unreasonable.
Payton v. New York, 445 U.S. 573, 587, 100 S. Ct. 1371, 1380, 63
L.Ed.2d 639 (1980). However, we have upheld warrantless protective
sweep searches based upon exigent circumstances. See United States
v. Watson, 273 F.3d 599 (5th Cir. 2001). Nevertheless, where
agents create the exigency, the warrantless activity is per se
unreasonable and any evidence obtained thereby must be suppressed.
United States v. Webster, 750 F.2d 307, 328 (5th Cir. 1984).
“A ‘protective sweep’ is a quick and limited search of
premises, incident to an arrest and conducted to protect the safety
of police officers or others. It is narrowly confined to a cursory
visual inspection of those places in which a person might be
hiding.” Maryland v. Buie, 494 U.S. 325, 327, 110 S. Ct. 1093,
1094, 108 L.Ed.2d 276 (1990). The protective sweep doctrine may
apply even if the arrest occurs outside the home. See Watson, 273
F.3d 599; see also United States v. Merritt, 882 F.2d 916, 921 (5th
Cir. 1989); Kirkpatrick v. Butler, 870 F.2d 276 (5th Cir. 1989).
5
Maldonado does not assert that the agents exceeded the
acceptable scope of a protective sweep. Maldonado argues that the
agents’ entry into the trailer was invalid because they lacked a
search warrant, no exigent circumstances were present and even if
exigent circumstances were present, the agents created any
exigency.
A.
The government has the burden of proving the existence of
exigent circumstances. Rico, 51 F.3d at 501. To justify a
protective sweep, the government must show “articulable facts
which, taken together with rational inferences from those facts,
would warrant a reasonably prudent officer in believing that the
area to be swept harbors an individual posing a danger to those on
the arrest scene.” Buie, 494 U.S. at 334, 110 S. Ct. at 1098.
Exigent circumstances include hot pursuit of a suspected felon, the
possibility that evidence may be removed or destroyed, and danger
to the lives of officers or others. Richard, 994 F.2d at 247-48.
There is no set formula for determining when exigent circumstances
justify a warrantless entry. United States v. Blount, 123 F.3d
831, 837 (5th Cir. 1997). In evaluating exigency, we “consider the
appearance of the scene of the search in the circumstances
presented as it would appear to reasonable and prudent men standing
in the shoes of the officers.” United States v. Rodea, 102 F.3d
1401, 1405 (5th Cir. 1996) (internal quotations and citation
6
omitted). If reasonable minds could differ, we do “not second-
guess the judgment of experienced law enforcement officers
concerning the risks of a particular situation.” Blount, 123 F.3d
at 838 (internal quotation marks and citation omitted).
The government argues that the agents’ protective sweep was
carried out in order to ensure that they and their colleagues would
not come under fire from other individuals inside the trailer.
Under the facts and circumstances present in this case, we conclude
that the district court did not err in concluding that a reasonable
officer would have been legitimately concerned for his safety and
that of others on the scene during the arrest. The facts in the
record and the rational inferences from those facts would warrant
“a reasonably prudent officer in believing that the area to be
swept harbor[ed] an individual posing a danger to those on the
arrest scene.” Buie, 494 U.S. at 334, 110 S. Ct. at 1098.
Castillo was arrested in the driveway. This is near enough to
the trailer to place the agents in immediate danger. See Rico, 51
F.3d at 501. “[I]f you are standing around in the front yard
arresting people in the driveway, you need to make sure that there
is not assistance to him by people in other parts of the premises.”
Id. (internal quotation marks and citation omitted). This is of
particular concern in this case because the agents were exposed in
an open area in front of the trailer with only a telephone pole to
afford cover. The area surrounding the trailer had no structures
7
or vegetation. Agent Shuttleworth, United States Immigration and
Customs Special Agent, explained that cover behind the agents’
vehicles was also not an option because the cars were not parked
where the agents could effectively cover two sides of the trailer.
In addition to the lack of adequate cover, as Castillo was
being arrested, the agents observed Maldonado peek outside and then
close the trailer door. We have found exigent circumstances
arising from similar actions. In United States v. Webster, we held
that agents had reason to believe that evidence was in danger of
imminent destruction after “someone peered between the curtains, as
if acting as a lookout.” 750 F.2d at 326-327. Although this case
does not involve fear of evidence destruction, it does concern
danger to the lives of the agents and others. Agent Sepulveda,
Special Agent for Immigration and Customs Enforcement, testified
that the opening and closing of the door at the time of Castillo’s
arrest caused the agents concern because they did not know how many
individuals were in the trailer or if they had any weapons.
Maldonado’s actions were perceived as a threat because after he
closed the door he was hidden and his intentions were unknown. The
agents believed that the person possibly knew of Castillo’s arrest
and the presence of police because police insignia were visible on
the agents’ clothes.
The agents had no specific knowledge that weapons were inside
the trailer. However, fear for officer safety may be reasonable
8
during drug arrests, even in the absence of any particularized
knowledge of the presence of weapons, see United States v. Howard,
106 F.3d 70, 75 (5th Cir. 1997), because “in drug deals . . . it is
not uncommon for traffickers to carry weapons.” Rodea, 102 F.3d at
1408. In this case, the agents were aware that Castillo was being
arrested for narcotics trafficking. Shuttleworth testified that
guns are a major concern when arresting a person on a drug charge.
Shuttleworth explained that “[w]hen you have narcotics, guns go
hand in hand with that because of the large amounts of money
involved.”
The agents were only able to establish surveillance of the
trailer for approximately three to four minutes before Castillo’s
arrest so they did not know how many individuals were in the
trailer. The agents were not even certain that they were at the
correct location and Castillo indicated that he would leave if the
agent did not hurry up and get there. Also, after Sepulveda
observed the opening and closing of the trailer door, events
proceeded quickly. An agent approached the trailer door and
announced the presence of police. Maldonado exited the trailer and
was placed on the ground. Maldonado shouted that there was no one
else inside. However, at this time the agents were already rushing
inside to clear the trailer.
We recognize that there is no general security check exception
to the warrant requirement. Kirkpatrick, 870 F.2d at 281.
9
However, depending on the circumstances, a protective sweep may be
permissible even when the agents have no certain knowledge that
other individuals are in the house. See, e.g., Watson, 273 F.3d
599; Howard, 106 F.3d 70; United States v. Mendoza-Burciaga, 981
F.2d 192 (5th Cir. 1992). In United States v. Watson, officers
arrested the suspect, Watson, on the front porch of his house.
Morse, the arresting officer, then made a protective sweep of the
house to look for dangerous persons. Police officers were
concerned that illegal drugs would be destroyed inside the
suspect’s house if they waited for a warrant. Also, the “officers
believed that there was a possibility that [the suspect] might have
additional accomplices who were still inside the house and could
pose a threat to the officers’ safety.” 273 F.3d at 603. Morse
“testified that he lacked specific reason to believe other
individuals were in the house but that the possibility always
exists.” Id. at 601. We upheld the validity of the protective
sweep even though “the factual basis for these concerns is
disputable.” Id. at 603.
In United States v. Howard, officers arrested the suspect on
the porch of his house and proceeded inside on a warrantless entry
to conduct a protective sweep to determine if anyone else was
present. We found that exigent circumstances justified the
officers’ warrantless entry into the suspect’s home on grounds of,
inter alia, fear for the officers’ own safety and the safety of
10
others, and the possibility that third persons inside the suspect’s
house may be alerted to police presence outside by the gathering of
a crowd. The officers were aware that the defendant, Howard, had
problems with his vision. We stated that “although the officers
did not observe someone looking through Howard’s window and did not
see anyone else enter Howard’s home and not exit,” our inquiry is
not so narrow. 106 F.3d at 77. “We must look to the totality of
the circumstances and for both direct and circumstantial evidence
of exigency.” Id. (emphasis added). We concluded that the record
contained enough circumstantial evidence to support a finding that
the crowd may have alerted Howard to the presence of police:
Howard’s residence had been under surveillance for only a short
time, there was a known narcotics-related traffic pattern in and
out of the home, and the agent leading the investigation testified
that he did not know whether other persons besides Howard were
inside the residence. Id.
Like Watson and Howard, the agents did not know whether other
individuals were in the trailer, yet they were concerned for their
safety. The fact that the agents in today’s case were not also
concerned with the destruction of evidence does not preclude a
finding of exigent circumstances. When determining whether an
exigency exists, we look at the totality of the circumstances
surrounding the officers’ actions. See United States v. Wilson,
306 F.3d 231, 237-38 (5th Cir. 2002). We conclude that the brief
11
time available to conduct surveillance of the trailer, the exposure
of the agents in the open area surrounding the trailer, the opening
and closing of the trailer door during Castillo’s arrest, and the
reasonable expectation that weapons are present during drug
transactions are sufficient circumstantial evidence to support a
finding that the agents’ fear was reasonable. Under these
circumstances, the district court was not clearly erroneous in
finding exigent circumstances justifying the protective sweep.2
B.
However, this does not end the matter. We must also determine
whether the government manufactured the exigency. “The government
cannot rely on exigent circumstances to excuse a warrantless entry
to conduct a protective sweep if the circumstances” were created by
the government. Rodea, 102 F.3d at 1410 (internal quotation marks
and citation omitted).
“We distinguish between cases where exigent circumstances
arise naturally during a delay in obtaining a warrant and those
where officers have deliberately created the exigent
circumstances.” Id. at 1409 (internal quotation marks and citation
2
In reaching this conclusion, we do not hold that a
protective sweep is permissible whenever agents do not know
whether anyone else is inside a home. Lack of information alone
cannot provide an articulable basis upon which to justify a
protective sweep. See United States v. Colbert, 76 F.3d 773, 778
(6th Cir. 1996). Under the totality of circumstances present in
this case, we find the agents had an articulable basis on which
to support their reasonable suspicion of danger from inside the
home.
12
omitted). “In determining whether the exigent circumstances were
manufactured by the agents, we must consider not only the
motivation of the police in creating the exigency but also the
reasonableness and propriety of the investigative tactics that
generated the exigency.” Id.3 We look to whether (1) there was
sufficient time to secure a warrant; and (2) whether the exigency
was created by unreasonable law enforcement tactics. Rico, 51 F.3d
at 502-503.
The government argues that the agents did not obtain a search
warrant in part because they had no interest in entering the
defendant’s residence and had not even known of its existence
before Castillo arranged an immediate meeting there. Castillo was
the target rather than the trailer. In addition, the record
evidence indicates that the agents lacked sufficient time to obtain
a warrant. The agents had a warrant for Castillo’s arrest. The
agents arranged a deal with Castillo to get him to meet with them.
Despite the agent’s attempt to meet Castillo in a public place,
Castillo insisted on meeting “where he was staying.” The agents
were not certain about the location of the trailer because they did
not have an actual address. Sepulveda initially misled Castillo by
saying that he was on his way when he was actually spending a few
minutes assembling the arrest team. Castillo then called the agent
back complaining about the delay. The agent assured Castillo that
3
Maldonado does not assert that the agents acted in bad
faith.
13
he would be there shortly.
We have found that, where agents only conducted twenty minutes
of surveillance, they did not have a complete address, and the
operation was short and rapidly evolving, there was not enough
time to procure a warrant. See United States v. Capote-Capote, 946
F.2d 1100, 1103 (5th Cir. 1991). In the instant case, the agents
also had a fast-moving investigation, a short period to establish
surveillance on the trailer, and were not certain about the
location of the trailer. The district court did not err in finding
that the agents had insufficient time to obtain a search warrant
between the telephone call with Castillo and the agents’ arrival.
We now consider the reasonableness of the law enforcement
tactics used in this case, particularly, whether the agents created
the exigent circumstances. The agents had the arrest warrant for
Castillo and were interested in conducting a routine arrest. At
the time of the initial telephone call to Castillo, the agents did
not know where Castillo was. It was Castillo who rejected a public
meeting in favor of the trailer where he was staying. The cocaine
deal was a ruse to locate and arrest Castillo. It was reasonable
for the agents to believe that Castillo would not have volunteered
his whereabouts if not for the cocaine deal.
The arrangement between the undercover agent and Castillo to
meet developed quickly. Once Castillo decided that he would meet
the agents, but only at the location where he was staying, the
14
agents made a reasonable decision to go to that location. Although
the agents knew at the time of the telephone call with Castillo
that another individual was present in the trailer, had they
declined this opportunity to arrest Castillo, they did not know
when, if ever, they could locate Castillo again. Once the agents
arrived at the trailer, they could not have simply waited for
Castillo to exit the trailer. The operation was time-sensitive due
to Castillo’s call complaining about the delay and the open area
around the trailer gave them no place to wait without the risk of
discovery. It was reasonable for the agents to believe that
executing the arrest warrant while Castillo was still in the
trailer would have been more dangerous than surrounding and
subduing him from the vehicle, especially since the agents were
aware that another individual was inside the trailer. The record
supports the finding that it was reasonable for the agents to lure
Castillo out of the trailer by ordering the undercover agent to
pull up to the trailer and honk his horn.
“In fast-moving investigations like the one in this case, law
enforcement officials can, if circumstances so require, act to
prevent a potentially volatile situation from becoming worse.”
Howard, 106 F.3d at 80. After arresting Castillo and witnessing
Maldonado opening and closing the trailer door, the agents were not
able to take cover, secure the mobile home, and wait for a warrant
because it would have taken some time for all the agents to leave
15
the premises with Castillo. During this time, the agents would
have been vulnerable to possible attack from the individuals in the
trailer. Therefore, the record supports the finding that the
agents were reasonable in approaching the trailer door and
announcing their presence. The record also supports the conclusion
that the agents’ actions were reasonably calculated to protect
themselves, Castillo, and the neighboring public.
Under the totality of the circumstances, we conclude that the
district court correctly concluded that the agents did not
manufacture the exigent circumstances. Because the agents’ entry
into the house was valid and the sweep was narrow and confined to
areas of the trailer where persons could be hiding, their seizure
of the marijuana was also valid. The marijuana seized was in plain
view. Agents may seize evidence that is in plain view inside a
residence without obtaining a warrant. See Arizona v. Hicks, 480
U.S. 321, 326, 107 S. Ct. 1149, 1153, 94 L.Ed.2d 347 (1987).
In sum, the district court did not err in finding that the
protective sweep was an appropriate reaction to exigent
circumstances which the agents did not create. The district court
correctly denied the motion to suppress.
III.
Maldonado also objected to the introduction of testimony
regarding a prior incident on Rule 404(b) grounds. See Fed. R.
16
Evid. 404(b).4 The district court held a Rule 403 hearing outside
the presence of the jury. See Fed. R. Evid. 403.5 The district
court excluded the 404(b) evidence after finding the evidence
unfairly prejudicial. Nevertheless, during the trial, the district
court allowed the government to introduce the 404(b) evidence on
grounds that Maldonado opened the door to such evidence.
The 404(b) evidence concerned a prior arrest of Maldonado and
Castillo unrelated to the offense for which Maldonado was
convicted. On May 27, 2003, Maldonado and Castillo were detained
in connection with the seizure of over 100 kilograms of marijuana.
Maldonado was driving his father’s truck, which he often used,
along a road frequently used by narcotics smugglers. Maldonado and
Castillo were driving behind a vehicle carrying marijuana. The
Border Patrol noticed that the vehicle Maldonado and Castillo were
driving behind was riding low and stopped both vehicles. Maldonado
and Castillo were detained for questioning. Although Maldonado
denied any knowledge of the marijuana, testimony indicated that
both vehicles had two-way radios typically used by drug
traffickers. The radios also had the same serial numbers,
4
Rule 404(b) provides that evidence of other crimes, wrongs,
or acts, while not admissible to show character and conformity
therewith, may be admissible for other purposes such as proof of
motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident.
5
Rule 403 prevents the admission of evidence that is
otherwise relevant when its probative value is substantially
outweighed by the danger of unfair prejudice.
17
indicating that they had been bought together as a pair. Maldonado
was released and never indicted for this incident (“May 27th
incident”).
This court reviews a district court’s decision to admit
evidence over a Fed. R. Evid. 404(b) objection under a heightened
abuse of discretion standard in criminal cases. United States v.
Fox, 69 F.3d 15, 20 (5th Cir. 1995). “[A] defendant may not
complain on appeal that he was prejudiced by evidence relating to
a subject which he opened up at trial.” United States v. Deisch,
20 F.3d 139, 154 (5th Cir. 1994). Maldonado testified in his own
defense at trial. On direct examination, Maldonado indicated that
he never suspected that Castillo would store marijuana in the
trailer and that he did not know for a fact or have personal
knowledge who placed the marijuana in the trailer. The government
argued that this testimony left the jury with an impression that
Maldonado did not know anything about Castillo’s involvement with
marijuana and therefore opened the door to evidence surrounding the
May 27th incident. The district court allowed the government to
question Maldonado about this incident and, in rebuttal, a
government witness testified regarding the May 27th incident to
impeach Maldonado’s statements indicating that he did not know
Castillo was involved with marijuana. The district court did not
abuse its discretion in admitting this evidence on grounds that
Maldonado opened the door to this testimony.
18
IV.
For the above reasons, we conclude that the district court did
not err in denying Maldonado’s motion to suppress or in permitting
the testimony concerning the May 27th incident. The conviction is
therefore AFFIRMED.
19
E. GRADY JOLLY, Circuit Judge, specially concurring:
I concur because the majority opinion is not plainly
inconsistent with our precedent. It does seem, however, that we
are coming close to establishing a rule that any yard arrest
involving a drug operation can justify a protective sweep of the
residence, which would allow an intended exception to the Fourth
Amendment to become the rule.
20