United States v. Gomez-Moreno

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
February 12, 2007
FOR THE FIFTH CIRCUIT
_____________________ Charles R. Fulbruge III
Clerk
No. 05-20921
_____________________

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

DELIA GOMEZ-MORENO, also known
as Delia Moreno Gomez,

Defendant - Appellant.
_________________________________________________________________

Appeal from the United States District Court
for the Southern District of Texas, Houston
USDC No. 4:05-CR-126-ALL
_________________________________________________________________

Before JOLLY, HIGGINBOTHAM, and DENNIS, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

Delia Gomez-Moreno appeals the district court’s denial of her

motion to suppress evidence obtained during a search of her

residence for illegal aliens. Because the federal agents and

police officers impermissibly created the conditions that they

deemed to be exigent circumstances for warrantless entry into the

residence, and because Gomez-Moreno’s consent for a second search

of the residence was not an independent act of free will, we

REVERSE the district court’s denial of Gomez-Moreno’s motion to

suppress, VACATE Gomez-Moreno’s sentence, and REMAND for

proceedings not inconsistent with this opinion.
 I.

At the motion to suppress hearing, Immigration and Customs

Enforcement (“ICE”) agent Gary Renick testified that sometime

between 3:30 and 4:30 p.m. on Sunday, February 27, 2005, he began

surveillance of 3806 Kennon in Houston, Texas. The surveillance

responded to an anonymous telephone call stating that twenty to

thirty illegal aliens would be at the residence that day. The

residence consisted of two buildings: a main house in the front

(the “front house”) and a second, smaller house in the back that

looked like a garage but had been converted into living quarters

(the “back house”).

During the surveillance, Renick observed two men and a woman

by the front corner of the house. According to the district court,

Renick believed these individuals were acting as “lookouts.”

Renick also observed a lot of traffic at the residence, including

a Ford Thunderbird that arrived and departed several times,

suggesting to him the transportation of illegal aliens. From his

vantage point, Agent Renick could not identify the individuals

entering or leaving the residence in the vehicles. Renick

requested that a helicopter view the property.

Renick had been working for ICE and its predecessor for eight

and a half years. He testified that illegal aliens are typically

stored as a group in a stash house until a relative pays the

smuggler’s fee. He believed that the Thunderbird’s activity at the

residence was consistent with vehicle activity at most stash

2
houses. Based on his training, he believed that the residence was

probably a stash house.

ICE special agent Christian Kaufman testified that he met

Renick at 4:30 p.m. at a small park one block across from the

residence. By 5:45 or 6:00 p.m., several other agents arrived at

the park until there were approximately ten to twelve agents and

police officers (collectively “officers”) at the park. While the

officers were assessing the situation, a man walked past the

officers, looked at them, walked to a vacant lot across the street,

and then ran in the direction of the 3806 Kennon residence. Renick

testified: “So we were thinking maybe he saw us and was going to

go tell them. So we decided we needed to just go ahead and go over

there.” Renick admitted, however, that he could not say if the man

actually ran to the 3806 Kennon residence, nor did the district

court make any findings on the matter. Renick testified that they

decided to approach the residence to secure the exits to the front

and back houses and to conduct a “knock and talk” to ask if any

illegal aliens were present.

It was approximately 6:45 p.m. when the ten to twelve armed

officers arrived at the residence to conduct a “knock and talk,” at

which time the helicopter also arrived above the residence.

Kaufman and several others headed to the front door of the front

house, while Renick and others proceeded to the back house.

Several officers remained in the general area surrounding the two

houses.

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 As they approached the front house, Kaufman and the officers

with him were clearly identified as “Police” and “Department of

Homeland Security.” When they knocked on the front door, they

received no answer, but they could hear people moving inside. One

of the officers checked the door knob, which was locked. Kaufman,

upon hearing a “commotion” in the backyard, made his way to the

back.

Meanwhile, Renick, his partner, and a police officer knocked

on the door to the back house, announcing “Police! Police! Open

the door.” They also clearly were labeled “Police.” Through a

window, Renick’s partner could see “a lot of people” inside. No

one responded or opened the door to the back house. Instead, upon

the officers’ knocking, the lights went out inside, and the

officers could hear sounds from inside like that of people pushing

against the door to barricade it.

At about this time, a man exited the front house through a

back door but stopped when he saw the officers. Seeing the

officers, the man turned and ran back inside. Kaufman and several

officers drew their weapons and followed the man into the front

house to protect the officers and any illegal aliens from any

potential armed smugglers. They quickly secured the front house,

bringing all twelve occupants out to the backyard. With their

weapons drawn, the officers ordered everyone on the ground. ICE

agent Juan Castillo testified that most of the persons detained

were handcuffed, although Gomez-Moreno was not handcuffed. At the

4
officers’ request, the helicopter shined its search light on the

backyard to light up the area.

In the backyard, Gomez-Moreno identified herself as the owner.

She was cooperative and agreed to speak with the officers. Renick

gave her an oral Miranda warning but did not state that she was

under arrest. He asked her if there were more illegal aliens in

the back house, and she replied affirmatively. Renick testified

that he then told her, “We’re going to get in that door one way or

another.”1 Apparently a transition was occurring from “knock and

talk” to “knock down and search.” Gomez-Moreno, however, offered

to talk to the people inside, who complied with her request to open

the door. Shortly thereafter, the interior ceiling of the back

house caved in, revealing additional illegal aliens hiding in the

attic. The officers secured the back house, bringing out thirteen

people.

At approximately 7:30 p.m., after the officers secured both

houses, agent Castillo brought Gomez-Moreno into the dining room

and asked her to sign a written consent form giving the officers

permission to search the premises. She complied. The officers

conducted a second search of the residence and found money,

receipts, and a “pollo list.”

Later that evening, Castillo took Gomez-Moreno to the ICE

office and questioned her. At the ICE office, Castillo read Gomez-

1
In contrast, Gomez-Moreno testified that she heard an
officer say, “If they don’t open, we’ve got to shoot.”

5
Moreno her Miranda rights and wrote down a statement that she gave

and then signed. Gomez-Moreno stated that she rented the back

house to Nemecio Rubio for $700 per month; that she was aware that

he used the back house to house illegal aliens; and that on the day

before the raid, she agreed to house fourteen illegal aliens in her

home for $50 per alien.

In the district court, Gomez-Moreno moved to suppress evidence

obtained as a result of the search of her residence. The district

court denied her motion and found her guilty of conspiracy to

harbor illegal aliens in violation of 8 U.S.C. §

1324(a)(1)(A)(iii). On appeal, Gomez-Moreno only appeals the

denial of her motion to suppress.

II.

In an appeal of a denial of a motion to suppress evidence,

this Court reviews the district court’s legal conclusions de novo

and its findings of fact for clear error. United States v. Keith,

375 F.3d 346, 348 (5th Cir. 2004). “A finding of fact is clearly

erroneous ‘when although there is evidence to support it, the

reviewing court on the entire evidence is left with a firm and

definite conviction that a mistake has been committed.’” In re

Missionary Baptist Found. of Am., Inc., 712 F.2d 206, 209 (5th Cir.

1983) (quoting United States v. United States Gypsum Co., 333 U.S.

364, 395 (1948)). If, however, there are virtually no contested

facts, our review is essentially de novo. United States v. Vega,

221 F.3d 789, 795 (5th Cir. 2000).

6
 Warrantless searches of a person’s home are presumptively

unreasonable unless the person consents, or unless probable cause

and exigent circumstances justify the search. United States v.

Jones, 239 F.3d 716, 719 (5th Cir. 2001). The burden is on the

government to establish circumstances justifying a warrantless

search. United States v. Wallen, 388 F.3d 161, 164 (5th Cir.

2004). We may affirm a district court’s ruling on a motion to

suppress on any basis established by the record. United States v.

Ibarra-Sanchez, 199 F.3d 753, 758 (5th Cir. 1999).

A.

The first question is whether the officers acted with probable

cause and under exigent circumstances when they initially raided

and searched Gomez-Moreno’s home. However, we need not determine

whether the officers acted with probable cause because we conclude

that the exigent circumstances arose because of the conduct of the

officers.

The presence of exigent circumstances is a finding of fact

reviewed for clear error. Jones, 239 F.3d at 719-20. To determine

whether exigent circumstances existed, we look to the following

non-exhaustive list of factors:

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;

7
 4. 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 [contraband]
and to escape are characteristic behavior of
persons engaged in the [contraband] traffic.

Id. at 720 (citations omitted). Exigent circumstances may not

consist of the likely consequences of the government’s own actions

or inactions. Vega, 221 F.3d at 798-99. In determining whether

officers create an exigency, this Court focuses on the

“reasonableness of the officers’ investigative tactics leading up

to the warrantless entry.” Jones, 239 F.3d at 720 (quoting United

States v. Blount, 123 F.3d 831, 838 (5th Cir. 1997)). One

reasonable investigative tactic is a “knock and talk” strategy

where officers seek to gain an occupant’s consent to search or

where officers reasonably suspect criminal activity. Id. at 720.

This court has held that a “knock and talk” strategy was reasonable

where the officers who approached the house were not convinced that

criminal activity was taking place nor did they have any reason to

believe the occupants were armed. See id. at 721.

The district court found exigent circumstances and rejected

Gomez-Moreno’s argument that the officers created them.

Specifically, the district court concluded that exigent

circumstances arose when the man exited the back door of the front

house, saw the officers, and ran back inside. According to the

district court, it was this situation, when coupled with the

anonymous tip, the activities detected during surveillance, and the

8
people that the officers saw through the window in the back house,

that created probable cause and exigent circumstances. The

district court concluded that these exigent circumstances permitted

the officers to secure the house to protect their safety and the

safety of those inside.

Not so fast. Reviewing the district court’s holding for clear

error, we are “left with a firm and definite conviction that a

mistake has been committed.” See In re Missionary Baptist Found.,

712 F.2d at 209 (quoting United States Gypsum, 333 U.S. at 395).

Here, the officers’ “knock and talk” strategy failed. In the first

place, the officers improperly executed the “knock and talk”

strategy, and secondly, the “knock and talk” did not result in

someone voluntarily coming to the door. The purpose of a “knock

and talk” is not to create a show of force, nor to make demands on

occupants, nor to raid a residence. Instead, the purpose of a

“knock and talk” approach is to make investigatory inquiry or, if

officers reasonably suspect criminal activity, to gain the

occupants’ consent to search. Jones, 239 F.3d at 720. Here, the

officers did not engage in a proper “knock and talk” but instead

created a show of force when ten to twelve armed officers met at

the park, drove to the residence, and formed two groups--one for

each of the two houses--with a helicopter hovering overhead and

several officers remaining in the general area surrounding the two

houses. When no one responded to the officers’ knocking, the

officers impermissibly checked the knob on the door to the front

9
house to determine if it would open, and simultaneously, at the

back house, announced their presence while demanding that the

occupants open the door. When officers demand entry into a home

without a warrant, they have gone beyond the reasonable “knock and

talk” strategy of investigation. To have conducted a valid,

reasonable “knock and talk,” the officers could have knocked on the

front door to the front house and awaited a response; they might

have then knocked on the back door or the door to the back house.

When no one answered, the officers should have ended the “knock and

talk” and changed their strategy by retreating cautiously, seeking

a search warrant, or conducting further surveillance. Here,

however, the officers made a show of force, demanded entrance, and

raided the residence, all in the name of a “knock and talk.” The

officers’ “knock and talk” strategy was unreasonable, and

accordingly, the officers created the exigent circumstances.

The district court erred in finding that exigent circumstances

justified entry into the front house when the man exited the back

door to the front house, saw the officers, and ran back into the

house. According to the officers, they followed the man into the

house because they needed to surprise the occupants and any

potential armed smugglers to divert a possible shoot-out. This

argument fails because the officers had already lost any element of

surprise when they announced their presence, knocked on the doors,

and demanded entry.

10
 Our conclusion that the officers unreasonably created the

exigent circumstances is consistent with our decision in Vega. See

221 F.3d at 798-800. In Vega, police officers received a tip from

an informant that three individuals would be driving through

Brownsville, Texas, in a dark sedan with Florida license plates.

The officers located the vehicle, placed it under surveillance, and

followed it to a residence in Brownsville. The officers believed

the suspects to be armed and in possession of illicit drugs.

Although the officers did not have a search warrant or probable

cause, “without justification, they abandoned their secure

surveillance positions and took action they believed might give the

suspects cause and opportunity to retrieve the weapons or dispose

of the drugs.” Id. at 800. Nine officers surrounded the

residence. Of the nine, three clearly-identified police officers

approached the front door, knocked, and announced “Brownsville

Police.” Simultaneously, Vega ran out a back door but was

apprehended. Immediately thereafter, an officer climbed the

perimeter fence into the backyard, heard movement in the house, and

decided to enter the house through the back door, left open by

Vega, to protect the safety of his fellow officers. The officers

discovered and seized marihuana in the residence. Before the

district court, the defendants moved to suppress evidence found

during the search, but the district court denied the motion. On

appeal, we reversed, relying primarily on United States v. Munoz-

Guerra, 788 F.2d 295 (5th Cir. 1986). We held that the officers

11
could not rely on the “circumstances of their own making” to

justify their warrantless search. Vega, 221 F.3d at 800.

Accordingly, we asked only whether exigent circumstances existed

before the officers approached the residence, and we concluded that

they did not. Id.

Here, like the officers in Vega, Renick initiated surveillance

based on a tip. Based on his surveillance, Renick believed that

the residence housed illegal aliens. Like the nine officers who

surrounded Vega’s house, ten to twelve officers approached Gomez-

Moreno’s residence. In approaching Gomez-Moreno’s residence, it

was clear that the officers’ actions “might give the suspects cause

and opportunity to retrieve [] weapons.” See id.2 As in Vega, the

officers were clearly marked “Police,” and as in Vega, the officers

at the back house announced their presence. Furthermore, as in

Vega, when a man ran out of the house, the officers rushed inside

to secure the house and to protect themselves. Consistent with

Vega, the officers may not rely on the “circumstances of their own

2
Renick and Kaufman testified that smugglers are usually
armed.

12
making” to justify the exigent circumstances that developed when

they approached the residence. See id.3,4

Therefore, we hold that exigent circumstances did not justify

the initial raid into and the warrantless search of Gomez-Moreno’s

residence, and, that the raid and search violated Gomez-Moreno’s

Fourth Amendment rights.

B.

As we have held above, the initial raid into and the search of

Gomez-Moreno’s residence was unconstitutional. Therefore, the next

question is whether Gomez-Moreno’s consent to conduct the second

search of the residence –- which she provided shortly after the

initial raid and search –- was valid.

Consent is valid only if it is voluntary. United States v.

Hernandez, 279 F.3d 302, 307 (5th Cir. 2002).5 Furthermore, if an

3
Given the similarity of the facts of this case to the facts
in Vega, our conclusion is dictated by Vega. To the extent that
United States v. Newman, __ F.3d __, No. 05-20603 (5th Cir. Dec. 5,
2006), reaches an opposite conclusion under analogous facts, we are
constrained to follow this Court’s earlier panel opinion in Vega.
See United States v. Zuniga-Salinas, 945 F.2d 1302, 1306 (5th Cir.
1991).
4
We need not determine whether exigent circumstances existed
before the officers approached the residence. Despite vague
assertions to the contrary, no one seriously contends that the
events occurring before the officers approached the residence
justified entering the front house without a warrant. This is
plainly evident given that the officers chose to conduct a “knock
and talk” rather than raid the front house immediately.
5
To determine whether consent is voluntary, this Court uses
a six factor test:

1. the voluntariness of the defendant’s custodial

13
individual gives consent after being subject to an initial

unconstitutional search, the consent is valid only if it was “an

independent act of free will, breaking the causal chain between the

consent and the constitutional violation.” Id. Under Hernandez,

this Court uses a three-factor test to determine whether consent

was an independent act of free will:

1. the temporal proximity of the illegal
conduct and the consent;
2. the presence of intervening
circumstances; and
3. the purpose and the flagrancy of the
initial misconduct.

Id. (citations omitted).

The district court held the initial raid and search

constitutional due to exigent circumstances and probable cause, and

accordingly, it did not determine whether Gomez-Moreno’s subsequent

consent constituted an independent act of free will. Instead, the

district court only addressed whether Gomez-Moreno’s consent was

voluntary.

status;
2. the presence of coercive police procedures;
3. the extent and level of the defendant’s cooperation
with the police;
4. the defendant’s awareness of his right to refuse
consent;
5. the defendant’s education and intelligence; and,
6. the defendant’s belief that no incriminating
evidence will be found.

United States v. Hernandez, 279 F.3d 302, 307 (5th Cir.
2002)(citations omitted). No single factor is dispositive. Id.

14
 Here, we do not decide whether Gomez-Moreno’s consent was

voluntary because even if it were, her consent was not an

independent act of free will, given the closeness in time between

the initial unconstitutional raid and the consent she gave, the

absence of intervening circumstances, and the “flagrancy” of the

initial unconstitutional raid into and the search of her home. See

id.; see also Vega, 221 F.3d at 802.

III.

Because the officers impermissibly created the exigent

circumstances and because Gomez-Moreno’s consent was not an

independent act of free will, we hold that the searches of Gomez-

Moreno’s residence were unreasonable under the Fourth Amendment.

For these reasons, the denial of Gomez-Moreno’s motion to suppress

is REVERSED, her sentence is VACATED, and the case is REMANDED for

proceedings not inconsistent with this opinion.

REVERSED; VACATED; REMANDED.

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