United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
March 5, 2007
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
05-20560
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JAIME FABIAN,
Defendant-Appellant.
Appeal from the United States District Court for the
Southern District of Texas, Houston
4:02-CR-353-2
Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
In early May of 2002, a confidential source (“CS”) brokered a
drug transaction between Javier Gonzalez, a co-defendant in the
court below, and an undercover DEA agent. The agent was to pay
Gonzalez $80,000 in exchange for five kilograms of cocaine. The
sale was originally expected to occur on May 9, 2002, but it was
rescheduled for May 29. On that day, the CS and the undercover
*
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this opinion should not be published and is not precedent except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.
agent reported to a nightclub where the three men had agreed to
meet. The CS went inside while the undercover agent waited in the
car. Additional agents were also stationed outside, expecting to
arrest Gonzalez at the scene. The plan was for the CS to see the
cocaine, then claim that the money was outside and go to retrieve
it, at which point the agents would sweep in and arrest Gonzalez.
However, less than five minutes later, the CS and Gonzalez exited
the club and got into a car. Gonzalez drove to a residence in
Houston owned by the defendant, Jaime Fabian. They waited in the
car for a short time until Fabian and another man, Gustavo Salgado,
arrived, at which point all four men went into the house together.
The police had expected the transaction to occur at the
nightclub, and they scrambled to keep surveillance on Gonzalez and
the CS as they drove to the house and went inside. Within a few
minutes of entering the home, Gonzalez showed the CS a stash of
cocaine. Then the two left the home, ostensibly to retrieve the
$80,000. That is when the agents decided not to get a search
warrant, and instead swooped in. They were not subtle about it.
The agents drove a car up on the front lawn, tires screeching, and
then yelled loudly that they were the “police.” They arrested
Gonzalez and the CS in front of the house before they reached the
car. They then knocked on the front door, announced that they were
police, and entered. They found Fabian in the living room, and
Salgado in a bedroom. In the laundry room they found six bundles
of cocaine in plain view.
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At a suppression hearing before trial, Fabian argued that
there were not sufficient exigent circumstances to justify the
warrantless entry into the home. He also argued that if exigent
circumstances were present, they were manufactured by the police,
who decided to arrest Gonzalez at the scene, and to do so loudly
and dramatically, rather than follow him back to the nightclub and
arrest him there. The district court carefully considered the
exigency of the situation and ruled that the entry was justified.
Specifically, the court found that the arrest was conducted in a
manner loud enough to alert the entire neighborhood, which created
sufficient exigency to justify the immediate entry into the
residence. The court also found that the exigency was not created
by the agents, but by Gonzalez’s attempt to leave in his car with
Fabian. On appeal, Fabian urges the same two arguments regarding
exigent circumstances.
In reviewing a district court’s denial of a motion to
suppress, we review the district court’s findings of fact for clear
error and its legal conclusions de novo. United States v. Lopez-
Moreno, 420 F.3d 420, 429 (5th Cir. 2005) (citations omitted). The
presence of exigent circumstances is a finding of fact, so our
inquiry is whether that finding was clearly erroneous. United
States v. Richard, 994 F.2d 244, 248 (5th Cir. 1993) (citations
omitted). Exigent circumstances include hot pursuit of a suspected
felon, the possibility that evidence may be removed or destroyed,
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and danger to the lives of officers or others. Id. at 247–48. The
district court may consider several factors in determining whether
exigent circumstances are present, including (1) the degree of
urgency involved and the amount of time necessary to obtain a
warrant; (2) the reasonable belief that the contraband is about to
be removed; (3) the possibility of danger to the police officers
guarding the site while a warrant is sought; (4) information
indicating the possessors of the contraband are aware that the
police are on their trail; and (5) the ready destructability of the
contraband. Id. at 248 (citations omitted). Regardless of the
urgency of the situation, however, exigent circumstances will not
pass Fourth Amendment muster if the officers deliberately create
them. Id. (citations omitted).
In this case, the district court did not clearly err in
finding exigent circumstances justifying the warrantless entry.
One agent testified that when the agents arrested Gonzalez, they
drove up on the front lawn and blocked him from reaching his
vehicle. Another agent testified that the process was very loud,
and that the entire neighborhood might have heard it. In light of
these facts, it is entirely plausible that Fabian and Salgado, who
were still inside the home, could have heard the commotion and
either attempted to flee the scene or destroy the evidence.
Therefore, we cannot say that the court’s ruling on exigency was
clearly erroneous.
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It is a closer question whether the agents themselves created
the exigency, since they chose to carry out the arrest on the front
lawn in such a dramatic fashion. Here again, however, we find the
court’s ruling entirely sound. The agents testified that if they
had let Gonzalez and the CS take to the road again, they would have
lost considerable tactical control over the situation and exposed
the CS to unwarranted risk. The district court was persuaded by
this testimony and concluded that Gonzalez’s departure, not the
agents, created the exigency in the first instance. The defendant
urges that it would have been better to allow Gonzalez to return to
the nightclub and arrest him there. Even if we agreed with the
defendant, we certainly would not say that the district court’s
conclusion was clearly erroneous. There was ample reason to
believe that the agents’ decision to arrest Gonzalez at the house
was safer for both the CS and the agents, and there is no
indication that the agents acted any more dramatic than usual in
effecting that arrest.
In light of the foregoing, the district court’s ruling is
AFFIRMED.
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