United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 09-1890
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United States of America, *
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Appellee, *
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v. *
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Alfonso Cisneros-Gutierrez, *
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Appellant. *
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Appeals from the United States
No. 09-2590 District Court for the
___________ Western District of Missouri.
United States of America, *
*
Appellee, *
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v. *
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Gerardo Cisneros-Gutierrez, *
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Appellant. *
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No. 09-2728
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United States of America, *
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Appellee, *
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v. *
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Alfredo Cisneros-Gutierrez, *
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Appellant. *
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Submitted: December 16, 2009
Filed: March 23, 2010
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Before WOLLMAN, RILEY, and MELLOY, Circuit Judges.
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WOLLMAN, Circuit Judge.
Alfonso Cisneros-Gutierrez (Alfonso) and Gerardo Cisneros-Gutierrez
(Gerardo) entered conditional pleas of guilty to charges of conspiracy to distribute
methamphetamine and possession of firearms in furtherance of a drug trafficking
crime. Alfredo Cisneros-Gutierrez (Alfredo) entered a conditional plea of guilty to
a charge of conspiracy to distribute methamphetamine. They each reserved the right
to appeal the district court’s1 denial of their motions to suppress evidence and
statements obtained pursuant to the searches of multiple residences. We affirm.
I.
During a drug investigation in 2007, law enforcement officers searched three
residences in Kansas City, Missouri. Based on information from a confidential
informant, Special Agent Mark King of Immigration and Customs Enforcement set
up surveillance of 323 South Brighton Avenue on July 12, 2007. Additional officers
1
The Honorable Howard F. Sachs, United States District Judge for the Western
District of Missouri, adopting the report and recommendation of the Honorable John
T. Maughmer, United States Magistrate Judge for the Western District of Missouri.
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joined King, and they decided to conduct a “knock-and-talk.”2 The officers
approached the residence and knocked on the door, which was then opened by Justino
Ruiz-Ramos. After entering the common entry way to the apartments, the officers
asked Ruiz-Ramos for consent to search the apartment, to which Ruiz-Ramos
responded by saying that he did not live there. While police were trying to determine
if Ruiz-Ramos lived at the apartment, Salvador Jesus Velasco-Saldana opened the
door, identified himself as the sole resident, and consented to a search of the premises.
The search revealed methamphetamine, Animed MSM (a substance commonly used
to cut methamphetamine), a digital scale, a firearm, and ammunition. The officers
interviewed Ruiz-Ramos the following day and were told that Gerardo had sold him
three pounds of crystal methamphetamine, which Gerardo’s brother had delivered.
Ruiz-Ramos did not know the brothers’ exact address, but he drew a map detailing the
location of their residence.
Based on that information, King, Detective Luis Ortiz of the Kansas City,
Missouri Police Department Gang Unit, and five or six other officers performed a
knock-and-talk at 430 Donnelly Avenue at 6:30 a.m. on July 24, 2007. When Ortiz
and King knocked on the door, Miguel Angel Garcia-Bobadilla answered the door and
the officers identified themselves as law enforcement, explaining that they were
conducting a narcotics investigation. In response to their request, Garcia-Bobadilla
told the officers that they could enter. Once inside, the officers asked Garcia-
Bobadilla if anyone else was in the residence and were told that no one else was
present. The officers requested and received permission to verify that this was the
case. During a protective sweep, Ortiz encountered Alfredo and Dehli Hernandez-
Pena moving between rooms. Questioning ensued and Alfredo and Garcia-Bobadilla
said that they lived in the apartment. They gave verbal and written consent to search
2
A “knock-and-talk” is an investigatory technique in which law enforcement
officers approach the door of a dwelling seeking voluntary conversation and consent
to search. United States v. Wise, 588 F.3d 531, 534 n.3 (8th Cir. 2009).
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the residence. The written form was in English, and Ortiz explained the form in
Spanish. According to the officers, they did not brandish their weapons during this
encounter. A search of the premises resulted in the recovery of more than 230 grams
of methamphetamine and approximately six pounds of a cutting agent.
Alfredo recounts the search differently. According to Alfredo, Ortiz had his
gun drawn when Garcia-Bobadilla opened the door. Alfredo claims that Ortiz pointed
the gun at Garcia-Bobadilla, forcing him to walk backwards into the living room. The
officers proceeded to enter the apartment and search the premises without consent.
Ortiz threatened Garcia-Bobadilla and Alfredo that the officers would search the
house regardless of whether they signed the consent form. According to Alfredo, he
felt that he did not have a right to leave the house. Alfredo signed the consent form.
Garcia-Bobadilla also signed the consent, believing that he had no other option.
It is uncontroverted that while the search was being conducted, Hernandez-Pena
told Ortiz that she wanted to cooperate. She informed Ortiz that Alfredo’s brothers
lived at another house in Kansas City, that they possessed large quantities of illegal
narcotics and several firearms, and that they served as enforcers for the drug
trafficking organization. Hernandez-Pena stated that she had been to the residence
and had seen the drugs and weapons. Ortiz and another detective drove Hernandez-
Pena to the vicinity of the home to confirm its location for the officers, and she
identified 3907 East 12th Terrace as the brothers’ residence.
Once the location was confirmed, the officers who had searched the Donnelly
Avenue location came to East 12th Terrace. Ortiz and King approached the front door
and the other officers deployed to the sides and back of the residence to intercept
anyone who might flee the house. Ortiz and King knocked on the front door and
Gerardo answered through a closed glass window adjacent to the front door. Ortiz,
speaking in Spanish, identified himself and King as law enforcement officers and
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explained that they were conducting a narcotics investigation. Gerardo acted confused
and repeatedly asked the officers who they were and what they wanted.
While talking to Gerardo through the window, Ortiz saw Alfonso inside the
house. Gerardo was speaking to Alfonso as well. Ortiz saw Alfonso enter the
kitchen, immediately return in the direction from which he had come, re-enter the
kitchen with three large plastic bags, and then begin washing an unknown substance
down the kitchen sink. Ortiz told King and Sergeant Jay Pruetting that “something
is getting flushed” down the sink. King then looked through the window at the top of
the front door and saw Alfonso hurriedly leave the kitchen and enter the southwest
bedroom. Alfonso exited the bedroom carrying an unknown object to an area on the
west side of the residence, out of the officers’ field of vision. Alfonso repeated this
action one more time before convening with Gerardo. Alfonso or Gerardo eventually
opened the door.
The officers entered the house with their guns drawn, handcuffed Alfonso and
Gerardo, and conducted a protective sweep. During the cursory sweep, the officers
observed plastic bags containing numerous empty zip-lock storage bags in the kitchen
sink, a plastic bag containing a crystal-like substance on the floor in a bedroom, a
bundle of United States currency, an electronic money counter and assault-style rifles.
The officers detained Gerardo and Alfonso and applied for and received a state search
warrant for the residence. The ensuing search produced 5880 grams of
methamphetamine, more than $160,000 in cash, and four firearms.
Alfredo and Alfonso were individually questioned by Ortiz and King at police
headquarters after being informed of their Miranda rights and signing Miranda waiver
forms. Both Alfredo and Alfonso made inculpatory statements.
Alfredo, Alfonso, and Gerardo, along with three other defendants, were indicted
on a variety of charges. Each defendant filed a motion to suppress, which the
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magistrate judge recommended denying. The district court adopted the report and
recommendations and each brother entered a conditional guilty plea. Alfredo was
sentenced to 240 months’ imprisonment; Alfonso was sentenced to 195 months’
imprisonment, 135 months for conspiracy to distribute methamphetamine and 60
months for possession of firearms in furtherance of a drug trafficking crime; Gerardo
was sentenced to 180 months’ imprisonment.
Alfredo appeals, arguing that the evidence found at 430 Donnelly Avenue and
the statement he made should be suppressed because: the consent to search was the
product of coercion and not voluntarily given and the protective sweep was
unnecessary because the police chose to enter the residence. Alfonso and Gerardo
appeal the denial of their motions to suppress the evidence seized at 3907 East 12th
Terrace, raising a number of issues. Additionally, Alfonso contends that the
statements he made were tainted by the illegal search and that the district court erred
in the imposition of the five-year consecutive sentence for possession of a firearm in
furtherance of a drug crime.3
II.
We review the district court's factual determinations underlying the denial of
a motion to suppress for clear error and its legal conclusions de novo. United States
v. Hogan, 539 F.3d 916, 921 (8th Cir. 2008).
3
Alfonso argues that the magistrate judge applied an incorrect legal standard
when considering his motion to suppress. The report and recommendation cited the
legal standard applied in Greiner v. City of Champlin, 27 F.2d 1346 (8th Cir. 1994),
a qualified immunity case. Applying the appropriate standard, however, the outcome
is the same.
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A. 430 Donnelly Avenue
Alfredo contends that consent to search the Donnelly Avenue residence was
involuntarily given as a result of police coercion, rendering it unconstitutional. A
warrantless search of a residence does not violate the Fourth Amendment if voluntary
consent has been given by a resident. Schneckloth v. Bustamonte, 412 U.S. 218, 222
(1973). Consent is voluntary if it is “the product of an essentially free and
unconstrained choice by its maker,” rather than the “product of duress or coercion,
express or implied.” Id. at 225. Whether consent was voluntarily given “is a question
of fact to be determined from the totality of the circumstances.” Id. at 227. In
determining voluntariness, the personal characteristics of the individual who
supposedly consented and the environment in which the consent allegedly occurred
are relevant. United States v. Chaidez, 906 F.2d 377, 381 (8th Cir. 1990).
The magistrate judge and district court credited the testimony of King and
Ortiz. Credibility is a determination left to the trier-of-fact, and “its assessment is
virtually unassailable on appeal.” United States v. Rodriguez, 414 F.3d 837, 845 (8th
Cir. 2005). Only when credibility determinations are internally inconsistent, based
upon incoherent or implausible testimony, or contradicted by objective evidence is a
more searching review warranted. United States v. Jones, 254 F.3d 692, 695 (8th Cir.
2001). Finding that there was no credible evidence that the officers were physically
intimidating or made any promises in exchange for consent, the magistrate judge
concluded that Garcia-Bobadilla voluntarily consented to a limited search of the
premises to determine the presence of other individuals. The magistrate judge found
that under the totality of the circumstances, Alfredo and Garcia-Bobadilla both
voluntarily and knowingly consented to a full search of the residence. After reviewing
the record, we find no error in the magistrate judge’s determination.
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Because the searches were based on knowing and voluntary consent, we need
not reach Alfredo’s additional arguments that officers are not entitled to a protective
sweep during a knock-and-talk and that Alfredo’s statements were tainted by an illegal
search.
B. 3907 East 12th Terrace
1. Exigent Circumstances and Probable Cause
Alfonso and Gerardo contend that the warrantless entry of 3907 East 12th
Terrrace was supported by neither exigent circumstances nor probable cause. Police
officers may not enter or search a residence without a warrant unless the entry is
justified by exigent circumstances. Payton v. New York, 445 U.S. 573, 590 (1980).
“The exception justifies immediate police action without obtaining a warrant if lives
are threatened, a suspect’s escape is imminent, or evidence is about to be destroyed.”
United States v. Ball, 90 F.3d 260, 263 (8th Cir. 1996). To evaluate “whether a
warrantless entry was justified by exigent circumstances, we consider the
circumstances that confronted police at the time of the entry.” United States v.
Leveringston, 397 F.3d 1112, 1116 (8th Cir. 2005). We look objectively at whether
a reasonable, experienced police officer would believe evidence was in danger of
removal or destruction. See United States v. Kuenstler, 325 F.3d 1015, 1021 (8th Cir.
2003). Not only must the government establish that an exigency existed, but also that
there was probable cause to search the residence. United States v. Munoz, 894 F.2d
292, 296 (8th Cir. 1990).
In Leveringston, we held that even though the suspect had been arrested outside
the hotel room, the fact that the water and garbage disposal continued to run inside the
room gave the police “grounds to believe there was a fair probability that evidence of
drug trafficking—a serious felony offense—would be lost if they did not make
immediate entry.” 397 F.3d at 1116. We have held in a number of cases that police
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officers are justified in making an exigent-circumstances entry when, after going to
a residence with evidence that an individual was involved in a drug transaction, they
knock and identify themselves and then witness an individual retreat or conduct
himself in a way that suggests the destruction of evidence. See Ball, 90 F.3d at 262-
63 (police approached home where two men were on the porch, one was holding a
weapon and then fled into the residence); Munoz, 894 F.2d at 296 (individual ran
upstairs after the police knocked and identified themselves); United States v. Clement,
854 F.2d 1116, 1119 (8th Cir. 1988) (officers received no response after knocking,
saw someone approach the door, look through the peephole and retreat, and heard a
“scrambling” noise).
In this case, we believe that an objectively reasonable police officer, knowing
the information supplied by Hernandez-Pena and observing Alfonso’s and Gerardo’s
conduct, would conclude that there was danger of removal or destruction of evidence
of a crime. Hernandez-Pena had told officers that the brothers possessed large
quantities of illegal narcotics and several firearms and that they served as enforcers
for the drug trafficking organization. After arriving at the house and announcing
themselves, the officers witnessed evasive behavior. Gerardo and Alfonso consulted
one another, following which Gerardo’s feigned confusion appeared to be a delaying
tactic during which Alfonso took several plastic bags to the kitchen sink and disposed
of their contents. Taken together these circumstances justified the officers’
warrantless entry. Additionally, under the totality of the circumstances, probable
cause existed: a reasonable person would believe that there was a fair probability that
drugs or evidence of drug trafficking would be found in the residence. See Kleinholz
v. United States, 339 F.3d 674, 676 (8th Cir. 2003).
2. Curtilage
Gerardo argues that the evidence found at 3907 East 12th Terrace should be
suppressed because the officers violated his Fourth Amendment right to privacy
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during the knock-and-talk when they positioned themselves near the rear and sides of
the house. Although the Fourth Amendment’s protection extends to the curtilage
surrounding a home, United States v. Weston, 443 F.3d 661, 666 (8th Cir. 2006), no
Fourth Amendment search occurs when officers “restrict their movements to those
areas generally made accessible to visitors—such as driveways, walkways, or similar
passageways.” United States v. Reed, 733 F.2d 492, 501 (8th Cir. 1984).
It is unclear from the record whether the officers were actually within the
house’s curtilage. Assuming, however, that Gerardo is correct that officers
impermissibly entered the curtilage of his home during the knock-and-talk,
suppression is not required, because the officers at the front of the house
independently observed the apparent destruction of evidence and entered the home
under exigent circumstances. In the majority of cases cited by Gerardo in which
evidence was suppressed, the officers at the rear of a home obtained evidence while
positioned there—the officers observed illicit behavior, someone threw evidence from
the home or left the home.4 See, e.g., Hobson v. United States, 226 F.2d 890, 894 (8th
Cir. 1955) (suppressing package thrown into backyard). In this case, suppression is
inappropriate because discovery of the evidence was unrelated to any misconduct.
See Wong Sun v. United States, 371 U.S. 471, 488 ( 1963) (recognizing the issue for
suppression is whether “the evidence to which instant objection is made has been
come at by exploitation of that illegality or instead by means sufficiently
distinguishable to be purged of the primary taint”).
4
The one case cited in which no evidence was obtained while the officers were
impermissibly positioned in the curtilage is distinguishable because it was a qualified
immunity case that did not deal with suppression. See Roybal v. City of Albuquerque,
No. 08-0181, 2009 WL 1329834 (D. N.M. April 28, 2009).
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3. Manufacturing Exigent Circumstances
Gerardo also argues that the police impermissibly manufactured the exigent
circumstances. Although it is true that “the situations of urgency protected by this
exception cannot be created by police officers,” United States v. Duchi, 906 F.2d
1278, 1284 (8th Cir. 1990), Gerardo’s argument fails under our cases that address
police-created exigencies. We have explained that “in some sense the police always
create the exigent circumstances that justify warrantless entries and arrests.” Id. But
the police do not necessarily act impermissibly any time they create an exigency in a
strict causal sense. See Ball, 90 F.3d at 264 (rejecting a claim that officers
manufactured an exigency when they approached a porch and an individual fled into
the residence). We must determine the “reasonableness and propriety of the
investigative tactics that generated the exigency.” Duchi, 906 F.2d at 1284.
In Duchi, police were alerted to an undeliverable package that contained two
bricks of cocaine. Id. at 1279. The police replaced one of the bricks with a book and
allowed the package to be picked up from the shipping company. Id. at 1280. After
the suspect returned home with the parcel, the police entered the residence without a
warrant because of a fear that the evidence would be destroyed. Id. We held that the
police impermissibly manufactured the exigency, because “[t]he heightened danger
of destruction upon discovery was . . . reasonably foreseeable; it was in fact, the
replacement strategy’s probable result.” Id. at 1285. Similarly, in United States v.
Johnson, a postal inspector intercepted a package containing drugs, altered its
contents, made a controlled delivery, and then entered the residence without a warrant
because of fear that the evidence would be destroyed once the recipient realized the
package had been intercepted. 12 F.3d 760, 762 (8th Cir. 1993). We held that by
substituting another substance for a portion of the drugs, the officials “created, or at
least greatly increased, the risk that evidence would be destroyed.” Id. at 765. “Had
they not altered the package’s contents, there would have been little or no danger of
evidence being destroyed before they obtained the search warrant.” Id. Conversely,
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in a situation in which the police used an investigative technique that did not
foreseeably increase the likelihood of an exigency, we rejected the proposition that the
police impermissibly manufactured the exigency. See United States v. Williams, 521
F.3d 902, 908 (8th Cir. 2008) (holding that the police did not manufacture the
exigency that led to the warrantless entry of the motel room when the officer knocked
on the door, and heard what he thought was the slide of a handgun and the rustling of
blinds).
Police officers regularly rely on a knock-and-talk as an investigative strategy
when they do not have enough evidence to obtain a search warrant. The knock-and-
talk that was conducted in this case was a reasonable and proper investigative strategy
that did not foreseeably increase the likelihood of the destruction of evidence. While
the destruction of evidence is a possible result of a knock-and-talk, other likely results
include the grant of consent to a search, the demand for a warrant for police entry, or
a consensual conversation with the resident outside the home. Accordingly, we
conclude that the police did not impermissibly manufacture the exigency in this case.
4. Protective Sweep
Alfonso and Gerardo contend that the protective sweep of the East 12th Terrace
home constituted an illegal search because it was not made in connection with an
arrest. They maintain that the officers did not have probable cause to arrest the
brothers until they confirmed that Alfonso had been disposing of drugs upon the
officers’ arrival.
We conclude that the protective sweep was permissible under the principles
outlined in Maryland v. Buie, 494 U.S. 325 (1990). In that case, the Court held that
the Fourth Amendment permits an officer to conduct a protective sweep of the
premises if there are “articulable facts which, taken together with the rational
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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.” Id. at 334. We have declined to extend Buie to a search incident to the
service of a protection order when officers had no articulable facts suggesting that
another individual might be in the home, ready to launch an attack. United States v.
Waldner, 425 F.3d 514, 517 (8th Cir. 2005). But see id. (Murphy, J., concurring)
(explaining that this holding does not necessarily foreclose all protective sweeps when
officers are serving a protection order).
Given the circumstances, we hold that a reasonable officer could conclude that
it was necessary for his safety to secure the premises before obtaining a warrant.
There was a reasonable possibility that other individuals were in the home, posing a
danger to the officers. The officers had been told that the brothers possessed large
quantities of illegal narcotics and several firearms and that they served as enforcers
for the drug trafficking organization. They had observed Gerardo’s evasive behavior,
and Alfonso’s actions were consistent with that of someone destroying evidence.
Accordingly, the protective sweep was permissible.
5. Search Warrant and Alfonso’s Statement
We conclude that Alfonso’s and Gerardo’s remaining arguments are without
merit. Having determined that the entry and protective sweep were legal, the
information included in the affidavit supporting the search warrant was not illegally
obtained and it provided the requisite probable cause to support the search warrant.
Alfonso’s argument that his post-Miranda statements were tainted by an illegal search
also fails because the search of the East 12th Terrace residence was lawful.
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C. Sentencing
Alfonso contends that the district court erred in imposing a consecutive five-
year sentence for possession of a firearm in furtherance of a drug crime under 18
U.S.C. § 924 (c)(1)(A) after imposing the 135 months’ sentence on the predicate drug
trafficking offense. Alfonso argues that the language “[e]xcept to the extent that a
greater minimum sentence is otherwise provided by this subsection or by any other
provision of law” means that because he was subject to a longer mandatory minimum
sentence for a drug offense, the mandatory consecutive sentence under § 924 (c)(1)(A)
does not apply. This argument is contrary to our established precedent. See United
States v. Alaniz, 235 F.3d 386, 386 (8th Cir. 2000) (holding that the “greater
minimum sentence” refers only to sentences for various types of conduct proscribed
in § 924 (c)(1), not for the underlying drug offense).5 Having disposed of this issue
based on the merits, we decline to reach the government’s argument that Alfonso
expressly waived his right to appeal his sentence.
III.
The judgment is affirmed.
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5
We note, however, that the Supreme Court has granted certiorari in
United States v. Abbott, 574 F.3d 203 (3d Cir. 2009), cert. granted, 2010 WL
250514 (Jan. 25, 2010) (No. 09-479), which presents the following question:
whether the term “any other provision of law” in 18 U.S.C. § 924(c)(1)(a)
includes the underlying drug trafficking offense or crime of violence.
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