Case: 10-50999 Document: 00511693336 Page: 1 Date Filed: 12/13/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 13, 2011
No. 10-50999
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff – Appellee
v.
SHERRY AGUIRRE,
Defendant – Appellant
Appeal from the United States District Court
for the Western District of Texas
Before JOLLY, HIGGINBOTHAM and SOUTHWICK, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
Sherry Aguirre was convicted of using a communications facility to
facilitate a drug trafficking crime in violation of 21 U.S.C. § 843(b). On appeal
Aguirre challenges the district court’s denial of her motion to suppress evidence,
claiming that the search and seizure of her cell phone was tainted by law
enforcement officers’ illegal entry into a home where she was a guest. We
conclude that the officers’ entry was justified by exigent circumstances, that the
search and seizure of Aguirre’s cell phone occurred under the authority of a valid
warrant, and affirm the judgment of the district court.
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No. 10-50999
I.
The search and seizure of Sherry Aguirre’s cell phone was a link in the
chain of events that unfolded in the wake of the arrest of Arnold Mendoza.
Mendoza became a subject of surveillance by the Drug Enforcement Agency after
making a controlled sale of cocaine to a police informant. The day of Mendoza’s
arrest, the agents watching him had reason to believe that he would make
another drug deal that evening. Seeing him leave his mobile home at 6:30 P.M.
in a tan H2 Hummer, they alerted the local sheriff. A deputy stopped the
Hummer for a traffic violation. Mendoza unsuccessfully fled. Marijuana was in
plain view and the ensuing search of the vehicle also found nine ounces of
cocaine.
Approximately one hour after Mendoza’s arrest, several law enforcement
officers returned to his residence for an investigative “knock and talk.” They
knocked on the front door of the mobile home and announced themselves. They
received no verbal response. Instead, they saw an occupant look at them
through the window, watched that person retreat, and heard several persons
“scuffling” and moving hurriedly inside towards the back of the residence. These
veteran officers quickly concluded that the occupants were likely destroying
drugs and other evidence of narcotics. In response, the officers did not await a
warrant or consent to search, but immediately entered the home. During their
protective sweep of the residence they found marijuana and drug paraphernalia
in plain sight, as well as several plastic baggies floating in the toilet in a
bathroom towards the back of the residence. The toilet bowl’s water was still
rotating from a recent flush.
The officers detained Aguirre and two other occupants of the mobile home
for two hours while DEA Special Agent David Friday obtained a search warrant.
Warrant in hand the officers uncovered cocaine, marijuana, six marijuana pipes,
three grinders, three digital scales, fourteen cell phones, one shotgun, and one
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revolver. Aguirre’s cell phone was lying in plain view on her bed and was one of
the phones seized. It was protected by a password that Aguirre provided to the
agents. A search of its text messages uncovered several communications
discussing “white” and “green,” terms believed to refer to cocaine and marijuana,
respectively.
Aguirre moved to suppress all evidence obtained in the search of the
mobile home, including her cell phone and its incriminating text messages.1 The
district court denied the motion by written order, concluding that the officers’
warrantless entry into Mendoza’s home was justified by exigent circumstances,
and that the search and seizure of Aguirre’s cell phone was proper both as a
search incident to her arrest and pursuant to a valid warrant. The court also
found the evidence in any event was admissible under the good-faith exception
to the exclusionary rule. Reserving her right to appeal, Aguirre pleaded guilty
to using a communications facility – her cell phone – to facilitate a drug-
trafficking crime in violation of 21 U.S.C. § 843(b). She was sentenced to twenty-
four months imprisonment, one year supervised release, and a special
assessment of $100. This appeal followed.
II.
Our review of a district court’s denial of a motion to suppress is limited.
We may affirm on any basis established by the record,2 considering the evidence
presented at the suppression hearing “in the light most favorable to the
1
Sherry Aguirre was not a resident of the mobile home, but had been staying there as
a guest for ten days at the time of her arrest. The district court correctly concluded that this
extended overnight stay gave Aguirre standing to challenge the police officers’ search of the
residence. See Minnesota v. Olson, 495 U.S. 91, 96–97 (1990) (a defendant’s “status as an
overnight guest is alone enough to show that he had an expectation of privacy in the home that
society is prepared to recognize as reasonable”); United States v. Kye Soo Lee, 898 F.2d 1034,
1037–38 (5th Cir. 1990) (a defendant has standing to contest the search of a place if he has a
subjective expectation of privacy in that place that “society would recognize as reasonable”).
2
United States v. Gomez-Moreno, 479 F.3d 350, 354 (5th Cir. 2007).
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prevailing party.”3 A determination of probable cause is a legal conclusion that
we review de novo,4 while the existence of exigent circumstances is a factual
finding we review for clear error.5 Under this “highly deferential” standard,6 we
must uphold the district court’s ruling so long as it is supported by “any
reasonable view of the evidence.”7
III.
Aguirre first argues that the law enforcement officers’ warrantless entry
into the mobile home violated the Fourth Amendment, an illegality tainting the
search and seizure of her cell phone. The district court concluded that the
officers’ entry was justified under the exigent circumstances doctrine and
implicitly determined that there was probable cause for the entry.
Under the Fourth Amendment, a warrantless search of a person’s home
is presumptively unreasonable, and it is the government’s burden to bring the
search within an exception to the warrant requirement.8 Exigent circumstances
is such an exception. It is available only on a showing by the government that
the officers’ entry into the home was supported by probable cause and justified
by an exigent circumstance.9 “[N]o amount of probable cause can justify a
3
United States v. Richard, 994 F.2d 244, 247 (5th Cir. 1993).
4
United States v. Zavala, 541 F.3d 562, 574 (5th Cir. 2008).
5
Gomez-Moreno, 479 F.3d at 354.
6
United States v. Blount, 123 F.3d 831, 839 (5th Cir. 1997).
7
United States v. Scroggins, 599 F.3d 433, 440 (5th Cir. 2010) (quoting United States
v. Gonzalez, 190 F.3d 668, 671 (5th Cir. 1999)).
8
Payton v. New York, 445 U.S. 573, 586 (1980); Gomez-Moreno, 479 F.3d at 354.
9
United States v. Jones, 239 F.3d 716, 719 (5th Cir. 2001); see also Arizona v. Hicks,
480 U.S. 321, 327–28 (1987).
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warrantless search or seizure absent [such] exigent circumstances.”10 In other
words, even if the officers had probable cause to search the mobile home, they
had to have exigent circumstances to enter without a warrant.
Police officers have probable cause to search a residence if “under the
‘totality of the circumstances...there is a fair probability that contraband or
evidence of a crime will be found in a particular place.’”11 In making this
determination, we may consider information learned by the officers during the
knock and talk that preceded their entry into the home.12 The record contains
sufficient evidence to establish that the officers’ entry into the mobile home is
supported by probable cause.13 At the time that the law enforcement officers
decided to conduct the knock and talk, they had good reason to believe that they
would find narcotics and evidence of drug dealing in the mobile home. They had
just arrested Mendoza, a resident of the home, seizing several ounces of cocaine
and marijuana in his possession. It signifies that when arrested Mendoza was
10
Horton v. California, 496 U.S. 128, 137 n.7 (1990) (internal quotation marks and
citations omitted).
11
United States v. Newman, 472 F.3d 233, 237 (5th Cir. 2006) (quoting Illinois v. Gates,
462 U.S. 213, 238 (1983)).
12
Id.
13
Heretofore, we would precede this discussion by analyzing the threshold issue of
whether the law enforcement officers’ decision to conduct a knock and talk was a reasonable
investigatory tactic, or whether it impermissibly provoked the exigent circumstance. If we
determined that the officers could have obtained a warrant in lieu of conducting the knock and
talk or that it was reasonably foreseeable that the knock and talk would create an exigent
circumstance, we would not allow the government to use the exigent circumstance doctrine to
justify the officers’ entry and bypass the warrant requirement. See, e.g., Gomez-Moreno, 479
F.3d at 356–57; Maldonado, 472 F.3d at 396 (2006); United States v. Vega, 221 F.3d 789,
798–99 (5th Cir. 2000); Richard, 994 F.2d at 248–49; United States v. Munoz-Guerra, 788 F.2d
295, 298 (5th Cir. 1986). However, this inquiry is no longer proper after the United States
Supreme Court’s decision in Kentucky v. King, 131 S. Ct. 1849 (2011). That decision narrowed
the police-created exigency doctrine adopted by this and other circuits, holding that it may
apply so long as “the police did not create the exigency by engaging or threatening to engage
in conduct that violates the Fourth Amendment.” Id. at 1858; see also id. at 1859–61. No such
allegation has been made here.
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driving directly from the mobile home, creating a likelihood that he possessed
these drugs while at the residence. The officers, aware that Mendoza had
previously sold drugs to an informant, had reason to believe that when arrested
he was in route to conduct another sale to that informant. Based on their
training and experience, the officers knew that drug dealers often keep assets
and drug paraphernalia at their residences. Together this information
established a nexus between the mobile home and Mendoza’s illegal drug-related
activities.
The officers’ entry without a warrant was also justified by the need to halt
destruction of evidence. In determining the presence of exigent circumstance,
we employ a non-exhaustive five factor test: “(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; (4) the
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 it and to escape are characteristics in
which those trafficking in contraband generally engage.”14
DEA Special Agent David Friday testified at the suppression hearing that
after the officers announced themselves at the front door, they “observed
someone look out the window. And then we heard shuffling, scuffling sound
inside the trailer.” The agents’ training and prior experience with drug cases
suggested that the sudden noises they were hearing were due to the occupants’
attempts to destroy evidence when they learned that law enforcement had come
to their door.
14
United States v. Mata, 517 F.3d 279, 287 (5th Cir. 2008).
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The facts of this case resemble those in Newman, in which we concluded
that police officers’ warrantless entry into a home was justified by the exigent
circumstances and probable cause. The officers there knew that a drug dealer
frequented the residence. When they approached the residence they saw
suspicious movement behind the curtains, they received no verbal response to
their knock, and they observed a resident attempting to flee the premises. While
none of these factors alone would necessarily have established that the officers
could enter the residence, we concluded that their entry was proper under the
totality of the circumstances. The information known to the officers was
sufficient to create probable cause that drugs would be found inside.15
Furthermore, law enforcement officers are aware that there is a high probability
that persons in the possession of drugs will attempt to destroy them if they know
that the police is at the door.16 This connection and the noises heard inside of
the home created an exigent circumstance.
We are persuaded that the officers’ entry into the mobile home was
justified by the exigent circumstance of destruction of evidence, and supported
by probable cause. It did not violate Aguirre’s Fourth Amendment rights and
taint the officers’ subsequent search and seizure of her cell phone.
IV.
Aguirre mounts three distinct attacks to the search and seizure of her cell
phone: (1) the officers executed the search and seizure before a warrant had been
issued; (2) the warrant that was eventually issued was not based on probable
15
Newman, 472 F.3d at 237. In Newman, we reviewed the existence of probable cause
under the more deferential plain error standard. That distinction is irrelevant, however, as
we concluded that under the facts of the case there was a “fair probability” the officers would
find drugs inside the home, the same standard we use here.
16
See Munoz-Guerra, 788 F.2d at 298.
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cause; and (3) the warrant did not meet the particularity requirement. The
district court rejected all three of these arguments.
1. The search and seizure occurred after the officers obtained a warrant.
Aguirre contends that the search and seizure of her cell phone occurred
before the police obtained a search warrant. After hearing the parties’
arguments and testimony at the suppression hearing, the district concluded that
this was not the case. Instead, it found that upon discovering Aguirre and the
other two mobile home occupants attempting to destroy narcotics that were in
plain view, the officers detained them while Special Agent David Friday secured
a warrant. The search of the residence – and of Aguirre’s cell phone – came on
Special Agent Friday’s return with a warrant two hours later.
We review a factual finding made by the district court in a denial of a
motion to suppress for clear error.17 Our review “is particularly deferential
where denial of the suppression motion is based on live oral testimony...because
the judge had the opportunity to observe the demeanor of the witnesses.”18 Such
deference applies here, as the district court based its conclusion on its finding
that Special Agent Friday’s recitation of events at the suppression hearing was
credible.
On appeal, Aguirre points to no evidence showing that Agent Friday’s
testimony was not credible. Instead she repairs to her own testimony during the
suppression hearing that the search and seizure of her cell phone came before
Friday’s return with the search warrant. There are two flaws in this argument.
First, Aguirre never made such a claim at the suppression hearing. She stated
that the officers detained her for several hours, and also stated that at some time
during her detention an officer unlocked her phone and searched her text
17
Keith, 375 F.3d at 348.
18
Scroggins, 599 F.3d at 440 (internal quotations omitted) (alteration in original).
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messages. At most, her testimony can be read as making the ambiguous
suggestion that the search occurred in the first two hours of her detention, before
a warrant had been issued.
Second, even if Aguirre had so testified at the suppression hearing it would
be unavailing. Aguirre’s argument ultimately amounts to a claim that she is
more credible than Special Agent Friday. The district court believed Special
Agent Friday’s testimony, and Aguirre provides us with no evidence that would
support a ruling that the district court committed clear error in crediting Agent
Friday’s testimony.
2. The warrant was supported by probable cause.
Under the Fourth Amendment, a warrant must be based “upon probable
cause, supported by oath or affirmation.”19 Our “review of an allegation that
probable cause is lacking is limited to an inquiry of whether the issuing
magistrate had a substantial basis for finding the existence of probable cause.”20
Such a substantial basis exists if “given all the circumstances set forth in the
affidavit before [the magistrate]...there is a fair probability that contraband or
evidence of a crime will be found in a particular place.”21
To obtain a the search warrant for the mobile home, Special Agent Friday
prepared an affidavit that only contained information that the police had before
they entered the residence. The affidavit provided a nexus between Mendoza’s
drug activities and his home, establishing a likelihood that Mendoza’s home
would contain evidence of criminal activity. It recited that Mendoza was under
surveillance by the DEA and had been arrested for carrying “substantial
19
U.S. Const. amend. IV.
20
United States v. Beaumont, 972 F.2d 553, 559 (5th Cir. 1992).
21
United States v. Wake, 948 F.2d 1422, 1428 (5th Cir. 1991) (quoting Gates, 462 U.S.
at 238–39).
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amounts of cocaine” and marijuana in his car immediately after leaving his
residence and that Agent Friday’s experience as an investigator confirmed that
drug dealers are likely to keep records of their trafficking activities in their
homes.22 While these circumstances together created no certainty that the police
would find evidence of drug trafficking activity in Mendoza’s residence, they
created a “fair probability” that such evidence would be found, and gave the
magistrate a “substantial basis” for concluding such a probability existed. We
are persuaded, as was the district court, that the warrant was validly issued on
probable cause.
3. The warrant met the particularity requirement.
Aguirre argues in the alternative that the search and seizure of her cell
phone was improper because the warrant did not particularly describe it as one
of the items to be seized. The Fourth Amendment requires that a warrant
“particularly describ[e] the place to be searched and the persons or things to be
seized.”23 The description in the warrant must be such that a reasonable officer
would know what items he is permitted to seize.24 In reviewing challenges to
particularity we read the warrant as a whole, including its accompanying
affidavit and attachments.25 For a failure of particularity, “the appropriate
22
See Beaumont, 972 F.2d at 559–60 (sufficient nexus between defendant’s home and
his drug activity where the affidavit established that defendant had been involved in a
purchase of chemicals, an informant claimed he used those chemicals to manufacture drugs,
and defendant once sold drugs from another one of his residences); compare with United States
v. Freeman, 685 F.2d 942, 949 (5th Cir. 1982) (concluding that there was not enough of a nexus
between a persons’s home and his alleged drug dealing activities because there was no link
ever made to his home); United States v. Gramlich, 551 F.2d 1359 (5th Cir. 1977) (that
defendant was known to be involved in the drug trade and that his one of his co-defendants
was arrested for smuggling fifty miles away from the home did not establish a sufficient nexus
between illegal activity and the defendant’s home).
23
U.S. Const. amend. IV.
24
Steele v. United States, 267 U.S. 498, 503–04 (1925).
25
Beaumont, 972 F.2d at 560, 561.
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remedy is for the court to exclude from the evidence in a later criminal action the
items improperly taken.”26
Each item does not need to be precisely described in the warrant. If
“detailed particularity is impossible [then] generic language suffices if it
particularizes the types of items to be seized.”27 We have upheld searches as
valid under the particularity requirement where a searched or seized item was
not named in the warrant, either specifically or by type, but was the functional
equivalent of other items that were adequately described. For example, in
United States v. Hill, we upheld the search and seizure of check stubs in the
course of the search of a law office suspected of involvement in financial
misdealings.28 Although the warrant in that case did not include “check stubs”
in its list of searchable and seizable items, it authorized the search of other
items including bank statements, cash receipt journals and cash receipt books.
Check stubs, which create contemporaneous and chronological records of
payments and transactions, are the functional equivalent of these listed items.
We concluded that the warrant was sufficiently particular to allow seizure of the
check stubs.29
The search warrant in this case authorized the search for items described
in Attachment A, a list that catalogued a wide variety of items used to facilitate
drug sales and trafficking. It included “records, sales and/or purchase invoices,”
as well as financial records including books, records, correspondence, and
“documentation evidencing the acquisition, concealment, transfer and
26
United States v. Cook, 657 F.2d 730, 734 (5th Cir. 1981).
27
Williams v. Kunze, 806 F.2d 594, 598 (5th Cir. 1986) (internal quotation marks
omitted).
28
19 F.3d 984 (5th Cir. 1994).
29
Id. at 986–89.
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expenditure of money or assets.” The list also authorized the search of personal
papers, including address books and telephone directories, and personal assets
including computers, disks, printers and monitors utilized in the drug trafficking
organization.
Aguirre correctly points out that this list did not include cell phones as
items to be searched. However, the cellular text messages, directory and call
logs of Aguirre’s cell phone searched by law enforcement officers can fairly be
characterized as the functional equivalents of several items listed in Attachment
A, including correspondence, address books and telephone directories.
Furthermore, Special Agent Friday testified during the suppression hearing that
“[c]ell phones are highly significant in that they record the transaction of – in
some cases the buying and selling of drugs.” As such the cell phone in this case,
used as a mode of both spoken and written communication and containing text
message and call logs, served as the equivalent of records and documentation of
sales or other drug activity.
V.
We find no error in the district court’s denial of Aguirre’s motion to
suppress and affirm the judgment entered on Aguirre’s plea of guilty.
12