IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 16, 2008
No. 07-41274
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
LORENZO LENCHO RODRIGUEZ, JR.
Defendant-Appellant
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:07-CR-27-ALL
Before KING, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
Lorenzo Lencho Rodriguez, Jr. appeals the district court’s denial of his
motion to suppress evidence seized from his residence. Rodriguez was convicted,
following a jury trial of possession of a firearm in furtherance of a drug-
trafficking crime and possession of a firearm while an unlawful user of a
controlled substance.
Rodriguez argues that the police officers created exigent circumstances to
justify the warrantless search of his residence. He argues that the evidence
*
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should not be published and is not precedent except under the limited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.
No. 07-41274
showed that he did not act in a violent manner toward the confidential
informant (CI) when he suspected that he was wearing a wire and that the
officers had no reason to storm into his home with guns drawn. He contends
that the officers created the exigent circumstances by sending the CI into the
house knowing that he had weapons and a police scanner.
In reviewing a district court's ruling on a motion to suppress, factual
findings are reviewed for clear error, and questions of law are reviewed de novo.
United States v. Jones, 239 F.3d 716, 719 (5th Cir. 2001). Additionally, the
evidence must be viewed in the light most favorable to the party that prevailed
below. Id.
A warrantless entry into a dwelling is presumptively unreasonable unless
consent is given or “probable cause and exigent circumstances justify the
encroachment.” Id. The officer’s reason for the entry in this case was exigent
circumstances. The Government bears the burden of proving that exigent
circumstances existed. United States v. Blount, 123 F.3d 831, 837 (5th Cir. 1997)
The Government cannot justify a warrantless search on the basis of exigent
circumstances of its own making. See id. at 838. In determining whether the
exigent circumstances were manufactured, this court considers whether agents
could have obtained a warrant prior to the development of the exigent
circumstances on which they relied and “the reasonableness and propriety of the
investigative tactics that generated the exigency.” United States v. Rico, 51 F.3d
495, 502-03 (5th Cir. 1995).
The evidence showed that the officers intended to do a “buy walk,” which
would have allowed the CI to leave the premises after the transaction and the
officers could have then obtained a warrant based on the buy to search the
house. The evidence also reflected that the officers were not aware that Lorenzo
Rodriguez was the person involved in the buy and that they had not anticipated
that a scanner might disrupt the controlled buy. The officers’s lack of intent to
make the “bust” is corroborated by the fact that the officers were wearing casual
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No. 07-41274
unmarked clothes and shoes, were not wearing protective vests, and had not
arranged for any backup.
The record supports the officers’s assertion that they felt compelled to go
into the house because they feared for the CI’s safety. The evidence also showed
that the officers put themselves personally at risk in making the entry with
insufficient manpower. Despite Rodriguez’s assertion that he reacted calmly to
the situation, it was reasonable for the officers to believe that Rodriguez would
harm the CI once he confirmed that he was cooperating with the police.
The record does not reflect that the exigent circumstances were created by
unreasonable investigative tactics or as a result of a specific intent to create an
emergency to circumvent the warrant requirement. See Rico, 51 F.3d at 505.
Viewing the evidence in the light most favorable to the Government, and
findings that the district court’s factual findings were not clearly erroneous, the
district court did not err in denying the motion to suppress. Jones, 239 F.3d at
719.
Rodriguez’s conviction is AFFIRMED.
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