IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 29, 2009
No. 08-40403 Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
ARIEL MENCHACA-CASTRUITA
Defendant - Appellant
Appeal from the United States District Court
for the Southern District of Texas
Before REAVLEY, JOLLY, and WIENER, Circuit Judges.
WIENER, Circuit Judge:
Defendant-Appellant Ariel Menchaca-Castruita (“Menchaca”) was
convicted on one count of conspiracy to possess with intent to distribute more
than 100 kilograms of marijuana and one count of possession with intent to
distribute the same. Menchaca now appeals his conviction, contending that the
district court committed clear error by denying his motion to suppress evidence
recovered from his residence during a warrantless search. Convinced that no
exigent circumstances existed to justify the officers’ failure to obtain a search
warrant, we vacate Menchaca’s conviction and remand for further proceedings.
No. 08-40403
I. FACTS AND PROCEEDINGS
A. FACTS
Early on a weekday afternoon in August 2007, a McAllen, Texas police
officer was dispatched to the scene of a landlord-tenant dispute at a suburban
residence. When the officer arrived at the scene, he observed two women —
Ofelia Garcia and her niece, San Juana San Miguel — standing in the driveway
and crying. Mrs. Garcia indicated that she and her husband, Tomas Garcia,
were the owners of a single-family residence that they had been renting to
Menchaca for almost three months. Mrs. Garcia further explained that she, her
husband, and Ms. San Miguel had intended to check on the condition of the
residence because they had not heard from Menchaca for more than two months
and had not received any rent payments since his lease began.
Mrs. Garcia told the officer that she had knocked on the front door several
times, but, when no one answered, her husband had gone around to the side of
the building, where he saw Menchaca through a bedroom window and motioned
for him to open the front door. When Menchaca opened the door, Mrs. Garcia
demanded to see the condition of the house. Reluctant to let her enter,
Menchaca instead offered to pay the overdue rent immediately if she, her
husband, and her niece would leave without first inspecting the home. Mrs.
Garcia refused, and she, her husband, and her niece pushed their way inside.
In the living room, Mrs. Garcia and Ms. San Miguel immediately noticed
several large bundles of marijuana hidden under blankets. When Menchaca
tried to explain that the bags of marijuana were merely packages that he had
intended to mail to various people, Mrs. Garcia walked outside and directed Ms.
San Miguel to call the police. At about this time, Mr. Garcia left in the car to
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No. 08-40403
flag down a police officer whom he had seen passing on a nearby street. Mr.
Garcia eventually found another officer who was on patrol for the McAllen
School District Police.
In the meantime, Menchaca had followed the women outside and gotten
down on his knees to beg them not to call the police, explaining that he had a
wife and family that he needed to support. Mrs. Garcia refused, insisting that
she had to notify the police of Menchaca’s marijuana. Menchaca then became
visibly upset and began shouting at the two women not to call the police. When
they informed him that they had already alerted the police, Menchaca went back
inside the house, opened the garage door, and started his truck. According to
Mrs. Garcia, Menchaca then left the vehicle with a tire iron in his hand,
approached her and Ms. San Miguel, and tried to hit them with that tool. Mrs.
Garcia and Ms. San Miguel safely fled to a parking lot across the street, and
Menchaca got into his truck and drove away. The first McAllen police officer
arrived at about that time and was joined shortly thereafter by the school
district officer.
After speaking with Mrs. Garcia and Ms. San Miguel, the police officer
checked the front door and noticed that it had been left partially open. From
where the officer stood on the doorstep, he could smell the odor of marijuana
coming from inside the residence but could not see any marijuana. The officer
testified that he heard no suspicious noises, or anything else to suggest that
anyone might be inside the house. After announcing himself by calling out,
“McAllen Police, anybody home?” and not receiving any response, the officer —
without first obtaining a search warrant — pushed open the front door and
entered the residence. Once inside, he discovered more than 700 pounds of
3
No. 08-40403
marijuana stashed in plastic bags in the living room and bedroom areas. The
officer then notified police headquarters and reported what he had found. When
police officers later checked the garage, they found a tire iron matching the
description given by Mrs. Garcia.
Later that afternoon, Ms. San Miguel called the McAllen Police
Department to report that Menchaca had contacted her and that he would soon
be returning to the residence to collect his personal belongings. Police arrested
Menchaca as he was leaving the residence.
B. PROCEEDINGS
1. Indictment
Menchaca was charged by indictment with (1) one count of conspiracy to
possess with intent to distribute more than 100 kilograms of marijuana in
violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B), and 846 (“Count One”); and (2) one
count of possession with intent to distribute more than 100 kilograms of
marijuana in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B) (“Count Two").
2. Motion to Suppress
Menchaca filed a motion to suppress all items found in or seized from his
residence on grounds that the officers’ warrantless search was unconstitutional
under the Fourth Amendment. The district court held a suppression hearing,
at which the government called as witnesses several of the law enforcement
officers who were involved in the search at the residence, the investigation, and
the subsequent arrest. At the hearing, the McAllen police officer who had first
arrived on the scene testified as to his thought process when he entered the
house without first obtaining a search warrant:
Q: [Y]ou were informed there was potential of marijuana being
in the house, is that correct?
4
No. 08-40403
A: Yes.
Q: Okay, and in your experience as a police officer what are the
tools of the trade of marijuana dealing?
A: Guns and people protecting their drugs.
Q: And were you aware, had anyone informed you of whether
there were any people inside the house at the time?
A: We were not aware.
Q: And that was one of the reasons for your concern, is that
correct?
A: Yes.
Q: As you said earlier, for your safety and the safety of the
people that were there?
A: Yes.
Q: Because there’s potential for firearms being in there at the
time?
A: Yes.
Q: Now, the other concerns that you also had, you just didn’t
know where anybody else was at the time, is that correct?
A: Yes.
Q: You were informed that Mr. Menchaca knew that there were
police officers that were responding to that location?
A: Yes.
Q: And because you had some civilians there, both Ms. Garcia
and Ms. San Miguel and Mr. Garcia, you wanted to protect
them as well, is that correct?
A: Yes.
Q: And you took all these factors into consideration?
A: Yes.
Q: And as well as the aggravated assault that had just occurred?
A: Yes.
Q: And that was part of the basis as to why you entered the
house?
A: Yes, sir.
Q: Any other bases why you entered the house?
A: My priority was my safety and their safety. That was my
main concern.
5
No. 08-40403
On cross-examination, the officer conceded that there had not been
anything to suggest that anyone was inside the house or that there was any risk
that the evidence might be lost or destroyed:
Q: [Y]ou’d been told that Mr. Menchaca had left the residence?
A: Yes.
...
Q: [Mrs. Garcia and Ms. San Miguel] never told you that they
heard somebody else running around or doing anything inside
the house?
A: No.
Q: They never gave you any indication that somebody else was
inside the house?
A: No.
...
Q: [T]here are a lot of judges in Hidalgo County that are capable
of issuing search warrants?
A: Yes.
...
Q: Okay. Now while you were there you didn’t hear anybody
running inside the house, right?
A: No.
Q: You didn’t hear anybody flushing the toilet?
A: No.
Q: You didn’t see any firearms whenever you looked inside the
house?
A: No.
Q: And this is not a remote area or anything like that, is it?
A: No.
Q: It’s not out in the country, it’s in the city?
A: Yes.
Q: It’s a residential area?
A: Yes.
Q: It’s a subdivision with a lot of other homes?
A: Yes.
...
6
No. 08-40403
Q: And at the time that you made entry into the house and at the
time that you decided to seize the marijuana you had never
seen anybody else inside and you had no evidence that
somebody else was inside?
A: No.
Q: Okay, so that’s correct, am I right?
A: Yes.
At the conclusion of the suppression hearing, the district court held that
exigent circumstances had justified the officers’ warrantless search of
Menchaca’s residence. The court explained its reasoning as follows:
[T]his is a stash house, a large amount of marijuana, over 700
pounds. I would not expect anybody to answer the door when
somebody comes knocking when you have a house full of marijuana.
To me that’s no indication that there’s only one person there. I
mean if anything that’s consistent that there may be other people
there when nobody answered the door until Mr. Menchaca finally
came out.
[The officer] testified that in his experience with large amounts of
drug[s], as had been reported to him here, that typically that is
associated with weapons and/or other persons and when that was
reported to him he felt a need for his safety and the safety of the
other individuals at the scene that he needed to secure the premises
immediately. And so that’s what he did. As he approached, the
door was already open. Again, the Court has no information on who
opened the door and I make no findings in that regard. I’m left to
speculate. I do conclude it was not the police officer, though, that
opened the door. He reported that it was open when he arrived. He
then smelled the marijuana and thereafter entered the premises to
secure it and to secure the evidence. I think those are exigent, I find
those are exigent circumstances.
3. Trial
Immediately following the suppression hearing, both parties stipulated to
the facts introduced therein and submitted the case to the court as a bench trial,
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No. 08-40403
with Menchaca reserving the right to appeal the denial of his motion to
suppress. The court found Menchaca guilty on both counts.
4. Sentencing
The probation officer who compiled Menchaca’s Pre-Sentence Report
(“PSR”) calculated Menchaca’s base offense level at 26. Because the probation
officer did not recommend any adjustments, Menchaca’s suggested total offense
level was also 26, with a criminal history category of I, indicating an advisory
guidelines range of 63 to 78 months’ imprisonment.
At sentencing, the district court adopted the facts and findings of the PSR
but awarded Menchaca a two-level reduction for acceptance of responsibility, a
two-level “safety-valve” reduction, and a two-level reduction for being a minor
participant, resulting in a total offense level of 20 and a corresponding guidelines
range of 33 to 41 months’ imprisonment. The court sentenced Menchaca to 33
months’ imprisonment on both counts to be served concurrently, followed by two
three-year terms of supervised release also to be served concurrently. In
addition, the court recommended that Menchaca’s instant sentence run
concurrently with any sentence resulting from his aggravated assault charges
(related to the alleged tire iron incident) pending at the time in state court.
II. LAW AND ANALYSIS
A. STANDARD OF REVIEW
When we review a district court’s denial of a motion to suppress, we view
the facts in the light most favorable to the prevailing party, accepting the district
court’s factual findings unless clearly erroneous and considering all questions of
law de novo.1 “A factual finding is not clearly erroneous as long as it is plausible
1
United States v. Rico, 51 F.3d 495, 500 (5th Cir. 1995).
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No. 08-40403
in light of the record as a whole.”2 In reviewing the district court’s denial of the
motion, we may consider not only evidence introduced during the suppression
hearing but also any additional evidence presented during the trial.3
B. SUPPRESSION OF EVIDENCE
1. Applicable Law
Although presumptively unreasonable, an officer’s warrantless entry will
survive constitutional scrutiny if, inter alia, “exigent circumstances exist to
justify the intrusion.” 4 The exigent-circumstances exception applies “where the
societal costs of obtaining a warrant, such as danger to law officers or the risk
of loss or destruction of evidence, outweigh the reasons for prior recourse to a
neutral magistrate.” 5 The government bears the burden of proving the existence
of exigent circumstances.6
“Because it is essentially a factual determination, there is no set formula
for determining when exigent circumstances may justify a warrantless entry.”7
As a general rule, exigent circumstances exist when there is a genuine risk that
officers or innocent bystanders will be endangered, that suspects will escape, or
that evidence will be destroyed if entry is delayed until a warrant can be
2
United States v. Jacquinot, 258 F.3d 423, 427 (5th Cir. 2001).
3
Rico, 51 F.3d at 504.
4
United States v. Richard, 994 F.2d 244, 247 (5th Cir. 1993).
5
United States v. Rodea, 102 F.3d 1401, 1404 (5th Cir. 1996) (internal quotation marks
and citation omitted).
6
Id. at 1405.
7
United States v. Blount, 123 F.3d 831, 837 (5th Cir. 1997) (en banc).
9
No. 08-40403
obtained.8 In evaluating whether exigent circumstances are present, we have
often referred to the following non-exhaustive list of factors:
(1) the degree of urgency involved and 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) information indicating 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 narcotics and to escape are characteristic
behavior of persons engaged in the narcotics traffic.9
“In evaluating exigency, it must be borne in mind that [courts] should
consider the appearance of the scene of the search in the circumstances
presented as it would appear to reasonable and prudent men standing in the
shoes of the officers.”10 “Our purpose is not to examine each act in isolation and
inquire whether the officers could have acted differently.”11 Rather, “[i]f
‘reasonable minds may differ,’ [we will] not second guess the judgement of
8
Id.; see United States v. Mendoza-Burciaga, 981 F.2d 192, 196 (5th Cir. 1992), cert
denied, 510 U.S. 937 (1993) (explaining that exigent circumstances are present in situations
in which “officers reasonably fear for their safety, where firearms are present, or where there
is a risk of a criminal suspect’s escaping or fear of destruction of evidence”).
9
United States v. Rico, 51 F.3d 495, 501 (5th Cir. 1995).
10
Blount, 123 F.3d at 838.
11
Id.
10
No. 08-40403
experienced law enforcement officers concerning the risks of a particular
situation.” 12 As we previously explained in United States v. Rico:
[I]f we conclude that the officer’s beliefs [that suspects were about
to depart with evidence] were reasonable, based on his experience,
knowledge, and observations at the time, then circumstances
existed that justified or even required immediate action. On the
other hand, if we conclude that [the officer] was unreasonable in
believing, based on those same circumstances, that the suspects
were preparing to depart with contraband, then there would have
been no reasonable justification or need for the agents [to engage in
a warrantless search].13
2. Analysis
The government contends that exigent circumstances were present
because (1) the officer was aware that an assault had occurred shortly before his
arrival on the scene; (2) he had reason to believe that there was marijuana inside
the residence; (3) he was unsure whether additional persons were present inside
the residence; (4) he knew from experience that persons who engage in drug
trafficking often carry firearms; and (5) he was concerned for his own safety as
well as the safety of the bystanders. The government does not contend that the
officer’s warrantless entry was even partially motivated by concern for any
possible destruction of evidence. According to the government, the officer acted
reasonably under the circumstances when he entered and searched Menchaca’s
residence without waiting to obtain a search warrant.
12
Id. (citing United States v. Howard, 106 F.3d 70, 76 (5th Cir. 1997)) (emphasis in
original).
13
Rico, 51 F.3d at 503.
11
No. 08-40403
In response, Menchaca contends that there were no exigent circumstances
compelling the officer to search his residence without first securing a warrant.
Specifically, Menchaca notes that (1) even if the alleged tire-iron assault had
taken place, the officer knew that the weapon was not a firearm, the assault took
place outside the residence, and Menchaca, the only suspect, was no longer at
the scene, much less in the house; (2) no one had been injured; (3) the scene of
the crime was secure, as there were several police officers surrounding the
suburban residence in broad daylight on a weekday afternoon, in an area that
was not known for a high incidence of crime; (4) there was nothing to suggest
that anyone was inside the residence; (5) there was nothing to suggest that the
evidence was at risk of destruction; and (6) the officer could have quickly and
easily obtained a warrant, as the incident took place in a municipality on a
weekday afternoon. Menchaca thus contends that the officers’ failure to obtain
a warrant requires that the evidence obtained from the unlawful search be
suppressed.
In support of its argument, the government relies on United States v. De
Jesus-Batres, in which the court found that exigent circumstances justified an
officer’s warrantless search of a residence used to detain illegal immigrants for
ransom. 14 In De Jesus-Batres, a small group of people had agreed to smuggle
illegal immigrants across the border for $1200 per person.15 But, after collecting
the initial $1200 fees and bringing the immigrants across the border, the
smugglers then held the immigrants captive and demanded an additional $300
14
410 F.3d 154, 159 (5th Cir. 2005).
15
Id. at 157-58
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No. 08-40403
from each of the immigrants’ families in exchange for the immigrants’ release.16
One of the immigrants managed to escape from the house and ran to a nearby
fire station, where he alerted two police officers that other immigrants were still
being held captive in the house.17 The officers met the owner of the house
standing outside the residence, and she agreed to let them search inside but
claimed to have lost her key.18 After forcing open the door, the officers
discovered three immigrants bound together on the kitchen floor.19 These
immigrants told the officers that they were unsure whether there might be
additional captives held elsewhere in the house. 20 Approximately 45 minutes
later, one of the officers — without first obtaining a warrant — conducted a
protective sweep of a detached garage unit located about 20 to 30 feet from the
house.21 While searching the unit, the officer discovered a gun in the bed of a
pickup truck.22
In affirming the district court’s ruling that exigent circumstances justified
the officer’s warrantless search of the garage, the court in De Jesus-Batres
concentrated its analysis on (1) the officers’ duty to ensure the safety of any
other immigrants who might have been detained elsewhere in the residence, and
16
Id. at 158.
17
Id.
18
Id.
19
Id.
20
Id.
21
Id.
22
Id.
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No. 08-40403
(2) the officers’ uncertainty as to the scope of the ransom operation or the
number of accomplices involved.23 As the court explained,
When the officers arrived at the house, they were told by the
[immigrants] they released that they were not sure if anyone else
was around. After releasing the three remaining [immigrants] from
the house and searching the house and attic, [one officer] searched
the garage because he did not know if additional [immigrants] or
suspects were hiding there. The [immigrants] could have been
injured or sick and any additional suspects could have posed a
safety risk to the officers.24
The government’s reliance on De Jesus-Batres is not persuasive, though,
as that case is clearly distinguishable from the instant case. In De Jesus-Batres,
the officers, after catching the smugglers by surprise in the midst of their
ransom operations, were reasonably concerned not only about additional
accomplices, but also about other captives who might be in danger. Indeed, the
freed immigrants had specifically told the officers that there might be additional
immigrants being held captive elsewhere in the house. By contrast, in the
instant case, neither Mrs. Garcia nor Ms. San Miguel ever suggested to the
officers that there might be additional accomplices in Menchaca’s residence. If
anything, the circumstances suggested just the opposite, viz., that no one was in
the residence and that there was no risk that the evidence might be destroyed:
(1) When Menchaca fled in his truck, he knew that Mrs. Garcia had called the
police, so he could have, and almost certainly would have, alerted any of his
accomplices to flee with him; (2) the officers knew that Mr. Garcia had peered
into the side windows of the house and had seen only Menchaca there; (3) Mrs.
23
Id. at 159.
24
Id.
14
No. 08-40403
Garcia never mentioned an accomplice, and the testimony at the suppression
hearing at least suggested that Ms. San Miguel might have told the officers that
there were no accomplices inside the house; (4) the front door to the residence
had been left open, indicating a hasty retreat as well as an unsecured premises,
inconsistent with the probability of additional occupants; and (5) there were no
sounds coming from inside the residence to suggest that someone might have
remained behind.
The government’s references to our en banc decision in United States v.
Blount are similarly unpersuasive.25 In Blount, we affirmed the district court’s
ruling that exigent circumstances had justified a warrantless search in the midst
of the pursuit of an armed fugitive.26 Investigating a violent drug-trafficking
ring, the officers in Blount had executed a search warrant at one residence and
found drugs and a firearm, but had narrowly missed their prime suspect.27 After
receiving a tip from a local resident that the suspect had fled to a neighboring
home, officers knocked on the door of that home and immediately heard the
sound of people inside moving around quickly.28 The officers continued to knock,
and three men eventually came to the door.29 The officers detained the men, but
the fugitive, who was known to be armed, was not among them.30 Without first
25
123 F.3d 831, 832-33 (5th Cir. 1997) (en banc).
26
Id. at 832.
27
Id.
28
Id.
29
Id.
30
Id. at 833.
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No. 08-40403
securing a warrant or obtaining consent from the residents, the officers entered
the home through the front door and “made a protective sweep to determine
whether [the fugitive] or anyone else was hiding [inside].” 31 Although the
officers did not find the fugitive, they did observe a quantity of cocaine in plain
view.32 Prior to trial, the defendants filed a motion to suppress the cocaine,
which the district court denied based on a finding of exigent circumstances.33
In affirming the district court’s denial of the motion to suppress, the
Blount court focused its analysis primarily on the danger posed by the armed
fugitive and the volatile nature of the officers’ investigation into a violent drug-
trafficking ring in a high-crime neighborhood.34 As the court explained, “[t]his
fast-moving and unpredictable scene in a tough neighborhood infected by a
violent drug-trafficking gang was simply not a case where the officers could
safely set up surveillance while they awaited a search warrant.” 35 The court
then described the factors it found most persuasive:
First, the officers were continuing an immediate search for a fleeing
felon who had already escaped once from a large group of officers.
The officers had confirmed that [the fugitive] was engaged in the
sale of crack cocaine, and he was a suspect in an armed sexual
assault. The officers reasonably believed that [the fugitive] was
armed and dangerous, and would attempt to evade capture. It
would have been virtually impossible to covertly secure [the
residence] against [the fugitives].
31
Id. at 834.
32
Id.
33
Id.
34
Id. at 838.
35
Id.
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No. 08-40403
Moreover, [the fugitive] was not the officers’ sole concern. The
officers reasonably believed that [the residence was] being employed
by a violent criminal street gang in its cocaine trafficking operation
....
... [The officers] were looking for [the fugitive] who might well have
been in the house. They had been told by a neighbor that it was his
residence, and that at some point he would land there. They had
been told by that neighbor that drugs were sold there. They knew
that [the fugitive] sold drugs. They had reason to believe that
members of a violent gang were also involved. They had reason to
believe that [the residence] was the ‘stash house’ for the drug
operation they had earlier uncovered. The fact that the residents
refused to come to the door or to communicate with the officers but
were heard moving around within the house added to an intense
and volatile situation and — importantly — to the likelihood that
significant evidence was being destroyed....
The situation also remained potentially explosive from the officers’
reasonable point of view. Not only are firearms ‘tools of the trade’
in illegal drug trafficking, but the fugitive member of the drug
conspiracy had previously been observed with a handgun, and a
firearm had been found in the raid on the first house.36
Here, there does not appear to be any similar exigency. Unlike the officers
in Blount, the police officers in the instant case (1) were not pursuing a fugitive,
much less one known to be armed; (2) were not investigating a violent drug-
trafficking ring; (3) had not heard or seen anything to suggest that Menchaca
36
Id. at 838-39 (emphasis in original). Chief Judge Politz dissented from the holding
and noted that the officers, who had surrounded the residence prior to conducting the search,
had no reliable information suggesting that anyone might still be inside or that any evidence
might be at risk of loss or destruction. Id. at 840-43 (Politz, C.J., dissenting). According to
Chief Judge Politz, “[t]he officers were in a position to call in reinforcements and seek a
warrant while keeping the house under surveillance, a markedly safer and, incidentally,
constitutional course of action which would have obviated the need to brazenly confront the
unknown in [the residence].” Id. at 842.
17
No. 08-40403
was carrying a firearm (indeed, the circumstances suggested otherwise); and (4)
had not heard or seen anything to suggest that anyone was inside Menchaca’s
residence or that the evidence might be at risk of loss or destruction. Further,
the officer’s testimony during the suppression hearing indicates that Menchaca’s
residence, unlike the residence in Blount, was not located in the middle of a
“tough neighborhood infected by a violent drug trafficking gang,” but rather was
apparently situated in the midst of a quiet residential neighborhood “with a lot
of other homes.”37
Several factors lend additional support to our conclusion that exigent
circumstances were not present here. For example, “the amount of time
necessary to obtain a warrant” likely would have been minimal, as the incident
took place early on a weekday afternoon — as opposed to late in the evening or
on a weekend when officers might not have had ready access to a magistrate.38
And, despite the officer’s testimony that he was concerned for his and the
bystanders’ safety, the government failed to present any evidence that the police
ever searched the residence in a manner consistent with a protective sweep (as
opposed to merely looking for the contraband they knew was present), e.g., by
looking expeditiously, with guns drawn, in closets, bathrooms, and other spaces
where accomplices might be hiding.
We thus are left with an officer who arrived on the scene of a
landlord/tenant altercation after the suspected assaulter had already fled and
had reason to believe, based on the assault victims’ reports, that there might be
37
Id. at 848 (majority opinion).
38
United States v. Rico, 51 F.3d 495, 501 (5th Cir. 1995). At the suppression hearing,
the officer conceded that there were several judges in Hidalgo County capable of issuing the
warrant.
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No. 08-40403
several large bundles of marijuana just inside the ajar front door of an
apparently empty residence. But, as we have previously explained, “[t]he mere
presence of illegal drugs and weapons does not justify a protective sweep.”39
United States v. Carter, a case from the Tenth Circuit, is instructive. The
Carter court held that the district court had clearly erred in finding exigent
circumstances when the only suspects in a drug investigation had already been
arrested and there was no evidence that anyone else was inside the subject
residence.40 The police in Carter had been following up on a tip of drug use and
stolen property when they approached the suspect’s home, intending to “knock
and talk” with anyone who answered the door.41 As the officers approached the
residence, however, the defendant, surveying the driveway from a video system
installed in a remote garage unit, mistook the officers for thieves attempting to
steal his car, and both he and his friend rushed outside to confront them.42
When the officers identified themselves, the defendant dropped a small bag of
marijuana from his pocket onto the ground. 43 The officers immediately retrieved
the marijuana and detained both the defendant and his friend.44 Shortly
thereafter, the defendant’s mother and her boyfriend came out of the house to
39
United States v. Watson, 273 F.3d 599, 603 (5th Cir. 2001); see United States v.
Howard, 106 F.3d 70, 74 (5th Cir. 1997) (“[T]he presence of drugs alone does not give rise to
exigent circumstances justifying a warrantless entry and search.”).
40
360 F.3d 1235 (10th Cir. 2004).
41
Id. at 1238.
42
Id.
43
Id.
44
Id.
19
No. 08-40403
see what was happening.45 Although there was no evidence that anyone else was
in the house or the garage, the officers proceeded to conduct a protective sweep
of the property without first obtaining a search warrant.46 During their sweep
of the garage, the officers discovered a shotgun barrel and a small bag of
methamphetamine.47 Prior to trial, the district court denied the defendant’s
motion to suppress the evidence.48
In holding that the district court had clearly erred by finding that exigent
circumstances justified the warrantless search, the Tenth Circuit acknowledged
that “[o]fficers within the home of an arrestee may be particularly vulnerable to
a dangerous confederate out of sight within the home.” 49 As the court noted,
however, “[t]he risk is substantially diminished when the officers effect the
arrest outside the home.”50 As the court explained:
There was simply no evidence that destruction of evidence was
likely. Indeed, the government points to no reason to believe that
other people were in the garage, or even the house. All indications
were to the contrary. Defendant and his friend charged out of the
garage. Defendant’s mother and her boyfriend came out of the
house shortly thereafter. Who was left to tamper with the
evidence? 51
45
Id.
46
Id.
47
Id.
48
Id.
49
Id.
50
Id.
51
Id. at 1241 (emphasis added).
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No. 08-40403
Like the defendants in Carter, who had initially approached the officers
in a “combative manner,” Menchaca might have posed a threat when, prior to
the officers’ arrival, he attempted to assault Mrs. Garcia and Ms. San Miguel in
the driveway of the residence. But, as in Carter, any potential threat to officers
or bystanders — or to the integrity of the evidence — had evaporated well before
the officers’ arrival, even longer before their warrantless search. When the
police in the instant case arrived on the scene, the bystanders were standing in
the driveway, uninjured, and Menchaca had long since fled. And, like the
officers in Carter, the officers in the instant case were safely outside of the
subject residence and all bystanders even further removed. If anything, the
officers increased the potential danger to themselves and the bystanders when
they proceeded to enter the residence.
In sum, the McAllen police officer had no articulable reason to believe that
someone else might be inside Menchaca’s residence posing a threat to the officer
or the bystanders, or that any evidence was at risk of destruction or removal.
The government would have us affirm the district court’s finding of exigent
circumstances because (1) the officer reasonably believed that there were drugs
in the home; (2) there was at least a possibility that someone else might be
inside; and (3) firearms are often the “tools of the trade” for drug traffickers.
But, inasmuch as these circumstances will be present in virtually every case
involving a residence suspected of containing drugs, it bears emphasis that the
exigent-circumstances exception is just that — an exception. There will always
be some possibility that an unknown person might be hiding somewhere inside
a residence, waiting for an opportunity to attack law enforcement officers or to
destroy evidence. A finding of exigent circumstances, however, must be based
21
No. 08-40403
on more than a mere possibility; it must be based on an officer’s reasonable belief
that the delay necessary to obtain a warrant will facilitate the destruction or
removal of evidence or put officers or bystanders in danger. Here, the totality
of the circumstances falls well short of any reasonable foundation for such
speculation.
III. CONCLUSION
We hold that the district court clearly erred by finding that there were
exigent circumstances justifying the warrantless search of Menchaca’s residence.
We therefore VACATE Menchaca’s conviction and REMAND for further
proceedings consistent with this opinion.
22