United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT November 18, 2005
_______________________ Charles R. Fulbruge III
Clerk
No. 04-11065
_______________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RAFAEL MENDEZ,
Defendant-Appellant.
On Appeal from the United States District Court
for the Northern District of Texas, Dallas Division
Before DAVIS, JONES, and GARZA, Circuit Judges.
By EDITH H. JONES:
Rafael Mendez, convicted of harboring illegal aliens,
appeals only from the district court’s denial of his motion to
suppress evidence. He challenges the constitutionality of law
enforcement officers’ entry of his home and investigation to
confirm the presence of illegal Brazilian immigrants. We hold that
the government agents’ investigatory procedures in this case were
reasonable under the totality of the circumstances. The judgment is
AFFIRMED.
I. BACKGROUND
The nature of the investigation was developed in a
district court evidentiary hearing. On August 20, 2003, two
Immigration and Customs Enforcement (“ICE”) agents in Dallas, Texas
received information from the ICE office in Boston, Massachusetts
that approximately seven to nine undocumented Brazilian aliens were
being harbored at a Dallas residence. A computer search revealed
that the residence was owned by Rafael Mendez, a Cuban national
living in the United States under political asylum. In the
afternoon, the agents surveyed Mendez’s residence. Its barred
windows, covered in dark drapes or blinds, a high security fence,
and two large capacity vans parked in the driveway, all suggested
that it could be used to harbor illegal aliens.
Three or four additional ICE agents arrived in unmarked
vehicles sometime after 7 p.m. They decided that undercover Agent
Angel Rivera, posing as a civilian looking for his Brazilian
relative, would knock on Mendez’s door. Children out on the street
near the house foiled the plan by screaming at Rivera and calling
him a “Narc”. Concerned for his safety, Agent Rivera retreated.
The ICE agents then settled on a joint “knock and talk”
with two uniformed Dallas police officers. None of the officers
secured a warrant before approaching Mendez’s house. While the ICE
agents wore plain clothes, all of the government officers carried
2
holstered sidearms. The agents and officers surrounded the house,
and Agent Rivera walked to the side door, which appeared to be the
main door. The door was wide open but the screen door was closed.
Agent Rivera could see four people sitting at a table inside,
including Mendez, whom Agent Rivera recognized from a photograph he
had seen in Mendez’s immigration records.
Agent Rivera knocked on the screen door, and, speaking in
Spanish, asked Mendez to step outside. When Mendez did so, Agent
Rivera identified himself, showed Mendez his credentials, and
explained that he had information that there were illegal aliens
inside the house. In response to the agent’s question, Mendez
denied that there were other people in the house besides those at
the table. Mendez further stated that he “had no problem”
consenting to Agent Rivera’s “going inside and taking a look.”
Agent Rivera testified that, upon entering the house, he
saw, contrary to what Mendez had just told him, seven or eight
people sitting on a couch watching television in the living room.
The people did not appear to understand his questions in English or
Spanish until he said the word “Brazil,” provoking a nod from one
of the individuals. Believing these individuals to be Brazilian
illegal aliens, Agent Rivera called on his radio to the ICE agents
and police officers outside, who then entered the house. The
agents and officers performed what they considered a protective
sweep, searching only for people, but not evidence, in each room.
As part of this effort, the only agent present who knew Portuguese
3
spoke (although not fluently) to the suspected illegal aliens for
approximately thirty to forty-five minutes, attempting to identify
their immigration status.
Agent Rivera simultaneously returned outside, read Mendez
his Miranda rights, and placed him under arrest. Agent Rivera then
asked Mendez whether he would execute a written consent to search
form. Mendez told Agent Rivera that he had little education and
was unsure whether he had the authority to allow police to search
his house, as it was in the process of being sold. Rivera assured
him that he possessed proper authority to consent, and called for
Mendez’s wife. When she arrived, Rivera explained and read the
consent form to both Mendez and his wife in their native Spanish.
Mendez signed the form, and the agents began searching the house.
During their search, the agents seized date books,
notepads and business cards, all which appeared to be related to an
alien smuggling operation. When questioned about these items,
Mendez told Agent Rivera that he ran a transport business and that
he kept good records. Mendez’s wife volunteered to retrieve the
records and brought several documents outside to Agent Rivera. The
agents also found business ledgers under Mendez’s mattress that
listed names, countries of origin, amounts of money, and
destination of aliens.
After being given Miranda warnings again at the Dallas
District immigration office, Mendez provided a voluntary three-page
4
statement detailing his involvement, since 2000, in the
transportation of aliens within the United States.
On September 4, 2003, a federal grand jury charged Mendez
with two counts of conspiracy and harboring illegal aliens. Mendez
moved unsuccessfully to suppress all of the evidence seized and
statements elicited as a result of the warrantless search of his
house. He then pled guilty to count two of the indictment
(harboring aliens in violation of 8 U.S.C. § 1324 (a)(1)(A)(iii)and
(v)(II)) in exchange for the Government’s dropping count one, but
reserved his right to appeal the motion to suppress. He timely
filed this appeal.
II. DISCUSSION
This Court reviews the district court’s factual findings
in connection with a suppression motion for clear error and its
Fourth Amendment conclusions of law de novo. United States v.
Brigham, 382 F.3d 500, 506 n.2 (5th Cir. 2004) (citations omitted).
“The evidence is considered in the light most favorable to the
prevailing party.” Id.
Mendez argues that the district court erred in denying
his motion to suppress evidence because: 1) the initial consent he
gave Agent Rivera to search his house did not extend to the other
agents present, who therefore entered his house without consent;
2) the agents had no basis to perform a protective sweep; and
3) his later written consent to enter and search his home was
5
ineffective because of the earlier violations. We address each
argument in turn.
A. Initial Consent
The district court found, over disputed testimony, that
Mendez gave Agent Rivera consent to enter his house. Mendez
contends, however, that because his consent did not extend to the
other agents present at the scene, the other agents’ entrance into
his house violated his Fourth Amendment rights. The Government
responds that Mendez’s consent for one (Rivera) was effectively
consent for all (six or seven other agents) on the facts of this
case and in the absence of any limitation on his consent.
The district court did not rule on the scope of Mendez’s
consent, as the court approved the officers’ entry into the house
and detention of the Brazilians on a hybrid protective sweep/plain
view rationale. Nevertheless, the deficiency can be overlooked,
because this purely legal issue was raised in the trial court and
concerns undisputed facts. See Ballard v. United States, 17 F.3d
116, 118 (5th Cir. 1994)(stating that reviewing court may affirm “on
grounds other than those relied upon by the district court”). The
Supreme Court holds that “[t]he standard for measuring the scope of
a suspect’s consent under the Fourth Amendment is that of
‘objective’ reasonableness -- what would the typical reasonable
person have understood by the exchange between the officer and the
suspect?” Florida v. Jimeno, 500 U.S. 248, 251, 111 S. Ct. 1801,
6
1803-04 (1991). Although objective reasonableness is a question of
law, “factual circumstances are highly relevant when determining
what the reasonable person would have believed to be the outer
bounds of the consent that was given.” United States v. Mendoza-
Gonzalez, 318 F.3d 663, 667 (5th Cir. 2003).
The facts preceding Agent Rivera’s entry into the Mendez
home have been recounted above. In particular, the ICE agent
explained his objective – a search for illegal aliens – before
entering the house. A reasonable person observing the exchange
between Agent Rivera and Mendez would conclude that Mendez
authorized a search of his house for people who might be illegal
aliens, and that is exactly what transpired. On entry, Agent
Rivera immediately noticed seven or eight people sitting in the
living room. He ascertained that they did not respond to the
English or Spanish languages except to acknowledge one word:
“Brazil.” Believing that the individuals in the living room were
the illegal immigrants about whom he had earlier been informed,
Agent Rivera called his fellow agents, who then entered to verify
who was inside and to determine their alienage.
Although the agents characterized their action as a
protective sweep, the actions they took to perform the sweep were
within the scope of Mendez’s original consent. The action the
agents took, not the terminology they employed, is what is
7
constitutionally determinative.1 The agents went from room to room
to look for people and then interviewed the people they found to
determine their immigration status. At no point during the thirty
to forty-five minutes the agents were in the house did they search
for physical evidence. The agents’ actions were consistent with
the scope of consent that Mendez gave to Agent Rivera.2
Mendez’s argument that the initial consent he gave Agent
Rivera to enter and search his home was specific to Agent Rivera,
and was not meant to extend to the other agents present at the
scene, is inconsistent with Mendez’s actions during the search.
It is the defendant’s responsibility to limit the scope of the
search if he so intends. United States v. McSween, 53 F.3d 684,
688 (5th Cir. 1995) (holding that the defendant’s general consent
to search his car gave the officer the authority to search under
the hood because the defendant failed to limit the scope of the
search). Accordingly, “a failure to object to the breadth of the
search is properly considered an indication that the search was
within the scope of the initial consent.” Id. (internal quotations
1
Whren v. United States, 517 U.S. 806, 813, 116 S.Ct. 1769, 1774
(1996) (stating that “the fact that the officer does not have the state of mind
which is hypothecated by the reasons which provide the legal justification for
the officer’s action does not invalidate the action taken as long as the
circumstances, viewed objectively, justify that action”).
2
Mendez argues that the Government failed to argue below that the
agents’ entrance into the house and subsequent interrogation were allowed by
Mendez’s oral consent. The Government maintained in its trial court brief,
however, that “[i]f the court finds Agent Rivera’s testimony credible that the
defendant voluntarily gave oral consent to enter the house to look for other
people, then the protective sweep of the house was permissible.”
8
and citations omitted). In the instant case, Mendez made no
attempt to limit the scope of his consent and never objected to the
additional agents entering his house. From this it can be inferred
that the aid given Agent Rivera by the additional agents was within
the scope of Mendez’s consent.
Where the defendant has failed to limit the scope of the
search, the question that remains in determining its validity is
whether, under the totality of the circumstances, the search was
reasonable. See Jimeno, 500 U.S. at 250, 111 S. Ct. at 1803.
Mendez consented to have a government agent search his house for
illegal aliens. Under the totality of the circumstances, the entry
of five or six additional agents into his house was not
unreasonable. When Agent Rivera stepped into Mendez’s house, he
immediately saw seven or eight people in the living room. Three
other individuals were sitting at the kitchen table. Seriously
outnumbered, and knowing that it was likely that several more
people could be hidden in the additional rooms of the house, he
decided to call in the additional agents. It is eminently
reasonable that several agents would be sent into the house to
search for additional people and to determine the alienage of those
present. While there may well be an upper limit on the number of
law enforcement officers who may search a private home under other
circumstances, the limit of reasonableness was not reached in this
case.
9
Mendez also asserts that, after Agent Rivera left the
house and read him his Miranda rights, the consent to search was
automatically withdrawn without his having to do or say anything to
that effect. This court has never adopted a rule declaring that
consent is automatically terminated upon arrest. Rather, consent
is a fact-sensitive inquiry dependent on the totality of the
circumstances. United States v. Tompkins, 130 F.3d 117, 121 (5th
Cir. 1997) (citations omitted). We agree with the Seventh Circuit,
which held that the fact that a person is “formally placed under
arrest sometime after the first consent does not work as an
automatic withdrawal of the consent previously given.” United
States v. Mitchell, 82 F.3d 146, 150-51 (7th Cir. 1996) (citations
omitted); see also WAYNE R. LAFAVE, 4 SEARCH AND SEIZURE § 8.1(c) at 631
(4th ed.) (“[A] consent to search is not terminated merely by a
worsening of the consenting party’s position . . .” ).
We conclude that the government agents’ initial search
for aliens was eminently reasonable under the totality of the
circumstances and that the agents acted within the scope of
Mendez’s consent. Nevertheless, we also agree that the search was
valid under the essential rationale employed by the district court.
We now turn to a brief analysis of both the protective sweep of
Mendez’s house and Mendez’s later written consent to search.
B. Protective Sweep
10
Mendez argues that there was no basis for the agents to
perform a protective sweep. The protective sweep doctrine allows
government agents, without a warrant, to conduct a quick and
limited search of premises for the safety of the agents and others
present at the scene. United States v. Gould, 364 F.3d 578, 581
(5th Cir. 2004)(en banc). A protective sweep of a house is legal
if: (1) the government agents have a “legitimate law enforcement
purpose” for being in the house; (2) the sweep is “supported by a
reasonable, articulable suspicion that the area to be swept harbors
an individual posing a danger to those on the scene;” (3) the sweep
is “no more than a cursory inspection of those spaces where a
person may be found;” and (4) the sweep “last[s] no longer than is
necessary to dispel the reasonable suspicion of danger” and
“last[s] no longer than the police are justified in remaining on
the premises.” Gould, 364 F.3d at 587 (internal quotations and
citations omitted).
Mendez challenges the existence of all of the protective
sweep elements. First, Mendez asserts that the agents were not
permitted to make a protective sweep of his house because he was
arrested outside. This position is contrary to Fifth Circuit
authority. See, United States v. Watson, 273 F.3d 599, 603 (5th
Cir. 2001). The agents were authorized to make a protective sweep
even though Mendez was arrested outside, since they had reasonable
grounds to believe there were people inside the house who posed a
security risk.
11
Second, Mendez complains that the agents did not have
reasonable, articulable suspicion that the house might harbor
people who posed a danger to those on the scene. All of the facts
that have been previously recited contradict this contention and
demonstrate that the agents’ suspicion of danger, whether
ultimately correct or not, was completely reasonable. Immigration
agents confront the crime of alien smuggling on a regular basis.
The crime is inherently dangerous and often results in death and
injury to both aliens and government agents.3 The use of a
protective sweep will often be, as it was here, a justifiable
measure for the protection of law enforcement officers and the
public in alien smuggling cases.
Finally, Mendez contends that the thirty to forty-five
minute sweep embodied more than a cursory inspection of his house
and was far longer than necessary to dispel any suspicion of
danger. Although thirty to forty-five minutes is a long time to
dispel a suspicion of danger, we are reluctant to say that the
lengthy time taken in this case was unreasonable. There is a
significant analytical difference between a protective sweep in the
context of illegal alien smuggling and a protective sweep in other
contexts. In this case, the agents had to take the time to
determine the identity and alienage of the people they found in the
3
See Press Release, Department of Homeland Security, U.S. Launches
Major Offensive Offensive Against Human Smuggling, available at http://
usinfo.state.gov/gi/Archive/2003/Nov/11-897569.html.
12
house; otherwise, the agents could not distinguish between the
suspects who might cause harm, and the victims of the alien
smuggling scheme, whom the agents were responsible to protect.
According to the record, the identification process was drawn out
because of the language barrier with the Brazilians and the
presence of only one agent who could speak some Portuguese.
Significantly, the agents did not search for anything other than
people, and no physical evidence was seized. Viewing the totality
of the circumstances, including the limited and focused nature of
the agents’ conduct, the duration and scope of the protective sweep
appear reasonable. However, because we have concluded that the
agents’ actions were reasonable and that they acted within the
scope of Mendez’s consent, it is unnecessary to rule definitively
on whether, because of the duration of the sweep, the agents
exceeded the bounds of a legitimate protective sweep.
The district court concluded that the extended duration
of the agents’ actions was inconsistent with a protective sweep,
but it nevertheless found that the agents were entitled to remain
in the house and question the suspected illegal aliens under the
plain view doctrine. Although we do not conclude that the sweep
was unreasonably prolonged, we endorse the application of the plain
view doctrine. Even Mendez does not challenge the district court’s
application of the plain view doctrine to the Brazilian immigrants.
In fact, Mendez states that “if this court finds that the agents’
entry passes constitutional muster, under either a consensual
13
search or protective sweep doctrine, then it is clear that the
agents could seize evidence in plain view.” Reply Brief of
Appellant at 14. We need not discuss the plain view doctrine
further.
C. Written Consent
Mendez contends that his later written consent to enter
and search his home for physical evidence was both involuntary and
ineffective due to the earlier alleged violations. Consensual
searches are established exceptions to the Fourth Amendment’s
warrant requirement. Jimeno, 500 U.S. at 250, 111 S. Ct. at 1803.
A person must freely and voluntarily consent, however, for the
search to be valid. United States v. Tompkins, 130 F.3d 117, 121
(5th Cir. 1997) (citations omitted). In reviewing a district
court’s voluntariness finding, we will not overturn the court’s
decision unless it is clearly erroneous. United States v.
Olivier-Becerril, 861 F.2d 424, 426 (5th Cir. 1988). Additionally,
“[w]here the judge bases a finding of consent on the oral testimony
at a suppression hearing, the clearly erroneous standard is
particularly strong since the judge had the opportunity to observe
the demeanor of the witnesses.” United States v. Sutton, 850 F.2d
1083, 1086 (5th Cir.1988).
The voluntariness of consent depends upon the totality of
the circumstances surrounding the search. Tompkins, 130 F.3d at
121 (citing Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S. Ct.
14
2041, 2048 (1973)). In examining the totality of the circum-
stances, we consider six factors:
(1) the voluntariness of the defendant’s custodial
status;
(2) the presence of coercive police procedures;
(3) the extent and level of the defendant’s cooperation
with the police;
(4) the defendant’s awareness of his right to refuse to
consent;
(5) the defendant’s education and intelligence; and
(6) the defendant’s belief that no incriminating
evidence will be found.
Olivier-Becerril, 861 F.2d at 426 (citations omitted). Although
all six factors are relevant, no single factor is dispositive or
controlling. Id.
The district court found that the first and fifth factors
weighed against finding that Mendez’s consent was voluntary,
because Mendez was in custody at the time he signed the consent
form, and Mendez did not know how to read and had limited
education. The district court, however, determined that Mendez’s
consent was voluntary because the remaining four factors weighed in
favor of voluntary consent.
We find no clear error in the district court’s determina-
tions that there was no police coercion,4 that Mendez cooperated
4
The district court determined that there was no police coercion
because: (i) at no time did the government agents use any threats or draw their
weapons; (ii) Mendez was in the familiar surroundings of his own home; (iii) all
communications regarding the consent to search were in Mendez’s native language,
Spanish; and (iv) the consent was fully read and explained to both him and his
wife before he signed.
15
with the police,5 that Mendez was aware of his right to refuse
consent,6 and that Mendez probably believed that no incriminating
evidence would be found.7 In short, the district court’s finding
of voluntary consent was not clearly erroneous.
V. CONCLUSION
For the reasons discussed above, we affirm the district
court’s denial of Mendez’s motion to suppress and consequently
AFFIRM the judgment of conviction.
5
The district court determined that Mendez cooperated with the police
because he: (i) voluntarily spoke with agent Rivera; (ii) orally consented to
the search of his home; (iii) signed a written consent to search after being
apprised of his Miranda rights as well as his right to demand a search warrant;
and (iv) after waiving his Miranda rights, spoke to agents about his transporting
business and handwrote a three-page statement detailing the business.
6
The district court found that Mendez was aware of his right to refuse
consent because: (i) he demonstrated that he understood Rivera’s questions by
providing responses to the questions in a timely manner; (ii) the agents provided
him with written notice in his native language that he did not have to consent
to the search of his home; and (iii) his rights were read and explained to his
wife, who accompanied him during the signing.
7
The district court found that Mendez apparently believed that no
incriminating evidence would be found because his business ledgers were hidden
in his bed and his willful ignorance of his clients’ immigration status would
shield him.
16
EMILIO M. GARZA, Circuit Judge, concurring:
I concur in the judgment and opinion of the court with the
exception of Part II, Section B concerning the protective sweep
doctrine. The court need not reach the difficult issue of whether
a protective sweep that lasts 35 to 45 minutes is reasonable
because the agents’ entry and search of the home was justified by
Mendez’s consent and Agent Rivera’s observations that gave rise to
probable cause. The majority cites no opinions holding that such
an extended sweep is reasonable, and given that resolution of the
issue is unnecessary, there is little reason to create new law in
the area.
Mendez concedes that he consented to Agent Rivera’s entry into
his home. He also concedes that Agent Rivera had “credible
evidence that Mendez was harboring Brazilians who were not legally
in this country” and that he observed men in Mendez’s home who
spoke neither English nor Spanish but responded to the word
“Brazil.” These facts provided probable cause for Agent Rivera to
arrest Mendez and justified his summoning of additional officers to
assist in effecting that arrest. There is therefore no need to
address whether the agents’ actions fell within the protective
sweep exception to the warrant requirement.
17