     Case: 09-50232     Document: 00511113066          Page: 1    Date Filed: 05/17/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                            May 17, 2010

                                       No. 09-50232                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff - Appellee
v.

GERARDO TREJO,

                                                   Defendant - Appellant




                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No 3:06-CR-2506-1


Before DeMOSS, ELROD, and HAYNES, Circuit Judges.
PER CURIAM:*
        Gerardo Trejo challenges the constitutionality of a warrantless entry into
and search of his home, which yielded evidence leading to the present conviction.
For the reasons stated herein, we affirm the district court’s denial of Trejo’s
motion to suppress and consequently affirm the conviction.
                             I. FACTS AND PROCEDURE
        Trejo was arrested and indicted for possession with intent to distribute in
excess of 100 kilograms of marijuana. The marijuana was found by officers of

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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the Texas Department of Public Safety (DPS) in Trejo’s home. Trejo challenged
whether the DPS officers’ conduct leading to the discovery of the drugs violated
his Fourth Amendment rights. Trejo moved to suppress the physical evidence
and certain statements he made. The following facts were adduced at a hearing
before the district court, at which several of the arresting officers, and Trejo
himself, testified.1
                                 A. The Tip and the Bust
       On November 6, 2006, Eduardo Garza, a highly experienced narcotics
sergeant with the DPS, received a tip that a Ford van with temporary tags was
carrying “a large quantity of marijuana.” Garza had received information from
the same tipster on previous occasions. The van was located in a Home Depot
parking lot in El Paso. Garza observed that it was weighted down in the back.
At 11:54 a.m., officers saw a Hispanic man get in the van and drive away. The
man was never identified. Air surveillance followed the van to a nearby house,
which was later determined to be Trejo’s. There were no passengers in the van.
       When the van reached the house it pulled into an attached garage.
Officers had maintained air surveillance on the van and directed officers on the
ground to the house. Garza drove by the residence while the van was still in the
garage. He testified that the residence appeared vacant: it was “unkempt,” there
was trash in the yard, and the lawn was “neglected.” This was in contrast to the
neighboring houses on the street. Based on the appearance of the residence, as
well as the tip and the fact that the heavily laden van entered the garage, Garza




       1
         The testimony of the officers presented some internal contradictions and conflicted
at times with Trejo’s testimony. Upon reviewing the record, including the hearing transcript,
we are confident that the district court’s resolution of inconsistencies and credibility questions
was not clearly erroneous. Consequently, we recount the facts largely as found by the district
court, with all inferences taken in favor of the prevailing party in the district court, in this
case, the government. See United States v. Menchaca-Castruita, 587 F.3d 283, 289 (5th Cir.
2009) (citation omitted).

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surmised that the residence could be a “stash house” for drugs and that the van
was delivering a load of narcotics.
      About 25 minutes after the van pulled into the garage, it left, followed by
Garza and other officers. The same person appeared to be driving the van, and
it no longer seemed weighted down. The officers followed the van but lost it in
traffic. Air surveillance also lost the van, so the ground officers returned to the
residence and resumed surveillance.
      At 5:50 that night, when it was dark, a white SUV arrived at the residence
and drove into the garage. Officers were unable to ascertain whether the SUV
had any passengers, nor could they identify the driver. Officers also could not
see whether a second vehicle was in the garage. The garage door closed, and the
front porch light came on, as did lights within the residence. At 6:50, officers
decided that allowing more time to pass without taking action was risky. They
did not know if another vehicle might arrive, which could pose a threat to
officers’ safety or raise the prospect of monitoring multiple locations or vehicles.
They approached the house to conduct a “knock and talk,” in hopes of obtaining
consent to search it. Garza testified that he did not seek a warrant at that time
because he did not believe he had probable cause.
      Garza approached the house with DPS Sergeants Val Ceniceros and Efren
Martinez, both highly experienced in narcotics detection and interdiction. To
ensure officer safety, standard practice called for officers to conduct knock and
talks in groups of two or more. Additionally, four more DPS officers stood at the
northeast corner of the house, two officers were at the northwest side of the
house, and one officer was near the garage. A canine officer was on the sidewalk
in front of a nearby house. The house is fenced at the sides and rear by a four-
foot high rock wall. A gate at the east side of the house stood ajar, but the
officers stationed there did not initially enter the backyard.



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      Garza, Ceniceros, and Martinez went to the front door of the house. They
wore windbreakers that identified them as police, and their badges were visible.
The officers wore their firearms, but did not display them as they approached
the house. Garza rang the doorbell, and he could hear it, but no one came to the
door. Martinez knocked on the door “for approximately a minute and a half,” but
to no avail. Garza and Ceniceros both testified that they smelled marijuana as
they were standing at the front door. Martinez smelled fabric softener—which
he knew to be employed as a masking agent to cover up the smell of drugs.
      While Martinez was knocking, Ceniceros went to the east side of the
house. On that side is a sliding glass door, which is visible from outside the rock
wall enclosing the side and backyard. However, officers could not see through
the door because there were vertical blinds in the closed position. Ceniceros
testified that a man, whom he identified in court as Trejo, pushed the blinds
aside and looked outside. Upon seeing the officers, Trejo hastily retreated
toward the rear of the house. Ceniceros was concerned that the police had blown
their cover and that the man would abscond, destroy evidence, retrieve a
weapon, or alert others to the officers’ presence, endangering their safety.
Ceniceros pursued the man in the direction he had seen him exit; he passed
through the gate into the backyard and attempted to look through a window of
the southeast bedroom. The light in the room was not on, but the hallway light
was on, providing some illumination. The curtains on the window were closed,
but a gap permitted Ceniceros to look in the room, where he saw a person whom
he was unable to identify, as well as many boxes.
      The officers at the east side of the house told Garza that someone looked
out the sliding glass door and then ran toward the back of the house. Hearing
this, Garza went to the east side of the house and into the backyard. There he
encountered Ceniceros, who informed Garza about the person and the boxes in
the southeast bedroom. Garza looked through the southeast bedroom window.

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He didn’t see a person, but did see several boxes packaged with tape. Based on
his counter-narcotics experience, he believed that the boxes could contain drugs.
Garza next went to a window for the southwest bedroom of the house to look for
an exit, the person spotted by officers, or additional persons in the house. The
blinds in this window were closed, but Garza testified that a crooked blind
allowed him to see into the room. He testified that he saw more boxes of what
he suspected were drugs.2 Garza instructed Ceniceros to stay in the backyard
to “make sure nobody came out the window.” Garza went back to the east side
of the house and informed the officers there that he knew of at least one person’s
presence in the house, but did not know if more were inside.
       Approximately three minutes after leaving the front door area, and five
minutes after first knocking, Garza returned to the front door and knocked
again. Martinez heard a muffled voice from inside. Martinez announced: “State
police, please open the door.” Trejo complied. When the door opened, Garza and
Martinez immediately noticed a strong smell of marijuana. Although it was a
cold day in November, Trejo was “sweating profusely.” Martinez and Garza
identified themselves as state police and told Trejo that they were investigating
information that narcotics may be located at the residence.                Trejo did not
respond, but walked slowly toward the officers onto the porch. Trejo appeared
submissive to the officers; Martinez said that Trejo had a “deer in the headlights
look.” Consequently, the officers did not believe that he posed a threat, and did
not frisk Trejo for a weapon. Trejo responded negatively when Martinez asked
whether there was anyone else in the house. Martinez then stated that he and
Garza wished to go inside to check for threats; Trejo told them to go ahead.




       2
        The district court discredited Garza’s testimony about seeing through the southwest
bedroom window because other testimony indicated that the position of the blinds would have
made it all but impossible for Garza to have seen boxes on the floor of the room.

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Garza also explained that he and Martinez would do a protective sweep. Trejo
responded: “I know who you guys are, and I know what I have.”
       Garza and Martinez conducted a 25-second protective sweep of the house,
which involved checking each room. All of the bedroom and closet doors were
open. Nobody else was in the house. Garza and Martinez observed several
packaged boxes in two of the bedrooms. Upon hearing that Garza and Martinez
had completed the protective sweep, Ceniceros left his position in the backyard.
       Garza returned to Trejo, who was still standing outside the front door, and
asked if they could discuss matters inside the house, as the neighbors were
watching. Trejo consented to the officers entering the house. Garza, Martinez,
and several other officers went inside, and were soon joined by Ceniceros.
Although the officers had spoken English to Trejo, which he understood, Trejo
indicated that he preferred to speak Spanish. Trejo refused when Ceniceros
asked for consent to search the house. When asked to sign a consent form, Trejo
said: “I’m not going to sign it, you guys already know what’s in there.” When
Trejo was informed that officers would get a search warrant if he refused
consent, he replied “[t]hat’s fine.”        Garza left the house to obtain a search
warrant. On the way out, he encountered the canine officer, and learned that
the dog had alerted to the presence of narcotics in the garage. The remaining
officers exited the house around 7:30. They handcuffed and detained Trejo out
front while waiting for the warrant.3


       3
           Although Trejo testified, the district court did not find his version of the events
credible. Trejo testified as follows: he was in the southeast bedroom watching television when
he was startled by loud knocking at the sliding door and the front door simultaneously.
Someone shined a light into the bedroom. He went to the front door and opened it 60 to 90
seconds after the knocking started. He never heard the doorbell ring. Garza, Ceniceros,
Martinez, and one other person immediately entered the house. Garza physically pulled Trejo
onto the front porch and asked if he was alone while the other officers were inside the house.
The officers did not identify themselves nor ask whether they could make a protective sweep
of the house for their own safety. Trejo stayed outside the house for 15-20 minutes, until the
officers exited it. According to Trejo, if he was sweating when he answered the door, this was

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       Garza drafted an affidavit detailing his observations of the van and house
that day, the circumstances of the knock and talk, the officers’ ability to smell
marijuana from the front porch, Garza’s view of the packages from the backyard
and during the protective sweep, Trejo’s conduct and statements, and the canine
alert to marijuana. Based upon the affidavit, a warrant was issued at 1:35 a.m.
the next morning. When the warrant was executed officers found 43 boxes
containing approximately 755 kilograms of marijuana. Following this discovery,
Trejo was arrested and questioned. He then made an incriminating written
statement.
                    B. The Motion to Suppress and Conviction
      Trejo moved to suppress the marijuana obtained from his residence. He
argued that: (1) the officers’ entry into the backyard was unlawful because there
were no exigent circumstances not of the officers’ own making; (2) he did not
consent to the officers’ entry into the house; and (3) the officers’ entry was not
justified as a protective sweep. He contended that his arrest was illegal, and
therefore that his post-arrest incriminating statement should be suppressed.
      The district court denied the motion.           It found that the officers had
probable cause to enter the backyard of the house in light of the tip, the van
arriving at the house and leaving again unladen, the unkempt appearance of the
house, Trejo’s failure to answer the door, the smell of marijuana, and the
appearance and immediate flight of a person at the sliding door. The court found
that the potential that Trejo could flee, harm the officers, or destroy evidence
gave rise to exigent circumstances. The court found the officers’ investigative
tactics reasonable, including the decision to watch the house and then conduct
a knock and talk. The exigent circumstances were caused by Trejo’s unusual
reaction to the knock and talk, and were not “manufactured” by the officers’


due to the chores he had performed between 5:00 and 6:00 that evening. He denied looking
through the sliding glass door, and he denied taking five minutes to answer the front door.

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actions. Because the officers were justified in entering the backyard, they were
likewise allowed to look into the windows under the plain view doctrine.
Moreover, Trejo consented to the officers’ entry to conduct a protective sweep.
The court next found that the affidavit underlying the search warrant, resulting
as it did from lawful actions by the officers, provided adequate probable cause.
Any misstatements in the affidavit did not undermine its validity. Finally, the
court held that Trejo’s pre- and post-arrest statements were not improperly
elicited. Therefore, the marijuana and Trejo’s statements were admissible.
      Following the denial of the motion to suppress, Trejo consented to a bench
trial on stipulated facts in order to preserve his Fourth Amendment challenge
for appeal.4 The court found Trejo guilty of all elements beyond a reasonable
doubt. Trejo was sentenced to seventy months’ imprisonment.
                                   II. DISCUSSION
      In this appeal, Trejo challenges the district court’s denial of his motion to
suppress the marijuana found in his home as well as his incriminating
statements to the officers. He avers that the officers lacked probable cause and
exigent circumstances before approaching his home and entering his backyard.
He says that if exigent circumstances were present, these were manufactured
by the officers’ knock and talk. Trejo also argues that the district court clearly
erred in finding that he consented to the officers’ protective sweep of the house,
that the court clearly erred in finding his admissions to the officers voluntary,
and that the search warrant was invalid.
      A warrantless search of a home or its curtilage is presumptively
unreasonable under the Fourth Amendment. United States v. Troop, 514 F.3d
405, 409-11 (5th Cir. 2008).          However, the search is permissible if the


      4
        Trial was delayed because Trejo absconded to Mexico for approximately twenty
months. Trejo voluntarily returned and relinquished himself to authorities, whereupon legal
proceedings resumed.

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homeowner consents, or probable cause and exigent circumstances are present.
United States v. Gomez-Moreno, 479 F.3d 350, 354 (5th Cir. 2007).              The
government bears the burden of showing exigent circumstances. United States
v. Newman, 472 F.3d 233, 237 (5th Cir. 2006) (citation omitted). We review a
district court’s factual determinations concerning a motion to suppress for clear
error. Id.
      Here, the district court examined whether the facts and circumstances of
this case gave rise to exigent circumstances.      However, we do not think it
necessary to engage in this inquiry. The officers made a warrantless entry into
Trejo’s backyard to ensure that he did not abscond, destroy evidence, or retrieve
a weapon. Even assuming, arguendo, that this violated Trejo’s rights under the
Fourth Amendment, the officers subsequently obtained Trejo’s consent to
conduct a protective sweep of the interior of the home. “When a person gives
consent to search, that consent may, but does not necessarily, dissipate the taint
of a prior Fourth Amendment violation.” United States v. Hernandez, 279 F.3d
302, 307 (5th Cir. 2002) (quotation and citation omitted). For the evidence to be
admissible, consent must be voluntarily given, and such consent must be an
independent act of free will. Id. “The first prong of this inquiry focuses on
coercion, the second on causal connection with the constitutional violation.” Id.
(quotation and citation omitted).
                          A. Voluntariness of Consent
      The consent exception to the warrant requirement requires the
government to show, under a totality of circumstances, that the defendant’s
consent to search was voluntarily given. United States v. Freeman, 482 F.3d
829, 831-32 (5th Cir. 2007). In evaluating voluntariness, 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 consent; (5)

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the defendant’s education and intelligence; and (6) the defendant’s belief that no
incriminating evidence will be found.” Gomez-Moreno, 479 F.3d at 357 n.5. “No
single factor is dispositive.” Id. The voluntariness of consent is a question of
fact reviewed for clear error. United States v. Solis, 299 F.3d 420, 436 (5th Cir.
2002).
      Trejo has not shown that the district court clearly erred in finding that he
voluntarily consented to the protective sweep. Concerning the first factor, when
Trejo opened the door, the officers did not place him in police custody; rather, he
voluntarily walked toward them onto the front porch.       He was not restrained
during the protective sweep. Under the second factor, the police procedures were
not unduly coercive: the officers at the door knocked and requested that Trejo
open the door. Other officers secured the periphery of the home. The officers
then asked if they could conduct a protective sweep; Trejo consented. The
officers’ tactics showed restraint and discipline, respecting the sanctity of the
home. See Payton v. New York, 445 U.S. 573, 585 (1980) (stating that “physical
entry of the home is the chief evil against which the wording of the Fourth
Amendment is directed”) (citation omitted). Third, Trejo cooperated with the
police and answered their questions. The district court found that Trejo told
Martinez to “go ahead” after Martinez asked if the officers could perform a
protective sweep.
      On the fourth factor, Trejo was evidently aware of his right to refuse
consent: he did exactly that when, after the protective sweep, the officers sought
to conduct a thorough search of the home. Next, for the fifth factor, there is
nothing in the record to suggest that Trejo lacked the education and intelligence
to comprehend the nature of the officers’ actions. Rather, his statements evince
an understanding of the situation.      While he was more comfortable using
Spanish, Trejo understood and initially communicated with the officers in
English. Finally, Trejo appeared resigned to the fact that officers would find

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incriminating evidence, yet still allowed the officers to conduct the protective
sweep. In sum, all factors militate in favor of finding that Trejo voluntarily
consented to the protective sweep. Trejo takes issue with the district court’s
rejection of his testimony concerning the events at his home. But this rejection
was based on a credibility determination, which we see no occasion to second
guess. See, e.g., United States v. Garza, 118 F.3d 278, 283 (5th Cir. 1997). In
sum, Trejo voluntarily consented to the officers’ entry into his home to conduct
the protective sweep.
                        B. Independent Act of Free Will
      “To determine whether the defendant’s consent was an independent act of
free will, breaking the causal chain between the consent and the constitutional
violation, we must consider three factors: 1) the temporal proximity of the illegal
conduct and the consent; 2) the presence of intervening circumstances; and 3)
the purpose and the flagrancy of the initial misconduct.” Hernandez, 279 F.3d
at 307 (citations omitted).
      Mere minutes separated the allegedly illegal entry into Trejo’s backyard
and the officers’ efforts to gain Trejo’s consent to conduct a protective sweep.
The first factor weighs in favor of suppression. However, while some officers
entered the backyard to ascertain that Trejo was not trying to flee, destroy
evidence, or obtain a weapon, other officers remained on the porch to pursue the
knock and talk strategy. Trejo came to the door of his own accord, emerged onto
the porch, and allowed the officers to enter his home. The officers’ execution of
this permissible strategy was an intervening circumstance. See United States
v. Jones, 239 F.3d 716, 720-21 (5th Cir. 2001) (recognizing that knock and talk
may be a reasonable tactic when officers suspect drug-related activity but do not
have probable cause). Finally, the officers’ entry into Trejo’s backyard was a
mere breach of the home’s curtilage, not a full-scale storming of the home’s
interior. We thus cannot consider the officers’ actions flagrant misconduct. See

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Payton, 445 U.S. at 585; Hernandez, 279 F.3d at 307. The main purpose of the
actions was not to raid the home to search for evidence, but to ensure officer
safety. See Brown v. Illinois, 422 U.S. 590, 603-04 (1975) (noting that the
purpose and flagrancy of the official misconduct are “particularly” important).
On the whole, there is not a causal chain between the initial potentially illegal
conduct and Trejo’s act of free will allowing the officers into his home. See
Hernandez, 279 F.3d at 307. Therefore, the officers’ observations during the
protective sweep were not gained in derogation of Trejo’s rights under the
Fourth Amendment.
                            C. The Warrant Is Valid
      Even if we purge from the warrant affidavit any information officers
obtained as a result of the intrusion of Trejo’s backyard, under the independent
source doctrine, sufficient facts remain to constitute probable cause. See United
States v. Hassan, 83 F.3d 693, 697 (5th Cir. 1996) (citation omitted). This
includes the corroborated tip about the van, the van appearing to deliver a cargo
to Trejo’s house, the appearance of the house, the smell of marijuana and
masking agents, the boxes observed during the protective sweep, and the
canine’s positive alert for the presence of narcotics. See United States v. Pierre,
958 F.2d 1304, 1310 (5th Cir. 1992) (en banc) (reasoning that the smell of
marijuana can give rise to probable cause). Garza testified that he believed the
officers had probable cause to seek a warrant after the officers smelled
marijuana and the canine confirmed this observation. In light of these facts, we
easily conclude that the officers would have sought a search warrant even had
they not observed boxes through the back windows of Trejo’s house. See Hassan,
83 F.3d at 697.
         D. Trejo’s Statements, and the Marijuana, Were Admissible
      Trejo also argues that the district court erred by failing to suppress the
written and oral statements he gave officers as well as the physical evidence of

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the search. Trejo’s oral statements to the officers during the course of the knock
and talk were admissible. Trejo was not in custodial interrogation because he
had not been placed under formal arrest or a restraint tantamount to arrest
when he told the officers he knew who they were and he knew what he had. See
United States v. Chavez, 281 F.3d 479, 486 (5th Cir. 2002); United States v.
Bengivenga, 845 F.2d 593, 596 (5th Cir. 1988) (en banc). Therefore, the fact that
the officers did not administer a Miranda warning does not render this
statement inadmissible. See Oregon v. Mathiason, 429 U.S. 492, 495 (1977).
      We have concluded that Trejo validly consented to the officers’ protective
sweep of his home, and that the officers’ observations gave rise to probable cause
upon which a valid warrant was issued. Therefore, we must reject Trejo’s
contention that his inculpatory written statement following execution of the
warrant is fruit of the poisonous tree. See Wong Sun v. United States, 371 U.S.
471, 484-86 (1963).5 We likewise reject Trejo’s argument that the marijuana
discovered in his house was the fruit of an illegal search. See id. at 487-88.
                                 III. CONCLUSION
      For the foregoing reasons, we hold that the district court properly denied
Trejo’s motion to suppress his statements and the marijuana discovered at his
house. The judgment of the district court is AFFIRMED.




      5
         Trejo acknowledges that he was administered, and waived, his Miranda rights prior
to giving the written statement.

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