     Case: 12-11167   Document: 00512524540   Page: 1   Date Filed: 02/06/2014




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

                                                                        FILED
                               No. 12-11167                      February 6, 2014
                                                                   Lyle W. Cayce
UNITED STATES OF AMERICA,                                               Clerk


                                         Plaintiff – Appellee

v.

NICHOLAS ALBARADO,

                                         Defendant – Appellant

Cons w/ No. 13–10107

UNITED STATES OF AMERICA,

                                         Plaintiff – Appellee

v.

JOSHUA CISNEROS,

                                         Defendant – Appellant


                Appeals from the United States District Court
                     for the Northern District of Texas
                           USDC No. 1:11-CR-58
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                                     No. 12-11167
                                   c/w No. 13-10107

Before KING, CLEMENT, and GRAVES, Circuit Judges.
PER CURIAM: *
       Nicholas Albarado and Joshua Cisneros appeal from the denial of their
motions to suppress evidence seized from a residence. For the reasons that
follow, we AFFIRM.
                  I.     Factual and Procedural Background
       Nicholas Albarado and Joshua Cisneros were indicted on multiple counts
including conspiracy to distribute methamphetamine, possession with intent
to distribute methamphetamine, possession with intent to distribute cocaine,
possession with intent to distribute marijuana, and possession of a firearm in
furtherance of a drug trafficking crime. Before trial, they moved to suppress
the drug and gun evidence seized from a residence in Abilene, Texas. They
argued that, following an initial “knock and talk,” law enforcement agents had
entered the residence without a warrant, without probable cause, and in the
absence of any exigent circumstances.
       A hearing was held on the defendants’ suppression motions. Ismael
Jaimes, an agent with the Abilene Police Department, Special Operations
Division, testified at the hearing. He testified that, on the morning of August
30, 2011, he and his partner planned to approach the subject residence to
conduct a “knock and talk” investigation. This was based on a tip that another
agent had received from a confidential informant, who claimed that the
residence was a marijuana stash house for the “Mexican Mafia” organization.
Agent Jaimes stated that he had been unaware of this residence or its
occupants prior to receiving the tip. However, he testified that he knew that


       * 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 Mexican Mafia was a dangerous organization, that its members were
involved in drug- and firearms-related crimes, and that its members and other
narcotics traffickers often possessed firearms near any drugs.
      The agents arrived at the residence in an unmarked car, wearing plain
clothes, and with police badges visible around their necks. Albarado answered
their knock. Agent Jaimes testified that he immediately noticed a “strong
odor” of burning and fresh marijuana coming from inside the residence. He
also testified that he immediately recognized Albarado from prior drug
investigations and that he knew from another confidential informant that
Albarado was involved with the Mexican Mafia and the sale of illegal drugs.
      Agent Jaimes showed Albarado his badge and identified himself and his
partner as police officers. When asked if he lived at the residence, Albarado
answered no. Agent Jaimes then asked if the agents could come inside and
speak with Albarado, but Albarado replied that he could not give them
permission to enter because he was not the owner of the residence. The agents
then asked to speak with the owner. Albarado replied that he would have to
retrieve her from the back of the residence.
      Albarado turned away and tried to close the door. The agents stopped
the door from closing and entered the residence. Agent Jaimes testified that
they entered to prevent the destruction of evidence and for safety reasons. On
cross-examination, Agent Jaimes acknowledged that Albarado did not appear
to be a threat at that time and made no attempt to flee.
      Once inside, the agents followed Albarado to the door of a bedroom,
where he called out to a woman lying on the floor, who was later identified as
Ana Mar Landini. When Landini stood up, the agents identified themselves
and showed her their badges. Agent Jaimes told Landini why they were at the
residence, said that he could smell marijuana, and asked if there was more


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marijuana in the house.      Landini replied that the residents had smoked
marijuana the previous evening and that there was “a little bit” left over. She
surrendered a partially smoked marijuana cigarette. Agent Jaimes said he did
not believe Landini’s explanation due to the strong odor of “fresh” marijuana
in the residence. When asked if anyone else was inside, Landini roused Joshua
Cisneros off the bedroom floor. The agents then escorted everyone back into
the living room.
      Agent Jaimes explained why the agents were at the residence, read
everyone their rights, and asked for consent to search the residence for more
marijuana. Albarado and Cisneros said they could not give consent since they
did not live there, and Landini said she could not give consent because her
roommate was not present. Agent Jaimes then called for another agent to come
to the residence to assist while he left to prepare a search warrant application.
The residents were not handcuffed, and they were allowed to play video games
while they waited.
      After the warrant was obtained and executed, the agents found
approximately 324.6 grams of methamphetamine, 52 grams of cocaine, 678
grams of marijuana, three firearms, scales, a cutting agent, and more than
$5,700 in cash. Agent Jaimes denied conducting any search of the residence
prior to obtaining the warrant.
      Based on this testimony, and the parties’ arguments, the district court
denied the motions to suppress. The district court found that the entry was
justified by safety concerns and that the agents conducted a limited protective
sweep of the residence. Albarado then pleaded guilty to one count of possession
with intent to distribute 50 grams or more of methamphetamine and one count
of possession of a firearm in furtherance of a drug trafficking crime. Cisneros
proceeded to a bench trial and was found guilty on all counts. Each defendant


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                                 No. 12-11167
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was sentenced to a total of 216 months’ imprisonment. The defendants timely
appealed the denial of the suppression motions, and their appeals were
consolidated.
                         II.    Standard of Review
      “[W]here a police officer acts without a warrant, the [G]overnment bears
the burden of proving that the search was valid.” United States v. Waldrop,
404 F.3d 365, 368 (5th Cir. 2005). The district court’s findings on a motion to
suppress are reviewed for clear error, and its ultimate conclusion as to whether
the Fourth Amendment was violated is reviewed de novo. United States v.
Scroggins, 599 F.3d 433, 440 (5th Cir. 2010).
                               III.   Discussion
      On appeal, the defendants raise several challenges to the justifications
for, and scope of, the agents’ protective sweep of the residence.      We note
initially, however, that the defendants do not challenge the officers’ use of a
“knock and talk” strategy, which we have recognized as a valid investigatory
technique, not requiring a warrant, when law enforcement officials seek to gain
consent to search or reasonably suspect criminal activity. See United States v.
Jones, 239 F.3d 716, 720 (5th Cir. 2001).
      The defendants’ first argument is that, after conducting the “knock and
talk,” the agents lacked probable cause to enter the residence. See id. at 719
n.2 (“In order to vindicate a warrantless search by proving exigent
circumstances, the government must also show probable cause.”). Before they
knocked, the agents had received a tip that the residence was a marijuana
stash house for the Mexican Mafia. Once Albarado opened the door, the agents
could smell the odor of burned and fresh marijuana. See United States v.
Pierre, 958 F.2d 1304, 1310 (5th Cir. 1992) (en banc) (finding that the smell of
marijuana can give rise to probable cause).        The agents also recognized


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                                 No. 12-11167
                               c/w No. 13-10107

Albarado from past drug investigations, and knew of a separate tip that
Albarado was involved with the Mexican Mafia. We find that once the agents
spoke with Albarado, they had probable cause to believe a crime was being
committed.
      The defendants’ second argument is that there were no exigent
circumstances justifying the agents’ warrantless entry into the residence. “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
obtained.” United States v. Menchaca-Castruita, 587 F.3d 283, 289 (5th Cir.
2009). A reviewing court must consider the circumstances objectively as they
would appear to a reasonable and prudent person. United States v. Troop, 514
F.3d 405, 409 (5th Cir. 2008). However, when reasonable minds may disagree,
a court should “not second guess the judgement of experienced law enforcement
officers concerning the risks of a particular situation.” Menchaca-Castruita,
587 F.3d at 290 (internal quotation marks and citation omitted). A district
court’s determination that exigent circumstances existed is a factual finding
that this court reviews for clear error. Troop, 514 F.3d at 409.
      We agree with the district court that the warrantless entry was justified
by the agents’ reasonable concern for their safety. As previously noted, when
the agents approached the residence, they already had a tip that the residence
was associated with the Mexican Mafia, which they knew to be a violent drug
trafficking organization.   When the door opened, one agent immediately
recognized Albarado from past drug investigations, knew that Albarado had
been linked to the Mexican Mafia by another tip, and smelled marijuana inside
the house. The agents also knew from their training and experience that drug
traffickers often keep firearms near their drugs.


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                                 No. 12-11167
                               c/w No. 13-10107

      Additionally, permitting the door to close would have given Albarado the
opportunity to alert the residence’s other occupants to the agents’ presence and
would have afforded the occupants the opportunity to arm themselves.
Albarado told the agents that there was at least one other person somewhere
inside the house, whom the agents could not see. If, after the “knock and talk,”
the agents had waited at the front of the house for Albarado to return, they
would have been vulnerable to an attack. In light of these facts, the district
court did not clearly err in determining that exigent circumstances existed
based on the agents’ objectively reasonable belief that they were in danger from
an unknown and likely armed person somewhere inside the residence. See
United States v. Maldonado, 472 F.3d 388, 393–94 (5th Cir. 2006) (holding that
there was a reasonable concern for safety justifying a protective sweep of a
trailer where agents were in a vulnerable location), abrogated in part on other
grounds by Kentucky v. King, 131 S. Ct. 1849 (2011).
      In addition, although not relied on by the district court as justification
for the warrantless entry, an agent also testified that the entry was based on
a belief that the residents might try to destroy any evidence. See Sojourner T
v. Edwards, 974 F.2d 27, 30 (5th Cir. 1992) (stating this court may affirm on
any basis supported by the record). Albarado was aware of the presence of law
enforcement. If allowed to reenter the house unaccompanied, he could inform
anyone else inside. The agents knew from their training and experience that
drug traffickers will try to destroy evidence when confronted by police. We
conclude that the agents had an objectively reasonable belief that the residents
would try to destroy any evidence while the agents tried to obtain a search
warrant. See United States v. Webster, 750 F.2d 307, 326–27 (5th Cir. 1984).
      The defendants’ third argument is that the agents failed to conduct a
proper protective sweep of the residence. The protective sweep doctrine allows


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                                No. 12-11167
                              c/w No. 13-10107

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. See
United States v. Gould, 364 F.3d 578, 581 (5th Cir. 2004) (en banc), abrogated
in part on other grounds by King, 131 S. Ct. 1849. As discussed above, the
initial entry into the residence was justified by exigent circumstances. Based
on Albarado’s statement that someone else was present and the known
connections between Albarado, the residence, and the Mexican Mafia, the
agents had a reasonable suspicion that another person, most likely in
possession of a firearm, was inside. In light of these concerns, the “sweep” in
this case was not overly broad or long. It consisted of following Albarado to a
bedroom, watching him wake two other persons, and then escorting everyone
to the living room. The individuals in the residence were not handcuffed, and
they were allowed to play video games while they waited. Once the residence
was secured, the agents sought and received a search warrant, and conducted
a more thorough search. We conclude that the protective sweep was proper.
See id. at 587.
      Finally, the defendants argue that the agents’ decision to knock on the
door of the residence created any exigent circumstances. This argument is
foreclosed by the Supreme Court’s decision in Kentucky v. King, 131 S. Ct.
1849. In that case, the Supreme Court held that a warrantless entry to prevent
the destruction of evidence is permissible as an exigent circumstance as long
as the officers acted reasonably and did not create the exigency through any
actual or threatened Fourth Amendment violations. Id. at 1858. In doing so,
the Court rejected a rule that police may not rely on an exigency for a
warrantless search if it was “reasonably foreseeable” that their legally
permissible tactics would create the exigent circumstances. Id. at 1859–60. In
this case, the agents’ “knock and talk” investigation was a legally valid


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                                No. 12-11167
                              c/w No. 13-10107

investigatory tactic. Albarado voluntarily opened the door, revealing himself
to the agents and allowing them to smell the marijuana inside. He then chose
to answer the agents’ questions, alerting them to the presence of another
unknown person inside the house. The actions of the agents were permissible
and did not create any exigent circumstances. See id. at 1858.
                             IV.   Conclusion
     For the foregoing reasons, we AFFIRM the district court’s denial of the
defendants’ motions to suppress.




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