                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                November 18, 2005

                                                          Charles R. Fulbruge III
                                                                  Clerk
                           No. 04-10192
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

JAMES DAVID SMITH,

                                    Defendant-Appellant.

                            * * * * * *
                        Consolidated with
                           No. 04-10208
                            * * * * * *
UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

TARA MARIE CONWAY,

                                    Defendant-Appellant.


                       --------------------
          Appeals from the United States District Court
              for the Western District of Louisiana
                     USDC No. 3:03-CR-272-2-R
                       --------------------

Before JOLLY, DAVIS, and OWEN, Circuit Judges.

PER CURIAM:*

     In this consolidated appeal, James David Smith and Tina Marie

Conway appeal their conditional guilty-plea convictions following


     *
       Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
                      No. 04-10192 c/w No. 04-10208
                                   -2-

the denial of their motions to suppress evidence seized from the

hotel suite where they were staying on June 20, 2003.                 Smith

pleaded guilty to possession of a firearm by a convicted felon, a

violation   of   18   U.S.C.   §§   922(g)(1)   and   924(a)(2),   and   was

sentenced to 120 months in prison and three years of supervised

release. Conway pleaded guilty to possession of more than 50 grams

of methamphetamine with intent to distribute, a violation of 21

U.S.C. § 841(a)(1) and (b)(1)(B), and was sentenced to 135 months

in prison and five years of supervised release.

     Pursuant to their conditional pleas, both Smith and Conway

challenge the denial of their motions to suppress.                 In those

motions, the defendants argued that Garland, Texas, police officers

had entered and searched their motel suite without a warrant and

without the consent of Conway, who had answered the door of the

suite, and that the search was not validated by any exception to

the warrant requirement, such as “exigent circumstances.”                 In

denying the suppression motions, the district court, crediting the

officers’ testimony and discrediting Conway’s, determined that

Conway had consented to the officers’ entry.            According to the

officers, when they asked Conway, who answered the door in her

nightgown, if they could come in and speak to her about a traffic

violation, she answered, “Yes, but I need to get dressed.”               She

then opened the door further and walked back into the suite.

Officer Glen Shaw testified that, as soon as Conway opened the door

wider, he observed, in plain view on a table in the suite’s front

room, what he thought to be a gun (which turned out to be a novelty

cigarette lighter) and a vial of marijuana, and that when he told
                       No. 04-10192 c/w No. 04-10208
                                    -3-

his   partner,      Officer   John    Edmonds,   “There’s   a   gun,”   Conway

immediately began calling for codefendant Smith in the rear part of

the suite.    The officers testified that, fearing the male suspect

might pose a danger, Officer Shaw rushed to secure the gun and

arrest the defendants, and that the following search led to the

seizure of a real pistol, methamphetamine, and other incriminating

items.2

      “The standard of review for a motion to suppress based on live

testimony at a suppression hearing is to accept the trial court’s

factual findings unless clearly erroneous or influenced by an

incorrect view of the law.”          United States v. Outlaw, 319 F.3d 701,

704   (5th   Cir.    2003)    (citations   and   internal   quotation   marks

omitted).    “A warrantless entry into and search of a dwelling is

presumptively unreasonable unless consent is given or probable

cause and exigent circumstances justify the encroachment.”              United

States v. Santiago, 410 F.3d 193, 198 (5th Cir. 2005), petition for

cert. filed (U.S. Aug. 16, 2005) (No. 05-5902).                  This Fourth

Amendment protection extends to guests in motel rooms.                  United

States v. Richard, 994 F.2d 244, 247 (5th Cir. 1993).                      The

Government must prove by a preponderance of the evidence that

consent to enter “‘was freely and voluntarily given.’”             Santiago,

410 F.3d at 198-99 (citation omitted).           “The standard for measuring

the scope of a suspect’s consent under the Fourth Amendment is that

of ‘objective’ reasonableness--what would the typical reasonable

      2
       Conway’s suppression-hearing testimony, which the district
court discredited, was that the officers had forced their way into
the suite without her consent and that none of the incriminating
evidence was in plain view in the front room.
                         No. 04-10192 c/w No. 04-10208
                                      -4-

person have understood by the exchange between the officer and the

suspect?”       Florida v. Jimeno, 500 U.S. 248, 251 (1991).

       The defendants have not shown that the district court clearly

erred      by   crediting      the   officers’     testimony        and   discrediting

Conway’s.       See United States v. Walker, 960 F.2d 409, 417 (5th Cir.

1992). Although Conway’s qualification of her positive response to

the officers’ request to enter with the statement that she needed

to   get    dressed     appeared      to    be   adequate,    standing      alone,   to

“delimit” the scope of her consent so as to require the officers to

wait, see Jimeno, 500 U.S. at 252, the district court did not err

in   concluding        that    the   officers    did    not   act    unreasonably    in

interpreting her actions--pulling the door open wider and stepping

back    into     the    suite–-as      an    invitation       to    enter   the   room

immediately.        The defendants do not explicitly challenge the

district court’s determination that Conway’s consent was voluntary.

See Outlaw, 319 F.3d at 704; Santiago, 410 F.3d at 199 (outlining

six-factor standard for determining voluntariness of consent).

       The defendants also do not dispute the district court’s

determinations about what occurred immediately after the officers

entered the room:             that Officer Shaw thought he saw a gun, that

Conway called for defendant Smith, and that the officers thought

they might be in danger. Only in conclusory fashion does defendant

Smith argue that these circumstances did not present “exigent

circumstances,” but we agree with the district court that these

circumstances qualified as “exigent.”                  See United States v. Jones,

239 F.3d 716, 720 (5th Cir. 2001).               For the foregoing reasons, the
                    No. 04-10192 c/w No. 04-10208
                                 -5-

district court did not err in denying the defendants’ motions to

suppress the evidence.

     Defendant Conway argues that the district court erred in

failing to suppress her post-arrest statements on the grounds that

they were involuntary and that they were “tainted” by the Fourth

Amendment violations with respect to the entry and search. Insofar

as Conway argues that the statements were involuntarily elicited,

this contention was not raised below and is barred by the waiver-

of-appeal provision in her plea agreement.    See United States v.

Portillo, 18 F.3d 290, 292-93 (5th Cir. 1994).      Insofar as she

argues the confession was “tainted,” the district court was correct

in concluding that this “fruit of the poisonous tree” argument was

meritless because the threshold Fourth Amendment argument was

itself meritless.

     Because the defendants have not established that the district

court erred in denying their motions to suppress, the convicitions

and sentences are AFFIRMED.
