                                                                     United States Court of Appeals
                                                                              Fifth Circuit
                                                                           F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                                                                            June 25, 2004
                            FOR THE FIFTH CIRCUIT
                                                                        Charles R. Fulbruge III
                                                                                Clerk

                                No. 03-50240




UNITED STATES OF AMERICA,
                                                   Plaintiff-Appellee,

                                      versus

MELCHOR COTA-LOPEZ,
                                                   Defendant-Appellant.




              Appeal from the United States District Court
                    For the Western District of Texas


                            (EP-02-CR-1072-1-PRM)

Before HIGGINBOTHAM, SMITH, and WIENER, Circuit Judges.

PER CURIAM:*

     Melchor     Cota-Lopez     was    convicted       in   a   bench     trial     of

conspiracy to possess with intent to distribute and possession with

intent   to    distribute    five     kilograms   or    more    of    cocaine      and

maintaining a place for the purpose of distributing a controlled

substance.     He was sentenced to concurrent terms of 144 months’

imprisonment, concurrent terms of three and five years’ supervised

release, and a $10,000 fine.


     *
       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this opinion should not be published and is not precedent except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.
                                      I

     Cota-Lopez challenges the district court’s denial of his

motion to suppress evidence discovered during a warrantless search

of his residence.      We accept the district court’s findings on a

motion to suppress unless clearly erroneous, but we review de novo

the district court’s ultimate conclusion on the constitutionality

of the law enforcement action.1           We consider the evidence in the

light most favorable to the prevailing party.2

     Cota-Lopez was arrested following a consent search at his

residence on May 13, 2002.         Earlier that day, narcotics officers

were conducting routine surveillance at a self-packing store when

they observed Cota-Lopez arrive with three other men to collect

boxes.    The officers followed the men, watching as they visited a

hardware store and travel agency before returning to Cota-Lopez’s

residence. Two of the men subsequently left the residence, and the

officers eventually stopped them when they made an improper lane

change    at   an   intersection    near    the   residence.   They   gave

conflicting responses to the officers’ questions, but both denied

having been at Cota-Lopez’s residence.

     The officers decided to conduct a knock-and-talk at the

residence.     Since there was no direct path to the front door, the



     1
       United States v. Chavez-Villarreal, 3 F.3d 124, 126 (5th
Cir. 1993).
     2
         United States v. Ishamael, 48 F.3d 850, 853 (5th Cir. 1995).

                                      2
officers approached the house by walking up the driveway toward the

garage, which was open.    As they neared the garage, they were

greeted by Carmine Cota-Lopez, who was standing just inside the

inner screen door.   The officers entered the garage, and Carmine

invited the officers inside.

     As the officers entered the house, another officer arrived at

the scene with a drug-sniffing dog.   He remained on the sidewalk

outside the residence, ready to assist in the event that permission

was granted to search the residence.      While on the sidewalk,

however, the narcotics dog immediately detected an odor and pulled

the officer toward the front door of the Residence.    Once there,

she gave a full alert to the presence of narcotics.

     Inside the house, the officers spoke with Cota-Lopez in an

effort to gain consent to search the house.       According to the

officers, Cota-Lopez appeared excited and shaken, and he asked the

officers whether they had a search warrant.   The officers admitted

that they did not, but they told him that they had a positive

canine alert on the house and that they felt they had enough

information to obtain a warrant. The officers told Cota-Lopez that

they would leave to try to obtain a warrant if Cota-Lopez did not

feel comfortable consenting.    Cota-Lopez consented, leading the

officers to a back room containing over 800 pounds of cocaine,

cash, and drug paraphernalia.




                                3
                                     II

     Cota-Lopez contends that the police officers’ entry to his

garage was illegal and that his subsequent consent to a search of

the residence must be suppressed as fruit of the illegal entry.                He

asserts that the canine sniff of the front door of his residence

was an illegal search and that the police used the illegal sniff to

coerce his consent to a search of the residence.

     “A    warrantless   intrusion         into   an   individual’s    home    is

presumptively unreasonable unless the person consents or probable

cause and exigent circumstances justify the encroachment.”3                   The

protection afforded by the Fourth Amendment extends to a garage

that is connected to a person’s residence.4

     When consent is considered to have validated a warrantless

search, we must examine “the totality of the circumstances to

determine    whether   the   consent       was    knowingly   and   voluntarily

given.”5     Whether consent to search was voluntary or was the

product of duress or coercion is a question of fact based on the

totality of the circumstances.6




     3
         United States v. Jones, 239 F.3d 716, 719 (5th Cir. 2001).
     4
         See Taylor v. United States, 286 U.S. 1, 6 (1932).
     5
         United States v. Davis, 749 F.2d 292, 294 (5th Cir. 1985).
     6
       United States v. Solis, 299 F.3d 420, 436 (5th Cir.), cert.
denied, 537 U.S. 1060, 1094 (2002); United States v. Tompkins, 130
F.3d 117, 121 (5th Cir. 1997).

                                       4
     Cota-Lopez concedes that as the police walked up the driveway,

the garage door was open; that as the officers approached, they

could see his wife standing behind the screen door inside the

garage; and that the officers entered the garage area after his

wife opened the screen door and greeted them.            Mrs. Cota-Lopez was

not in custody, and she more than cooperated with the officers by

greeting them and inviting them to approach and enter the garage

and the residence.     Under the totality of the circumstances, Cota-

Lopez has not shown that the officers’ entry to the garage violated

the Fourth Amendment.7

     Cota-Lopez next asserts that the police used an illegal dog

search to coerce his consent to a search of his house.            We need not

address whether the canine sniff was a search, however, because we

find that Cota-Lopez’s consent was freely and voluntarily given.

     The voluntariness of a suspect’s consent is a question of fact

to be determined from the totality of the circumstances surrounding

the search.8    To determine whether consent is voluntarily given, we

examine a number of factors, including: “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)       the   defendant’s   education   and


     7
         See Solis, 299 F.3d at 436; Tompkins, 130 F.3d at 121.
     8
         Ohio v. Robinette, 519 U.S. 33, 40 (1996).

                                       5
intelligence; and 6) the defendant’s belief that no incriminating

evidence will be found.”9        Each factor supports the district

court’s finding that Cota-Lopez’s consent was voluntarily given.

Cota-Lopez was not in custody when the police officers sought his

consent to search his residence.        The police did not use coercive

or forceful tactics. The police readily admitted that they did not

have a warrant, informed Cota-Lopez that he could refuse to consent

to a search, and agreed to leave if he did so.              As the district

court found, “Detective Serrano explained to defendant Melchor that

if he did not feel comfortable giving consent to the search, that

the officers would leave to secure a search warrant... he was

specifically   informed   that   his    cooperation   was    voluntary....”

Under the totality of the circumstances, we can discern no clear

error in the district court’s conclusion that Cota-Lopez’s implied

consent to the search of his residence was voluntary.10

     Cota-Lopez does not dispute any of these facts, but rather

focuses solely on the comment by one of the officers that a canine

had alerted to the presence of drugs in the house.               Cota-Lopez

urges that this canine sniff was an illegal search and that his

consent was tainted.   Only one circuit has held that a dog sniff at



     9
       United States v. Hernandez, 279 F.3d 302, 307 (5th Cir.
2002) (citing United States v. Jones, 234 F.3d 234, 242 (5th Cir.
2000)).
     10
       See Tompkins, 130 F.3d at 121; United States v. Richard, 994
F.2d 244, 251 (5th Cir. 1993).

                                    6
the front door of a dwelling may be a search.11    In United States

v. Thomas, police used a narcotics dog to sniff for narcotics

outside an apartment door.    Based largely on the dog’s alert, the

police then obtained a warrant to search the apartment.   The Second

Circuit concluded that the sniff was an illegal search and that the

warrant lacked probable cause.12      However, the court upheld the

subsequent seizure of evidence because the police acted in good

faith reliance on the warrant.

     We need not decide whether the sniff at Cota-Lopez’s front

door was a search because his subsequent consent was voluntary and

independent.13    The officers stated only that, based upon the dog

sniff, they “felt” that they had enough to obtain a search warrant

and that they would attempt do so if Cota-Lopez refused consent;

the officer never stated that the sniff was sufficient or that they

would be successful in procuring a warrant.14     Nor did the police

deceive or threaten Cota-Lopez. To the contrary, the officers made

it clear that Cota-Lopez was free to refuse consent and that the


     11
          United States v. Thomas, 757 F.2d 1359 (2d Cir. 1985).
     12
        The opinion did not discuss whether the door to the
apartment was from a public street or was accessible only after
entering an apartment building.
     13
       United States v. Chavez-Villarreal, 3 F.3d 124, 127 (5th
Cir. 1993).
     14
       In this case, however, the officers did have sufficient
probable cause to obtain a warrant: they had conducted extensive
surveillance, observed suspicious activity, and obtained a dog
indication from the sidewalk outside Cota-Lopez’s house.

                                  7
officers would leave if he did so.    On these facts, Cota-Lopez’s

consent was voluntary.

     The ultimate question in this case is whether there was

consent – that is so even if the sniff were a search, a weak

proposition on these facts at best.

                               III

     The judgment of the district court is AFFIRMED.




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