     Case: 12-51062      Document: 00512465816         Page: 1    Date Filed: 12/10/2013




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

                                                                                   FILED
                                      No. 12-51062                         December 10, 2013
                                                                              Lyle W. Cayce
UNITED STATES OF AMERICA,                                                          Clerk


                                                 Plaintiff–Appellee
v.

ADAM RODRIGUEZ, A/K/A ADAM ALVAREZ,

                                                 Defendant–Appellant



                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:11-cr-00870


Before BARKSDALE, PRADO, and HAYNES, Circuit Judges.
PER CURIAM:*
       Defendant–Appellant Adam Rodriguez (“Rodriguez”) appeals his
conditional guilty plea convictions for possession with intent to distribute
cocaine and possession of firearms in furtherance of a drug trafficking crime.
As part of his plea agreement, Rodriguez preserved his right to appeal the
district court’s denial of his motion to suppress evidence seized during an
allegedly unlawful entry and search. On appeal, Rodriguez first argues that
the officers’ failure to knock and announce their presence before entering his



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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girlfriend’s home, where he was staying, violated the Fourth Amendment.
Second, Rodriguez contends that his consent to search the home was not
voluntary. We AFFIRM.
             I. FACTUAL AND PROCEDURAL BACKGROUND
      Detective Khristopher Newman (“Newman”) testified that on October 5,
2011, in Lytle, Texas, an undercover officer with the San Antonio Police
Department (“SAPD”) purchased $100 worth of cocaine from Rodriguez. The
transaction occurred outside the residence of Sherri Lowe (“Lowe”),
Rodriguez’s girlfriend. After negotiating the price, Rodriguez went inside the
home to retrieve the cocaine.
      As a result of the sale, officers secured an arrest warrant for Rodriguez.
Law enforcement officers executed the warrant on October 11, 2011, at Lowe’s
residence.   The arresting officers included approximately ten deputy U.S.
Marshals, one SAPD detective, and one Atascosa County Sheriff’s deputy.
      Deputy U.S. Marshal Austin Phillips (“Phillips”) testified that Preston
Browning (“Browning”), a supervisor with the Marshal Service, decided that
the officers would execute the warrant without knocking and announcing their
presence. In reaching that decision, Browning considered “the safety of the
personnel” and the possibility of “people flushing the narcotics down the toilet.”
According to Phillips, there was information from the undercover officer that
Rodriguez had a firearm in his waistband when the undercover officer initially
purchased cocaine from Rodriguez. Similarly, Deputy U.S. Marshal Hector
Arreola, also part of the arresting team, testified that Browning informed
officers that “there had been guns present during a previous purchase of
narcotics at the residence.” Newman also testified that, prior to the October
11 entry, he had reviewed Rodriguez’s criminal history and discovered that
Rodriguez had previously been charged with possession of narcotics and
unlawful possession of a weapon.
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                                   No. 12-51062
      Accordingly, Phillips breached the door of Lowe’s home with a battering
ram. Deputy Sheriff Jeffrey Adams testified that after entering the home, he
and another officer went to Lowe and Rodriguez’s bedroom. After a couple of
unsuccessful attempts at opening the door, the officers kicked the door open.
Inside the bedroom, the officers found Rodriguez, Lowe, and a child. Rodriguez
was sitting on the bed, “kind of scooting towards” the officers. In securing
Rodriguez, the officers noticed that Rodriguez only had one leg and that he
wore a prosthetic leg. Overall, the officers found three men, three women, and
three children in the home.
      Newman read Rodriguez his Miranda rights, and Rodriguez stated that
he understood his rights. Newman then told Rodriguez that he could see drug
packaging material, small baggies, a firearm, and possibly narcotics. The
bedroom also contained, in plain view, a digital scale covered in white dust,
which was later confirmed to be methamphetamine.            Newman, in asking
Rodriguez whether he would consent to a search, explained to Rodriguez that
these items gave him “enough probable cause to request a search warrant.”
Rodriguez responded that everything in the bedroom belonged to him and then
signed a consent to search form.
      Specifically, Newman asked Rodriguez to read the consent form.
Rodriguez did not indicate whether he had any trouble reading it, nor did he
have any questions before signing it. Lowe signed the same consent form,
without question, after having an opportunity to read it. The signed form
stated, “This written permission is being given by me to the above named
Officers voluntarily and without threat [or] promises of any kind.”
      Lowe and Rodriguez testified that the officers said that if they did not
sign the consent form, the officers would call Child Protective Services to
remove the couple’s children from the home and that everybody in the house
would go to jail.    Conversely, Newman testified that he did not threaten
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                                  No. 12-51062
Rodriguez in any way, and that he did not threaten Lowe that she would be
charged with the drugs or guns. Newman was not directly questioned at the
motion hearing whether he threatened Lowe that he would call Child
Protective Services.
      Ultimately, officers seized from the home a .32 caliber pistol, a 12 gauge
shotgun, a .380 caliber pistol, 70.6 grams of cocaine, .7 grams of
methamphetamine, and 2.2 grams of marijuana. Rodriguez was charged with
distribution of cocaine (count one), possession with intent to distribute cocaine
(count two), and possession of firearms in furtherance of a drug trafficking
crime (count three). Rodriguez moved to suppress all evidence seized from
Lowe’s home, arguing that the officers failed to knock and announce their
presence in executing the arrest warrant, and that his and Lowe’s consent to
search was not voluntary. Following a hearing, the district court denied the
motion, finding that the no-knock entry was reasonable and that Rodriguez
freely and voluntarily gave consent to search. Rodriguez subsequently entered
a conditional guilty plea, pleading guilty to counts two and three, and reserved
the right to appeal the district court’s denial of his motion to suppress.
Rodriguez timely appealed.
                              II. JURISDICTION
      Rodriguez seeks review of a final decision of the district court.
Accordingly, this Court has jurisdiction pursuant to 28 U.S.C. § 1291.
                               III. DISCUSSION
      In examining a denial of a motion to suppress evidence, we review the
district court’s legal conclusion de novo and its factual findings for clear error.
United States v. Keith, 375 F.3d 346, 348 (5th Cir. 2004) (citing Ornelas v.
United States, 517 U.S. 690, 699 (1996)).         “Factual findings are clearly
erroneous only if a review of the record leaves this Court with a definite and


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firm conviction that a mistake has been committed.” United States v. Hearn,
563 F.3d 95, 101 (5th Cir. 2009) (internal quotation marks omitted).
      The evidence introduced at a suppression hearing is viewed in the light
most favorable to the prevailing party. United States v. Troop, 514 F.3d 405,
409 (5th Cir. 2008) (citation omitted). This Court may affirm the district
court’s decision regarding a motion to suppress on any basis in the record.
United States v. Mata, 517 F.3d 279, 284 (5th Cir. 2008).
                       A. The Officers’ No-Knock Entry
      The district court did not err in finding that the officers had reasonable
suspicion to justify a no-knock entry. The Fourth Amendment requires that
officers seeking to execute a warrant must knock and announce their identity
and purpose before attempting forcible entry of a dwelling. See, e.g., Wilson v.
Arkansas, 514 U.S. 927, 934–36 (1995); Bishop v. Arcuri, 674 F.3d 456, 461
(5th Cir. 2012) (citing Wilson, 514 U.S. at 934). This knock-and-announce
requirement is not a rigid rule, but is tempered by “countervailing law
enforcement interests.”    Richards v. Wisconsin, 520 U.S. 385, 387 (1997)
(quoting Wilson, 514 U.S. at 934). “In order to justify a ‘no-knock’ entry, the
police must have a reasonable suspicion that knocking and announcing their
presence, under the particular circumstances, would be dangerous or futile, or
that it would inhibit the effective investigation of the crime by, for example,
allowing the destruction of evidence.” Id. at 394. The reasonableness of an
officer’s decision “must be evaluated as of the time [he] entered the [dwelling].”
Id. at 395. “This showing is not high,” id. at 394, and “this court has not
required officers to demonstrate ‘particularized knowledge’ . . . to justify a no-
knock entry,” Linbrugger v. Abercia, 363 F.3d 537, 542 (5th Cir. 2004).
“Whether specific facts give rise to reasonable suspicion is a question of law
that we review de novo.” Jimenez v. Wood Cnty., Tex., 621 F.3d 372, 379 (5th
Cir. 2010) (citation omitted).
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                                 No. 12-51062
      The district court found that, based on the undercover officer having
previously seen a handgun in Rodriguez’s waistband when he purchased
cocaine from him, the officers had “a reasonable suspicion that the residents of
the home had access to firearms, likely possessed narcotics, and that knocking
and announcing would possibly subject them to undue peril.” Rodriguez argues
that the district court erred because he did not have a criminal history
suggesting violence and because his physical handicap (a prosthetic leg) would
make it “improbable that heavily-armed federal agents would be afraid of him.”
      Upon review, the record contains ample facts establishing that the
officers had reasonable suspicion to believe that knocking and announcing
would be dangerous. First, the undercover officer who initially purchased
narcotics from Rodriguez confirmed that Rodriguez would be present in the
house on the day of the arrest. Additionally, prior to entry, Browning informed
the officers that the undercover officer had reported that Rodriguez was
carrying a firearm in his waistband the day of the undercover purchase.
Viewing the record in the light most favorable to the Government, “[t]he
officers believed that the suspect was selling drugs and was typically armed.
This information exceeds the level this circuit has found sufficient to establish
a reasonable suspicion of danger.” See United States v. Washington, 340 F.3d
222, 227 (5th Cir. 2003).
      While Rodriguez contends that he had no criminal history suggesting
violence, Newman discovered, before executing the arrest warrant, that
Rodriguez had previously been arrested for possession of a weapon. See United
States v. Valdez, 88 F. App’x 785, 786 (5th Cir. 2004) (unpublished) (upholding
district court’s finding of reasonable suspicion where, inter alia, defendant had
a prior arrest for possession of a firearm). Moreover, Rodriguez’s physical
handicap does not lessen the reasonableness of the officers’ suspicion of danger.
There is no evidence that any of the officers, at the time of entry into Lowe’s
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                                     No. 12-51062
home, had knowledge of Rodriguez’s physical handicap. On the contrary, at
least three officers executing the arrest warrant discovered his physical
handicap only after entering the home. Even if the officers were aware of his
physical handicap before entering the home, Rodriguez does not argue that his
handicap, a prosthetic leg, lessens his ability to operate a firearm. Viewing the
evidence in the light most favorable to the Government, the officers had
sufficiently reasonable suspicion that announcing would have been dangerous.
      Accordingly, the district court did not err in finding that the officers’ no-
knock entry did not constitute a Fourth Amendment violation because there
were sufficient specific facts giving rise to a reasonable suspicion that
announcing would have been dangerous.
                               B. Rodriguez’s Consent
      The district court also did not clearly err in finding that Rodriguez freely
and voluntarily gave consent to search the home. 1 A warrantless search is
“presumptively unreasonable” unless the Government shows that the search
fell within an exception to the warrant requirement such as consent or plain
view. United States v. Aguirre, 664 F.3d 606, 610 (5th Cir. 2011). Consent
must be freely and voluntarily given. United States v. Tompkins, 130 F.3d 117,
121 (5th Cir. 1997). “The voluntariness of consent is a question of fact to be
determined from a totality of the circumstances” and is reviewed for clear
error. United States v. Solis, 299 F.3d 420, 436 (5th Cir. 2002) (citation and
internal quotation marks omitted). We apply a six-factor test to determine
voluntariness:
      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

      1 Rodriguez’s motion to suppress below also argued that Lowe did not give consent to
a search. The district court did not address this argument having found that Rodriguez had
given consent. Accordingly, only Rodriguez’s consent is at issue on appeal.
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                                  No. 12-51062
      awareness of his right to refuse consent; 5) the defendant’s
      education and intelligence; and 6) the defendant’s belief that no
      incriminating evidence will be found.
United States v. Macias, 658 F.3d 509, 523 (5th Cir. 2011) (citation omitted).
“[N]o single factor is determinative.” Id.
      Rodriguez cites United States v. Galberth, 846 F.2d 983, 988 (5th Cir.
1988), in arguing that no evidence demonstrates he has sophisticated, or even
rudimentary, knowledge about his rights regarding searches.           He further
argues that his custodial status was not voluntary in light of the large number
of heavily armed officers who stormed in, the weapons that were pointed at his
children, and the officers’ threat to have the minor children placed into state
custody.
      The district court, in applying the six-factor test, agreed with Rodriguez
on at least one point, finding that “the evidence makes clear in this case that
the defendant’s custodial status was not voluntary.” Additionally, the district
court found that “[Rodriguez] likely knew that incriminating evidence would
be found, yet chose to consent to the search anyway.” In light of these facts,
factors one and six favor Rodriguez, and we find no reason to disagree.
      The remaining factors, however, tend to support the Government’s
position, and the district court did not clearly err in these factual findings. To
begin, many of the district court’s factual findings defuse Rodriguez’s other
arguments. The district court found that Rodriguez was able to read the
admonishments and indicated to the officers that he understood them, and that
“his testimony at the hearing displayed that he is not lacking in the intelligence
necessary to understand the implication of the consent on his Constitutional
rights.” Rodriguez does not challenge this factual finding, which weighs factor
five in the Government’s favor. Similarly, Rodriguez does not challenge the
district court’s factual finding, applicable to factor two, that the testimony as

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                                 No. 12-51062
to whether there were threats to remove the children was incredible and
contradicted by Rodriguez’s signature on the consent to search form. Nor does
Rodriguez challenge the district court’s finding that “there was no evidence
that any officer threatened any person with a firearm.” Rodriguez does not
contend that the district court clearly erred in finding these facts; his
arguments on appeal simply re-urge his and Lowe’s testimony in the hope that
this Court re-weighs the factors in his favor. His arguments are unavailing.
Indeed, this Court is “particularly deferential” to such findings as they are
based on live oral testimony that “the judge had the opportunity to observe the
demeanor of the witnesses.” Aguirre, 664 F.3d at 612 (citation and internal
quotation marks omitted).
      The district court found additional facts further demonstrating that
Rodriguez freely and voluntarily gave consent: he was Mirandized and made
aware of his right to refuse consent, but nevertheless signed the consent (factor
four); he cooperated with the officers throughout the entire process and claimed
ownership of anything the officers found (factor three); the police procedures
were not especially coercive in light of the circumstances (factor two); and the
firearms found in the residence suggest that Rodriguez was comfortable
around firearms so as not to be especially intimidated (factor two). Again,
Rodriguez does not challenge these factual findings on appeal. Viewed in the
light most favorable to the Government, as the prevailing party below, the
totality of the circumstances weigh in favor of finding that Rodriguez freely
and voluntarily gave consent to a search of the home.
      Accordingly, the district court, weighing each of the factors, did not
clearly err in ruling that Rodriguez freely and voluntarily gave consent.
                              IV. CONCLUSION
      For the foregoing reasons, we AFFIRM the district court’s denial of
Rodriguez’s motion to suppress evidence.
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