     Case: 12-60366       Document: 00512180053         Page: 1     Date Filed: 03/19/2013




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

                                                                            FILED
                                                                          March 19, 2013

                                       No. 12-60366                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee
v.

CHARLES WILLIAM SCOTT,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                     for the Northern District of Mississippi
                              USDC No. 2:10-CR-99


Before JONES, BARKSDALE, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Charles William Scott was charged in a three-count indictment with
possessing chemicals and equipment to be used for manufacturing
methamphetamine (Count One), possession of pseudoephedrine to be used for
manufacturing methamphetamine (Count Two), and attempted manufacture of
methamphetamine (Count Three). Scott moved to suppress evidence seized
during a search of the house where he lived with his mother, Mary Scott. After
the district court denied his motion for suppression, Mr. Scott entered a


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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
    Case: 12-60366    Document: 00512180053     Page: 2   Date Filed: 03/19/2013


                                 No. 12-60366

conditional plea of guilty to Count Three and reserved his right to appeal the
denial of the motion to suppress. Mr. Scott filed a timely notice of appeal and
challenges the denial of the motion to suppress. For the following reasons, we
AFFIRM.
                               BACKGROUND
      Local law enforcement officers and agents of the Mississippi Bureau of
Narcotics had reason to believe that Mr. Scott cooked methamphetamine at an
abandoned cotton gin adjacent to the property where he lived with his mother.
Four agents traveled to the Scotts’ house and parked in the driveway behind
Mr. Scott’s car. Two agents went to the front door and two others went to the
side of the house to make sure that no one went out the back door. When the
agents asked to see Mr. Scott, Ms. Scott stated that she had not seen him. An
agent told her they had seen him at the house earlier that day and Ms. Scott
went to find him. When Mr. Scott came to the door the agents asked him about
manufacturing methamphetamine.
      The agents then asked Ms. Scott, who owned the house, for consent to
search the property. Ms. Scott did not consent and told the agents that she
wanted them gone by the time she got back from picking up her grandchildren
from school. She refused to give Mr. Scott control over the premises so police
could search the property while she was gone. The agents did not, however,
leave the property. Rather, they told Mr. Scott that they were going to search
the gin, located on a tract not owned by Ms. Scott, before leaving. In addition,
the agents asked Mr. Scott to remain outside and not return to the house.
      After finding no contraband in the gin, the agents noticed Ms. Scott’s boat
just on the gin side of the unfenced line dividing the gin property from
Ms. Scott’s property. In the boat they found a plastic bottle, with a tube coming
out if it, as is used in making methamphetamine. Mr. Scott was immediately
handcuffed and placed in custody, while one of the agents began typing an

                                       2
     Case: 12-60366   Document: 00512180053     Page: 3   Date Filed: 03/19/2013


                                 No. 12-60366

application for search warrant. Shortly thereafter, an agent smelled ammonia
near a garbage can on the edge of Ms. Scott’s property. In the garbage can the
agent found another plastic bottle that was believed to be used for a “one pot
cook” of methamphetamine.
      When Ms. Scott returned with her grandchildren, the agents persuaded
her and Mr. Scott to sign written forms consenting to a search of the house. The
agents found residue of methamphetamine and precursor chemicals in the
house.
                             STANDARD OF REVIEW
      On appeal of suppression issues, this court reviews questions of law de
novo and questions of fact for clear error. United States v. Cooke, 674 F.3d 491,
493 (5th Cir. 2012). A factual finding by the district court is clearly erroneous
only if the reviewing court is “left with a definite and firm conviction that a
mistake has been committed.” United States v. Hernandez, 670 F.3d 616, 620
(5th Cir. 2012) (internal quotation marks and citations omitted). The evidence
presented at the suppression hearing is viewed in the light most favorable to the
prevailing party. Id. Thus, the district court’s ruling to deny should be upheld
“if there is any reasonable view of the evidence to support it.” Cooke, 674 F.3d
at 493 (citation omitted).
                                 DISCUSSION
      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. U.S. v. Aguirre, 664 F.3d 606, 610
(5th Cir. 2011). The burden is on the government to “bring the search within an
exception.” Id. (citation omitted).
I.    Knock and Talk
      Mr. Scott argues that, because the agents’ initial “knock and talk” was
unsuccessful, they had a duty under U.S. v. Gomez-Moreno to “retreat

                                       3
    Case: 12-60366     Document: 00512180053     Page: 4   Date Filed: 03/19/2013


                                  No. 12-60366
cautiously,” 479 F.3d 350, 356 (5th Cir. 2007), among other deficiencies in the
knock and talk. The propriety of the knock and talk is mooted because Ms. Scott
refused consent and the agents acquiesced. The relevant question is whether the
agents fulfilled any duty to retreat.
      According to the Gomez-Moreno court, the officers in that case should have
ended their knock and talk when no one answered the door and “changed their
strategy by retreating cautiously, seeking a search warrant, or conducting
further surveillance.” Gomez-Moreno, 479 F.3d at 355–56. The agents here took
the advice of the Gomez-Moreno court. After Ms. Scott refused to consent to a
search of her house, the agents surveyed the options presented by the Gomez-
Moreno court and chose the third option: conduct further surveillance.
Specifically, the agents chose an investigation of open fields and an adjacent
property. Accordingly, the analysis turns on the permissibility of that search
standing on its own outside of the context of the knock and talk.
      A.    Search of the Gin and Boat
      “[E]xploration of open areas outside the curtilage does not constitute
Fourth Amendment activity, meaning such areas may be entered by police even
when probable cause is lacking.” 1 WAYNE R. LAFAVE, SEARCH AND SEIZURE: A
TREATISE ON THE FOURTH AMENDMENT § 2.4(a) (4th ed. 2004). The evidence was
found in an uncovered boat that was not only well away from the Scotts’ house
but, despite being owned by Ms. Scott, was on an adjacent property. It was
outside the curtilage of the house and unprotected from outside observation.
Accordingly, the plain view and open fields doctrines apply, and there is no
constitutional infirmity for the search of the boat.




                                        4
      Case: 12-60366      Document: 00512180053         Page: 5     Date Filed: 03/19/2013


                                       No. 12-60366
        B.    Evidence in Garbage Can
        The agents searched the garbage can1 after detecting an odor of ammonia
indicating potentially dangerous equipment used in cooking methamphetamine.
“[I]t would be foolhardy to delay a search if there were reason to believe [a
container] contained . . . some . . . dangerous instrumentality.” U.S. v. Johnson,
588 F.2d 147, 151 n.5 (5th Cir. 1979). Accordingly, the search of the garbage can
was justified under exigent circumstances.2
II.     Consent to Search
        We look only at the voluntariness of Mr. Scott’s consent. “The standard
for measuring . . . consent is objective reasonableness.” U.S. v. Stewart, 93 F.3d
189, 192 (5th Cir. 1996). Consent must be freely and voluntarily given. U.S. v.
Thompkins, 130 F.3d 117, 121 (5th Cir. 1997). Whether consent to search is
voluntary is a question of fact, and a finding of voluntariness may be overturned
only if clearly erroneous. U.S. v. Sutton, 850 F.2d 1083, 1085 (5th Cir. 1988).
“Where the judge bases a finding of consent on the oral testimony at a
suppression hearing, the clearly erroneous standard is particularly strong since
the judge had the opportunity to observe the demeanor of the witnesses.” Id. at
1086.
        A.    Detention of Mr. Scott
        To determine if someone is detained, this court looks to whether a
reasonable person in the detainee’s position “would have understood that he was
no longer free to move without the consent of the inspectors but, instead, was


        1
        The garbage can was about 100 feet from a public road, but was closer to the Scotts’
property line than to their house.
        2
        Mr. Scott misses the mark in relying on state trespass law. The question we ask is
not whether agents violated state law but rather whether they violated the Fourth
Amendment. U.S. v. Walker, 960 F.2d 409, 415 (5th Cir. 1992) (stating that the Fourth
Amendment does not exist to “discourage . . . violations of state law”); see also U.S. v.
Eastland, 989 F.2d 760, 765–67 (5th Cir. 1993) (refusing to exclude evidence on the basis that
agents were trespassing under state law).

                                              5
     Case: 12-60366         Document: 00512180053          Page: 6    Date Filed: 03/19/2013


                                         No. 12-60366
arrested and in their custody.” United States v. Johnson, 846 F.2d 279, 283 (5th
Cir. 1988). This is true regardless whether the detainee is told he is under
arrest. Id. Unreasonable duration may morph a permissible investigatory
detention into a de facto arrest. U.S. v. Zavala, 541 F.3d 562, 579–80 & n.8 (5th
Cir. 2008) (holding that one hour and thirty minutes detention “morphed from
a Terry detention into a de facto arrest” while expressing “no opinion on whether
a Terry detention could exceed one hour and thirty minutes based on a different
set of facts”).
       Between thirty and fifty minutes elapsed from the time the agents arrived
and when they first found incriminating evidence. Between ten and fifteen
minutes elapsed from the time Ms. Scott refused consent and when the agents
first found incriminating evidence. Agent Stringer asked, not ordered, Mr. Scott
to stand outside with him.3 According to Mr. Scott, he did not ask the agent if
he could return to his house and the only instruction the agent gave him was
“don’t get close to me.” Mr. Scott’s vehicle was blocked in by the law enforcement
vehicles. Mr. Scott was not handcuffed until the agents found incriminating
evidence. Given the totality of the circumstances, the agents’ actions did not
amount to a de facto arrest.
       B.       Six-Factor Voluntariness Test
       As no constitutional violation preceded consent to search the Scotts’ house,
the only remaining analysis is application of the six-factor voluntariness test to
determine if Mr. Scott’s consent was coerced.4 The six factors are:
       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 police; 4) the defendant’s awareness of
       his right to refuse consent; 5) the defendant’s education and

       3
           According to Mr. Scott, the agent “wanted to start talking. We went out in the yard.”
       4
        Scott does not brief his apparent contention that Mary Scott’s consent to search was
involuntary, therefore, the point is waived.

                                                6
     Case: 12-60366       Document: 00512180053           Page: 7    Date Filed: 03/19/2013


                                       No. 12-60366
       intelligence; and 6) the defendant’s belief that no incriminating
       evidence will be found.

U.S. v. Macias, 658 F.3d 509, 523 (5th Cir. 2011) (citation omitted). “[N]o single
factor is determinative.” Id.5
       As explained above, any detention of Mr. Scott before they found
incriminating evidence and handcuffed him did not amount to a de facto arrest.
Although he consented while handcuffed, the agents were uniformed and armed
but did not draw their weapons or threaten violence. Four agents were present.
Ms. Scott was concerned that social services would temporarily take custody of
her grandchildren, and Mr. Scott agreed to let the agents search in order to
avoid the agents detaining Ms. Scott. Mr. Scott had talked to Agent Stringer on
numerous occasions in the past, and he had given Agent Stringer confidential
source drug information. Mr. Scott willingly talked to Agent Stringer while the
other agents searched the gin. Mr. Scott attended some college but did not earn
a degree. Mr. Scott almost certainly knew that the agents would find the coffee
filter containing crystal meth residue in his bedroom. Weighing each of the
factors, the district court’s ruling that Mr. Scott’s consent was voluntary was not
clearly erroneous.6
                                     CONCLUSION
       Accordingly, the district court’s decision is AFFIRMED.




       5
         Because neither any detention of Scott nor the specific alleged violations in this case
concerning the knock and talk constitute the predicate for the two-prong inquiry, we need not
and do not look to whether the “consent was an independent act of free will” by focusing on the
“‘causal connection with the constitutional violation.’” Macias, 658 F.3d 509, 520 (quoting U.S.
v. Chavez-Villarreal, 3 F.3d 124, 127 (5th Cir. 1993)).
       6
        The court need not and does not reach the issue of whether the doctrine of inevitable
discovery applies.

                                               7
