     Case: 11-20611       Document: 00512089454         Page: 1     Date Filed: 12/19/2012




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

                                                                            FILED
                                                                        December 19, 2012
                                     No. 11-20611
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

JAVIER GUTIERREZ,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:11-CR-228-1


Before WIENER, ELROD, and GRAVES, Circuit Judges.
PER CURIAM:*
       Javier Gutierrez pleaded guilty to one charge of being a felon in possession
of a firearm and was sentenced to serve 87 months in prison and a three-year
term of supervised release. In this appeal, he challenges the district court’s
denial of his motion to suppress evidence. Because “the district court entered no
factual findings and indicated no legal theory underlying its decision [not to
suppress] the evidence obtained in the . . . search, we must independently review
the record to determine whether any reasonable view of the evidence supports

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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                                  No. 11-20611

admissibility.” See United States v. Yeagin, 927 F.2d 798, 800 (5th Cir. 1991).
We conduct a de novo review of the ultimate issue whether the Fourth
Amendment was violated. See United States v. Pack, 612 F.3d 341, 347 (5th
Cir.), opinion modified on denial of reh’g, 622 F.3d 383 (5th Cir.), cert. denied,
131 S. Ct. 620 (2010).
      First, we consider Gutierrez’s claim that the protective sweep of the home
was invalid because the officers: (1) were not in the home for a legitimate law
enforcement purpose, and (2) possessed no reasonable, articulable suspicion that
the house or its occupants posed a danger to the officers. See United States v.
Mendez, 431 F.3d 420, 428 (5th Cir. 2005). We disagree. “The protective sweep
doctrine allows government agents, without warrant, to conduct a quick and
limited search of the premises for the safety of the agents and others present at
the scene.” Id. Prior to the sweep, the officers obtained information that a
member of a dangerous drug cartel, which was involved in the murder of an
Immigration Customs and Enforcement (“ICE”) agent, either resided in or
frequented the home. Officers also received information that the home was a
suspected gang and drug affiliated house, and that the home had been searched
for drugs and money on a prior occasion. Officers testified that they conducted
the protective sweep to determine whether the suspected associate was inside
the home. Before conducting the sweep, Gutierrez’s mother told the officers
through the fenced porch that the associate was not inside the home, but that he
used to live there, and that the associate was her brother. Based on these facts,
we agree with the district court’s conclusion that the officers were in the home
for a legitimate law enforcement purpose, and, given the violent nature of the
drug cartel, that the officers possessed a reasonable, articulable suspicion that
the house posed a danger to them.
      Moreover, Gutierrez’s mother—the homeowner—voluntarily consented to
the protective sweep of the home. Gutierrez does not challenge the validity of
his mother’s consent on appeal. Gutierrez’s mother cordially and voluntarily

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                                  No. 11-20611

agreed to let the officers inside her home so that they could ask her questions
outside the presence of her neighbors. Immediately after entering the home,
Gutierrez agreed to let officers conduct a protective sweep for safety purposes.
The Supreme Court has affirmed use of the “knock and talk” method to obtain
consent to search a home without a warrant under these circumstances.
Kentucky v. King, 131 S.Ct. 1849, 1960 (2011) (affirming that “[a] consensual
search also may result in considerably less inconvenience and embarrassment
to the occupants than applying for a warrant”) (internal quotations and citations
omitted). Therefore, the officers’ protective sweep of the home was valid. See
United States v. Scroggins, 599 F.3d 433,440 (5th Cir. 2010) (“When police enter
a home based on consent or another lawful basis, and possess a reasonable,
articulable suspicion that the area to be swept harbors an individual posing a
danger to those on the scene, they may conduct a protective sweep of the
premises.” (internal quotations and citations omitted)).
      Next, we turn to Gutierrez’s claim that his consent to the protective sweep
of his locked bedroom was involuntary. Gutierrez concedes that he unlocked his
bedroom door at the request of the officers after initially encountering them
outside his bedroom during the protective sweep of the home. Gutierrez asserts,
however, that his consent to the sweep of his bedroom was involuntary because
he was shirtless and wearing boxer shorts when he encountered the officers, who
were wearing raid gear and had weapons drawn, but were not pointed at him.
      Voluntariness of consent is a question of fact that is reviewed for clear
error. United States v. Cooper, 43 F.3d 140, 144 (5th Cir. 1995). In determining
whether a defendant has voluntarily consented to a search, we look to the
totality of the circumstances surrounding the search. Id. Six factors are
relevant 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
awareness of his right to refuse to consent; (5) the defendant’s education and

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                                       No. 11-20611

intelligence; and (6) the defendant’s belief that no incriminating evidence will be
found. Id. No one of these factors is dispositive or controlling. Id.
       In this case, the balance of the relevant factors supports the district court’s
determination that Gutierrez voluntarily consented to the sweep of his bedroom.
First, the record shows that Gutierrez was walking around the home freely when
he encountered the officers, and that he was neither restrained nor handcuffed
when the officers requested to sweep his bedroom. Second, there is no evidence
that officers used coercive tactics. Third, Gutierrez cooperated with the officers’
request to conduct the sweep in his bedroom by retrieving the keys and
unlocking the door for them. Fourth, Gutierrez refused to consent to a more
thorough search of the bedroom after the officers conducted the sweep, which
indicated his awareness of his right to refuse consent. Fifth, there is no evidence
that Gutierrez lacked intelligence or education to understand the officers’
actions. Finally, Gutierrez concedes that the officers would have found a
shotgun hanging over his bed in plain view during the sweep. Therefore, we
conclude that the district court’s conclusion that Gutierrez consented to the
search was not clearly erroneous.1
       AFFIRMED.




       1
         Gutierrez also claims that the protective sweep of his mother’s home was invalid
because it was conducted pursuant to an agency policy that officers automatically conduct
protective sweeps when entering a home. We need not address this issue because, as
explained above, the validity of the protective sweep of the home in this case can be affirmed
on consent grounds.

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