     Case: 10-20132 Document: 00511480082 Page: 1 Date Filed: 05/17/2011




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

                                                 FILED
                                                                            May 17, 2011

                                       No. 10-20132                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee
v.

WASHINGTON MONTANYA, also known as Huilla, also known as Tulio
Hurtado,

                                                   Defendant-Appellant




                    Appeal from the United States District Court
                         for the Southern District of Texas
                              USDC No. 4:09-CR-368-2


Before REAVLEY, GARZA, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Washington Montanya appeals the denial of a motion to suppress following
his conditional guilty plea to possession with intent to distribute five kilograms
or more of cocaine. We review the district court’s factual findings for clear error
and its conclusions about the constitutionality of a warrantless search de novo.
United States v. Vega, 221 F.3d 789, 795 (5th Cir. 2000). We AFFIRM.




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 10-20132

      Montanya argues that police impermissibly seized him from his garage
without a warrant and without exigent circumstances.          Montanya’s arrest
occurred along with that of his co-defendant, Armando Figueroa.            While
conducting surveillance of a known narcotics trafficker, police observed
Montanya and Figueroa engage in an apparent drug deal with the target of the
investigation and then followed them to what turned out to be Montanya’s
residence. They also observed Figueroa offloading a long cardboard box from the
vehicle they had been following. Police knew from a registration check that the
vehicle belonged to Montanya but the registration did not match the address of
the house.    When police approached Figueroa in the driveway they saw
Montanya through the open garage door throw an apparent weapon under a car.
They seized both Montanya and Figueroa and conducted a protective sweep of
the home. Montanya and his wife, who was inside the house, separately gave
consent to search, and police discovered 20 kilograms of cocaine in the cardboard
box in the kitchen. Police also recovered a firearm from under the vehicle inside
the garage.
      Montanya concedes that police had probable cause to arrest him and
Figueroa but asserts that the seizure from his garage was improper because any
exigency for the arrest was manufactured by the officers.            We see no
manufactured exigencies under the circumstances in this case because “we see
no evidence that the officers either violated the Fourth Amendment or
threatened to do so prior to the point when they entered the [garage].” Kentucky
v. King, No. 09-1272, __ S. Ct. __, 2011 WL 1832821, slip. op. at 17 (U.S. May 16,
2011); see also United States v. Rico, 51 F.3d 495, 502 (5th Cir. 1995) (holding
that we examine the motivation of the police and the reasonableness and
propriety of the investigative tactics that created the exigency). Police had
probable cause to investigate Figueroa standing in plain view in the driveway,
a place that is not constitutionally protected and in which there is no reasonable

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                                  No. 10-20132

expectation of privacy. See, e.g., United States v. Brown, 510 F.3d 57, 65 (1st Cir.
2007) (holding that when a driveway is exposed to public view it is not part of
the home’s curtilage protected by the Fourth Amendment). At that point, the
officers knew that a substantial drug deal had likely just occurred and that the
drugs had apparently been offloaded from a vehicle not registered to that
location. When they saw Montanya throw an apparent weapon under the car
they were justified in seizing him for officer safety and in conducting a protective
sweep. See United States v. Jones, 239 F.3d 716, 721–22 (5th Cir. 2001) (holding
that police could enter apartment when they viewed a gun through an open door
after conducting a proper “knock and talk”); United States v. Maldonado, 472
F.3d 388, 394 (5th Cir. 2006) (holding that protective sweep may be reasonable
to ensure officers’ safety, particularly during drug arrests where the presence of
weapons is not uncommon). We conclude that the officers’ “actions that led up
to the decision to discontinue covert surveillance, approach the . . . residence,
and seize [Montanya]” were reasonable. See Rico, 51 F.3d at 502. They neither
engaged nor threatened to engage in conduct that violated the Fourth
Amendment, and Montanya’s police-created exigency argument fails. See King,
slip. op. at 8.
       Montanya also argues that police impermissibly seized the cardboard box
from the kitchen under the plain view doctrine because its incriminating nature
was not apparent. The plain view doctrine is not implicated here because the
district court found that Montanya gave voluntary consent to search the house,
which Montanya has not addressed, and the officers testified at the suppression
hearing that they did not begin the search and discover the drugs in the box
until after consent had been granted. See, e.g., Schneckloth v. Bustamonte, 412
U.S. 218, 219, 93 S. Ct. 2041, 2043–44 (1973) (holding that a search conducted
pursuant to consent is a well-settled exception to the Fourth Amendment’s
requirements).

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                                 No. 10-20132

      Finally, Montanya argues that the officers’ initial illegal seizure of him
means that his consent was not an independent act of free will. See United
States v. Hernandez, 279 F.3d 302, 307 (5th Cir. 2002) (analyzing admissibility
of challenged evidence based on whether defendant’s consent was (1) voluntarily
given and (2) an independent act of free will).      Whether consent was an
independent act of free will depends on the causal connection of a constitutional
violation. Id. Because we conclude that the officers’ initial conduct was not a
constitutional violation, Montanya’s argument is unavailing.
      AFFIRMED.




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