10-3567-cr
United States v. Marin Moreno



                    United States Court of Appeals
                                FOR THE SECOND CIRCUIT

                                     August Term 2011

      (Argued: October 20, 2011                    Decided: November 20, 2012)

                                     No. 10-3567-cr
                         _____________________________________

                                 UNITED STATES OF AMERICA,
                                         Appellee,

                                            -v.-

                                NORBY MARIN MORENO,
                                  Defendant-Appellant.
                         _____________________________________

Before:         CABRANES, LIVINGSTON, and CARNEY, Circuit Judges.

       Defendant-Appellant Norby Marin Moreno (“Marin”) appeals from a
August 20, 2010, judgment of the United States District Court for the Eastern
District of New York (Gleeson, J.) convicting her, following a jury trial, of
conspiracy to possess with intent to distribute one kilogram or more of heroin,
in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A), and possession with
intent to distribute one kilogram or more of heroin, in violation of 21 U.S.C.
§§ 841(a)(1), (b)(1)(A). Marin contends that the district court erred in denying
her motion to suppress evidence seized from her motel room. Marin argues,
inter alia, that the evidence was seized in violation of the Fourth Amendment
because (1) no exigent circumstances justified the DEA agents’ warrantless entry
of her motel room; (2) her consent to search was a fruit of the illegal entry; and
(3) even assuming that the agents’ warrantless entry did not violate the Fourth
Amendment, Marin’s consent was invalid. We AFFIRM the judgment of the
district court.

        Judge Carney concurs in a separate opinion.
                               DAVID A. LEWIS, Appeals Bureau, Federal
                               Defenders of New York, Inc., New York, New
                               York, for Defendant-Appellant.

                               ALI KAZEMI, Assistant United States Attorney
                               (David C. James, Assistant United States
                               Attorney, on the brief), for Loretta E. Lynch,
                               United States Attorney for the Eastern District
                               of New York, Brooklyn, New York, for Appellee.

LIVINGSTON, Circuit Judge:

      Defendant-Appellant Norby Marin Moreno (“Marin”)1 appeals from an

August 20, 2010 judgment of the United States District Court for the Eastern

District of New York (Gleeson, J.), convicting her, following a jury trial, of

conspiracy to possess with intent to distribute one kilogram or more of heroin,

in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A), and possession

with intent to distribute one kilogram or more of heroin, in violation of 21

U.S.C. §§ 841(a)(1) and 841(b)(1)(A). The district court sentenced Marin to

120 months’ incarceration, three years of supervised release, and a $200

special assessment.      On appeal, Marin contends that the district court

erred in denying her pretrial motion to suppress the approximately l.2

kilograms of heroin found hidden in four perfume canisters in her luggage



      1
       We refer to the Defendant-Appellant as “Marin” because in Spanish
language usage “Marin” is the patronymic and “Moreno” is the matronymic, and
accepted custom is to refer to an individual by the former. See United States v.
Cuevas Pimentel, 815 F. Supp. 81, 82 n.2 (D. Conn. 1993) (Cabranes, J.).
                                        2
after she consented to a search of her motel room and bags on the day of her

arrest. Marin first contends that the district court erred in concluding that

exigent circumstances supported the warrantless entry of Drug Enforcement

Agency (“DEA”) agents into her room and that her consent to search was a

fruit of this illegal entry and was therefore invalid. She next argues that

even assuming the agents’ warrantless entry was justified by an exigency, her

consent to search was not voluntary.

      For the reasons stated below, we conclude that the district court did not

err (much less clearly err) in determining that exigent circumstances justified

the agents’ warrantless entry into Marin’s room. Further, we find no error in

the district court’s finding that Marin’s consent was voluntary. Accordingly,

we affirm the judgment of the district court.2



                                 BACKGROUND

1.    Evidence at the Suppression Hearing

      The following background is taken from the district court’s

Memorandum Opinion and Order denying Marin’s motion to suppress and

from the testimony of DEA Special Agents Salvatore Aceves (“Aceves”) and



      2
       In light of this disposition, we need not address Marin’s argument that
the inevitable discovery doctrine is inapplicable in the circumstances here.
                                        3
Elizabeth O’Connor (“O’Connor”) at a two-day pretrial suppression hearing

before Judge Charles P. Sifton.3 We view the evidence in the light most

favorable to the government. See United States v. Worjloh, 546 F.3d 104, 108

(2d Cir. 2008) (per curiam); see also United States v. Ansaldi, 372 F.3d 118,

129 (2d Cir. 2004).

      On the morning of July 31, 2008, Aceves, from the DEA’s New York

Field Division, received information from DEA Special Agent Richard Walsh

(“Walsh”), who was stationed in Bogota, Colombia, that over a kilogram of

heroin was to be delivered by courier at the Metro Hotel in Queens that very

day.4 Walsh was working with the Colombian National Police (the “CNP”) on

an investigation into a drug trafficking organization that was ferrying large

amounts of cocaine and heroin to the United States and into New York City

through Panama, Guatemala, and Mexico. Pursuant to Colombian law, the

CNP, working with Walsh, had placed taps on the telephones of members of

the drug organization. These taps had resulted in previous substantial

narcotics seizures.




      3
         Judge Sifton presided over the suppression hearing and subsequent jury
trial in this case. Judge Gleeson took over the matter after Judge Sifton’s death.
      4
       The Metro is actually a motel, located at 7300 Queens Boulevard,
Flushing, New York.
                                        4
      On this occasion, Walsh, who had worked with Aceves in the New York

office prior to his posting to Colombia, contacted Aceves from a Bogota “wire

room” in which he was listening to calls to and from a phone associated with a

high-level member of the drug organization. Walsh called to alert Aceves to

the impending heroin delivery in New York City. Walsh relayed information

to Aceves -- including that the drug courier would be at the Metro Hotel and

that the courier’s name was “Norby” -- as Walsh obtained it from the

interceptions. By approximately 10:00 a.m. on July 31, Aceves had learned

from Walsh over the course of several conversations

            that a heavyset Hispanic woman named Norby would be
            at the Metro Hotel in Room 166 with approximately
            1,200 grams of heroin and that she’d be waiting for a
            male known only as Pintora to arrive and that either he
            or someone would arrive to receive the heroin; that he
            would be giving her $10,000. [Aceves was] also told [by
            Walsh] that beforehand, [Pintora] would contact [Norby]
            and he would tell her that he was calling on behalf of El
            Tio, which means the uncle. . . . [T]hat was their code to
            her for her to proceed as scheduled.

Walsh informed Aceves that Norby was “already there” and that the

transaction would take place “at any moment,” according to the intercepted

conversations.

      After receiving this information from Walsh, Aceves drove to the Metro

Motel, arriving at approximately 12:00 noon. He established surveillance of

the motel by parking his van in the parking lot outside Room 166 so that the
                                       5
van faced the exterior door of Room 166, which opened onto the parking lot,

from about 25 feet away. Aceves was soon joined by six other DEA agents,

including O’Connor, who was in charge. By about 12:45 p.m., the agents had

formed a perimeter around the motel. Agents were stationed in Aceves’s van

facing Room 166; in a second van also parked in the gravel parking lot; inside

the motel, in a common area; and on Queens Boulevard near the motel’s main

entrance.

        At approximately 12:30 p.m., as this perimeter was still being

established, Aceves observed a heavyset Hispanic woman matching Walsh’s

description in the parking lot of the Metro Motel; he saw her approach the

exterior door of Room 166. The woman, who was later revealed to be Marin,

was carrying one or two small plastic bags and she held a cell phone to her

ear. She stepped inside Room 166, leaving the door open, and then after a few

seconds stepped outside again and looked around the surrounding area; she

repeated this movement twice before finally entering the room and closing the

door.

        Marin had been inside Room 166 for approximately half an hour when

the agents discovered that in addition to the exterior door that opened onto

the parking lot where Aceves’s van was stationed, Room 166 also had an

interior door that opened into an interior corridor of the motel. The agents


                                         6
were immediately concerned that because they had been unaware of the

interior door when they first established their perimeter, Marin might have

left Room 166 via the interior door, or Pintora or another person might have

arrived without their knowledge.5 As Agent Aceves testified, “[t]he drug

transaction could have already taken place while we were merely surveilling

the exterior door.” An agent was promptly posted in the interior corridor.

Shortly before 1:30 p.m., Agents O’Connor, Aceves, and Special Agent David

Samilo (“Samilo”) decided that Agent O’Connor would ask a female member of

the motel’s cleaning staff to knock on the exterior door of Room 166, with

Agent O’Connor standing beside her, in the hope that O’Connor by this

measure might ascertain who was inside.

      Shortly thereafter, the motel’s housekeeper, accompanied by O’Connor,

knocked on the exterior door of Room 166 and announced “room service or

maid service” or “[s]omething to that effect.” The housekeeper wore a solid

color uniform dress. O’Connor was dressed in plain clothes -- a short sleeved

white golf shirt and khaki green capri slacks -- but also wore a two-and-one-

half inch gold badge on her hip that identified her as a DEA agent. As the

housekeeper knocked on the door to Room 166, Samilo, followed by Aceves,



      5
       There was a window in Room 166, overlooking the parking lot, but the
shade to that window was drawn.
                                       7
approached the door from Aceves’s van. Both agents were wearing badges and

bullet-proof vests over their short-sleeve shirts.

      Marin opened the door in response to the housekeeper’s knock. She

“made eye contact with the maid, [and] smiled,” but when she saw O’Connor,

“the smile dropped from her face, and she went to slam the door in

[O’Connor’s] face.” O’Connor, who did not have her weapon drawn and was

unaware whether Marin was armed or had another person in the room, first

put up her hand to block the door, announcing “calm,” “tran[q]uila” and “we

are the police,” and then, as Marin resisted, grabbed her wrist, pushing the

door open and calling for Agent Samilo’s help. With Samilo’s assistance, the

altercation was over within seconds, as O’Connor successfully handcuffed

Marin inside the motel room. During that same brief interval, Aceves entered

the room with his gun drawn and conducted a brief security sweep; after

ascertaining that no one else was in Room 166, he holstered his weapon. The

agents, aware from Agent Walsh’s information that Pintora or his associate

could be arriving to meet the courier at any moment, secured the room by

closing the doors.

      After Marin was seated on a chair, Aceves, who is fluent in Spanish,

spoke with her, eliciting her name, “where she was coming from, [and] when

she arrived.” He also translated for O’Connor, who in addition to speaking


                                         8
with Marin was responding to phone calls from other agents on the

surveillance operation. Marin was calm. O’Connor told her, in substance,

that it was in her interest to cooperate and that “if there’s something here that

shouldn’t be here it’s in your best interest to tell us now while you can before

we find it on our own.” After a brief interval during which the agents

continued to wait for the arrival of Pintora or his associate, Aceves asked for

Marin’s consent to search the room and her bags. Marin immediately agreed

to the search, adding that her bags had already been searched by Customs

officials upon her arrival at John F. Kennedy International Airport (“JFK”)

that morning.

      After Marin orally consented to search, Aceves provided her with a

written consent to search form, in English, which he then translated into

Spanish for her, in writing, line by line. The form noted that Marin had been

asked to permit the search of her room and bags, and stated that “[she had]

not been threatened, nor forced in any way” to consent. The form provided, in

closing, that “I freely consent to this search.” In addition to writing out the

form’s contents in Spanish for Marin to read, Aceves, who previously worked

as a DEA translator, also read the form aloud to Marin in her native tongue.

He confirmed with her that she understood the form’s contents. The form was




                                        9
then signed by Marin, O’Connor, and Aceves.6

      After obtaining Marin’s consent, the agents proceeded to search a black

suitcase, a camouflage suitcase, a red handbag, a brown purse, a lime green

purse, and various other items scattered about the room. During the search,

Samilo discovered a metal perfume canister concealed deep within one of the

suitcases. The canister was wrapped in clothing. Samilo removed the lid and

sprayed perfume. He then continued to search the suitcase and discovered

three similar perfume canisters. The canisters “appeared to be normal

perfume canisters; however, they weren’t weighted the way a liquid should be

weighted. They didn’t slosh around a bit, but they were heavy as if they were

full.” As Aceves and Samilo were examining the canisters, Marin volunteered

that the canisters did not belong to her. Aceves pried the interior lid off one of

the canisters and discovered a brown substance hidden inside the canister

which field tested positive for heroin.

      Marin and her belongings, including the canisters with the heroin, were

then transported to the New York Field Office for processing. A lab report

prepared after Marin’s arrest indicated that the confiscated heroin had a net


       6
        Marin was handcuffed consistent with DEA protocol and, as O’Connor
testified, because “quite frankly . . . she resisted once, and I didn’t want her to
do it again.” Marin’s handcuffs were removed so that she could sign the consent
form. She was handcuffed again during the search of the motel room and her
bags.
                                          10
weight of 1209 grams (almost precisely the amount that the courier was to be

carrying, according to the information relayed by Walsh from the intercepted

phone conversations in Colombia) and a purity of 93.5 percent. According to

Agent Aceves, “[a]nything above [a purity of] 80 [percent] would be considered

extremely good quality heroin. This is almost -- I’ve never seen anything

above 80.” The canisters each contained “a very, very small amount of

perfume . . . [t]he rest of it was all heroin.”



2.    The District Court’s Decision

      Marin was indicted on two counts, for conspiracy to possess with intent

to distribute a kilogram or more of heroin, in violation of 21 U.S.C. §§ 846,

841(a)(1), and 841(b)(1)(A), and possession with intent to distribute one

kilogram or more of heroin, in violation of 21 U.S.C. §§ 841(a)(1) and

841(b)(1)(A). Prior to trial, Marin moved to suppress the physical evidence

seized from her room.7 After a hearing held on November 25 and 26, 2008, the

district court denied the motion to suppress the physical evidence. On



       7
        Marin also moved to suppress certain statements she made in response
to questioning about whether she was the only occupant in the room, whether
the suitcases belonged to her, whether the cell phone was hers, and when and
where she purchased it. The government conceded that these statements were
inadmissible pursuant to Miranda v. Arizona, 384 U.S. 436 (1966), and did not
offer testimony at trial regarding them.
                                          11
February 24, 2009, following trial, the court issued an order memorializing its

reasons for denying the suppression motion and setting forth its findings of

fact and conclusions of law. See United States v. Marin Moreno, No. 08-cr-605

(CPS), 2009 WL 454548 (E.D.N.Y. Feb. 24, 2009). As relevant here, the

district court concluded that exigent circumstances justified the agents’ entry

into Marin’s motel room without a warrant. Id. at *8. The district court cited

our decision in United States v. MacDonald, 916 F.2d 766, 769-70 (2d Cir.

1990) (en banc), which sets forth illustrative factors to be considered in

evaluating whether, given the totality of the circumstances, “law enforcement

agents were confronted by an ‘urgent need’ to . . . take action,” id. at 769.

Drawing on the analysis in MacDonald, the court reasoned that exigent

circumstances justified entry because

            [t]he agents were faced with a situation (1) involving the
            serious offense of narcotics trafficking; (2) where it was
            unknown whether the defendant was armed, or whether
            she was alone, as the agents reasonably believed an
            accomplice might have been present in the room; (3)
            where the defendant’s description and location precisely
            matched the information obtained by Agent Aceves from
            Agent Walsh, which, having been determined to be
            sufficiently reliable, and together with defendant’s
            observed demeanor, established probable cause that
            defendant was or soon would be committing the crime; (4)
            where, based on their surveillance, the agents believed
            the defendant was in the room at the time; and (5) the
            agents’ entry into the room, while unwelcome and met
            with resistance, did not result in any injury to the


                                        12
            defendant or any damage to the hotel property. Finally,
            the offense involved powdered heroin, which could be
            disposed of in a toilet at the first indication that DEA
            agents sought to speak with the defendant or gain access
            to the room.

Marin Moreno, 2009 WL 454548, at *8 (citation omitted).

      The district court also found that Marin’s consent to search was

voluntary. It noted that the following factors weighed against this finding:

that at least Aceves entered Room 166 with his weapon drawn; that O’Connor

and Samilo briefly struggled with Marin and handcuffed her prior to her

giving of consent; and that the agents “failed to advise defendant of her right

to refuse consent, and that Agent O’Connor advised defendant that it was in

her best interests to cooperate.” Id. at *7. But the district court found that

            [a]side from these circumstances . . . [Marin] has
            submitted no . . . evidence that her consent was not
            voluntary, and indeed fails to allege that she was coerced
            into giving consent. The atmosphere of the encounter
            between the DEA agents and the defendant, while clearly
            not friendly, does not appear to have been unduly hostile.
            There is no allegation that the agents used intimidating
            or coercive language or gestures in an attempt to secure
            defendant’s consent.

Id. The district court emphasized that Marin “provided oral consent [to

search] immediately upon request” and she “stat[ed] that her bags had already

been searched at the JFK airport.” Id. Based on all the facts and




                                       13
circumstances, the court concluded that Marin’s consent was voluntary.8 Id.



3.    The Trial

      Trial began on December 8, 2008. During its case-in-chief, in addition to

the evidence presented at the suppression hearing and already discussed, the

government introduced proof regarding certain telephone calls received on the

cellular phone in Marin’s possession while the DEA agents were searching her

room. The caller in these calls stated that he was calling for “Norby,” “on

behalf of El Tio,” further corroborating the information obtained from Agent

Walsh to the effect that Pintora would contact Norby and tell her he was

calling on behalf of El Tio before arriving to take possession of the drugs.

Marin was also shown to have three SIM cards at the time of her arrest.9

DEA Special Agent Robert Garcia testified that drug traffickers commonly

possess multiple SIM cards, as a cellular phone user can effectively change her


       8
        The district court also concluded that, in any event, the heroin in
Moreno’s luggage would have been inevitably discovered during an inventory
search of her bags, and was thus admissible, see Nix v. Williams, 467 U.S. 431,
447 (1984) (holding that unlawfully seized evidence should not be excluded “if
the government can prove that the evidence would have been obtained
inevitably” without the constitutional violation), an issue this Court does not
reach.
       “A SIM, or ‘security identity module,’ card is the device within a phone
       9

that contains the unique information identifying a particular subscriber.”
United States v. Bucci, 525 F.3d 116, 125 n.6 (1st Cir. 2008).
                                        14
number at will by using a new card. Finally, proof was offered that upon

arriving at JFK, Marin listed a false destination address of “5921 Callow, New

York,” on her Customs declaration. The government called Patricia

Carrasquilla, the individual residing at that address, who testified that she

met Marin two or three years ago, but had not spoken to her since, and that

Carrasquilla was unaware Marin had traveled to New York in July 2008.

      Marin testified in her own defense. She described a history of hostility

against her family in Colombia by local paramilitary groups and claimed that

she came to the United States to find out what happened to her two children,

who had disappeared. Marin denied bringing heroin into the United States

and alleged the drugs had been placed in her suitcase after her arrival at the

motel as part of an effort by members of these paramilitary groups to frame

her. She claimed that she left Room 166 to go shopping and, upon returning,

found both doors to the room open.10 Marin admitted, however, that she did

not report this incident to the front desk, but instead took a nap. The DEA

agents arrived shortly thereafter. Marin claimed that the agents turned her

around while searching her belongings so that she could not fully see what

was happening. She denied ever before seeing the canisters found in her



      10
        She also testified that while showering in Room 166, she heard her motel
door being opened.
                                       15
luggage. Marin also denied bringing drugs into the country in April 2007, a

previous occasion on which she traveled to New York. She admitted, however,

that she had listed a cousin’s address as her destination address on a Customs

declaration form for that trip when, in fact, she did not see her cousin and she

stayed, not with her cousin, but at the Metro Motel.

      The government in rebuttal introduced evidence from the manager of

the Metro Motel to the effect that both doors to Room 166 have an automatic

close-and-lock mechanism so that they cannot be left ajar, much less open,

unless the doors are physically blocked from closing. In addition, Agent

Aceves testified (contradicting Marin) that the defendant watched the agents

as they searched her bags, and that he personally field tested the substance

removed from one of the perfume canisters in front of her, and then informed

her that the substance was heroin.

      The jury began deliberating on December 15, 2008, and returned a

verdict of guilty on both counts that same day.



                                   DISCUSSION

      When evaluating a district court’s decision denying a motion to

suppress, “we review the [district] court’s factual findings for clear error,

viewing the evidence in the light most favorable to the government.” Worjloh,


                                        16
546 F.3d at 108. We review de novo the legal issues presented by a motion to

suppress. See United States v. Howard, 489 F.3d 484, 490-91 (2d Cir. 2007).

      “The reasonableness of police action is a ‘mixed question of law and fact’

that is reviewed de novo.” United States v. Reyes, 353 F.3d 148, 151 (2d Cir.

2003) (quoting Ornelas v. United States, 517 U.S. 690, 696 (1996)). Therefore,

the ultimate determination of whether a search was objectively reasonable in

light of exigent circumstances is a question of law reviewed de novo. Id.; see

also, e.g., United States v. Goree, 365 F.3d 1086, 1090 (D.C. Cir. 2004). Given

the heavily fact dependent nature of the exigency inquiry, however, the lower

court decision will almost invariably rest on factual determinations about the

extent of the exigency, and therefore our review is usually, in practice, for

clear error. See United States v. Klump, 536 F.3d 113, 117 (2d Cir. 2008).

Under clear-error review, we must be “left with the definite and firm

conviction that a mistake has been committed” in order to reverse a district

court’s exigent circumstances finding. United States v. Iodice, 525 F.3d 179,

185 (2d Cir. 2008) (internal quotation marks omitted).

      We similarly review a district court’s finding that consent to search was

voluntary for clear error. See United States v. Isiofia, 370 F.3d 226, 232 (2d

Cir. 2004); see also Schneckloth v. Bustamonte, 412 U.S. 218, 248-49 (1973)

(“Voluntariness is a question of fact to be determined from all the


                                        17
circumstances . . . .”). “So long as the police do not coerce consent, a search

conducted on the basis of consent is not an unreasonable search.” Garcia v.

United States, 56 F.3d 418, 422 (2d Cir. 1995).



1.    Exigent Circumstances

      It is well-settled, as we have repeatedly said, “that the warrant

requirement of the Fourth Amendment must yield in those situations in which

exigent circumstances require law enforcement officers to act without delay.”

United States v. Gordils, 982 F.2d 64, 69 (2d Cir. 1992). Thus, “[p]olice officers

may enter premises without a warrant when they are in hot pursuit of a

fleeing suspect.” Kentucky v. King, 131 S. Ct. 1849, 1856 (2011). And “the

need to prevent the imminent destruction of evidence has long been recognized

as a sufficient justification for a warrantless search.” Id. (internal quotation

marks omitted).

      The exigent circumstances rule is not rendered inapplicable, moreover,

simply because “law enforcement officers who are not armed with a warrant

knock on a door . . . [as] any private citizen might do.” Id. at 1862. Officers

may not gain entry by actually violating or threatening to violate the Fourth

Amendment. Id. It is not a violation of the Fourth Amendment, however, for

officers to knock on a door as any private citizen might. If those on the other


                                        18
side of the door react in ways that result in exigencies to which police must

respond, occupants “have only themselves to blame for the warrantless

exigent-circumstances search that may ensue.” Id.

      We employ an objective test in deciding whether an exigency justified a

warrantless intrusion on Fourth Amendment interests, one “that turns on [an]

examination of the totality of circumstances confronting law enforcement

agents in the particular case.” MacDonald, 916 F.2d at 769. We have often

referred to six factors as guideposts for determining the existence of exigent

circumstances:

            (1) the gravity or violent nature of the offense with which
            the suspect is to be charged; (2) whether the suspect is
            reasonably believed to be armed; (3) a clear showing of
            probable cause . . . to believe that the suspect committed
            the crime; (4) strong reason to believe that the suspect is
            in the premises being entered; (5) a likelihood that the
            suspect will escape if not swiftly apprehended; and (6)
            the peaceful circumstances of the entry.

Id. at 769-70 (omission in original and internal quotation marks omitted); see

also United States v. Brown, 52 F.3d 415, 421 (2d Cir. 1995) (noting that in

addition to the MacDonald factors, “federal courts, including our own, have

considered [an additional factor, namely whether] quick action is necessary to

prevent the destruction of evidence”). These factors are not germane in every


                                       19
exigent circumstances situation, however,11 and we have thus emphasized that

they “are merely illustrative, not exhaustive, and [that] the presence or

absence of any one factor is not conclusive.” Gordils, 982 F.2d at 69 (internal

quotation marks omitted). “The core question is whether the facts, as they

appeared at the moment of entry, would lead a reasonable, experienced officer

to believe that there was an urgent need to render aid or take action.” Klump,

536 F.3d at 117-18 (citation and internal quotation marks omitted).

      Based on these principles, we conclude that the district court’s

determination that exigent circumstances justified the agents’ entry into

Marin’s motel room was not erroneous, much less clearly so.

      Given the detailed information from Walsh, which the district court

found to be reliable, as well as the ample corroboration of this information by

the agents’ observations at the scene, the agents clearly had probable cause to

believe that Marin was a drug courier and in possession of over a kilogram of

heroin.12 Based on his covert monitoring of a phone belonging to a member of


      11
         Consider, for instance, those cases in which officers enter private
premises not in pursuit of a suspect, but to render aid. See, e.g., Klump, 536
F.3d at 118 (concluding that exigent circumstances justified warrantless entry
into warehouse to investigate the cause of an odor indicative of a possible fire).
       Before the district court, Marin moved to suppress the evidence found
      12

in her motel room on the additional ground that the agents lacked probable
                                       20
the drug smuggling organization, Walsh provided not only a description of the

courier, but specific information as to where she would be found, and when the

drug transaction was to occur. Marin not only fit the description but was

observed entering the very motel room in which the heroin delivery was to

take place on the very day of delivery. Moreover, the agents observed Marin

repeatedly enter and exit Room 166 and survey the parking lot -- behavior

that added to their probable cause to believe that Marin was about to engage

in a drug transaction, as Marin appeared to be awaiting the arrival of another

individual, engaging in precisely the conduct one might expect of a drug

courier seeking to consummate a delivery. See United States v. Montana, 958

F.2d 516, 519 (2d Cir. 1992) (noting that observations of defendant “pac[ing]

back and forth . . . and attempt[ing] to peer through [a car’s] darkened

windows” supported “probable cause to believe that [he] was a knowing

participant in [a planned] drug pickup”).

      The agents’ probable cause was yet again strengthened, as the district

court found, when Marin “suddenly and forcefully attempted to slam her door


cause to arrest her. The district court rejected this argument, see Marin Moreno,
2009 WL 454548, at *6, and Marin does not contest the court’s probable cause
ruling on appeal. Probable cause to believe a suspect has committed a serious
crime, as already indicated, weighs in favor of a finding of exigency in the
circumstances here. See MacDonald, 916 F.2d at 769.
                                       21
closed upon seeing Agent O’Connor standing outside her room.” Marin

Moreno, 2009 WL 454548, at *6. As we have recognized, a hasty retreat into

one’s home on sight of police manifests guilt and may, in appropriate

circumstances, transform suspicion into probable cause. See United States v.

Martinez-Gonzalez, 686 F.2d 93, 99 (2d Cir. 1982) (finding probable cause

where suspect “looked frightened and ran back into the apartment” in

response to agents’ identifying themselves as police). “[D]eliberatively furtive

actions and flight at the approach of strangers or law officers,” as the Supreme

Court has said, “are strong indicia of mens rea, and when coupled with specific

knowledge on the part of the officer relating the suspect to the evidence of

crime, they are proper factors to be considered in the decision to make an

arrest.” Sibron v. State of New York, 392 U.S. 40, 66-67 (1968); see also

Illinois v. Wardlow, 528 U.S. 119, 124 (2000) (noting that “nervous, evasive

behavior” and “[h]eadlong flight -- wherever it occurs” are “not necessarily

indicative of wrongdoing, but [are] certainly suggestive of such”).

      Marin’s reaction to seeing O’Connor at her door, moreover, also created

an urgent need to enter Room 166 to ensure that evidence was not destroyed.

Marin’s unusual behavior -- “suddenly and forcefully” attempting to slam shut

a door she had just opened -- raised a legitimate concern that she would

                                       22
attempt to destroy or discard the drugs that the agents had probable cause to

believe were inside. See King, 131 S. Ct. at 1857 (noting that evidence

destruction is frequent in drug cases “because drugs may be easily destroyed

by flushing them down a toilet or rinsing them down a drain”); see also United

States v. Atherton, 936 F.2d 728, 732-33 (2d Cir. 1991) (noting that “we have

repeatedly upheld warrantless entries where law enforcement officers

reasonably believed that immediate access to the premises was necessary to

prevent loss of evidence” and collecting cases). This rendered Agent

O’Connor’s entry reasonable for Fourth Amendment purposes.

      Marin argues that the district court erred in finding an exigency here

because she believed that Agent O’Connor was a robber, not a DEA agent, and

thus Marin had no incentive to destroy her drugs. Marin further contends

that even if she realized the true identity of the officers, the Supreme Court’s

decision in King makes clear that an “occupant[’s] mere knowledge of the

presence of agents or police outside, without more, is insufficient to create

exigent circumstances warranting the officers’ entry into the home.” Marin

Reply Br. at 12. These arguments are unavailing.

      First, Marin did not testify at the suppression hearing and did not

claim, either on the day of her arrest or before the district court, that she

                                        23
believed Agent O’Connor -- attired as she was, in a white golf shirt and green

capri slacks -- was at Marin’s door to effect a daytime robbery. Moreover, we

find no clear error in the district court’s determination that Marin continued

to resist O’Connor’s efforts to calm her, even after O’Connor identified herself

as “police” -- a finding in some tension with Marin’s claim. In any event, even

assuming, arguendo, that Marin believed Agent O’Connor was a robber when

Marin attempted to slam the door, this fact makes no difference to the

propriety of the agents’ entry. The Supreme Court has made clear that “[a]n

action [by law enforcement agents] is ‘reasonable’ under the Fourth

Amendment . . . as long as the circumstances, viewed objectively, justify [the]

action.” Brigham City v. Stuart, 547 U.S. 398, 404 (2006) (last alteration in

original and internal quotation marks omitted).13 In light of Marin’s behavior

and the surrounding circumstances -- which would not have led a reasonable

officer to conclude that Marin believed robbers were at her door -- we find no

clear error in the district court’s conclusion that a reasonable, experienced

       13
         For this reason, Agent O’Connor’s stray remark at the suppression
hearing that Marin, after being subdued, “calmed down and she realized, I think,
that we were the police and not there to rob her” also makes no difference to the
inquiry. O’Connor’s subjective belief as to Marin’s state of mind (whatever it
might have been) is not germane to the question whether an exigency existed.
See id.; see also Klump, 536 F.3d at 119 (“[A]gents’ subjective motives [for
effecting a warrantless search] simply do not matter.”).
                                       24
officer would have recognized an urgent need to take action, regardless of

Marin’s undisclosed reasons for her conduct.

      Similarly (and contrary to Marin’s claim), the district court’s exigency

finding is not inconsistent with the recognition in King that when police

without a warrant knock on an individual’s door, that person “need not allow

the officers to enter the premises and may refuse to answer any questions at

any time.” King, 131 S. Ct. at 1862. To be clear, police may not knock on a

door and then “cry exigent circumstances whenever probable cause exists that

readily disposable drugs are in the home -- no matter what the response of the

resident happens to be.” United States v. Chambers, 395 F.3d 563, 576 (6th

Cir. 2005) (Sutton, J., dissenting). But as Judge Sutton recognized in

Chambers -- and as the Supreme Court reaffirmed in King -- where the

resident’s reaction to the appearance of officers is “the verbal, visual or aural

equivalent of ‘The police are here, destroy the drugs,’” the traditional rules

governing the exigent circumstances exception render entry reasonable. Id. at

577. Here, Marin did not simply refuse entry by the agents. Rather, as the

district court found, she attempted “suddenly and forcefully” to slam the door

in Agent O’Connor’s face and thereafter continued to struggle against her as

Agent O’Connor announced she was from the police. Marin Moreno, 2009 WL

                                        25
454548, at *6. Thus, contrary to Marin’s claim, this is not a case involving an

individual’s “knowledge of the presence of agents . . . without more.” Marin

Reply Br. at 12.

      Attempting to avoid this conclusion, Marin cites the Eighth Circuit’s

decision in United States v. Ramirez, 676 F.3d 755 (8th Cir. 2012), which

reversed a district court’s finding that exigent circumstances justified officers’

warrantless entry into a hotel room. The officers in Ramirez, however, first

attempted, without any evidence of exigency whatsoever, to enter the

defendant’s room with a key card, and then forced entry when the defendant

“attempt[ed] to shut the door” on their announcement they were police. Id. at

762. “[W]ithout more,” the Eighth Circuit concluded, merely shutting the door

“[did] not bolster the claim that it was reasonable to conclude that the

destruction of evidence was imminent.” Id. But Ramirez is simply inapposite

here. When the agents knocked on Marin’s door, they had probable cause to

believe she was at that moment or would imminently be delivering a kilogram

of heroin within the room. Marin responded to police, not by declining to

speak, but by “suddenly and forcefully attempt[ing] to slam her door closed

upon seeing Agent O’Connor standing outside her room,” Marin Moreno, 2009

WL 454548, at *6 -- thus creating a circumstance in which any reasonable,

                                        26
experienced officer would see “an urgent need to . . . take action.” Klump, 536

F.3d at 117-18.

      In sum, we are not left with the definite and firm conviction that the

district court erred in determining that exigent circumstances justified the

warrantless entry into Marin’s motel room. Indeed, we see no error, much less

clear error, in the district court’s conclusion as to exigency. Accordingly, we

reject Marin’s claim that the evidence seized from Room 166 should have been

suppressed as the tainted fruit of an unlawful entry.



2.    Consent

      Marin next contends that even assuming the warrantless entry into

Room 166 was justified by exigent circumstances, the heroin concealed in her

bags should still have been suppressed because her consent to search was not

voluntary. “The test of voluntariness is whether the consent was the product

of an essentially free and unconstrained choice by its maker,” United States v.

Arango-Correa, 851 F.2d 54, 57 (2d Cir. 1988), as opposed to “mere

acquiescence in a show of authority.” United States v. Wilson, 11 F.3d 346,

351 (2d Cir. 1993). Voluntariness “is a question of fact to be determined from

all of the surrounding circumstances.” Arango-Correa, 851 F.2d at 57. In

                                        27
considering Marin’s challenge, we view the evidence in the light most

favorable to the government and “will not reverse a finding of voluntary

consent except for clear error.” United States v. Snype, 441 F.3d 119, 131 (2d

Cir. 2006). We find no such error here.

      Marin argues that, in light of the forcible entry into her motel room by

armed agents who both subdued and handcuffed her, failing thereafter to

inform her that she was not required to consent, her oral and written consent

to search could not reasonably be deemed voluntary. To be sure, these factors

are germane to the voluntariness inquiry. In the totality of all the

circumstances, however, we see no basis for concluding that the district court

clearly erred in its consideration of them.

      We have repeatedly observed that neither the fact that a person is in

custody nor that she has been subjected to a display of force rules out a finding

of voluntariness. See id.; accord Ansaldi, 372 F.3d at 129 (holding that

handcuffing and display of guns by five or six officers to effectuate arrest did

not render consent to search involuntary); United States v. Kon Yu-Leung, 910

F.2d 33, 41 (2d Cir. 1990) (“[A] finding of coercion [does not] follow from the

fact that [the defendant] was handcuffed.”); Arango-Correa, 851 F.2d at 57-58

(noting that “[t]he fact that [the defendant] was in custody for five hours did

                                        28
not compel a finding that his consent was involuntary”). Here, sufficient time

elapsed between the agents’ initial entry into Marin’s room and her consent to

search for Marin to calm down after her initial, brief struggle with O’Connor

and Samilo. Indeed, it is undisputed from the record that Marin was calm

when agents asked her consent to search. Moreover, Marin did not allege

before the district court “that the agents used intimidating or coercive

language or gestures” in seeking her consent. Granted, agents did not

explicitly advise her that she could decline. “While knowledge of the right to

refuse consent is one factor to be taken into account,” however, “the

government need not establish such knowledge as the sine qua non of an

effective consent.” United States v. Drayton, 536 U.S. 194, 206-07 (2002)

(internal quotation marks omitted); see also Ansaldi, 372 F.3d at 129-30

(finding valid consent where defendant had been subjected to use of force, was

handcuffed, and was asked by agents “‘Do you mind if we search?’” and

defendant responded “‘Sure, go ahead’”). Knowledge of the right to refuse, as

we have said, “is not a requirement to a finding of voluntariness.” Garcia, 56

F.3d at 422.

      Here, Marin did not hesitate when the agents requested her consent but

immediately gave them permission to search her bags, volunteering that the

                                       29
bags had already been searched at the airport. Marin may have hoped to

dissuade the officers from searching with this information, or she may have

been confident that the heroin, secreted in carefully constructed perfume

canisters, would be overlooked, given that it had not been found before. At

any rate, the district court did not clearly err in considering that Marin’s

ready acquiescence to the agents’ first request and her volunteered

information that her bags had already been searched weighed against the

claim that “her free will was overcome.” Marin Moreno, 2009 WL 454548, at

*7.

      Marin points, finally, to the absence of Miranda warnings and to Agent

O’Connor’s statement to her that “if there’s something here that you want to

tell us or if there’s something here that shouldn’t be here it’s in your best

interest to tell us now while you can before we find it on our own.” She argues

that these factors strongly militate against the district court’s conclusion that

her consent was not coerced. Miranda warnings, however, are not a

prerequisite to obtaining a valid consent to search. See United States v.

Faruolo, 506 F.2d 490, 495 (2d Cir. 1974) (finding unpersuasive “[t]he

argument that Miranda warnings are a prerequisite to an effective consent to

search”). And although Marin argues that O’Connor’s statement effectively

                                        30
communicated “that refusing to consent would be futile, and such statements

are . . . inherently coercive,” the district court’s factual findings are to the

contrary.

      Agent Aceves carefully explained to Marin that the agents were seeking

her consent. In the district court’s words, “[a]fter providing a written Spanish

translation of the [consent] form to the defendant, and reading the form to her

in Spanish, Agent Aceves asked her if she understood the form, and she

replied that she did.” Marin Moreno, 2009 WL 454548, at *3. These actions

clearly communicated that Marin’s consent mattered -- so that the agents did

not intend then and there to conduct a search regardless of her response.14

And as Agent Aceves testified, when Marin was asked for consent to search,

“[s]he agreed,” and agreed immediately.

      In sum, we find no clear error in the district court’s holding that Marin’s

consent to search her motel room was voluntarily given. Marin provided oral

consent without hesitation. She was then provided with a consent form that

expressly noted she had been asked to permit a search of her luggage and

room; that affirmed she had not been threatened or forced in any way; and


        Agent Aceves testified that, pursuant to DEA procedure, if Marin had
       14

refused consent, the agents would have sought a search warrant -- a warrant for
which they clearly had probable cause.
                                          31
that concluded by stating that she freely consented. This form was not only

provided to her in writing, but was also read to her aloud. Marin affirmed

that she understood the form and she signed it without pause. As the district

court found, the atmosphere of the encounter between the agents and Marin

was not unduly hostile, and Marin has not alleged that the agents acted in an

intimidating or coercive manner in eliciting her consent. There is simply no

basis on this record to conclude that the district court clearly erred in holding

that Marin’s consent was voluntary.



                                  CONCLUSION

      We find no clear error in the district court’s ruling that the agents’

warrantless entry into Marin’s motel room was justified by exigent

circumstances. We similarly conclude that the district court did not clearly err

in determining that Marin’s consent to search her motel room and her luggage

was voluntarily given. We have considered all of Marin’s remaining

arguments and have rejected them as without merit. For the foregoing

reasons, we AFFIRM the judgment of the district court.




                                        32
SUSAN L. CARNEY, Circuit Judge, concurring:

      The majority has conducted a careful analysis in a difficult and highly fact-

specific case. Nonetheless, I find that I cannot join it in concluding that there was

no clear error in the district court’s ruling that exigent circumstances justified the

agents’ warrantless entry into Marin’s motel room. Because I do join, however, in

the majority’s determination that Marin’s consent to search was voluntary, and

because I conclude that the taint created by the unlawful entry was dissipated, I

concur in the majority’s decision to affirm the judgment of the district court.

      The “basic principle of Fourth Amendment law that searches and seizures

inside a home without a warrant are presumptively unreasonable,” Brigham City v.

Stuart, 547 U.S. 398, 403 (2006), applies equally to warrantless searches of a motel

room, see Stoner v. California, 376 U.S. 483, 490 (1964). A warrantless search that

is supported by both probable cause and exigent circumstances will overcome the

presumption of unreasonableness. See Kirk v. Louisiana, 536 U.S. 635, 638 (2002)

(per curiam). Although exigency in “the need to prevent the imminent destruction

of evidence has long been recognized as a sufficient justification for a warrantless

search,” Kentucky v. King, 131 S. Ct. 1849, 1856 (2011), the government bears “a

heavy burden” when attempting to demonstrate that such circumstances were

present when the search took place, Welsh v. Wisconsin, 466 U.S. 740, 749-50

(1984).

      The majority here concludes that Marin’s attempt to slam her motel room

door upon seeing O’Connor created an urgent need for the agents to enter the room

to ensure that Marin would not dispose of the drugs that the agents had probable
cause to believe were inside. I agree the agents had probable cause to believe that

Marin was a drug courier in possession of over a kilogram of heroin.1 I also agree

that Marin’s actions upon seeing, unexpectedly, O’Connor standing with the

chambermaid informs our analysis of whether an exigency existed. I am troubled,

however, that the majority’s finding of exigency ultimately appears to turn on the

speed and force with which Marin attempted to close her door when she saw

O’Connor, an un-uniformed stranger, standing there.

       As the majority notes, “[t]he core question is whether the facts, as they

appeared at the moment of entry, would lead a reasonable, experienced officer to

believe that there was an urgent need to . . . take action.” United States v. Klump,

536 F.3d 113, 117-18 (2d Cir. 2008). As I see it, the determinative “moment of

entry” in this case occurred when O’Connor “put [her] hand up to block” Marin from

closing the door. Tr. of Suppression Hr’g at 96:3-4; see also Maj. Op. at 8. As the

Supreme Court recently cautioned in Kentucky v. King, however, even if an

occupant has opened the door to law enforcement officers, that “occupant need not

allow the officers to enter the premises and may refuse to answer any questions at

any time.” 131 S.Ct. at 1862. When the housekeeper knocked and Marin began to

open the door, Marin had no obligation to speak to O’Connor; nor was she required

to allow O’Connor to enter her room.




       1
         Probable cause alone, of course, does not establish exigency. See Welsh, 466 U.S. at 753
(recognizing that “no exigency is created simply because there is probable cause to believe that a
serious crime has been committed”).

                                                  2
      What, then, were the exigent circumstances that justified the agents’

warrantless entry as Marin shut the door? The majority asserts that Marin created

an exigency by “suddenly and forcefully attempting to slam shut a door she had just

opened.” Maj. Op. at 22 (internal quotation marks omitted). It characterizes

Marin’s actions as “the verbal, visual, or aural equivalent of ‘The Police are here,

destroy the drugs.’” Maj. Op. at 25 (quoting United States v. Chambers, 395 F.3d

563, 577 (6th Cir. 2005) (Sutton, J., dissenting)).

      With respect, I disagree. Under Kentucky v. King, as one of our sister

circuits has held, a hotel guest like Marin was “within [her] bounds in [her] attempt

to close the door” on O’Connor and the chambermaid. United States v. Ramirez,

676 F.3d 755, 762 (8th Cir. 2012) (discussing Kentucky v. King and making

alternative finding that suspect’s attempt to close hotel door on officers waiting

outside was insufficient to establish exigent circumstances justifying warrantless

entry). “That [she] did so, without more, does not bolster the claim that it was

reasonable to conclude that the destruction of evidence was imminent.” Ramirez,

676 F.3d at 762. I am concerned that the majority’s rationale here could be invoked

“whenever probable cause exists that readily disposable drugs are in the home” and

a defendant acts in an abrupt or uncivil manner in denying entry to law

enforcement officers. Chambers, 395 F.3d at 576 (Sutton, J., dissenting).

      Further, I question whether the circumstances in this case, as they appeared

when O’Connor forcibly entered Marin’s room, provided an objectively reasonable

basis for believing that Marin understood the stranger at her door to be a law

                                           3
enforcement agent. If not, it is difficult to interpret Marin’s closing the door with

force as signaling her resistance to the police and foretelling an attempt to destroy

evidence. Indeed, O’Connor was dressed in plain clothes – an untucked short-

sleeved white golf shirt and green capri slacks. When Marin attempted to slam the

door, O’Connor had not identified herself as “police.” And although O’Connor wore

a two-and-one-half inch gold badge on her hip, there was no testimony to suggest

that Marin had looked down toward the badge or that the badge was even visible

given the position of the parties and the matter of seconds between when Marin

opened the door and when she attempted to close it.2 For these reasons, I harbor

serious doubts that exigent circumstances justified the agents’ warrantless entry,

and I believe the district court clearly erred in its analysis concluding to the

contrary.

       Despite my departure from its reasoning on the lawfulness of the entry, I join

in the majority’s result because I conclude that the government has shown that

Marin’s subsequent consent to search the room was both voluntary and also

“sufficiently an act of free will to purge the primary taint of the unlawful invasion.”

Brown v. Illinois, 422 U.S. 590, 599 (1975).

       We have observed that “[w]hen a consent to search follows an illegal entry,”

the government must “show more than the voluntariness of the consent; it must

also demonstrate that the taint of the initial entry has been dissipated in order to


       2
        The record does not reflect whether the housekeeper was standing next to or in front of
O’Connor or whether O’Connor’s untucked shirt obscured her badge from view.

                                                 4
admit evidence seized following the illegal entry.” United States v. Snype, 441 F.3d

119, 132 (2d Cir. 2006). For the reasons set forth by the majority, I find no clear

error in the district court’s ruling that Marin’s consent to search her motel room

was voluntarily given. The separate but overlapping taint inquiry, which (in light

of its ruling on the alleged exigency) the district court did not reach, presents a

more difficult question.

        In assessing “whether the taint of [an] illegal entry was sufficiently

diminished, we consider four factors: whether a Miranda warning was given, the

‘temporal proximity’ of the illegal entry and the alleged consent, ‘the presence of

intervening circumstances,’ and ‘the purpose and flagrancy of the official

misconduct.’” United States v. Oguns, 921 F.2d 442, 447 (2d Cir. 1990) (quoting

Brown, 422 U.S. at 603-04). Here, the record reveals the following.

        First, Marin did not receive a Miranda warning in the interim between the

entry and the search of her suitcases, and the record provides no reason for the

omission.3 The rights secured by Miranda were not fully explained through the

consent form. But second, approximately fifteen minutes had elapsed between the

very brief, tumultuous entry and Marin’s consent to search. The record reflects that

during this interlude Marin had “calmed down.” Tr. of Suppression Hrg. at 35:20.

Although handcuffed, she engaged in conversation in Spanish with Agent Aceves

during this time. Marin Moreno, 2009 WL 454548, at *3. Third, when Aceves


        3
           In addition, O’Connor told Marin that “if there’s something here that you want to tell us or
if there’s something here that shouldn’t be here it’s in your best interest to tell us now while you can
before we find it on our own.” Tr. of Suppression Hrg. at 104:12-15; Maj. Op. at 30.

                                                   5
requested Marin’s consent to search the room, she “agreed immediately.” Tr. of

Suppression Hr’g at 36:7. In addition, she told the agents that she had been

searched by customs officials upon her arrival at the airport that morning –

implying, it seems, that she was not concerned that the agents would find any item

of consequence, and underscoring the voluntariness of her consent. Tr. of

Suppression Hr’g at 36:9-10. And, after Aceves translated its contents into Spanish

for her, line by line, and wrote the Spanish version out for her on the forms, Marin

agreed to and did sign a printed consent to search. The form stated, inter alia, “I

have not been threatened, nor forced in any way,” and “I freely consent to this

search.” Suppression Hr’g, Gvt. Ex. 1. Finally, our panel has been directed to no

evidence suggesting that the agents’ conduct in entering or searching was

“flagrantly illegal or fraught with evil purpose.” Oguns, 921 F.2d at 448.

      Although the question is close, I conclude that these circumstances,

particularly Marin’s comment about her earlier uneventful passage through

customs, sufficed to “sever the causal connection between [the] entry and [the]

subsequent consent to search.” Snype, 441 F.3d at 135; cf. id. (finding dissipation of

taint where “intervening events,” including the defendant’s written consent to

search, “effectively replaced the fearful atmosphere of the initial forcible entry with

relative calm”).

      I therefore concur in the majority’s affirmance of the district court’s

judgment.




                                           6
