   Case: 09-40709       Document: 00511216129          Page: 1    Date Filed: 08/26/2010




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

                                                 FILED
                                                                           August 26, 2010
                                       No. 09-40709
                                                                            Lyle W. Cayce
                                                                                 Clerk



UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee,
versus

MELINDA HERNANDEZ,

                                                   Defendant-Appellant.




                    Appeal from the United States District Court
                         for the Southern District of Texas
                                 No. 5:09-CR-359-1




Before JOLLY, SMITH and OWEN, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*


       Melinda Hernandez appeals her guilty-plea conviction of harboring an ille-
gal alien for financial gain, on the ground that evidence discovered at her resi-
dence was obtained by an unlawful search. We agree that the search of the resi-


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-40709   Document: 00511216129      Page: 2    Date Filed: 08/26/2010

                                  No. 09-40709

dence violated the Fourth Amendment. Because Hernandez’s guilty plea was
conditioned on her right to appeal the order denying her motion to suppress, we
reverse the order denying suppression, vacate the conviction and sentence, and
remand.


                                        I.
      Local police received an anonymous tip that ten to fifteen illegal aliens
were being held against their will at a residential trailer owned by Hernandez.
The police coordinated with federal Immigration and Customs Enforcement
(“ICE”) agents to investigate.
      The officers and agents (collectively, “the officers”) arrived at Hernandez’s
trailer around midnight. All was dark and quiet. The government concedes that
at that time the officers did not have probable cause to obtain a search warrant,
nor were there exigent circumstances to support a search.
      The officers initiated a knock-and-talk investigation, announcing their
presence at the front door. When they received no response, they circled the
trailer and banged on doors and windows, shouting that police were present and
that the occupants should open the door. After a few minutes, the officers heard
movement inside. They tried to open the front door but found the outer screen
door locked. Undeterred, one of them broke the glass pane of the screen door
with a baton. At this point, they heard a womanSSHernandezSSscream that she
was coming to open the door.
      Hernandez met ICE agent Fred Garza at the door. She noticed that the
officers held drawn weapons, though there is no evidence that they were raised.
There is a dispute about what exactly transpired at the door, but the record sug-
gests that in a brief exchange, Garza told Hernandez about the report of several
aliens’ being held in the trailer. Hernandez told Garza that no one was being
held against his will but also admittedSSwhether before or after officers entered

                                        2
   Case: 09-40709    Document: 00511216129     Page: 3   Date Filed: 08/26/2010

                                  No. 09-40709

the home is uncertainSSthat at least one illegal alien, a friend, was present. The
government contends that Garza asked Hernandez for permission to enter the
residence and that she consented.
      The officers entered and searched the trailer. They discovered her boy-
friend (Sergio Guadalupe Ayala), her children, and two illegal aliens (Luis Alber-
to Andrade-Quezada and his nephew, Jose Moises Regalado-Soto, a fourteen-
year-old minor). The officers arrested Hernandez and Ayala. Everyone waited
at the trailer for about twenty to thirty minutes until Hernandez’s mother could
come pick up the children.
      The officers took Hernandez, Ayala, Andrade-Quesada, and Regalado to
an ICE office for questioning. Hernandez and Ayala were informed of their Mir-
anda rights but waived them, and each made statements admitting that Her-
nandez had allowed Andrade-Quesada and Regalado to stay in her trailer for the
previous nine days, despite knowing that they were illegal aliens. Andrade-Que-
sada also made a statement to that effect and indicated that he had agreed to
pay Hernandez $150 per month while he and Regalado stayed with her.
      Hernandez was charged with harboring an illegal alien for financial gain
in violation of 8 U.S.C. § 1324 and 18 U.S.C. § 2. She moved to suppress all evi-
dence obtained as a result of the search of her trailer, alleging that the search
violated the Fourth Amendment.
      The district court held a suppression hearing. At the outset, Hernandez’s
counsel raised the issue of the post-arrest statements made by Hernandez, Aya-
la, and Andrade-Quesada at the ICE office. Counsel conceded that if those state-
ments were admissible, the motion to suppress evidence at the trailer was futile,
because the government would still have sufficient evidence to convict Hernan-
dez. Rather than decide the admissibility of the statements at the ICE office, the
court elected to address the motion to suppress the trailer evidence.
      After hearing testimony and arguments, the court denied the motion to

                                        3
   Case: 09-40709    Document: 00511216129       Page: 4   Date Filed: 08/26/2010

                                   No. 09-40709

suppress. It did not address the legality of the officers’ knock-and-talk methods
but instead dealt exclusively with the question whether Hernandez’s consent
given to Garza was voluntary. The court acknowledged that, given the circum-
stances of Garza’s request, there was a possibility that “somebody would think
that they have no right to refuse entrance.” Nevertheless, the court reasoned
that the only out-of-the-ordinary action taken by the officers was breaking the
glass on Hernandez’s door. The court concluded that that action alone did not
support a finding of involuntary consent.
      Following the denial of her motion to suppress, Hernandez pleaded guilty.
She signed a conditional plea agreement, expressly reserving the right to appeal
the suppression issue.


                                         II.
      In an appeal of a denial of a motion to suppress, we review questions of
law de novo and factual questions for clear error. United States v. Mata, 517
F.3d 279, 284 (5th Cir. 2008). We may affirm on any basis established by the
record. Id.
      The district court found that Hernandez gave voluntary consent to search
her trailer. The court applied our totality-of-the-circumstances test, containing
six factors: (1) the voluntariness of the defendant’s custodial status; (2) the pres-
ence of coercive police procedures; (3) the extent and level of the defendant’s co-
operation with police; (4) his awareness of the right to refuse to consent; (5) his
education and intelligence; and (6) his belief that no incriminating evidence will
be found. Id. at 290.
      Hernandez argues, however, that the district court erred by not first con-
sidering the legality of the officers’ conduct before she consented to the search.
We agree. When a request for consent is preceded by an illegal search or seiz-
ure, a different analysis applies. “[I]f an individual gives consent [to search]

                                         4
   Case: 09-40709    Document: 00511216129      Page: 5    Date Filed: 08/26/2010

                                  No. 09-40709

after being subject to an initial unconstitutional search, the consent is valid only
if it was an independent act of free will, breaking the causal chain between the
consent and the constitutional violation.” United States v. Gomez-Moreno, 479
F.3d 350, 357 (5th Cir. 2007).
      The officers’ conduct was egregious. The purpose of a knock-and-talk in-
vestigation is “to make investigatory inquiry, or, if officers reasonably suspect
criminal activity, to gain the occupants’ consent to search.” Id. at 355. “The pur-
pose . . . is not to create a show of force, nor to make demands on occupants, nor
to raid a residence.” Id.
      Gomez-Moreno also involved a motion to suppress the fruits of a warrant-
less knock-and-talk investigation that occurred after the defendant had consent-
ed to a search. A two-structure residence was suspectedSSwithout probable
causeSSof being used to harbor illegal aliens. Officers first announced their pres-
ence and received no response, though they could hear movement inside one of
the structures and could see people through the windows in the other. The offi-
cers demanded entry and tried to open the door. A man ran outside, then back
inside, the first structure. The officers followed him in, pulled him back out, and
arrested him and the other occupants, including the owner of the residence. The
officers gave the owner a Miranda warning and asked whether she was harbor-
ing illegal aliens. When she admitted that she was, the officers made threaten-
ing statements and obtained her cooperation in persuading the occupants of the
second structure to come outside. The owner later signed a written consent to
search.
      Like the court in this case, the district court in Gomez-Moreno passed over
the question of the officers’ conduct occurring before the consent and addressed
only whether the defendant’s consent was voluntary. The court denied the own-
er’s motion to suppress. We reversed:



                                         5
   Case: 09-40709       Document: 00511216129          Page: 6     Date Filed: 08/26/2010

                                       No. 09-40709

       When officers demand entry into a home without a warrant, they
       have gone beyond the reasonable ‘knock and talk’ strategy of inves-
       tigation. To have conducted a valid, reasonable ‘knock and talk,’ the
       officers could have knocked on the front door . . . and awaited a re-
       sponse; they might have then knocked on the back door . . . . When
       no one answered, the officers should have ended the ‘knock and talk’
       and changed their strategy by retreating cautiously, seeking a
       search warrant, or conducting further surveillance.


Id. at 355-56. We specifically noted the illegality of the officers’ attempt to open
the residence door. Id. at 355. We also held that the government could not ar-
gue that the suspect’s exit and re-entry into the residence created exigent cir-
cumstances for the officers to conduct a search. The officers could not, through
an illegal search, create the exigent circumstances that would then justify entry.
Id. at 358.
       Our holding in Gomez-Moreno applies almost precisely to this case. The
officers’ conduct during their knock-and-talkSSbanging on doors and windows
while demanding entry, attempting a forced entry by breaking the glass on Her-
nandez’s door, then relying on her admission that an illegal alien was present
as probable cause to enterSSviolated the Fourth Amendment.
       The district court should have acknowledged that the officers’ knock-and-
talk conduct was an unreasonable search. Had it done so, the court then would
have proceeded not to the six-factor voluntariness analysis of Hernandez’s con-
sent, but instead to the alternative analysis of whether her consent was an inde-
pendent act of free will, breaking the chain of causation between the constitu-
tional violation and the consent. United States v. Hernandez, 279 F.3d 302, 307
(5th Cir. 2002). Courts consider that question by weighing three factors 1 : (1) the
temporal proximity of the illegal conduct and the consent; (2) the presence of


       1
        Our “independent act of free will” analysis is a specific application of the attenuation
exception to the fruit-of-the-poisonous tree doctrine. See Brown v. Illinois, 422 U.S. 590, 603-
04 (1975).

                                               6
   Case: 09-40709       Document: 00511216129           Page: 7     Date Filed: 08/26/2010

                                        No. 09-40709

intervening circumstances; and (3) the purpose and flagrancy of the initial mis-
conduct. Id.
       Those factors all weigh in favor of Hernandez. There was almost no time
between the officers’ flagrant and illegal conduct and Hernandez’s consent, so
there were no intervening circumstances.
       In short, the motion to suppress should have been granted with respect to
any evidence discovered on site at the trailer. The court then would have pro-
ceeded to the question left unanswered by the district courtSSwhether the state-
ments made by Hernandez and Ayala, after waiving their Miranda rights at the
ICE office, and the statement made by Andrade-Quesada, were admissible.
       Because the district court has not addressed that issue, we REVERSE the
order denying suppression, VACATE the conviction (which was based on a condi-
tional plea of guilty) and the sentence, and REMAND. We place no limitations
on what proceedings should occur on remand, and we express no view on what
decisions the district court should make.2




       2
       In its brief, to which Hernandez did not respond by filing a reply brief, the government
makes the following argument:

          In New York v. Harris, 495 U.S. 14, 15-21 (1990), the Supreme Court held
       that a post-Miranda confession made at the police station after a warrantless
       arrest, subsequent to a warrantless, nonconsensual entry into the defendant’s
       home, was admissible against the defendant because probable cause existed for
       his arrest . . . .

          . . . This reasoning controls the present case regardless of whether the search
       of Hernandez’s consent to search was voluntary.

         . . . [A]s soon as Hernandez told Special Agent Garza at the doorway that she
       had at least one alien in the house, the officers had probable cause to arrest her.
       Therefore, assuming arguendo that she did not voluntarily consent to the
       search, her post-Miranda confession at the ICE station would still be admissible
       against her, thus effectively mooting the motion to suppress.

(Footnote omitted.) The district court is free to address this argument on remand.

                                               7
