                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
                    UNITED STATES COURT OF APPEALS
                                                              March 5, 2007
                        FOR THE FIFTH CIRCUIT
                                                         Charles R. Fulbruge III
                                                                 Clerk


                               05-20560
                           Summary Calendar



     UNITED STATES OF AMERICA,

                                        Plaintiff-Appellee,

                                  v.

     JAIME FABIAN,

                                        Defendant-Appellant.



         Appeal from the United States District Court for the
                  Southern District of Texas, Houston
                             4:02-CR-353-2



Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.

PER CURIAM:*


     In early May of 2002, a confidential source (“CS”) brokered a

drug transaction between Javier Gonzalez, a co-defendant in the

court below, and an undercover DEA agent.       The agent was to pay

Gonzalez $80,000 in exchange for five kilograms of cocaine.          The

sale was originally expected to occur on May 9, 2002, but it was

rescheduled for May 29.     On that day, the CS and the undercover

     *
       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this opinion should not be published and is not precedent except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.
agent reported to a nightclub where the three men had agreed to

meet.   The CS went inside while the undercover agent waited in the

car.    Additional agents were also stationed outside, expecting to

arrest Gonzalez at the scene.   The plan was for the CS to see the

cocaine, then claim that the money was outside and go to retrieve

it, at which point the agents would sweep in and arrest Gonzalez.

However, less than five minutes later, the CS and Gonzalez exited

the club and got into a car.     Gonzalez drove to a residence in

Houston owned by the defendant, Jaime Fabian.     They waited in the

car for a short time until Fabian and another man, Gustavo Salgado,

arrived, at which point all four men went into the house together.

       The police had expected the transaction to occur at the

nightclub, and they scrambled to keep surveillance on Gonzalez and

the CS as they drove to the house and went inside.      Within a few

minutes of entering the home, Gonzalez showed the CS a stash of

cocaine.    Then the two left the home, ostensibly to retrieve the

$80,000.    That is when the agents decided not to get a search

warrant, and instead swooped in.      They were not subtle about it.

The agents drove a car up on the front lawn, tires screeching, and

then yelled loudly that they were the “police.”       They arrested

Gonzalez and the CS in front of the house before they reached the

car. They then knocked on the front door, announced that they were

police, and entered.    They found Fabian in the living room, and

Salgado in a bedroom.   In the laundry room they found six bundles

of cocaine in plain view.

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     At a suppression hearing before trial, Fabian argued that

there were not sufficient exigent circumstances to justify the

warrantless entry into the home.         He also argued that if exigent

circumstances were present, they were manufactured by the police,

who decided to arrest Gonzalez at the scene, and to do so loudly

and dramatically, rather than follow him back to the nightclub and

arrest him there.       The district court carefully considered the

exigency of the situation and ruled that the entry was justified.

Specifically, the court found that the arrest was conducted in a

manner loud enough to alert the entire neighborhood, which created

sufficient   exigency     to   justify   the   immediate   entry    into     the

residence.   The court also found that the exigency was not created

by the agents, but by Gonzalez’s attempt to leave in his car with

Fabian.   On appeal, Fabian urges the same two arguments regarding

exigent circumstances.

     In   reviewing   a   district   court’s     denial    of   a   motion    to

suppress, we review the district court’s findings of fact for clear

error and its legal conclusions de novo.          United States v. Lopez-

Moreno, 420 F.3d 420, 429 (5th Cir. 2005) (citations omitted).               The

presence of exigent circumstances is a finding of fact, so our

inquiry is whether that finding was clearly erroneous.                 United

States v. Richard, 994 F.2d 244, 248 (5th Cir. 1993) (citations

omitted). Exigent circumstances include hot pursuit of a suspected

felon, the possibility that evidence may be removed or destroyed,


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and danger to the lives of officers or others.         Id. at 247–48.    The

district court may consider several factors in determining whether

exigent circumstances are present, including (1) the degree of

urgency involved and the amount of time necessary to obtain a

warrant; (2) the reasonable belief that the contraband is about to

be removed; (3) the possibility of danger to the police officers

guarding the site while a warrant is sought; (4) information

indicating the possessors of the contraband are aware that the

police are on their trail; and (5) the ready destructability of the

contraband.   Id. at 248 (citations omitted).           Regardless of the

urgency of the situation, however, exigent circumstances will not

pass Fourth Amendment muster if the officers deliberately create

them.   Id. (citations omitted).

     In this case, the district court did not clearly err in

finding exigent circumstances justifying the warrantless entry.

One agent testified that when the agents arrested Gonzalez, they

drove up on the front lawn and blocked him from reaching his

vehicle.   Another agent testified that the process was very loud,

and that the entire neighborhood might have heard it.           In light of

these facts, it is entirely plausible that Fabian and Salgado, who

were still inside the home, could have heard the commotion and

either attempted     to   flee   the   scene   or   destroy   the   evidence.

Therefore, we cannot say that the court’s ruling on exigency was

clearly erroneous.


                                       4
     It is a closer question whether the agents themselves created

the exigency, since they chose to carry out the arrest on the front

lawn in such a dramatic fashion.          Here again, however, we find the

court’s ruling entirely sound.        The agents testified that if they

had let Gonzalez and the CS take to the road again, they would have

lost considerable tactical control over the situation and exposed

the CS to unwarranted risk.         The district court was persuaded by

this testimony and concluded that Gonzalez’s departure, not the

agents, created the exigency in the first instance.               The defendant

urges that it would have been better to allow Gonzalez to return to

the nightclub and arrest him there.              Even if we agreed with the

defendant, we certainly would not say that the district court’s

conclusion was clearly erroneous.             There was ample reason to

believe that the agents’ decision to arrest Gonzalez at the house

was safer   for   both   the   CS   and    the    agents,   and   there   is   no

indication that the agents acted any more dramatic than usual in

effecting that arrest.

     In light of the foregoing, the district court’s ruling is

AFFIRMED.




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