United States v. Cota-Lopez , 104 F. App'x 931 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
June 25, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-50240
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MELCHOR COTA-LOPEZ,
Defendant-Appellant.
Appeal from the United States District Court
For the Western District of Texas
(EP-02-CR-1072-1-PRM)
Before HIGGINBOTHAM, SMITH, and WIENER, Circuit Judges.
PER CURIAM:*
Melchor Cota-Lopez was convicted in a bench trial of
conspiracy to possess with intent to distribute and possession with
intent to distribute five kilograms or more of cocaine and
maintaining a place for the purpose of distributing a controlled
substance. He was sentenced to concurrent terms of 144 months’
imprisonment, concurrent terms of three and five years’ supervised
release, and a $10,000 fine.
*
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this opinion should not be published and is not precedent except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.
I
Cota-Lopez challenges the district court’s denial of his
motion to suppress evidence discovered during a warrantless search
of his residence. We accept the district court’s findings on a
motion to suppress unless clearly erroneous, but we review de novo
the district court’s ultimate conclusion on the constitutionality
of the law enforcement action.1 We consider the evidence in the
light most favorable to the prevailing party.2
Cota-Lopez was arrested following a consent search at his
residence on May 13, 2002. Earlier that day, narcotics officers
were conducting routine surveillance at a self-packing store when
they observed Cota-Lopez arrive with three other men to collect
boxes. The officers followed the men, watching as they visited a
hardware store and travel agency before returning to Cota-Lopez’s
residence. Two of the men subsequently left the residence, and the
officers eventually stopped them when they made an improper lane
change at an intersection near the residence. They gave
conflicting responses to the officers’ questions, but both denied
having been at Cota-Lopez’s residence.
The officers decided to conduct a knock-and-talk at the
residence. Since there was no direct path to the front door, the
1
United States v. Chavez-Villarreal, 3 F.3d 124, 126 (5th
Cir. 1993).
2
United States v. Ishamael, 48 F.3d 850, 853 (5th Cir. 1995).
2
officers approached the house by walking up the driveway toward the
garage, which was open. As they neared the garage, they were
greeted by Carmine Cota-Lopez, who was standing just inside the
inner screen door. The officers entered the garage, and Carmine
invited the officers inside.
As the officers entered the house, another officer arrived at
the scene with a drug-sniffing dog. He remained on the sidewalk
outside the residence, ready to assist in the event that permission
was granted to search the residence. While on the sidewalk,
however, the narcotics dog immediately detected an odor and pulled
the officer toward the front door of the Residence. Once there,
she gave a full alert to the presence of narcotics.
Inside the house, the officers spoke with Cota-Lopez in an
effort to gain consent to search the house. According to the
officers, Cota-Lopez appeared excited and shaken, and he asked the
officers whether they had a search warrant. The officers admitted
that they did not, but they told him that they had a positive
canine alert on the house and that they felt they had enough
information to obtain a warrant. The officers told Cota-Lopez that
they would leave to try to obtain a warrant if Cota-Lopez did not
feel comfortable consenting. Cota-Lopez consented, leading the
officers to a back room containing over 800 pounds of cocaine,
cash, and drug paraphernalia.
3
II
Cota-Lopez contends that the police officers’ entry to his
garage was illegal and that his subsequent consent to a search of
the residence must be suppressed as fruit of the illegal entry. He
asserts that the canine sniff of the front door of his residence
was an illegal search and that the police used the illegal sniff to
coerce his consent to a search of the residence.
“A warrantless intrusion into an individual’s home is
presumptively unreasonable unless the person consents or probable
cause and exigent circumstances justify the encroachment.”3 The
protection afforded by the Fourth Amendment extends to a garage
that is connected to a person’s residence.4
When consent is considered to have validated a warrantless
search, we must examine “the totality of the circumstances to
determine whether the consent was knowingly and voluntarily
given.”5 Whether consent to search was voluntary or was the
product of duress or coercion is a question of fact based on the
totality of the circumstances.6
3
United States v. Jones, 239 F.3d 716, 719 (5th Cir. 2001).
4
See Taylor v. United States, 286 U.S. 1, 6 (1932).
5
United States v. Davis, 749 F.2d 292, 294 (5th Cir. 1985).
6
United States v. Solis, 299 F.3d 420, 436 (5th Cir.), cert.
denied, 537 U.S. 1060, 1094 (2002); United States v. Tompkins, 130
F.3d 117, 121 (5th Cir. 1997).
4
Cota-Lopez concedes that as the police walked up the driveway,
the garage door was open; that as the officers approached, they
could see his wife standing behind the screen door inside the
garage; and that the officers entered the garage area after his
wife opened the screen door and greeted them. Mrs. Cota-Lopez was
not in custody, and she more than cooperated with the officers by
greeting them and inviting them to approach and enter the garage
and the residence. Under the totality of the circumstances, Cota-
Lopez has not shown that the officers’ entry to the garage violated
the Fourth Amendment.7
Cota-Lopez next asserts that the police used an illegal dog
search to coerce his consent to a search of his house. We need not
address whether the canine sniff was a search, however, because we
find that Cota-Lopez’s consent was freely and voluntarily given.
The voluntariness of a suspect’s consent is a question of fact
to be determined from the totality of the circumstances surrounding
the search.8 To determine whether consent is voluntarily given, we
examine a number of factors, including: “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 consent; 5) the defendant’s education and
7
See Solis, 299 F.3d at 436; Tompkins, 130 F.3d at 121.
8
Ohio v. Robinette, 519 U.S. 33, 40 (1996).
5
intelligence; and 6) the defendant’s belief that no incriminating
evidence will be found.”9 Each factor supports the district
court’s finding that Cota-Lopez’s consent was voluntarily given.
Cota-Lopez was not in custody when the police officers sought his
consent to search his residence. The police did not use coercive
or forceful tactics. The police readily admitted that they did not
have a warrant, informed Cota-Lopez that he could refuse to consent
to a search, and agreed to leave if he did so. As the district
court found, “Detective Serrano explained to defendant Melchor that
if he did not feel comfortable giving consent to the search, that
the officers would leave to secure a search warrant... he was
specifically informed that his cooperation was voluntary....”
Under the totality of the circumstances, we can discern no clear
error in the district court’s conclusion that Cota-Lopez’s implied
consent to the search of his residence was voluntary.10
Cota-Lopez does not dispute any of these facts, but rather
focuses solely on the comment by one of the officers that a canine
had alerted to the presence of drugs in the house. Cota-Lopez
urges that this canine sniff was an illegal search and that his
consent was tainted. Only one circuit has held that a dog sniff at
9
United States v. Hernandez, 279 F.3d 302, 307 (5th Cir.
2002) (citing United States v. Jones, 234 F.3d 234, 242 (5th Cir.
2000)).
10
See Tompkins, 130 F.3d at 121; United States v. Richard, 994
F.2d 244, 251 (5th Cir. 1993).
6
the front door of a dwelling may be a search.11 In United States
v. Thomas, police used a narcotics dog to sniff for narcotics
outside an apartment door. Based largely on the dog’s alert, the
police then obtained a warrant to search the apartment. The Second
Circuit concluded that the sniff was an illegal search and that the
warrant lacked probable cause.12 However, the court upheld the
subsequent seizure of evidence because the police acted in good
faith reliance on the warrant.
We need not decide whether the sniff at Cota-Lopez’s front
door was a search because his subsequent consent was voluntary and
independent.13 The officers stated only that, based upon the dog
sniff, they “felt” that they had enough to obtain a search warrant
and that they would attempt do so if Cota-Lopez refused consent;
the officer never stated that the sniff was sufficient or that they
would be successful in procuring a warrant.14 Nor did the police
deceive or threaten Cota-Lopez. To the contrary, the officers made
it clear that Cota-Lopez was free to refuse consent and that the
11
United States v. Thomas, 757 F.2d 1359 (2d Cir. 1985).
12
The opinion did not discuss whether the door to the
apartment was from a public street or was accessible only after
entering an apartment building.
13
United States v. Chavez-Villarreal, 3 F.3d 124, 127 (5th
Cir. 1993).
14
In this case, however, the officers did have sufficient
probable cause to obtain a warrant: they had conducted extensive
surveillance, observed suspicious activity, and obtained a dog
indication from the sidewalk outside Cota-Lopez’s house.
7
officers would leave if he did so. On these facts, Cota-Lopez’s
consent was voluntary.
The ultimate question in this case is whether there was
consent – that is so even if the sniff were a search, a weak
proposition on these facts at best.
III
The judgment of the district court is AFFIRMED.
8