United States v. Rodea ( 1996 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 96-40018
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
versus
JOSE RODEA, JR.; JOSE RODEA-HERNANDEZ,
Defendants-Appellees.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
_________________________________________________________________
December 24, 1996
Before BARKSDALE, EMILIO M. GARZA, and BENAVIDES, Circuit Judges.
RHESA HAWKINS BARKSDALE, Circuit Judge:
Primarily at issue is the exigent circumstances exception to
the Fourth Amendment warrant requirement. The United States
appeals the suppression (1) of evidence seized in the search of a
mobile home occupied by, among others, appellees Jose Rodea-
Hernandez (Rodea-Hernandez) and Jose Rodea, Jr. (Rodea), and (2) of
statements made by Rodea. We REVERSE and REMAND.
I.
In September 1995, assisted by a confidential informant, Drug
Enforcement Administration Special Agent Silva, acting in an
undercover capacity, arranged to purchase marijuana from appellees’
co-defendant Juan Lopez-Gonzalez. After a meeting between the
informant, the Agent, and Lopez-Gonzalez, at which the marijuana
price was agreed upon, surveillance units followed Lopez-Gonzalez,
the informant, and another of appellees’ co-defendants to a mobile
home in an isolated, rural area.
After the informant advised Agent Silva that the marijuana had
been delivered to that home, but before further arrangements for
consummation of the transaction could be made, it was determined
that Lopez-Gonzalez, who was in the informant’s car on the way to
meet again with Agent Silva, had detected one of the Agents
conducting surveillance. Lopez-Gonzalez was arrested because Agent
Silva feared that he would alert the individuals at the mobile
home. Believing that those individuals would become suspicious
when Lopez-Gonzalez did not contact them or return to the mobile
home, and that they might attempt to flee and/or remove the
marijuana, Agent Silva directed the Agents conducting surveillance
to approach the mobile home and seek consent to search it.
As the Agents approached the home, one occupant fled, and the
other occupants, including the two appellees, refused initially to
exit. Eventually, the appellees exited voluntarily, but the
remaining occupants had to be removed from the mobile home by the
Agents. All were arrested. The Agents conducted a protective
sweep to ensure that no one remained in the mobile home.
After being arrested, Rodea-Hernandez consented to a search
of the mobile home; 459 pounds of marijuana, scales, and drug
ledgers were seized, but no weapons were found. Post-arrest, Rodea
made a statement outside the mobile home; and he and Rodea-
Hernandez made statements at the DEA offices.
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Rodea and Rodea-Hernandez (and five others, all of whom have
pleaded guilty) were charged with conspiracy to possess with the
intent to distribute marijuana, in violation of 21 U.S.C. §§
841(a)(1), 841(b)(1)(B), and 846; and with possession of marijuana
with the intent to distribute, in violation of 21 U.S.C. §
841(a)(1) and 841(b)(1)(B). Suppression of appellees’ statements
and the evidence seized during the search was sought on the bases
that the Agents did not have probable cause to search; the
Government created the exigent circumstances, if any, justifying
the entry; Rodea-Hernandez’s consent to search was involuntary,
and his statements were tainted by the Agents’ prior unlawful
conduct; and Rodea did not receive Miranda warnings prior to making
his statements, he was pressured by the Agents, and his statements
were the fruit of an illegal search. In response, the Government
claimed the exigent circumstances and consent exceptions to the
Fourth Amendment’s warrant requirement.
Following a suppression hearing on December 4 and 5, 1995, the
district court granted Rodea-Hernandez’s motion to suppress his
statements, but denied the motions in all other respects. (The
Government does not appeal the suppression of Rodea-Hernandez’s
statements.) But, three days after the hearing, the district court
granted the motions.
The Government moved for reconsideration; and, later in
December, the district court explained that it was “not persuaded
that exigent circumstances existed prior to the [Agents’] approach
to the [mobile home]”, and that the Agents’ actions had caused the
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exigency necessitating their warrantless entry. This order
contained additional findings of fact, including that the mobile
home occupants were unaware of the surveillance, that no effort was
made to obtain a warrant, that the marijuana could not have been
removed or destroyed easily, and that the informant never told
Agent Silva that weapons were in the home.
II.
The Government contends that Lopez-Gonzalez’s detection of the
surveillance was an unforeseeable occurrence that necessitated
immediate action by the Agents to prevent the other suspects from
fleeing or from removing or destroying evidence; that the decision
to approach the mobile home and seek consent was a reasonable
response to that exigency; and that additional exigent
circumstances justified the warrantless entry and protective sweep.
In the alternative, the Government asserts that Rodea was lawfully
arrested without a warrant, that the protective sweep that followed
his arrest was valid, and that his statements are admissible as the
product of a lawful arrest. (As noted, the Government does not
contest the suppression of Rodea-Hernandez’s statements.)
When reviewing a suppression ruling, questions of law, such as
whether law enforcement officers engaged in unreasonable
investigative tactics, are reviewed de novo. United States v.
Carrillo-Morales, 27 F.3d 1054, 1060 (5th Cir. 1994), cert. denied,
___ U.S. ___, 115 S. Ct. 1163 (1995); see also Ornelas v. United
States, ___ U.S. ___, 116 S. Ct. 1657 (1996) (ultimate
determinations of reasonable suspicion and probable cause are to be
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reviewed de novo on appeal). For findings of fact, “[w]e consider
the evidence in the light most favorable to the [prevailing party],
and accept the district court’s factual findings unless clearly
erroneous or influenced by an incorrect view of the law.”
Carrillo-Morales, 27 F.3d at 1060.
Exigent circumstances vel non is a factual finding reviewed
for clear error. See United States v. Vasquez, 953 F.2d 176, 179
(5th Cir.), cert. denied, 504 U.S. 946 (1992). Under the well-
known standard, a factual finding is clearly erroneous "when
although there is evidence to support it, the reviewing court on
the entire evidence is left with the definite and firm conviction
that a mistake has been committed." Anderson v. City of Bessemer
City, N.C., 470 U.S. 564, 573 (1985) (citation omitted).
Because they did not have a warrant to enter the mobile home
or to arrest the appellees, the Agents’ “actions must have been
supported by probable cause and necessitated by exigent
circumstances.” Carrillo-Morales, 27 F.3d at 1060. The appellees
do not seriously dispute that the Agents had probable cause to
search the mobile home and arrest the occupants once Agent Silva
received the telephone call from the informant at 2:20 p.m.,
confirming the marijuana delivery to that home. See id. at 1061
(“[t]he reasonable belief that the defendants were inside the body
shop with a controlled substance constitutes probable cause to
believe that a crime was being committed and that the persons to be
arrested were involved”). Accordingly, the issues are narrowed to
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whether exigent circumstances existed and, if so, whether they were
created by the Government.
A.
The Government has the burden of proving the existence of
exigent circumstances. United States v. Rico, 51 F.3d 495, 501
(5th Cir.), cert. denied, ___ U.S. ___, 116 S. Ct. 220 (1995). The
exigent circumstances exception applies “where the societal costs
of obtaining a warrant, such as danger to law officers or the risk
of loss or destruction of evidence, outweigh the reasons for prior
recourse to a neutral magistrate”. Arkansas v. Sanders, 442 U.S.
753, 759 (1979), overruled in part on other grounds, California v.
Acevedo, 500 U.S. 565 (1991). “Exigent circumstances include those
in which officers reasonably fear for their safety, where firearms
are present, or where there is a risk of a criminal suspect’s
escaping or fear of destruction of evidence.” Rico, 51 F.3d at 501
(internal quotation marks and citation omitted).
Among the factors to be considered in evaluating whether
exigent circumstances existed are the following:
(1) the degree of urgency involved and amount
of time necessary to obtain a warrant;
(2) the reasonable belief that contraband is
about to be removed;
(3) the possibility of danger to the police
officers guarding the site of contraband while
a search warrant is sought;
(4) information indicating the possessors of
the contraband are aware that the police are
on their trail; and
(5) the ready destructibility of the
contraband and the knowledge that efforts to
dispose of narcotics and to escape are
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characteristic behavior of persons engaged in
the narcotics traffic.
Rico, 51 F.3d at 501 (internal quotation marks, citation marks, and
brackets omitted). In evaluating exigency, it must be borne in
mind that we “should consider the appearance of the scene of the
search in the circumstances presented as it would appear to
reasonable and prudent men standing in the shoes of the officers.”
United States v. Riley, 968 F.2d 422, 425 (5th Cir.), cert. denied,
506 U.S. 990 (1992).
Agent Silva, who was in charge of the investigation, testified
at the suppression hearing that, shortly before September 28, 1995,
he learned from a confidential informant that Lopez-Gonzalez wanted
to sell approximately 500 pounds of marijuana. On the morning of
September 28, Agent Silva, posing as a buyer, met with the
confidential informant and Lopez-Gonzalez at a restaurant in
McAllen, Texas, to negotiate the price of the marijuana. Co-
defendant Ruben Macias joined them during the meeting.
After Agent Silva and Lopez-Gonzalez agreed on $300 per pound,
arrangements were made for Lopez-Gonzalez, Macias, and the
informant to proceed to the “stash house” to await the arrival of
the marijuana, weigh it, and then call Agent Silva to make further
arrangements. At the time, Agent Silva did not know the location
of the house. Surveillance units followed the informant, Lopez-
Gonzalez, and Macias to a mobile home located on a dirt road in an
isolated, “very rural” area (later investigation revealed that the
home was owned by Rodea-Hernandez and occupied by both appellees).
Agent Silva testified that it was difficult to conduct surveillance
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of the home because there was not much cover, and the area was so
isolated that strange vehicles could be detected easily by the
mobile home occupants.
According to Agent Silva, the informant, Macias, and Lopez-
Gonzalez arrived at the mobile home at approximately 11:30 a.m.
During the next three hours, Agent Silva contacted the informant
three times to inquire about the status of the transaction; the
informant advised that he and several others were waiting for the
marijuana to be delivered.
At approximately 2:05 p.m., a surveillance unit observed a
minivan and another vehicle arrive at the mobile home. About 15
minutes later, at 2:20 p.m., the informant advised Agent Silva by
telephone that the marijuana had been delivered to the mobile home,
that it weighed 459 pounds, and that the owners of the marijuana
were present. Agent Silva arranged to meet with the informant and
Lopez-Gonzalez at the same restaurant in McAllen (only
approximately 15 minutes travel time from the mobile home) to
discuss the money and marijuana exchange, which was to occur
shortly thereafter. The informant and Lopez-Gonzalez left the
mobile home at approximately 2:25 p.m., and surveillance advised
Agent Silva that the informant’s car was moving.
Andres Rivas, a narcotics investigator with the Texas
Department of Public Safety, who had been maintaining surveillance
in the vicinity of the mobile home, testified that, shortly
thereafter, he saw the informant’s car pass him moving in the
opposite direction. Shortly thereafter, Investigator Rivas pulled
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his car to the side of the road, got out, opened the trunk, and put
on his holster. As the Investigator, wearing his gun belt, was
walking back to his car from the trunk, the informant’s car, having
made a U-turn and traveling at a speed of about 10-15 miles per
hour, passed the Investigator, and Lopez-Gonzalez made eye contact
with him.
Agent Silva testified that, at 2:25 or 2:30 p.m., Investigator
Rivas telephoned to report that his surveillance had been detected
by Lopez-Gonzalez. At approximately 2:35 p.m., within five
minutes of the call from the Investigator, the informant called
Agent Silva from a pay telephone at a convenience store near the
mobile home and confirmed that Lopez-Gonzalez had detected
surveillance. In addition, the informant told Agent Silva that
Lopez-Gonzalez was extremely agitated and nervous, wanted to notify
those at the mobile home that there was surveillance in the area,
and then wanted to leave the area.
Knowing that the mobile home occupants would be expecting
Lopez-Gonzalez to call or return very shortly because the money and
marijuana exchange was supposed to occur soon after he met with
Agent Silva and the informant, and that if Lopez-Gonzalez did not
do so, the co-conspirators might become suspicious and flee or move
the marijuana to another location, Agent Silva directed some of the
surveillance units to arrest Lopez-Gonzalez and directed others to
proceed to the mobile home and approach it in order to seek consent
to search.
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Agent Silva testified that no attempt had been made to obtain
a search warrant for the mobile home, because he did not learn
until 2:20 p.m. that the marijuana had been delivered and because
he had never intended to exchange the money and marijuana at the
mobile home, but had intended instead that it be done at a location
of his choosing, where he could better control the situation. He
testified further that it would have taken approximately three
hours to obtain a warrant and that the marijuana sellers were
expecting Lopez-Gonzalez to return immediately, or at least to
telephone them. When questioned by the district court about why he
did not attempt to obtain a warrant by telephone, Agent Silva
testified that he had obtained a telephonic warrant only once and
that it was his understanding that the magistrates “would rather
have it written out”. He testified further that it has been his
experience that a telephonic warrant was not normally done in that
district.
The suppression hearing testimony about what happened when the
Agents arrived at the mobile home was not entirely consistent.
Customs Agent Walker testified that he and Agent Morrison were the
first two units to approach and that as Agent Walker drove up in
front of the mobile home and stepped out of his vehicle, a man
(later identified as co-defendant Morales-Trujillo) exited the
mobile home through the front door. After Agents Walker and
Morrison identified themselves as police officers, Morales ran
behind the mobile home and jumped over a fence, with Agents Walker
and Morrison in pursuit.
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Agent Walker abandoned the chase after he looked back at the
mobile home and saw a back door; he proceeded to the rear corner of
the mobile home to cover that door. After it opened and the Agent
saw a man standing in the doorway, the Agent identified himself as
a police officer and told the man to step outside. Instead, the
man looked at Agent Walker for a moment and closed the door. Agent
Walker testified that, while the door was open, he could see
clearly into the living room area, where there were stacks of
cellophane-wrapped packages that he suspected to be marijuana.
Agent Walker testified that, when the back door opened the first
time, Agent Silva had not arrived, and that he did not believe that
anyone else could have had time to open the front door before he
saw the first individual at the back door.
Agent Walker then went around the mobile home and shouted to
the Agents in front that there were people inside who would not
exit. He saw an Agent outside the mobile home in the front, but
did not see or hear any Agents inside. Shortly thereafter, the
back door opened again, and another individual appeared in the
doorway. Agent Walker identified himself as a police officer, told
the individual to come out, and then pulled the individual out the
back door.
As noted, DEA Agent Morrison arrived at the mobile home at the
same time as Agent Walker. When he approached it, he saw an
individual (the earlier referenced Morales) walk out of the home
but (as described earlier), upon seeing Morrison’s vehicle and
other vehicles arrive, the individual ran behind the home and
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jumped over a fence. Agent Morrison chased the individual and
apprehended him, and then went to the back of the mobile home to
assist Agent Walker, who was at the open back door yelling
“police”, “come on out”.
Agent Morrison testified that Agent Tittle (who did not
testify at the hearing) was at the front door. As Agent Morrison
approached the back of the mobile home, he saw Agent Walker at the
back door and an individual, whom he believed to be Rodea, on the
ground, face down. Agents Morrison and Walker were at the back
door yelling, “Police, come on out.” At least 30-45 seconds later,
Rodea-Hernandez came out of the restroom, which faced the back
door. Agents Walker and Morrison “brought” him out of the mobile
home.
Agent Morrison then reached into the mobile home and pushed
open a bedroom door that was ajar. He could see individuals hiding
in the closet and under the bed, and yelled for them to exit. They
did so and told the Agents no one remained inside; the Agents
conducted a protective sweep to verify this. Agent Morrison
testified that he had no knowledge of law enforcement activity at
the front of the mobile home before the individuals came out the
back door.
Agent Silva testified that he was involved in apprehending
Morales, who, as noted, had fled when the first Agents arrived. He
testified that Morales left the front door slightly open and that
Agent Tittle pushed it slightly open to get a better look at the
people inside, identified himself as a police officer, and asked
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them to exit. According to Agent Silva, who was not present at the
time, Agent Tittle saw bundles of marijuana stacked in the living
room. Agent Silva testified further that the Agents, rather than
the suspects, opened the back door.
In oral findings at the conclusion of the hearing, the
district court noted the inconsistencies in the testimony, but
noted that much of Agent Silva’s testimony was hearsay, and that “a
lot of what he testified to was redeemed by way of testimony of
persons who were actually there”. Our review of the suppression
hearing transcript is consistent with the district court’s view;
the inconsistencies are of much less concern when considering Agent
Silva’s testimony that he was involved in the apprehension of
Morales and therefore was not present when Agent Walker first
approached the back door.
Based on our review of the record, we conclude that the
district court erred by holding that exigent circumstances did not
exist prior to the Agents approaching the mobile home. Apparently,
the court’s rejection of the Government’s contention that Lopez-
Gonzalez’s detection of Investigator Rivas was an exigent
circumstance justifying the decision to approach the mobile home to
seek consent is based on its finding that Investigator Rivas “was
conducting himself as though he was going to physically address the
trailer house before his presence was discovered”. But, that key
finding is clearly erroneous.
Investigator Rivas testified, without contradiction, that he
had not been given any instructions to approach the home prior to
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being spotted by Lopez-Gonzalez and that he received such
instructions only after he had called Agent Silva to report being
detected. Similarly, Agent Silva testified that he directed the
Agents to approach the home only after he spoke with both the
informant and Investigator Rivas and learned that Lopez-Gonzalez
had detected the surveillance.
The district court did not expressly find that either
Investigator Rivas or Agent Silva was not credible or that their
testimony was untruthful. (Concerning Agent Silva’s testimony that
he did not order the approach until after surveillance had been
detected, the primary basis for the appellees’ challenge to the
credibility of this testimony is the Agent’s admission, during
cross-examination, that he did not mention the surveillance
detection either in his affidavit in support of the complaint or in
his testimony at the October 4 preliminary hearing (six days after
the arrests and seizure). But, on redirect examination, the Agent
explained that neither of the appellees were involved in that
preliminary hearing and that he included information about
Investigator Rivas’ surveillance detection notification in his
October 2 report (four days after the arrests and seizure). Based
on our review of the record, the fact that Agent Silva did not
mention the surveillance detection in these two instances does not
discredit his suppression hearing testimony (and the district court
did not so find).)
After Investigator Rivas saw Lopez-Gonzalez pass him en route
to meet with Agent Silva, the marijuana and money exchange was
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fairly imminent. In light of this, the mere fact that Investigator
Rivas was putting on his “raid equipment”, which he described as
only “my holster with my gun”, does not support an inference that
he was planning to approach the mobile home before Lopez-Gonzalez
made a U-turn and saw him. Accordingly, Lopez-Gonzalez’s detection
of Investigator Rivas’ surveillance was an exigent circumstance
that set in motion the chain of events that followed.
Faced with that unplanned and unexpected development, Agent
Silva did not act unreasonably in deciding to have Agents approach
the mobile home to seek consent. In light of the length of time it
would have taken to obtain a search warrant, the difficulty of
conducting covert surveillance in the rural, isolated area while
awaiting a warrant, and the fact that the mobile home occupants
with the marijuana were expecting Lopez-Gonzalez to return or
contact them shortly (as noted, the site of the meeting Lopez-
Gonzalez left to attend was only 15 minutes travel time from the
mobile home), the Agents had no realistic alternative. The fact
that the mobile home occupants were unaware of surveillance prior
to the Agents’ approach carries little weight, because the Agents
reasonably could have believed that the occupants would soon become
suspicious when Lopez-Gonzalez did not return or contact them.
As noted, in ruling against exigent circumstances, the
district court found, inter alia, “[t]hat the large amount of
marijuana at the [mobile] home could not have easily been destroyed
or removed”. (Emphasis added.) In light of the fact that the
marijuana was delivered in a minivan, weighed only 459 pounds, and
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took only approximately 15 minutes to unload and place in the
mobile home, whether this finding is clearly erroneous is a very
close call (one we need not make). For example, the minivan was
parked nearby (only two minutes away), could have been reloaded in
approximately the same time it took to unload it (only 15 minutes),
and could have then transported the marijuana to an unknown
location, unless apprehended. In other words, a great deal, if not
all, of the marijuana could have been moved or otherwise disposed
of during the time it would have taken to obtain a warrant.
In any event, this finding does not undermine our exigent
circumstances conclusion, because the Agents reasonably could have
believed that other important evidence, such as drug ledgers (which
were found later in the mobile home), could have been destroyed
during the time it would have taken to obtain the warrant.
Moreover, the Agents also reasonably could have believed that the
unidentified suspects in the mobile home might attempt to escape.
Further exigencies developed when the Agents approached the
home. One occupant (Morales) fled as soon as the first two Agents
approached and identified themselves. The Agents could hear other
persons running inside the mobile home, and those persons
disregarded the Agents’ instructions to exit. Although the
informant had not mentioned any weapons to Agent Silva, the Agents
were aware, based on the informant’s telephone call to Agent Silva,
of the presence of a large quantity of marijuana inside the home.
Agent Silva testified that the Agents were very concerned for their
safety because they did not know how many individuals remained in
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the mobile home, and because “in drug deals ... it is not uncommon
for traffickers to carry weapons”. The legitimacy of that concern
is underscored by our court’s frequent acknowledgment of this more
and more obvious fact; “firearms are ‘tools of the trade’ of those
engaged in illegal drug activities”. United States v. Ramos, 71
F.3d 1150, 1158 n.26 (5th Cir. 1995) (internal quotation marks and
citation omitted), cert. denied, ___ U.S. ___, 116 S. Ct. 1864
(1996).
Because the Agents reasonably feared that the occupants of the
mobile home might be armed, their decision to enter the mobile home
and conduct a limited protective sweep to secure the premises and
ensure their own safety was not unreasonable. See Rico, 51 F.3d at
501 (citing with approval district court’s observation that, “if
you are standing around in the front yard arresting people in the
driveway, you need to make sure that there is not assistance to him
by people in other parts of the premises”).
In sum, the societal costs of obtaining a warrant under these
circumstances -- including the risk of loss of evidence, of
criminal suspects escaping, and, especially, of danger to law
enforcement officers attempting to conduct surveillance of a mobile
home containing nearly 500 pounds of marijuana and an unknown
number of unidentified suspects in an isolated area -- far
“outweigh the reasons for prior recourse to a neutral magistrate”.
See Arkansas v. Sanders, 442 U.S. at 759.
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B.
Needless to say, the exigent circumstances exception does not
apply if the Government created or “manufactured” the exigency.
Rico, 51 F.3d at 502. “We distinguish between cases where exigent
circumstances arise naturally during a delay in obtaining a warrant
and those where officers have deliberately created the exigent
circumstances.” Id. “In determining whether the exigent
circumstances were manufactured by the agents, we ... must consider
not only the motivation of the police in creating the exigency but
also the reasonableness and propriety of the investigative tactics
that generated the exigency.” Id. (internal quotation marks and
citation omitted).
1.
“Our first concern in analyzing a claim of a manufactured
exigency is whether agents could have obtained a search warrant
prior to the development of the exigent circumstances upon which
they relied.” Id. (internal quotation marks and citation omitted).
At the very earliest, if then, Agent Silva could not have sought to
obtain a warrant until 2:05 p.m. (when surveillance units reported
that a minivan had arrived at the mobile home). Moreover, he did
not receive confirmation of the marijuana delivery until 2:20 p.m.
The fact that the Agent did not seek to obtain a warrant at 2:05 or
2:20 p.m. does not invalidate his reliance on the exigent
circumstances that developed thereafter.
It is “axiomatic that agents are not required to obtain a
search warrant as soon as it is practicable to do so.” United
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States v. Webster, 750 F.2d 307, 327 (5th Cir. 1984), cert. denied,
471 U.S. 1106 (1985). Agents “conducting an ongoing investigation
do not need to obtain a warrant at the first opportunity. If
exigencies arise before agents can obtain a warrant, they can
justifiably act.” United States v. Richard, 994 F.2d 244, 248 (5th
Cir. 1993). Moreover, because Agent Silva never intended to
conduct the transaction at the mobile home, but instead intended
for the marijuana to be delivered to him at another location, he
was of the opinion that he had no reason then to seek a warrant for
the mobile home.
In any event, it would have been impossible for Agent Silva to
have obtained a warrant prior to when exigent circumstances arose.
It was only shortly after the marijuana delivery (approximately ten
minutes) that Lopez-Gonzalez detected surveillance (approximately
2:30 p.m.), when en route to meet with Agent Silva to finalize the
plans for the money and marijuana exchange. There was
uncontradicted testimony at the suppression hearing that it would
have taken the Agents at least three hours to obtain a warrant, far
longer than the 25 minutes that elapsed between when the minivan
was seen arriving at the mobile home and when Lopez-Gonzalez
spotted Investigator Rivas, and even longer than the ten minutes
that elapsed between when the informant confirmed delivery and when
the surveillance was detected.
Nor was it feasible for the Agents to maintain covert
surveillance of the home after Lopez-Gonzalez was arrested, while
awaiting a warrant. As noted, Agent Silva testified that the
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mobile home occupants were expecting Lopez-Gonzalez to either
return or telephone them shortly, because the transaction was
supposed to take place soon after he met with Lopez-Gonzalez and
the informant. Lopez-Gonzalez’s detection of surveillance
necessitated his arrest and prevented him from either returning to
the home or contacting the occupants. The Agents reasonably could
have believed that, if they waited to obtain a warrant, it would
jeopardize their ability to apprehend the unidentified occupants of
the mobile home and recover all the evidence. See United States v.
Riley, 968 F.2d at 425. And, as discussed, the isolated location
of the mobile home, with little cover, made it difficult, if not
impossible, for the Agents to maintain covert surveillance for the
three hours it would have taken to obtain a warrant. In short, the
Agents’ actions were reasonable responses, to say the least, to
rapidly unfolding developments in an ongoing narcotics
investigation in which it was known where a large amount of
marijuana was located. See United States v. Hultgren, 713 F.2d 79,
87 (5th Cir. 1983) (“the fluidity of an ongoing investigation of
the distribution of narcotics makes the obtaining of an adequate
search warrant more difficult to time in the flow of events”).
2.
Having determined that there was insufficient time within
which to obtain a warrant prior to the occurrence of the events
that gave rise to the exigency, “we next consider whether the
agents themselves nevertheless created the urgent situation by the
use of unreasonable law enforcement tactics.” Rico, 51 F.3d at
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503. As stated, exigent circumstances began to develop when Lopez-
Gonzalez detected surveillance. Investigator Rivas did not engage
in unreasonable law enforcement tactics when he pulled over to the
side of the road, obtained his gun and holster from the trunk, and
put them on. He had just passed the informant’s car, which was
headed in the opposite direction to meet Agent Silva in McAllen,
and had no reason to anticipate that the informant would make a U-
turn and return to the location where he had pulled off the road.
Inasmuch as the consummation of the marijuana transaction was
imminent, it was not unreasonable for the Investigator to obtain
his weapon and holster to prepare for any eventuality.
As stated in Rico, “[t]he government cannot rely on exigent
circumstances to excuse a warrantless entry to conduct a protective
sweep if the circumstances and thus the sweep were made necessary
by the law enforcement officers’ decision to abandon a covert
surveillance and confront the suspects without any justification
whatsoever.” Rico, 51 F.3d at 505 (emphasis added). Here, the
Agents did not decide to abandon covert surveillance “without any
justification whatsoever”; far from it. Their decision was
justified -- indeed, mandated -- by the unplanned, unforeseeable
detection of surveillance by Lopez-Gonzalez.
III.
Accordingly, the district court erred by finding that the
Agents created the exigent circumstances and by, as a result,
suppressing the evidence seized and Rodea’s statements. (This
conclusion makes it unnecessary for us to address the Government’s
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alternative contention that Rodea was arrested lawfully without a
warrant, and that the protective sweep that followed his arrest was
valid.) Therefore, the order granting the motions to suppress is
REVERSED, and the case is REMANDED to the district court for
further proceedings.
REVERSED and REMANDED
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