United States v. Lozano ( 2022 )

Case: 21-50391 Document: 00516360916 Page: 1 Date Filed: 06/17/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
June 17, 2022
No. 21-50391
Lyle W. Cayce
Summary Calendar Clerk
United States of America,
Plaintiff—Appellee,
versus
Ezekiel Lozano,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:20-CR-147-1
Before Higginbotham, Higginson, and Duncan, Circuit Judges.
Per Curiam:*
Ezekiel Lozano was convicted of possession of an unregistered
firearm, in violation of 26 U.S.C. § 5861(d), and sentenced to 92 months of
imprisonment. He appeals the denial of his motion to suppress the evidence
discovered during two warrantless entries into his home, arguing that there
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 21-50391 Document: 00516360916 Page: 2 Date Filed: 06/17/2022
No. 21-50391
were no exigent circumstances to justify a protective sweep as to the first
entry and that he did not give voluntary consent to search his home as to the
second.
“When reviewing a denial of a motion to suppress evidence, this
Court reviews factual findings for clear error and the ultimate
constitutionality of law enforcement action de novo.” United States v.
Robinson, 741 F.3d 588, 594 (5th Cir. 2014). We will uphold the district
court’s ruling “if there is any reasonable view of the evidence to support it.”
United States v. Massi, 761 F.3d 512, 520 (5th Cir. 2014) (citation omitted).
In this case, police arrived at Lozano’s home in response to a report
of a domestic disturbance—the 911 caller stated that her sister, Lozano’s
ex-girlfriend, had called her from that location stating that someone had hit
her and that the call then abruptly ended. The responding officer found the
ex-girlfriend outside Lozano’s home and noted broken glass on the ground.
Dispatch informed the officer that Lozano was the occupant of the home and
that he was known to possess firearms and to deal in narcotics. The officers
detained the ex-girlfriend on the porch and placed Lozano’s roommate in a
police car. The officers then learned that Lozano was still inside the home.
An officer entered the home, located Lozano, and asked him to step outside.
Concern for safety is an exigent circumstance that may warrant a
protective sweep. See United States v. Silva, 865 F.3d 238, 241-42 (5th Cir.
2017); see also United States v. Watson, 273 F.3d 599, 603 (5th Cir. 2001).
Probable cause is not required for a protective sweep, only a reasonable belief
based on specific and articulable facts that the area to be swept harbors an
individual posing a danger to those on the scene. Maryland v. Buie, 494 U.S.
325, 334 (1990). Although protective sweeps are often performed incident to
an arrest, an arrest is not required. United States v. Gould, 364 F.3d 578, 581
(5th Cir. 2004), abrogated in part on other grounds by Kentucky v. King, 563 U.S.
2
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No. 21-50391
452 (2011). Here, a reasonable view of the evidence supports a finding that
the officers had a reasonable, articulable belief that a dangerous individual
was inside the house when they made their first warrantless entry to locate
Lozano. Accordingly, we uphold the district court’s determination that the
first entry was lawful. See Massi, 761 F.3d at 520.
After Lozano exited the home, an officer asked him about the presence
of narcotics and firearms, noting that he had smelled marijuana when the
door was opened. When asked if he would show the officers where
contraband was located inside the home, Lozano wordlessly turned around
and entered the house. Inside, at the officers’ request, he showed the officers
the locations of a firearm and marijuana. The district court determined that
Lozano had given voluntary consent to search his home.
To be valid, consent to search must be given voluntarily. United States
v. Jenson, 462 F.3d 399, 406 (5th Cir. 2006). When determining the
voluntariness of consent, courts consider: “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 intelligence; and 6) the defendant’s belief that no
incriminating evidence will be found.” United States v. Wise, 877 F.3d 209,
222 (5th Cir. 2017) (citation omitted).
Here, the district court found that Lozano was involuntarily in
custody when the officers asked him to show them the marijuana and firearms
in his home and that the officers did not inform Lozano of his rights to remain
silent or to refuse consent. However, the district court also found that the
police officers had not been “coercive” and had, in fact, been cordial. Even
though Lozano was in custody, the officers did not handcuff him or draw their
weapons. Further, Lozano complied with police officers by leaving his house
3
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No. 21-50391
at their request—a request that was made in a friendly way—and by
answering their questions. The district court also found that Lozano was of
at least average intelligence and had no problem answering the officers’
questions, a fact that Lozano does not dispute. Lozano had a criminal history
and thus was not unfamiliar with police investigations.
A reasonable view of this evidence supports the district court’s
determination that Lozano consented to the search of his home when police
entered the second time. Accordingly, we uphold the district court’s ruling
that this entry was lawful. See Massi, 761 F.3d at 520. Cf. United States v.
Blevins, 755 F.3d 312, 325-26 (5th Cir. 2014) (upholding district court’s
finding of voluntary consent to search where suspect was in custody but
“coercive techniques were not being applied”); United States v. Tompkins,
130 F.3d 117, 122 (5th Cir. 1997) (upholding finding of consent to search
because, inter alia, “no threats or violence were used” and the suspect “was
not unfamiliar with the criminal justice system”).1
Lozano also argues that the subsequently obtained search warrant was
tainted by the allegedly unlawful entries. Because the first warrantless entry
was justified as a protective sweep and because Lozano gave valid consent to
the second search, his argument attacking the search warrant fails.
Given the foregoing, the judgment of the district court is
AFFIRMED.
1
We note that “[a] suspect need not be given Miranda warnings before consenting
to a search.” Blevins, 755 F.3d at 326 (citing Miranda v. Arizona, 384 U.S. 436 (1966)).
Additionally, consent to a request to search need not be verbal. See United States v.
Escamilla, 852 F.3d 474, 484 (5th Cir. 2017); United States v. Scroggins, 599 F.3d 433, 441-
42 (5th Cir. 2010).
4