United States v. Jossue Flores ( 2020 )

Case: 19-10633 Document: 00515367544 Page: 1 Date Filed: 04/01/2020
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 19-10633 April 1, 2020
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JOSSUE EMMANUEL FLORES,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:17-CR-257-1
Before KING, GRAVES, and WILLETT, Circuit Judges.
PER CURIAM: *
Jossue Emmanuel Flores pleaded guilty to possession with intent to
distribute a controlled substance and possession of a firearm in furtherance of
a drug-trafficking crime. He reserved the right to challenge the denial of a
motion to suppress evidence, a challenge he now raises on appeal.
* * *
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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No. 19-10633
At the motion to suppress hearing before the district court, Johnny Sosa,
a former police officer, recounted the events surrounding his search of Flores’s
property. He recalled that he and group of officers went to Flores’s residence
at about 10:00 a.m. on April 4, 2017, and Sosa approached the front door with
another officer to conduct a “knock and talk.” After Sosa knocked and identified
himself as a police officer, he heard movement inside and saw people peering
through blinds, but no one came to the door. He and his partner continued to
knock and identify themselves but still received no response. This went on for
several minutes until Flores, who had been contacted by someone inside the
house, came hurrying up the sidewalk.
Flores claimed that his wife and daughter lived at the home, but that he
did not. When asked if he would consent to a search of the residence, he said
the officers would have to speak to his wife. However, Sosa soon established
that Flores did live at that address and again requested consent for a search.
Flores avoided giving a direct response and was then asked if he would consent
to the use of a drug-detection dog to sniff outside the house. He answered that,
while he would not allow the officers to bring a dog into the backyard, “if [they]
wanted to run the dog around the front of the residence, he was fine with that.”
A deputy retrieved the drug-detecting dog from a patrol car and led it up to the
house, where it alerted to the presence of narcotics near the front door. The
officers obtained a warrant to search the residence and discovered cocaine,
firearms, and ammunition.
After hearing this testimony and argument regarding Flores’s motion to
suppress, the district court denied the motion, finding that Flores had
consented to the dog sniff and the officers had not acted improperly.
Flores raises two arguments on appeal: (1) that officers violated the
Fourth Amendment by coming to the door of his residence; and (2) that he did
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not give voluntary consent for a trained dog to sniff around his front yard. We
review the district court’s factual findings for clear error and the ultimate
constitutionality of law enforcement actions de novo. See United States v.
Robinson, 741 F.3d 588, 594 (5th Cir. 2014).
Relying on Florida v. Jardines, 569 U.S. 1 (2013), Flores argues that police
acted unlawfully by coming to the front door of his residence to conduct a “knock and
talk” with a trained narcotics dog. In Jardines, the Supreme Court held that
officers violated the Fourth Amendment by bringing a trained police dog onto
a person’s property, allowing it to sniff around, and then seeking a warrant
after the dog alerted, making no attempt to communicate with anyone in the
home. 569 U.S. at 9. But the Court distinguished this situation from an officer
approaching a home, unassisted by a trained dog, and knocking to
communicate with those inside. Id. at 8. In the latter fact pattern, the officer
is doing “no more than any private citizen might do,” and is therefore acting
within constitutional bounds. Id. (quoting Kentucky v. King, 563 U.S. 452, 469
(2011).
In this case, Flores suggests that the officers’ behavior was
unconstitutional because they had a trained dog with them, but this argument
is misleading. Unlike in Jardines, the dog stayed in the police vehicle and was
not allowed onto the property, let alone to search the property, until Flores
gave consent for it to sniff around the front yard. Therefore, Jardines does not
support Flores’s argument.
Flores further argues that the officers violated the Fourth Amendment when
they conducted their “knock and talk” because they arrived at 10:00 a.m. on a
weekday, when people do not expect to have visitors. But this argument is also
unsupported by the law. Jardines acknowledged that “a police officer not armed with
a warrant may approach a home and knock,” and it made no distinction between days
of the week. Id. at 8. During daylight hours on a weekday is a natural time for any
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citizen—from your next door neighbor to an internet-services salesperson—to
approach a home and knock on the door. But cf. Westfall v. Luna, 903 F.3d 534, 545
(5th Cir. 2018) (questioning reasonableness of “knock and talk” that, among other
things, took place at 2:00 a.m.). Therefore, this argument is without merit.
In his second point, Flores argues that he did not provide valid consent for the
dog sniff. He suggests that his consent could not be valid because it followed the
officers’ unconstitutional intrusion on his property. But as we just noted, that
argument is without merit. The officers did not behave improperly in conducting their
“knock and talk”; therefore, this is not a basis for finding his consent invalid.
To the extent Flores suggests his consent was not otherwise voluntary, Flores
would need to show that his consent “was the product of duress or coercion, express
or implied.” United States v. Perales, 886 F.3d 542, 545–46 (5th Cir. 2018). He has
not made such a showing. Flores was not in custody when he gave his consent; the
officers did not employ coercive tactics to obtain the consent; Flores cooperated with
the police during their encounter; he seemingly understood his right to refuse
consent, considering he limited the sniff to the front yard; he was able to communicate
with the officers intelligently; and Flores seemed to believe that the dog not would
alert to anything in its search of the front yard (particularly as the contraband was
ultimately found in a locked safe in the master bedroom). See United States v. Glenn,
931 F.3d 424, 430 (5th Cir. 2019) (outlining six-factor test for determining whether
consent was voluntarily given). Based on these facts, there is no question that
Flores’s consent was voluntary.
* * *
Flores fails to demonstrate that the district court erred in denying his motion
to suppress. The judgment is therefore AFFIRMED.
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