U.S. v. AGUIRRE No. 10-50999.
664 F.3d 606 (2011)
UNITED STATES of America, Plaintiff-Appellee, v. Sherry AGUIRRE, Defendant-Appellant.
United States Court of Appeals, Fifth Circuit.
December 13, 2011.
Joseph H. Gay, Jr. , Elizabeth Berenguer (argued), Asst. U.S. Attys., San Antonio, TX, for Plaintiff-Appellee.
Margaret Loraine Schmucker (argued) (Court-Appointed), Austin, TX, for Defendant-Appellant.
Before JOLLY, HIGGINBOTHAM and SOUTHWICK, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
Sherry Aguirre was convicted of using a communications facility to facilitate a drug trafficking crime in violation of 21 U.S.C. § 843(b). On appeal Aguirre challenges the district court's denial of her motion to suppress evidence, claiming that the search and seizure of her cell phone was tainted by law enforcement officers' illegal entry into a home where she was a guest. We conclude that the officers' entry was justified by exigent circumstances, that the search and seizure of Aguirre's cell phone occurred under the authority of a valid
The search and seizure of Sherry Aguirre's cell phone was a link in the chain of events that unfolded in the wake of the arrest of Arnold Mendoza. Mendoza became a subject of surveillance by the Drug Enforcement Agency after making a controlled sale of cocaine to a police informant. The day of Mendoza's arrest, the agents watching him had reason to believe that he would make another drug deal that evening. Seeing him leave his mobile home at 6:30 P.M. in a tan H2 Hummer, they alerted the local sheriff. A deputy stopped the Hummer for a traffic violation. Mendoza unsuccessfully fled. Marijuana was in plain view and the ensuing search of the vehicle also found nine ounces of cocaine.
Approximately one hour after Mendoza's arrest, several law enforcement officers returned to his residence for an investigative "knock and talk." They knocked on the front door of the mobile home and announced themselves. They received no verbal response. Instead, they saw an occupant look at them through the window, watched that person retreat, and heard several persons "scuffling" and moving hurriedly inside towards the back of the residence. These veteran officers quickly concluded that the occupants were likely destroying drugs and other evidence of narcotics. In response, the officers did not await a warrant or consent to search, but immediately entered the home. During their protective sweep of the residence they found marijuana and drug paraphernalia in plain sight, as well as several plastic baggies floating in the toilet in a bathroom towards the back of the residence. The toilet bowl's water was still rotating from a recent flush.
The officers detained Aguirre and two other occupants of the mobile home for two hours while DEA Special Agent David Friday obtained a search warrant. Warrant in hand the officers uncovered cocaine, marijuana, six marijuana pipes, three grinders, three digital scales, fourteen cell phones, one shotgun, and one revolver. Aguirre's cell phone was lying in plain view on her bed and was one of the phones seized. It was protected by a password that Aguirre provided to the agents. A search of its text messages uncovered several communications discussing "white" and "green," terms believed to refer to cocaine and marijuana, respectively.
Aguirre moved to suppress all evidence obtained in the search of the mobile home, including her cell phone and its incriminating text messages.
Our review of a district court's denial of a motion to suppress is limited. We may affirm on any basis established by the record,
Aguirre first argues that the law enforcement officers' warrantless entry into the mobile home violated the Fourth Amendment, an illegality tainting the search and seizure of her cell phone. The district court concluded that the officers' entry was justified under the exigent circumstances doctrine and implicitly determined that there was probable cause for the entry.
Under the Fourth Amendment, a warrantless search of a person's home is presumptively unreasonable, and it is the government's burden to bring the search within an exception to the warrant requirement.
Police officers have probable cause to search a residence if "under the `totality of the circumstances . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place.'"
The officers' entry without a warrant was also justified by the need to halt destruction of evidence. In determining the presence of exigent circumstance, we employ a non-exhaustive five factor test: "(1) the degree of urgency involved and the 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) the information indicating that 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 it and to escape are characteristics in which those trafficking in contraband generally engage."
DEA Special Agent David Friday testified at the suppression hearing that after the officers announced themselves at the front door, they "observed someone look out the window. And then we heard shuffling, scuffling sound inside the trailer." The agents' training and prior experience with drug cases suggested that the sudden noises they were hearing were due to the occupants' attempts to destroy evidence when they learned that law enforcement had come to their door.
We are persuaded that the officers' entry into the mobile home was justified by the exigent circumstance of destruction of evidence, and supported by probable cause. It did not violate Aguirre's Fourth Amendment rights and taint the officers' subsequent search and seizure of her cell phone.
Aguirre mounts three distinct attacks to the search and seizure of her cell phone: (1) the officers executed the search and seizure before a warrant had been issued; (2) the warrant that was eventually issued was not based on probable cause; and (3) the warrant did not meet the particularity requirement. The district court rejected all three of these arguments.
1. The search and seizure occurred after the officers obtained a warrant.
Aguirre contends that the search and seizure of her cell phone occurred before the police obtained a search warrant. After hearing the parties' arguments and testimony at the suppression hearing, the district concluded that this was not the case. Instead, it found that upon discovering Aguirre and the other two mobile home occupants attempting to destroy narcotics that were in plain view, the officers detained them while Special Agent David Friday secured a warrant. The search of the residence—and of Aguirre's cell phone—came on Special Agent Friday's return with a warrant two hours later.
We review a factual finding made by the district court in a denial of a motion to suppress for clear error.
Second, even if Aguirre had so testified at the suppression hearing it would be unavailing. Aguirre's argument ultimately amounts to a claim that she is more credible than Special Agent Friday. The district court believed Special Agent Friday's testimony, and Aguirre provides us with no evidence that would support a ruling that the district court committed clear error in crediting Agent Friday's testimony.
2. The warrant was supported by probable cause.
Under the Fourth Amendment, a warrant must be based "upon probable cause, supported by oath or affirmation."
To obtain a the search warrant for the mobile home, Special Agent Friday prepared an affidavit that only contained information that the police had before they entered the residence. The affidavit provided a nexus between Mendoza's drug activities and his home, establishing a likelihood that Mendoza's home would contain evidence of criminal activity. It recited that Mendoza was under surveillance by the DEA and had been arrested for carrying "substantial amounts of cocaine" and marijuana in his car immediately after leaving his residence and that Agent Friday's experience as an investigator confirmed that drug dealers are likely to keep records of their trafficking activities in their homes.
3. The warrant met the particularity requirement.
Aguirre argues in the alternative that the search and seizure of her cell phone was improper because the warrant did not particularly describe it as one of the items to be seized. The Fourth Amendment requires that a warrant "particularly describ[e] the place to be searched and the persons or things to be seized."
Each item does not need to be precisely described in the warrant. If "detailed particularity is impossible [then] generic language suffices if it particularizes the types of items to be seized."
The search warrant in this case authorized the search for items described in Attachment A, a list that catalogued a wide variety of items used to facilitate drug sales and trafficking. It included "records, sales and/or purchase invoices," as well as financial records including books, records, correspondence, and "documentation evidencing the acquisition, concealment, transfer and expenditure of money or assets." The list also authorized the search of personal papers, including address books and telephone directories, and personal assets including computers, disks, printers and monitors utilized in the drug trafficking organization.
Aguirre correctly points out that this list did not include cell phones as items to be searched. However, the cellular text messages, directory and call logs of Aguirre's cell phone searched by law enforcement officers can fairly be characterized
We find no error in the district court's denial of Aguirre's motion to suppress and affirm the judgment entered on Aguirre's plea of guilty.
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