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Second entry into home by police was consensual

Facts

Police arrived at Ezekiel 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.

When asked if he would show the officers where contraband was located inside the home, Lozano wordlessly turned around and re-entered the house. Inside, at the officers’ request, he showed the officers the locations of a firearm and marijuana.

He was convicted of possession of an unregistered firearm and sentenced to 92 months. On appeal, he argued there 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. The 5th affirmed.

Analysis

A. Exigent for first entry

We said in Silva that concern for safety is an exigent circumstance that may warrant a protective sweep.

In Maryland v. Buie, 494 U.S. 325 (1990), the U.S. Supreme Court said that 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. Although protective sweeps are often performed incident to an arrest, an arrest is not required.

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.

B. Consent for second entry

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 re-entered the house. Inside, at the officers’ request, he showed the officers the locations of a firearm and marijuana.

We said in Jenson that consent to search must be given voluntarily. 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. See Wise.

Here, the district court found that Lozano was 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 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.

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.

 

https://www.ca5.uscourts.gov/opinions/unpub/21/21-50391.0.pdf