USA v. Melinda Hernandez

Filing

USA v. Melinda Hernandez

Doc. 0

Case: 09-40709

Document: 00511216129

Page: 1

Date Filed: 08/26/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-40709 August 26, 2010 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t if f -A p p e lle e , versu s M E L I N D A HERNANDEZ, D e fe n d a n t -A p p e lla n t .

A p p e a l from the United States District Court fo r the Southern District of Texas N o . 5:09-CR-359-1

B e fo r e JOLLY, SMITH and OWEN, Circuit Judges. J E R R Y E. SMITH, Circuit Judge:*

M e lin d a Hernandez appeals her guilty-plea conviction of harboring an illeg a l alien for financial gain, on the ground that evidence discovered at her resid e n c e was obtained by an unlawful search. We agree that the search of the resi-

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

*

Dockets.Justia.com

Case: 09-40709

Document: 00511216129

Page: 2

Date Filed: 08/26/2010

No. 09-40709 d e n c e violated the Fourth Amendment. Because Hernandez's guilty plea was c o n d itio n e d on her right to appeal the order denying her motion to suppress, we r e v e r s e the order denying suppression, vacate the conviction and sentence, and rem an d.

I. L o c a l police received an anonymous tip that ten to fifteen illegal aliens w e r e being held against their will at a residential trailer owned by Hernandez. The police coordinated with federal Immigration and Customs Enforcement (" I C E " ) agents to investigate. T h e officers and agents (collectively, "the officers") arrived at Hernandez's t r a ile r around midnight. All was dark and quiet. The government concedes that a t that time the officers did not have probable cause to obtain a search warrant, n o r were there exigent circumstances to support a search. T h e officers initiated a knock-and-talk investigation, announcing their p r e s e n c e at the front door. When they received no response, they circled the t r a ile r and banged on doors and windows, shouting that police were present and t h a t the occupants should open the door. After a few minutes, the officers heard m o v e m e n t inside. They tried to open the front door but found the outer screen d o o r locked. Undeterred, one of them broke the glass pane of the screen door w it h a baton. At this point, they heard a womanSSHernandezSSscream that she w a s coming to open the door. H e r n a n d e z met ICE agent Fred Garza at the door. She noticed that the o ffic e r s held drawn weapons, though there is no evidence that they were raised. There is a dispute about what exactly transpired at the door, but the record sugg e s t s that in a brief exchange, Garza told Hernandez about the report of several aliens' being held in the trailer. Hernandez told Garza that no one was being h e ld against his will but also admittedSSwhether before or after officers entered 2

Case: 09-40709

Document: 00511216129

Page: 3

Date Filed: 08/26/2010

No. 09-40709 t h e home is uncertainSSthat at least one illegal alien, a friend, was present. The g o v e r n m e n t contends that Garza asked Hernandez for permission to enter the r e s id e n c e and that she consented. T h e officers entered and searched the trailer. They discovered her boyfr ie n d (Sergio Guadalupe Ayala), her children, and two illegal aliens (Luis Albert o Andrade-Quezada and his nephew, Jose Moises Regalado-Soto, a fourteeny e a r -o ld minor). The officers arrested Hernandez and Ayala. Everyone waited a t the trailer for about twenty to thirty minutes until Hernandez's mother could c o m e pick up the children. T h e officers took Hernandez, Ayala, Andrade-Quesada, and Regalado to a n ICE office for questioning. Hernandez and Ayala were informed of their Mira n d a rights but waived them, and each made statements admitting that Hern a n d e z had allowed Andrade-Quesada and Regalado to stay in her trailer for the p r e v io u s nine days, despite knowing that they were illegal aliens. Andrade-Ques a d a also made a statement to that effect and indicated that he had agreed to p a y Hernandez $150 per month while he and Regalado stayed with her. H e r n a n d e z was charged with harboring an illegal alien for financial gain in violation of 8 U.S.C. § 1324 and 18 U.S.C. § 2. She moved to suppress all evid e n c e obtained as a result of the search of her trailer, alleging that the search v io la t e d the Fourth Amendment. T h e district court held a suppression hearing. At the outset, Hernandez's c o u n s e l raised the issue of the post-arrest statements made by Hernandez, Ayala , and Andrade-Quesada at the ICE office. Counsel conceded that if those statem e n ts were admissible, the motion to suppress evidence at the trailer was futile, b e c a u s e the government would still have sufficient evidence to convict Hernand e z . Rather than decide the admissibility of the statements at the ICE office, the c o u r t elected to address the motion to suppress the trailer evidence. A f t e r hearing testimony and arguments, the court denied the motion to 3

Case: 09-40709

Document: 00511216129

Page: 4

Date Filed: 08/26/2010

No. 09-40709 s u p p r e s s . It did not address the legality of the officers' knock-and-talk methods b u t instead dealt exclusively with the question whether Hernandez's consent g iv e n to Garza was voluntary. The court acknowledged that, given the circums t a n c e s of Garza's request, there was a possibility that "somebody would think t h a t they have no right to refuse entrance." Nevertheless, the court reasoned t h a t the only out-of-the-ordinary action taken by the officers was breaking the g la s s on Hernandez's door. The court concluded that that action alone did not s u p p o r t a finding of involuntary consent. F o llo w in g the denial of her motion to suppress, Hernandez pleaded guilty. She signed a conditional plea agreement, expressly reserving the right to appeal t h e suppression issue.

II. I n an appeal of a denial of a motion to suppress, we review questions of la w de novo and factual questions for clear error. United States v. Mata, 517 F .3 d 279, 284 (5th Cir. 2008). We may affirm on any basis established by the r e c o r d . Id. T h e district court found that Hernandez gave voluntary consent to search h e r trailer. The court applied our totality-of-the-circumstances test, containing s ix factors: (1) the voluntariness of the defendant's custodial status; (2) the prese n c e of coercive police procedures; (3) the extent and level of the defendant's coo p e r a t io n with police; (4) his awareness of the right to refuse to consent; (5) his e d u c a t io n and intelligence; and (6) his belief that no incriminating evidence will b e found. Id. at 290. H e r n a n d e z argues, however, that the district court erred by not first cons id e r in g the legality of the officers' conduct before she consented to the search. We agree. When a request for consent is preceded by an illegal search or seizu r e , a different analysis applies. "[I]f an individual gives consent [to search] 4

Case: 09-40709

Document: 00511216129

Page: 5

Date Filed: 08/26/2010

No. 09-40709 a ft e r being subject to an initial unconstitutional search, the consent is valid only if it was an independent act of free will, breaking the causal chain between the c o n s e n t and the constitutional violation." United States v. Gomez-Moreno, 479 F .3 d 350, 357 (5th Cir. 2007). T h e officers' conduct was egregious. The purpose of a knock-and-talk inv e s t ig a t io n is "to make investigatory inquiry, or, if officers reasonably suspect c r im in a l activity, to gain the occupants' consent to search." Id. at 355. "The purp o s e . . . is not to create a show of force, nor to make demands on occupants, nor t o raid a residence." Id. G o m e z -M o r e n o also involved a motion to suppress the fruits of a warrantle s s knock-and-talk investigation that occurred after the defendant had consente d to a search. A two-structure residence was suspectedSSwithout probable c a u s e S S o f being used to harbor illegal aliens. Officers first announced their prese n c e and received no response, though they could hear movement inside one of t h e structures and could see people through the windows in the other. The offic e r s demanded entry and tried to open the door. A man ran outside, then back in s id e , the first structure. The officers followed him in, pulled him back out, and a r r e s t e d him and the other occupants, including the owner of the residence. The o ffic e r s gave the owner a Miranda warning and asked whether she was harborin g illegal aliens. When she admitted that she was, the officers made threatenin g statements and obtained her cooperation in persuading the occupants of the s e c o n d structure to come outside. The owner later signed a written consent to search . L ik e the court in this case, the district court in Gomez-Moreno passed over t h e question of the officers' conduct occurring before the consent and addressed o n ly whether the defendant's consent was voluntary. The court denied the owne r 's motion to suppress. We reversed:

5

Case: 09-40709

Document: 00511216129

Page: 6

Date Filed: 08/26/2010

No. 09-40709 W h e n officers demand entry into a home without a warrant, they h a v e gone beyond the reasonable `knock and talk' strategy of invest ig a t io n . To have conducted a valid, reasonable `knock and talk,' the o ffic e r s could have knocked on the front door . . . and awaited a res p o n s e ; they might have then knocked on the back door . . . . When n o one answered, the officers should have ended the `knock and talk' a n d changed their strategy by retreating cautiously, seeking a s e a r c h warrant, or conducting further surveillance. I d . at 355-56. We specifically noted the illegality of the officers' attempt to open t h e residence door. Id. at 355. We also held that the government could not arg u e that the suspect's exit and re-entry into the residence created exigent circ u m s t a n c e s for the officers to conduct a search. The officers could not, through a n illegal search, create the exigent circumstances that would then justify entry. Id. at 358. Our holding in Gomez-Moreno applies almost precisely to this case. The o ffic e r s ' conduct during their knock-and-talkSSbanging on doors and windows w h ile demanding entry, attempting a forced entry by breaking the glass on Hern a n d e z 's door, then relying on her admission that an illegal alien was present a s probable cause to enterSSviolated the Fourth Amendment. T h e district court should have acknowledged that the officers' knock-andt a lk conduct was an unreasonable search. Had it done so, the court then would h a v e proceeded not to the six-factor voluntariness analysis of Hernandez's cons e n t, but instead to the alternative analysis of whether her consent was an indep e n d e n t act of free will, breaking the chain of causation between the constitut io n a l violation and the consent. United States v. Hernandez, 279 F.3d 302, 307 (5 t h Cir. 2002). Courts consider that question by weighing three factors 1 : (1) the t e m p o r a l proximity of the illegal conduct and the consent; (2) the presence of

Our "independent act of free will" analysis is a specific application of the attenuation exception to the fruit-of-the-poisonous tree doctrine. See Brown v. Illinois, 422 U.S. 590, 60304 (1975).

1

6

Case: 09-40709

Document: 00511216129

Page: 7

Date Filed: 08/26/2010

No. 09-40709 in t e r v e n in g circumstances; and (3) the purpose and flagrancy of the initial misc o n d u c t . Id. T h o s e factors all weigh in favor of Hernandez. There was almost no time b e tw e e n the officers' flagrant and illegal conduct and Hernandez's consent, so t h e r e were no intervening circumstances. I n short, the motion to suppress should have been granted with respect to a n y evidence discovered on site at the trailer. The court then would have proc e e d e d to the question left unanswered by the district courtSSwhether the statem e n ts made by Hernandez and Ayala, after waiving their Miranda rights at the I C E office, and the statement made by Andrade-Quesada, were admissible. B e c a u s e the district court has not addressed that issue, we REVERSE the ord er denying suppression, VACATE the conviction (which was based on a condit io n a l plea of guilty) and the sentence, and REMAND. We place no limitations o n what proceedings should occur on remand, and we express no view on what d e c is io n s the district court should make.2

In its brief, to which Hernandez did not respond by filing a reply brief, the government makes the following argument: In New York v. Harris, 495 U.S. 14, 15-21 (1990), the Supreme Court held that a post-Miranda confession made at the police station after a warrantless arrest, subsequent to a warrantless, nonconsensual entry into the defendant's home, was admissible against the defendant because probable cause existed for his arrest . . . . . . . This reasoning controls the present case regardless of whether the search of Hernandez's consent to search was voluntary. . . . [A]s soon as Hernandez told Special Agent Garza at the doorway that she had at least one alien in the house, the officers had probable cause to arrest her. Therefore, assuming arguendo that she did not voluntarily consent to the search, her post-Miranda confession at the ICE station would still be admissible against her, thus effectively mooting the motion to suppress. (Footnote omitted.) The district court is free to address this argument on remand.

2

7