United States v. Giovani Crisolis-Gonzalez

Filing

CORRECTED OPINION FILED - THE COURT: DUANE BENTON, C. ARLEN BEAM and BOBBY E. SHEPHERD Original Opinion filed on: 02/10/2014 Correction to opinion: Correction on page 10, last paragraph, first line, changing Crisolis-Gonalez's to Crisolis-Gonzalez's. [4122837] [12-3807]

United States Court of Appeals
For the Eighth Circuit
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No. 12-3807
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Giovani Crisolis-Gonzalez
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Western District of Missouri - Kansas City
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Submitted: November 21, 2013
Filed: February 10, 2014 (Corrected February 11, 2014)
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Before BENTON, BEAM, and SHEPHERD, Circuit Judges.
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SHEPHERD, Circuit Judge.
Giovani Crisolis-Gonzalez was convicted of possession with intent to distribute
and conspiracy to distribute 50 grams or more of methamphetamine, in violation of
21 U.S.C. §§ 841 and 846, and illegal reentry of an alien in violation of 8

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U.S.C. § 1326(a). Crisolis-Gonzalez appeals the district court’s1 denial of his motion
to suppress evidence obtained and statements elicited while the agents conducted a
“knock and talk”2 at Crisolis-Gonzalez’s residence. We affirm.
I.
During his investigation of a series of drug trafficking cases in St. Joseph,
Missouri, Special Agent Jose Covarrubias of Homeland Security Investigations
received information from a confidential informant that Crisolis-Gonzalez had
entered the country illegally, was involved in trafficking methamphetamine, and had
possibly purchased a firearm. As a result of receiving this information, two special
agents were assigned to conduct surveillance of the apartment complex where
Crisolis-Gonzalez was believed to be staying. At the complex, the agents located a
vehicle they believed belonged to Crisolis-Gonzalez and informed Agent
Covarrubias. Agent Covarrubias and another special agent joined the other two at the
complex in order to conduct a “knock and talk,” intending to obtain further
information about Crisolis-Gonzalez.
Agent Covarrubias approached the apartment believed to house CrisolisGonzalez and knocked on the door. Mr. Reyes-Savedra, boyfriend and roommate of
one of the lessees, opened the door, and Agent Covarrubias asked, in Spanish, if he
could come in to speak with him. Reyes-Savedra agreed and stepped aside to let the
agents in. Upon entering the apartment, the agents noticed a baby and a woman, later

1

The Honorable Ortrie D. Smith, United States District Judge for the Western
District of Missouri, adopting the report and recommendations of the Honorable
Sarah W. Hays, United States Magistrate Judge for the Western District of Missouri.
2

A “knock and talk” is an investigatory technique in which law enforcement
officers approach the door of a dwelling seeking voluntary conversation and consent
to search. See United States v. Wise, 588 F.3d 531, 534 n.3 (8th Cir. 2009).
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identified as Crisolis-Gonzalez’s girlfriend, Yuliet Lara-Andres, in the kitchen.
Agent Covarrubias then asked if anyone else was in the home. Neither
Reyes-Savedra nor Lara-Andres answered. After being asked again, Reyes-Savedra
paused and turned his head slightly towards the hallway.
Interpreting Reyes-Savedra’s hesitance and slight head turn as indicating that
other people were in the house, the agents drew their guns and informed ReyesSavedra and Lara-Andres that they were going to check the apartment for other
people. While walking down the hall, the agents yelled “police, police” in Spanish.
Crisolis-Gonzalez came out of a bedroom with his hands up. Crisolis-Gonzalez was
handcuffed and taken to the living room. Agents also found another individual, later
identified as Mr. Ocampo-Ocampo, whom they also handcuffed.
Agent Covarrubias questioned everyone as to their names and immigration
status. Crisolis-Gonzalez admitted he was in the country illegally. Agent
Covarrubias then requested consent to search the apartment. Crisolis-Gonzalez asked
what they were looking for, and Agent Covarrubias told him they were looking for
any fraudulent documents, guns, large amounts of cash, and drugs. Crisolis-Gonzalez
then stated that he had a gun under his mattress. Two of the agents went to the
bedroom to make sure the gun was not loaded but did not seize the gun at that time.
Agent Covarrubias again requested consent to search. Crisolis-Gonzalez asked what
would happen if he refused, and Agent Covarrubias responded that he would attempt
to get a search warrant. Agent Covarrubias handed each resident a consent-to-search
form written in Spanish and read it to them. Crisolis-Gonzalez read the form and
signed. Lara-Andres also signed the form. Ocampo-Ocampo and Reyes-Savedra
declined to consent at that time.
The agents then searched Crisolis-Gonzalez’s bedroom and discovered drugs,
drug paraphernalia, cash, and an illegitimate social security card in the closet. Agent
Covarrubias obtained a Miranda-warnings form and read the form to Crisolis-3-

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Gonzalez. Crisolis-Gonzalez signed the form and agreed to speak with Agent
Covarrubias. Crisolis-Gonzalez was taken to the Platte County Jail where he signed
the Miranda-warnings form again after being advised of his Miranda rights a second
time. Agent Covarrubias then began questioning Crisolis-Gonzalez about the
discovered drugs and contraband.
The grand jury returned a three count superceding indictment against CrisolisGonzalez, after which Crisolis-Gonzalez moved to suppress all evidence and
statements obtained during the search of his apartment and subsequent interrogation.
A magistrate judge recommended granting the motion in regard to CrisolisGonzalez’s statement that he was an illegal alien and denying the motion on all other
bases. The district court adopted the report and made the following findings: (1) the
agents were given consent to enter the apartment because Agent Covarrubias’s
request to come in and talk with Reyes-Sevadra cannot be construed as an attempt to
misrepresent the purpose of the agents’ presence; (2) the protective sweep of the
apartment was valid because the agents had a reasonable belief that the area harbored
an individual posing danger; (3) although the pre-Miranda statement regarding
Crisolis-Gonzalez’s immigration status should be suppressed, the statement that he
possessed a gun is admissible because the statement was made in response to a
request for consent to search, which did not amount to an interrogation; (4) CrisolisGonzalez’s consent to search the apartment was voluntary, particularly because
Crisolis-Gonzalez asked what would happen if he refused, exhibiting his
consideration of the available options; and (5) the statements following the Miranda
warning and Crisolis-Gonzalez’s waiver were not fruit of the poisonous tree because
there were no prior violations, and Crisolis-Gonzalez understood his rights.
The case proceeded to a bench trial, where Crisolis-Gonzalez was convicted
on all counts except the charge of possession of a firearm in connection with a drug
offense. He was fined $400 in special assessments and sentenced to a controlling
term of 135 months with five years of supervised release.
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II.
Crisolis-Gonzalez appeals his conviction, arguing the district court erred in
denying his motion to suppress. Crisolis-Gonzalez specifically contends that the
agents (A) entered his apartment unlawfully; (B) conducted a protective sweep
without specific, articulable facts indicating the apartment harbored dangerous
individuals; (C) illegally elicited the statement about his hidden gun under the
mattress; (D) unlawfully obtained consent to search the apartment; and (E) unlawfully
obtained incriminating statements pursuant to an involuntary Miranda waiver. “The
denial of a motion to suppress is reviewed de novo with its underlying factual
determinations reviewed for clear error.” United States v. Torres-Lona, 491 F.3d 750,
755 (8th Cir. 2007).
A. “Knock and Talk” Entry
Crisolis-Gonzalez argues that the agents gained entry into the home by false
pretense. Particularly, he maintains that Agent Covarrubias’s request to come in to
speak with Reyes-Savedra was misleading because the agents really wanted to speak
to Crisolis-Gonzalez. He also contends Reyes-Savedra did not have authority to
consent to the agents’ entry.
Indeed, “‘[m]isrepresentations about the nature of an investigation may be
evidence of coercion’” and can certainly “invalidate the consent if the consent was
given in reliance on the officer’s deceit.” United States v. Briley, 726 F.2d 1301,
1304 (8th Cir. 1984) (quoting United States v. Turpin, 707 F.2d 332, 334 (8th Cir.
1983); see also United States v. Kelly, 329 F.3d 624, 629 (8th Cir. 2003) (citing
Briley, 726 F.2d at 1304). However, we do not require officers to “‘gratuitously
advertis[e] [their] every move to anyone [they] might encounter.’” Briley, 726 F.2d
at 1305 (second and third alterations in original) (quoting In re Anthony F., 442 A.2d
975, 980 (Md. 1982)).
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We find no evidence of misrepresentation in Agent Covarrubias’s request to
enter the apartment. Importantly, Reyes-Savedra agreed to let the agents inside
without further inquiry as to the nature of the visit. See Turpin, 707 F.2d at 335.
And, like the district court, we find nothing misleading about Agent Covarrubias’s
request to speak with Reyes-Savedra because it was consistent with the overall goal
of locating Crisolis-Gonzalez. See e.g., Briley, 726 F.2d at 1305 (concluding that the
officers’ statement that they wanted to discuss important matters with the defendant
was not a misrepresentation of the officers’ purpose of arresting the defendant).
Whether Reyes-Savedra had common authority over the premises such that he
could consent to the agents’ entry is “a question of fact and is determined by the
existence of ‘mutual use, joint access, and control.’” United States v. Almeida-Perez,
549 F.3d 1162, 1170 (8th Cir. 2008) (quoting United States v. James, 353 F.3d 606,
613 (8th Cir. 2003)). Consent to enter or search the premises “may be given by a
‘third party who possessed common authority over or other sufficient relationship to
the premises or effects sought to be inspected.’” United States v. Hilliard, 490 F.3d
635, 639 (8th Cir. 2007) (quoting United States v. Matlock, 415 U.S. 164, 171
(1974)). It is undisputed that Reyes-Savedra shared a bedroom in the apartment with
his girlfriend, whose name was on the lease. Thus, Reyes-Savedra had actual
authority to consent.
B. The Protective Sweep
Next, Crisolis-Gonzalez argues that the agents performed an unlawful
warrantless search of the apartment under the guise of a protective sweep. A
protective sweep is permitted under the Fourth Amendment when an officer has
“‘articulable facts which, taken together with the rational inferences from those facts,
would warrant a reasonably prudent officer in believing that the area to be swept
harbors an individual posing a danger to those on the arrest scene.’” United States
v. Cisneros-Gutierrez, 598 F.3d 997, 1006 (8th Cir. 2010) (quoting Maryland v. Buie,
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494 U.S. 325, 334 (1990) (internal quotation marks omitted)). Crisolis-Gonzalez
claims that the protective sweep was unlawful due to the absence of an initial arrest
and the lack of any articulable facts suggesting the agents were in danger. We
disagree.
Protective sweeps need not always occur in conjunction with an arrest. See id.
In Cisneros-Gutierrez, we upheld the sweep in the absence of an arrest because under
the circumstances, a “reasonable officer could conclude that it was necessary for his
safety to secure the premises before obtaining a warrant.” Id. at 1006. In that case,
the officers had been informed that the defendants possessed illegal narcotics and
firearms, and when the officers arrived on the premises, they observed the defendants’
evasive and suspicious behavior. Id. at 1007. In light of those facts, we concluded
that “[t]here was a reasonable possibility that other individuals were in the home,
posing a danger to the officers.” Id. at 1006-07.
We draw a similar conclusion here. The agents had been informed that
Crisolis-Gonzalez was involved in drugs and that he may have purchased a gun. The
hesitance from both Reyes-Savedra and Lara-Andres when Agent Covarrubias asked
if others were in the house ignited the agents’ suspicion as to the potential danger.
Reyes-Savedra’s slight head turn to the hallway in response to being asked whether
anyone else was in the apartment created further suspicion that other individuals were
present. We hold these facts sufficient to alert the agents as to the possibility that the
apartment harbored dangerous individuals. Thus, the agents conducted a lawful
protective sweep of the apartment.
C. Pre-Miranda Gun Statement
Crisolis-Gonzalez also maintains that his statement regarding the gun under his
mattress was unlawfully elicited. He makes two arguments. First, he contends that
Agent Covarrubias should have known that inquiry into his immigration status
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without a proper Miranda warning would likely elicit incriminating statements.
Second, Crisolis-Gonzalez maintains that his question as to what the agents would be
looking for if he gave his consent and Agent Covarrubias’s subsequent response that
they would look for fraudulent documents, guns, large amounts of cash, and drugs
amounted to an unlawful elicitation of his gun statement.
“Interrogation in the Miranda context refers to express questioning and to
words or conduct that officers should know is ‘reasonably likely to elicit an
incriminating response from the suspect.’” United States v. Briones, 390 F.3d 610,
612 (8th Cir. 2004) (quoting Rhode Island v. Innis, 446 U.S. 291, 301 (1980)). We
do not find that the inquiry into Crisolis-Gonzalez’s immigration status motivated his
incriminating statement about the gun. Such questioning was wholly unrelated to
Crisolis-Gonzalez’s volunteered statement that he had a gun under his mattress.
Moreover, the circumstances make it clear that Crisolis-Gonzalez’s gun statement
was not made in response to the question as to his immigration status but was made
in response to Agent Covarrubias’s explanation of what the agents would be looking
for if permitted to search the apartment. Therefore, the gun statement was
independent from Agent Covarrubias’s immigration inquiry. See United States v.
Hawkins, 102 F.3d 973, 975 (8th Cir. 1996) (rejecting the defendant’s argument that
his incriminating statement was induced by the officer’s earlier “inherently coercive
interrogation” when it was clear from the circumstances that “it was the discovery of
illegal drugs in his home, not police coercion, that induced the statements”).
We also conclude that Agent Covarrubias’s response to Crisolis-Gonzalez’s
inquiry as to what the agents would be looking for if permitted to search is not the
type of statement that would induce an incriminating admission. “Miranda does not
protect an accused from a spontaneous admission made under circumstances not
induced by the investigating officers or during a conversation not initiated by the
officers.” United States v. Hayes, 120 F.3d 739, 744 (8th Cir. 1997) (internal
quotation marks omitted) (holding that the defendant’s admission as to her
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whereabouts on the day of the robbery was volunteered and thus not made in
violation of her Miranda rights when the agent merely explained that he wanted to ask
questions concerning the events of the day). We have also noted that an officer’s
response to a defendant’s question does not amount to an interrogation. See United
States v. Howard, 532 F.3d 755, 762 (8th Cir. 2008) (“The record is unclear whether
the police informed Howard why they were in the area because Howard asked, or if
they did so on their own. Clearly, the former situation does not amount to the
functional equivalent of direct questioning.”). In Howard, we also reasoned that even
if an officer explains why he is in the area without being asked, an officer cannot be
held to have reasonably known such explanation would elicit an incriminating
response. Id.
Here, Agent Covarrubias merely requested consent to search. CrisolisGonzalez asked Agent Covarrubias to explain what the officers would be looking for.
Relying on the logic in Hayes and Howard, Agent Covarrubias’s response cannot be
construed as an attempt to elicit incriminating statements. Thus, we hold CrisolisGonzalez’s statement about the gun was a volunteered, spontaneous admission.
D. Consent to Search
In addition, Crisolis-Gonzalez claims that his consent to search his bedroom
was involuntary because the agents created a coercive atmosphere, one where all the
occupants were initially handcuffed without the freedom to leave. “The voluntariness
of a consent to search is a factual question that is reviewed for clear error.” United
States v. Johnson, 619 F.3d 910, 918 (8th Cir. 2010) (internal quotation marks
omitted). In determining “whether consent was given voluntarily, we examine the
totality of the circumstances.” Id.
We find the circumstances surrounding Crisolis-Gonzalez’s consent completely
void of even the slightest evidence of coercion. The record reveals that Crisolis-9-

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Gonzalez asked what would happen if he declined to consent and read the consent
form himself before he signed it. Such actions exhibit Crisolis-Gonzalez’s intelligent
consideration of his options. Furthermore, at the time the agents requested consent,
the agents had already removed the handcuffs from the occupants and holstered their
guns. There is no evidence that the agents acted in a threatening manner.
Moreover, Crisolis-Gonzalez’s argument that the agents created a coercive
environment is blunted by the fact that two other occupants similarly detained
explicitly declined to consent. Viewing the totality of the circumstances, we hold that
Crisolis-Gonzalez voluntarily consented to the search of his bedroom.
E. Post-Miranda Statements
As a final argument, Crisolis-Gonzalez contends that due to all of the
illegalities that occurred during the “knock and talk” at his apartment, the
incriminating statements made during Agent Covarrubias’s interrogation constitute
“fruit of the poisonous tree.” See Wong Sun v. United States, 371 U.S. 471, 488
(1963). Specifically, he argues that the illegalities prevented his Miranda waiver
from being knowing and intelligent, and all subsequent statements should be
suppressed.
“An individual’s waiver of the Fifth Amendment privilege against selfincrimination . . . is valid if made voluntarily, knowingly and intelligently.” United
States v. Harper, 466 F.3d 634, 643 (8th Cir. 2006). Again, we look to the totality of
the circumstances “[w]hen determining the voluntariness of a confession.” United
States v. Hyles, 479 F.3d 958, 966 (8th Cir. 2007).
Crisolis-Gonzalez’s argument falls short. First, as discussed, there were no
unlawful actions by the agents during their investigation. Accordingly, there is no
illegality from which subsequent statements could stem as “fruit of the poisonous
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tree.” Moreover, Crisolis-Gonzalez was advised of his Miranda rights twice, once at
the apartment and again at the county jail. He read the Miranda-warnings form twice,
signing the form once at his apartment and again at the county jail. We find nothing
in the record, nor does Crisolis-Gonzalez point to any facts, demonstrating the
invalidity of his waiver. Thus, his post-Miranda statements were lawfully obtained.
III.
The district court’s denial of the motion to suppress is affirmed.
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