Opinion
Criminal Action No. SA-06-CR-0045-XR.
May 30, 2006
On May 9, 2006, the Court heard testimony regarding Defendant's motion to suppress. Defendant is charged in an indictment with one count of violating 18 U.S.C. § 922(g)(5) (illegal alien in possession of a firearm) and one count of violating 8 U.S.C. §§ 1326(a), (b)(2) (illegal re-entry into the United States). Defendant argues that on December 1, 2005, law enforcement officers illegally searched his residence. After careful consideration of the motion, response in opposition, witness testimony, and relevant case law, Defendant's motion to suppress is DENIED.
Findings of Fact
1. On December 1, 2005, at approximately 7:00 a.m., agents with the DHS/ICE High Intensity Drug Trafficking Area Task Force (HIDTA), obtained information from Defendant's ex-girlfriend, Rosalba Acevedo, that Defendant was an undocumented illegal alien in possession of a firearm and trafficking narcotics. The agents also learned that Defendant resided at 711 San Augustine, San Antonio, Texas. The information obtained from Acevedo confirmed prior intelligence that an individual with the same name as Defendant lived at 711 San Augustine and was involved in narcotics trafficking.
2. On December 1, 2005, at approximately 8:00 a.m., HIDTA special agents Hinojosa, Ibarra, and Magallan approached the front door of the residence located at 711 San Augustine to conduct a "knock and talk" with the occupants. The purpose of the "knock and talk" was to confirm the information received from Acevedo, including identifying the occupants of the residence. The agents were wearing clothing with visible police insignias. Agent Hinojosa knocked on the door and the door was opened by a man, who later identified himself as the Defendant. Defendant walked out on the porch to speak with the agents.
3. The agents identified themselves and informed Defendant that they were investigating information they had received regarding the presence of undocumented illegal aliens and narcotics trafficking at the residence. Agent Hinojosa asked Defendant to state his citizenship at which time he claimed to be a Mexican national. Agent Hinojosa requested Defendant produce documentation showing that he was in the country legally. Defendant responded that he had a passport in his bedroom.
4. At this point, Agent Hinojosa asked if they could come inside while Defendant located his passport. Defendant questioned whether the agents had a search warrant. Agent Hinojosa responded that they did not have a warrant, but would like his cooperation in this matter and then they would be on their way. Defendant voluntarily consented to the agents entering the residence. The agents followed Defendant inside.
5. Once inside the residence, Agent Hinojosa again requested Defendant produce his passport. Defendant then admitted that he did not have a passport. Agent Hinojosa then questioned whether he was in the United States illegally and Defendant responded that he was. Agent Hinojosa also asked if there was anyone else living in the house. Defendant informed the agents that his roommate was sleeping in one of the bedrooms. Agents Ibarra and Magallan immediately went to the bedroom to locate the roommate and secure the premises.
6. Based on the information provided to the agents, i.e. undocumented illegal alien possessing a handgun and trafficking narcotics, Agent Hinojosa asked Defendant whether there were any weapons in the house. Defendant became "fidgety", looked towards the bedroom that had been identified as his, and said no. Agent Hinojosa asked the Defendant: "Do you mind if we search the house for narcotics and weapons?" Defendant replied "no, go right ahead."
7. Agent Hinojosa remained with Defendant while Agents Ibarra, Magallan, and Klahr began searching the house. The agents found a firearm in Defendant's bedroom between the mattress and box spring. The firearm was later identified as a Taurus model P 292 AF caliber nine-millimeter handgun bearing serial number, L 39211. Defendant was immediately handcuffed and taken into custody by a uniformed San Antonio Police Department Officer.
8. ATF Agent Porter entered the house after being told a firearm had been found in Defendant's bedroom. Agent Porter escorted Defendant to the bedroom where he read Defendant his Miranda rights in Spanish. After Mirandizing Defendant, Agent Porter asked him whether he would like to talk about the firearm. Defendant responded affirmatively. In response to questions concerning the firearm, Defendant admitted that the firearm was his and that he had purchased it for $300.00 at a San Antonio gun show three weeks earlier. Defendant also asserted that he purchased the gun to protect his business.
9. At all time, Defendant's cooperation with the agents was wholly voluntary. The agents did not demand he open the door, force him to cooperate, or threaten him in any manner.
Conclusions of Law
1. Any finding of fact herein above which also constitutes a conclusion of law is adopted as a conclusion of law. Any conclusion of law herein made which also constitutes a finding of fact is hereby adopted as a finding of fact.
2. "A warrantless intrusion into an individual's home is presumptively unreasonable unless the person consents or probable cause and exigent circumstances justify the encroachment." United States v. Jones, 239 F.3d 716, 719 (5th Cir. 2001). The Fifth Circuit has recognized the "knock and talk" strategy as a reasonable investigative tool when officers seek to gain an occupant's consent to search or when officer's reasonably suspect, but do not know, that the occupant is engaged in criminal activity. Id. at 720-21 (citing United States v. Tobin, 923 F.2d 1506, 1511 (11th Cir. 1991) ("Reasonable suspicion cannot justify the warrantless search of a house, but it can justify the agents' approaching the house to question the occupants.").
3. The Government argues that the HITDA agents approached Defendant's residence at 711 San Augustine in order to identify the occupants and further investigate the information they had received from Acevedo, i.e. the presence of an illegal alien in possession of a firearm and narcotics trafficking. The agents never demanded Defendant open the door, forced him to cooperate, or threatened him in any manner. "Fourth Amendment scrutiny is not triggered by the knock on the door because [Defendant] responded voluntarily." United States v. Anderson, 160 Fed. Appx. 391, 392 (5th Cir. 2005).
4. Because the agents did not have a search warrant, they could not enter Defendant's residence without his consent or the presence of exigent circumstances. See United States v. Gould, 364 F.3d 578, 587 n. 9 (5th Cir.) (en banc), cert. denied, 543 U.S. 955, 125 S.Ct. 437, 160 L.Ed.2d 317 (2004). Defendant voluntarily consented to the agents entering the residence while he searched for his passport. After admitting that he did not have a passport and claiming there were no weapons or narcotics in the house, Defendant consented to Agent Hinojosa's request to search the residence.
5. Like the officers in Jones, the agents did not observe any criminal activity before approaching the residence "that would nullify the purpose of a `knock and talk' investigation." Jones, 239 F.3d at 721. Although the agents had information concerning the presence of an illegal alien possessing a firearm and trafficking narcotics at 711 San Augustine, they were not convinced that criminal activity was being conducted out of the residence. The agents' approach to the residence and subsequent "knock and talk" was "a reasonable investigative tactic under the circumstances." Id.
6. The agents' failure to obtain a search warrant prior to approaching Defendant's residence does not taint the reasonableness of the "knock and talk." Id. at 721 n. 4. "Law enforcement officials are not required to obtain a warrant at the first possible opportunity. United States v. Rodea, 102 F.3d 1401, 1409 (5th Cir. 1996). Because the [agents'] `knock and talk' investigation was reasonable, [the Court does] not need to determine whether or not the [agents] had sufficient time to acquire a search warrant before approaching [Defendant's residence]." Id.
7. Defendant's motion to suppress (docket no. 17) is DENIED.