Filed: Nov. 18, 2005
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT November 18, 2005 Charles R. Fulbruge III Clerk No. 04-10192 Summary Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus JAMES DAVID SMITH, Defendant-Appellant. * * * * * * Consolidated with No. 04-10208 * * * * * * UNITED STATES OF AMERICA, Plaintiff-Appellee, versus TARA MARIE CONWAY, Defendant-Appellant. - Appeals from the United States District Court for the Western Di
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT November 18, 2005 Charles R. Fulbruge III Clerk No. 04-10192 Summary Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus JAMES DAVID SMITH, Defendant-Appellant. * * * * * * Consolidated with No. 04-10208 * * * * * * UNITED STATES OF AMERICA, Plaintiff-Appellee, versus TARA MARIE CONWAY, Defendant-Appellant. - Appeals from the United States District Court for the Western Dis..
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United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT November 18, 2005
Charles R. Fulbruge III
Clerk
No. 04-10192
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMES DAVID SMITH,
Defendant-Appellant.
* * * * * *
Consolidated with
No. 04-10208
* * * * * *
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TARA MARIE CONWAY,
Defendant-Appellant.
--------------------
Appeals from the United States District Court
for the Western District of Louisiana
USDC No. 3:03-CR-272-2-R
--------------------
Before JOLLY, DAVIS, and OWEN, Circuit Judges.
PER CURIAM:*
In this consolidated appeal, James David Smith and Tina Marie
Conway appeal their conditional guilty-plea convictions following
*
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this opinion should not be published and is not precedent except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.
No. 04-10192 c/w No. 04-10208
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the denial of their motions to suppress evidence seized from the
hotel suite where they were staying on June 20, 2003. Smith
pleaded guilty to possession of a firearm by a convicted felon, a
violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2), and was
sentenced to 120 months in prison and three years of supervised
release. Conway pleaded guilty to possession of more than 50 grams
of methamphetamine with intent to distribute, a violation of 21
U.S.C. § 841(a)(1) and (b)(1)(B), and was sentenced to 135 months
in prison and five years of supervised release.
Pursuant to their conditional pleas, both Smith and Conway
challenge the denial of their motions to suppress. In those
motions, the defendants argued that Garland, Texas, police officers
had entered and searched their motel suite without a warrant and
without the consent of Conway, who had answered the door of the
suite, and that the search was not validated by any exception to
the warrant requirement, such as “exigent circumstances.” In
denying the suppression motions, the district court, crediting the
officers’ testimony and discrediting Conway’s, determined that
Conway had consented to the officers’ entry. According to the
officers, when they asked Conway, who answered the door in her
nightgown, if they could come in and speak to her about a traffic
violation, she answered, “Yes, but I need to get dressed.” She
then opened the door further and walked back into the suite.
Officer Glen Shaw testified that, as soon as Conway opened the door
wider, he observed, in plain view on a table in the suite’s front
room, what he thought to be a gun (which turned out to be a novelty
cigarette lighter) and a vial of marijuana, and that when he told
No. 04-10192 c/w No. 04-10208
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his partner, Officer John Edmonds, “There’s a gun,” Conway
immediately began calling for codefendant Smith in the rear part of
the suite. The officers testified that, fearing the male suspect
might pose a danger, Officer Shaw rushed to secure the gun and
arrest the defendants, and that the following search led to the
seizure of a real pistol, methamphetamine, and other incriminating
items.2
“The standard of review for a motion to suppress based on live
testimony at a suppression hearing is to accept the trial court’s
factual findings unless clearly erroneous or influenced by an
incorrect view of the law.” United States v. Outlaw, 319 F.3d 701,
704 (5th Cir. 2003) (citations and internal quotation marks
omitted). “A warrantless entry into and search of a dwelling is
presumptively unreasonable unless consent is given or probable
cause and exigent circumstances justify the encroachment.” United
States v. Santiago,
410 F.3d 193, 198 (5th Cir. 2005), petition for
cert. filed (U.S. Aug. 16, 2005) (No. 05-5902). This Fourth
Amendment protection extends to guests in motel rooms. United
States v. Richard,
994 F.2d 244, 247 (5th Cir. 1993). The
Government must prove by a preponderance of the evidence that
consent to enter “‘was freely and voluntarily given.’”
Santiago,
410 F.3d at 198-99 (citation omitted). “The standard for measuring
the scope of a suspect’s consent under the Fourth Amendment is that
of ‘objective’ reasonableness--what would the typical reasonable
2
Conway’s suppression-hearing testimony, which the district
court discredited, was that the officers had forced their way into
the suite without her consent and that none of the incriminating
evidence was in plain view in the front room.
No. 04-10192 c/w No. 04-10208
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person have understood by the exchange between the officer and the
suspect?” Florida v. Jimeno, 500 U.S. 248, 251 (1991).
The defendants have not shown that the district court clearly
erred by crediting the officers’ testimony and discrediting
Conway’s. See United States v. Walker, 960 F.2d 409, 417 (5th Cir.
1992). Although Conway’s qualification of her positive response to
the officers’ request to enter with the statement that she needed
to get dressed appeared to be adequate, standing alone, to
“delimit” the scope of her consent so as to require the officers to
wait, see
Jimeno, 500 U.S. at 252, the district court did not err
in concluding that the officers did not act unreasonably in
interpreting her actions--pulling the door open wider and stepping
back into the suite–-as an invitation to enter the room
immediately. The defendants do not explicitly challenge the
district court’s determination that Conway’s consent was voluntary.
See
Outlaw, 319 F.3d at 704;
Santiago, 410 F.3d at 199 (outlining
six-factor standard for determining voluntariness of consent).
The defendants also do not dispute the district court’s
determinations about what occurred immediately after the officers
entered the room: that Officer Shaw thought he saw a gun, that
Conway called for defendant Smith, and that the officers thought
they might be in danger. Only in conclusory fashion does defendant
Smith argue that these circumstances did not present “exigent
circumstances,” but we agree with the district court that these
circumstances qualified as “exigent.” See United States v. Jones,
239 F.3d 716, 720 (5th Cir. 2001). For the foregoing reasons, the
No. 04-10192 c/w No. 04-10208
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district court did not err in denying the defendants’ motions to
suppress the evidence.
Defendant Conway argues that the district court erred in
failing to suppress her post-arrest statements on the grounds that
they were involuntary and that they were “tainted” by the Fourth
Amendment violations with respect to the entry and search. Insofar
as Conway argues that the statements were involuntarily elicited,
this contention was not raised below and is barred by the waiver-
of-appeal provision in her plea agreement. See United States v.
Portillo, 18 F.3d 290, 292-93 (5th Cir. 1994). Insofar as she
argues the confession was “tainted,” the district court was correct
in concluding that this “fruit of the poisonous tree” argument was
meritless because the threshold Fourth Amendment argument was
itself meritless.
Because the defendants have not established that the district
court erred in denying their motions to suppress, the convicitions
and sentences are AFFIRMED.
