Unpublished Disposition, 902 F.2d 1580 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 902 F.2d 1580 (9th Cir. 1989)

UNITED STATES of America, Plaintiff-Appellee,v.Jose MONTANO-LOPEZ, Defendant-Appellant.

No. 89-10326.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 16, 1990.Decided May 18, 1990.

Appeal from the United States District Court for the District of Arizona; William D. Browning, District Judge, Presiding.

D. Ariz.

AFFIRMED.

Before TANG, WILLIAM A. NORRIS and FERNANDEZ, Circuit Judges.


MEMORANDUM* 

Reserving his right to appeal the district court's pretrial rulings, Montano-Lopez pled guilty to possession with intent to distribute marijuana, in violation of 21 U.S.C. § 841(a) (1). Montano-Lopez now appeals the district court's denial of his motion to suppress on the grounds that (1) neither probable cause nor exigent circumstances existed to justify the warrantless entry of his home and his arrest, and (2) his consent to search was not voluntary. We affirm.

Responding to a tip from a confidential informant concerning suspected cocaine smuggling, federal agents followed a beige Volkswagon from the Douglas, Arizona Port of Entry to a residence in Tucson. At the residence, agents observed the arrival of two other vehicles, one of which appeared to be involved in some sort of surveillance of the house. The agent in charge of the investigation, Randy Huling, also testified that he saw considerable foot traffic to and from the house.

After the other two vehicles left, Agent Huling decided "to continue the investigation by knocking on the door of the residence." District Court Order, Excerpt of Record at 12. Accompanied by three other agents, Huling approached the door with his weapon drawn but positioned by his leg in such a way that it was not directly visible. Huling testified that when the front door was opened, he immediately smelled the odor of bulk marijuana. Huling raised his gun, the agents entered the residence, took its three occupants into custody and conducted a protective sweep of the house.

Montano-Lopez, the owner of the house, verbally consented to a search and, later, both he and his wife signed a consent form. A search of the residence revealed approximately 187 pounds of marijuana.

In an order filed on March 31, 1989, the district court denied Montano-Lopez's motion to suppress the marijuana.

* Warrantless Entry and Arrest

We review the district court's findings of facts and determinations of credibility for clear error, but we review de novo the district court's determination of the validity of a warrantless entry into a residence. United States v. Lindsey, 877 F.2d 777, 780 (9th Cir. 1989).

Agent Huling conceded in his testimony that upon approaching the residence, the agents did not have probable cause for an arrest or a search. Relying on this concession, appellant challenges the officers initial entry into his front yard and porch area.

In United States v. Dunn, 480 U.S. 294, 300 (1986), the Supreme Court noted that the fourth amendment "protects the curtilage of a house and that the extent of the curtilage is determined by factors that bear upon whether an individual reasonably may expect that the area in question should be treated as the home itself."1  The district court found that the yard was bordered by a small wall or fence, but that this fence did not conceal any part of the house. Because the yard and porch could be observed by persons passing by, appellant had no reasonable expectation of privacy in this area, and there was no unconstitutional entry. See United States v. Hoyos, 892 F.2d 1387, 1393-94 (9th Cir. 1989) (yard open to public view not an area protected by fourth amendment).

The district court, however, found that the entry/arrest occurred after Montano-Lopez opened the door and the agents smelled marijuana. At this point, there was probable cause to enter because the smell of marijuana establishes probable cause. See United States v. Curran, 498 F.2d 30, 33 (9th Cir. 1974). In addition, exigent circumstances justified the agents' warrantless intrusion into appellant's home. The officers had reason to believe, based on the totality of the circumstances, that action was necessary to prevent destruction of evidence. See Lindsey, 877 F.2d at 780-81.

Appellant states that police "cannot create exigent circumstances and then rely on their own created exigencies to qualify a warrantless arrest." Appellant's Brief at 11. To support a finding of exigent circumstances, officers must be acting in good faith. See United States v. Kunkler, 679 F.2d 187, 191 (9th Cir. 1982). "Good faith means not acting with the intent improperly to circumvent the warrant requirement by purposefully precipitating a situation ... in which the destruction of evidence or contraband is likely." Id. at 191 n. 3. In this case, however, there is nothing to indicate that the agents "purposefully precipitated" the situation. The district court accepted Huling's testimony that the purpose of the approach was merely investigative in nature. Accordingly, appellant's argument is unavailing.

In summary, we hold that, in accordance with the district court's rulings: (1) There was no entry or arrest prior to the moment when appellant opened the door and the agents smelled marijuana; and (2) at that moment there existed probable cause and exigent circumstances to justify the officers' actions.

II

Consent to Search

The district court found that Montano-Lopez's consent was voluntary. Whether consent to search is voluntary is a factual determination; we will not disturb the district court's ruling unless it is clearly erroneous. Lindsey, 877 F.2d at 783.

Appellant asserts that his consent to search was not voluntary because, among other factors, when the agents obtained his consent he was in custody; he had not been given complete Miranda warnings; he had not been told of his right to refuse consent; and the agents threatened to "tear his house apart" if he did not consent. Appellant relies on United States v. Castillo, 866 F.2d 1071, 1082 (9th Cir. 1988), in which we delineated several factors to be considered in determining whether consent is voluntary.2  We noted, however, that none of the factors are dispositive, and that voluntariness is based on the "totality of the circumstances." Id.

Although the district court did not elaborate on its finding that Montano-Lopez's consent was voluntary, we find no clear error in the district court's ruling. A person in custody is capable of giving valid consent. Lindsey, 877 F.2d at 783. The absence of Miranda warnings is also not conclusive. Castillo, 866 F.2d at 1082. Moreover, execution of a consent form is one factor indicating that consent was voluntary. Id. In this case, Montano-Lopez orally consented in Spanish, and then, approximately one hour later, signed a written consent form. Under these circumstances, the district court's finding that the consent was freely given is not clearly erroneous.

AFFIRMED.

 *

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3

 1

The Court listed four factors to be considered in determining curtilage questions: (1) the proximity of the area to the home; (2) whether the area is within an enclosure surrounding the home; (3) the nature of the uses to which the area is put; and (4) the steps taken by the resident to protect the area from observation. Dunn, 480 U.S. at 301

 2

These factors include: (1) whether defendant was in custody; (2) whether the arresting officers had their guns drawn; (3) whether Miranda warnings had been given; (4) whether the defendant was told he has a right not to consent; and (5) whether the defendant was told a search warrant could be obtained. Castillo, 866 F.2d at 1082