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Click here for the full text of this decision FACTS:On May 30, 2003, law enforcement agents planned to execute an arrest warrant for Gerardo Castillo, Jose Alejandro Maldonado’s alleged co-conspirator. Agents did not know where Castillo was located, but they had his cell phone number. An agent called Castillo and asked him if he would transport two kilograms of cocaine. Castillo agreed but refused to meet the agent in a public place as the agent suggested. Instead, Castillo asked the agent to come to the trailer home where he was staying. The agent agreed. The agents were unaware that the trailer was Maldonado’s residence. Castillo gave the phone to Maldonado and asked him to give the caller directions, which included only a physical description of the trailer and how to find it by following various landmarks. The agent did not know anything about the person who gave him directions, only that he was Castillo’s friend. Approximately 20 to 30 minutes later, Castillo called the agent back, stating that he had something else to do and asking the agent to hurry up and get there. The agent told Castillo that he would be there shortly. Approximately eight agents arrived at the trailer soon thereafter and established surveillance. When the agents arrived at the trailer at approximately 4:30 p.m., they were not certain they were at the correct location. The agents instructed an undercover agent to drive up to the trailer and honk his horn. At this time, a couple of agents were approximately 100 yards away in a parked vehicle. When the undercover agent honked his horn, Castillo came out of the trailer and got into the undercover vehicle. Agents then swarmed in and arrested Castillo in the driveway. Two agents approached the trailer to cover all sides. While Castillo was being arrested, one agent noticed someone open the trailer door, peek out and then quickly close the door. The agents were in front of the trailer and had very little cover, because the trailer sits in an open area with only a telephone pole to afford cover. Police insignia were visible on the agents’ vests and jackets. An agent approached the trailer door, yelled to the individual inside that they were police executing an arrest warrant and opened the door. Maldonado exited, and an agent pushed him to the ground. As other agents were rushing inside the trailer, Maldonado was asked whether anyone else was inside. Maldonado indicated in Spanish that no one else was in the trailer. Agents swept the trailer, looking in places where a person could be hiding to make sure no one else was inside the trailer who could attack them. During this sweep, in the master bedroom closet, they discovered and seized several packages in plain view that appeared to be narcotics. These packages contained approximately 314 pounds of marijuana. Before trial, Maldonado moved the district court to suppress the introduction of any evidence relating to the seized marijuana on Fourth Amendment grounds. The district court found that the protective sweep by the agents was justified by exigent circumstances and denied Maldonado’s motion to suppress. After a jury trial, Maldonado was found guilty of conspiracy to distribute marijuana and was sentenced to 120 months imprisonment with 5 years of supervised release. Maldonado appealed his conviction. HOLDING:Affirmed. Warrantless entry into a home is presumptively unreasonable, the court stated, but the state can overcome this presumption by proof of exigent circumstances. Nevertheless, the court added, where law enforcement agents create the exigency, the warrantless activity is per se unreasonable, and any evidence obtained thereby must be suppressed. The court concluded that the brief time available to conduct surveillance of the trailer, the exposure of the agents in the open area surrounding the trailer, the opening and closing of the trailer door during Castillo’s arrest, and the reasonable expectation that weapons are present during drug transactions were sufficient circumstantial evidence to support a finding that the agents’ fear of possible attack from the individuals in the trailer was reasonable. Under the totality of the circumstances, the court held that the district court did not err in finding exigent circumstances justifying the protective sweep. Under the totality of the circumstances, the court then concluded that the district court correctly concluded that the agents did not manufacture the exigent circumstances. Because the agents’ entry into the house was valid and the sweep was narrow and confined to areas of the trailer where persons could be hiding, their seizure of the marijuana was also valid, the court held. The marijuana seized was in plain view, the court stated, adding that agents may seize evidence that is in plain view inside a residence without obtaining a warrant. In sum, the district court did not err in finding that the protective sweep was an appropriate reaction to exigent circumstances which the agents did not create. The district court correctly denied the motion to suppress. OPINION:Davis, J.; Jolly, Davis and Wiener, J.J.

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