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Click here for the full text of this decision FACTS:Immigration and Customs Enforcement (ICE) agent Gary Renick testified that on Feb. 27, 2005, he began surveillance of 3806 Kennon St. in Houston. The surveillance responded to an anonymous telephone call stating that 20 to 30 illegal aliens would be at the residence that day. The residence consisted of two buildings: a main house in the front and a smaller house in the back that looked like a garage but had been converted into living quarters. Renick had been working for ICE and its predecessor for eight and a half years. He testified that illegal aliens are typically stored as a group in a stash house until a relative pays the smuggler’s fee. Based on his training, he believed that the residence was probably a stash house. ICE special agent Christian Kaufman testified that he met Renick at 4:30 p.m. at a small park one block across from the residence. By 5:45 or 6 p.m., several other agents arrived at the park until there were approximately 10 to 12 agents and police officers at the park. A man walked past the officers, looked at them and then ran in the direction of the 3806 Kennon St. residence. Renick testified that they decided to approach the residence to secure the exits to the front and back houses and to conduct a “knock and talk” to ask if any illegal aliens were present. As they approached the front house, Kaufman and the officers with him were clearly identified as police or Department of Homeland Security officers. When they knocked on the front door, they received no answer but could hear people moving inside. One of the officers checked the door knob, which was locked. Kaufman heard a commotion in the backyard and made his way to the back. Eventually, a man exited the front house through a back door but stopped when he saw the officers. Seeing the officers, the man turned and ran back inside. Kaufman and several officers drew their weapons and followed the man into the front house to protect the officers and any illegal aliens from any potential armed smugglers. They quickly secured the front house, bringing all 12 occupants out to the backyard. ICE agent Juan Castillo testified that most of the persons detained were handcuffed, although Delia Gomez-Moreno was not handcuffed. In the backyard, Gomez-Moreno identified herself as the owner. Renick asked her if there were more illegal aliens in the back house, and she replied affirmatively. Renick testified that he then told her, “We’re going to get in that door one way or another.” Gomez-Moreno, however, offered to talk to the people inside, who complied with her request to open the door. The officers secured the back house, bringing out 13 people. After the officers secured both houses, agent Castillo brought Gomez-Moreno into the dining room and asked her to sign a written consent form giving the officers permission to search the premises. She complied. Later, Castillo took Gomez-Moreno to the ICE office and questioned her. At the ICE office, Castillo read Gomez-Moreno her Miranda rights and wrote down a statement that she gave and then signed. Gomez-Moreno stated that she rented the back house to Nemecio Rubio for $700 per month; that she was aware that he used the back house to house illegal aliens; and that on the day before the raid, she agreed to house 14 illegal aliens in her home for $50 per alien. In the district court, Gomez-Moreno moved to suppress evidence obtained as a result of the search of her residence. The district court denied her motion and found her guilty of conspiracy to harbor illegal aliens in violation of 8 U.S.C. �1324(a)(1)(A)(iii). Gomez-Moreno appealed the denial of her motion to suppress. HOLDING:The 5th Circuit reversed the district court’s denial of the motion to suppress, vacated Gomez-Moreno’s sentence and remanded the matter. The 5th Circuit first examined whether the officers acted with probable cause and under exigent circumstances when they initially raided and searched Gomez-Moreno’s home. To determine whether exigent circumstances existed, the court cited a non-exhaustive list of factors: 1. the degree of urgency involved and the amount of time necessary to obtain a warrant; 2. the reasonable belief that contraband is about to be removed; 3. the possibility of danger to the police officers guarding the site of contraband while a search warrant is sought; 4. information indicating that the possessors of the contraband are aware that the police are on their trail; and 5. the ready destructibility of the contraband and the knowledge that efforts to dispose of contraband and to escape are characteristic behavior of persons engaged in the contraband traffic. In determining whether officers create an exigency, the court focused on the reasonableness of the officers’ investigative tactics leading up to the warrantless entry. One reasonable investigative tactic, the court stated, is a “knock and talk” strategy where officers seek to gain an occupant’s consent to search or where officers reasonably suspect criminal activity. Here, the officers’ “knock and talk” strategy failed, because of improper execution and the fact that the tactic did not result in someone voluntarily coming to the door. When no one answered, the court stated, the officers should have ended the “knock and talk” and changed their strategy by retreating cautiously, seeking a search warrant or conducting further surveillance. Instead, the officers demanded entry into a home without a warrant. The officers, the court stated, may not rely on the “circumstances of their own making” to justify the exigent circumstances that developed when they approached the residence. The court held that exigent circumstances did not justify the initial raid into and the warrantless search of Gomez-Moreno’s residence and that the raid and search violated Gomez-Moreno’s Fourth Amendment rights. The court also held that Gomez-Moreno’s consent to the search was not voluntary. OPINION:Jolly, J.; Jolly, Higginbotham and Dennis, J.J.

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