United States v. Rodea

• Court: Court of Appeals for the Fifth Circuit
• Decided: December 24, 1996
• Docket: 96-40018
• Status: Published

Opinion

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

_____________________

No. 96-40018 _____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

versus

JOSE RODEA, JR.; JOSE RODEA-HERNANDEZ,

Defendants-Appellees.

_________________________________________________________________

Appeal from the United States District Court for the Southern District of Texas _________________________________________________________________

December 24, 1996

Before BARKSDALE, EMILIO M. GARZA, and BENAVIDES, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

Primarily at issue is the exigent circumstances exception to

the Fourth Amendment warrant requirement. The United States

appeals the suppression (1) of evidence seized in the search of a

mobile home occupied by, among others, appellees Jose Rodea-

Hernandez (Rodea-Hernandez) and Jose Rodea, Jr. (Rodea), and (2) of

statements made by Rodea. We REVERSE and REMAND.

I.

In September 1995, assisted by a confidential informant, Drug

Enforcement Administration Special Agent Silva, acting in an

undercover capacity, arranged to purchase marijuana from appellees’

co-defendant Juan Lopez-Gonzalez. After a meeting between the

informant, the Agent, and Lopez-Gonzalez, at which the marijuana price was agreed upon, surveillance units followed Lopez-Gonzalez,

the informant, and another of appellees’ co-defendants to a mobile

home in an isolated, rural area.

After the informant advised Agent Silva that the marijuana had

been delivered to that home, but before further arrangements for

consummation of the transaction could be made, it was determined

that Lopez-Gonzalez, who was in the informant’s car on the way to

meet again with Agent Silva, had detected one of the Agents

conducting surveillance. Lopez-Gonzalez was arrested because Agent

Silva feared that he would alert the individuals at the mobile

home. Believing that those individuals would become suspicious

when Lopez-Gonzalez did not contact them or return to the mobile

home, and that they might attempt to flee and/or remove the

marijuana, Agent Silva directed the Agents conducting surveillance

to approach the mobile home and seek consent to search it.

As the Agents approached the home, one occupant fled, and the

other occupants, including the two appellees, refused initially to

exit. Eventually, the appellees exited voluntarily, but the

remaining occupants had to be removed from the mobile home by the

Agents. All were arrested. The Agents conducted a protective

sweep to ensure that no one remained in the mobile home.

After being arrested, Rodea-Hernandez consented to a search

of the mobile home; 459 pounds of marijuana, scales, and drug

ledgers were seized, but no weapons were found. Post-arrest, Rodea

made a statement outside the mobile home; and he and Rodea-

Hernandez made statements at the DEA offices.

- 2 - Rodea and Rodea-Hernandez (and five others, all of whom have

pleaded guilty) were charged with conspiracy to possess with the

intent to distribute marijuana, in violation of 21 U.S.C. §§

841(a)(1), 841(b)(1)(B), and 846; and with possession of marijuana

with the intent to distribute, in violation of 21 U.S.C. §

841(a)(1) and 841(b)(1)(B). Suppression of appellees’ statements

and the evidence seized during the search was sought on the bases

that the Agents did not have probable cause to search; the

Government created the exigent circumstances, if any, justifying

the entry; Rodea-Hernandez’s consent to search was involuntary,

and his statements were tainted by the Agents’ prior unlawful

conduct; and Rodea did not receive Miranda warnings prior to making

his statements, he was pressured by the Agents, and his statements

were the fruit of an illegal search. In response, the Government

claimed the exigent circumstances and consent exceptions to the

Fourth Amendment’s warrant requirement.

Following a suppression hearing on December 4 and 5, 1995, the

district court granted Rodea-Hernandez’s motion to suppress his

statements, but denied the motions in all other respects. (The

Government does not appeal the suppression of Rodea-Hernandez’s

statements.) But, three days after the hearing, the district court

granted the motions.

The Government moved for reconsideration; and, later in

December, the district court explained that it was “not persuaded

that exigent circumstances existed prior to the [Agents’] approach

to the [mobile home]”, and that the Agents’ actions had caused the

- 3 - exigency necessitating their warrantless entry. This order

contained additional findings of fact, including that the mobile

home occupants were unaware of the surveillance, that no effort was

made to obtain a warrant, that the marijuana could not have been

removed or destroyed easily, and that the informant never told

Agent Silva that weapons were in the home.

II.

The Government contends that Lopez-Gonzalez’s detection of the

surveillance was an unforeseeable occurrence that necessitated

immediate action by the Agents to prevent the other suspects from

fleeing or from removing or destroying evidence; that the decision

to approach the mobile home and seek consent was a reasonable

response to that exigency; and that additional exigent

circumstances justified the warrantless entry and protective sweep.

In the alternative, the Government asserts that Rodea was lawfully

arrested without a warrant, that the protective sweep that followed

his arrest was valid, and that his statements are admissible as the

product of a lawful arrest. (As noted, the Government does not

contest the suppression of Rodea-Hernandez’s statements.)

When reviewing a suppression ruling, questions of law, such as

whether law enforcement officers engaged in unreasonable

investigative tactics, are reviewed de novo. United States v.

Carrillo-Morales, 27 F.3d 1054, 1060 (5th Cir. 1994), cert. denied,

___ U.S. ___, 115 S. Ct. 1163 (1995); see also Ornelas v. United

States, ___ U.S. ___, 116 S. Ct. 1657 (1996) (ultimate

determinations of reasonable suspicion and probable cause are to be

- 4 - reviewed de novo on appeal). For findings of fact, “[w]e consider

the evidence in the light most favorable to the [prevailing party],

and accept the district court’s factual findings unless clearly

erroneous or influenced by an incorrect view of the law.”

Carrillo-Morales, 27 F.3d at 1060.

Exigent circumstances vel non is a factual finding reviewed

for clear error. See United States v. Vasquez, 953 F.2d 176, 179

(5th Cir.), cert. denied, 504 U.S. 946 (1992). Under the well-

known standard, a factual finding is clearly erroneous "when

although there is evidence to support it, the reviewing court on

the entire evidence is left with the definite and firm conviction

that a mistake has been committed." Anderson v. City of Bessemer

City, N.C., 470 U.S. 564, 573 (1985) (citation omitted).

Because they did not have a warrant to enter the mobile home

or to arrest the appellees, the Agents’ “actions must have been

supported by probable cause and necessitated by exigent

circumstances.” Carrillo-Morales, 27 F.3d at 1060. The appellees

do not seriously dispute that the Agents had probable cause to

search the mobile home and arrest the occupants once Agent Silva

received the telephone call from the informant at 2:20 p.m.,

confirming the marijuana delivery to that home. See id. at 1061

(“[t]he reasonable belief that the defendants were inside the body

shop with a controlled substance constitutes probable cause to

believe that a crime was being committed and that the persons to be

arrested were involved”). Accordingly, the issues are narrowed to

- 5 - whether exigent circumstances existed and, if so, whether they were

created by the Government.

A.

The Government has the burden of proving the existence of

exigent circumstances. United States v. Rico, 51 F.3d 495, 501

(5th Cir.), cert. denied, ___ U.S. ___, 116 S. Ct. 220 (1995). The

exigent circumstances exception applies “where the societal costs

of obtaining a warrant, such as danger to law officers or the risk

of loss or destruction of evidence, outweigh the reasons for prior

recourse to a neutral magistrate”. Arkansas v. Sanders, 442 U.S.

753, 759 (1979), overruled in part on other grounds, California v.

Acevedo, 500 U.S. 565 (1991). “Exigent circumstances include those

in which officers reasonably fear for their safety, where firearms

are present, or where there is a risk of a criminal suspect’s

escaping or fear of destruction of evidence.” Rico, 51 F.3d at 501

(internal quotation marks and citation omitted).

Among the factors to be considered in evaluating whether

exigent circumstances existed are the following:

(1) the degree of urgency involved and 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 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 narcotics and to escape are

- 6 - characteristic behavior of persons engaged in the narcotics traffic.

Rico, 51 F.3d at 501 (internal quotation marks, citation marks, and

brackets omitted). In evaluating exigency, it must be borne in

mind that we “should consider the appearance of the scene of the

search in the circumstances presented as it would appear to

reasonable and prudent men standing in the shoes of the officers.”

United States v. Riley, 968 F.2d 422, 425 (5th Cir.), cert. denied,

506 U.S. 990 (1992).

Agent Silva, who was in charge of the investigation, testified

at the suppression hearing that, shortly before September 28, 1995,

he learned from a confidential informant that Lopez-Gonzalez wanted

to sell approximately 500 pounds of marijuana. On the morning of

September 28, Agent Silva, posing as a buyer, met with the

confidential informant and Lopez-Gonzalez at a restaurant in

McAllen, Texas, to negotiate the price of the marijuana. Co-

defendant Ruben Macias joined them during the meeting.

After Agent Silva and Lopez-Gonzalez agreed on $300 per pound,

arrangements were made for Lopez-Gonzalez, Macias, and the

informant to proceed to the “stash house” to await the arrival of

the marijuana, weigh it, and then call Agent Silva to make further

arrangements. At the time, Agent Silva did not know the location

of the house. Surveillance units followed the informant, Lopez-

Gonzalez, and Macias to a mobile home located on a dirt road in an

isolated, “very rural” area (later investigation revealed that the

home was owned by Rodea-Hernandez and occupied by both appellees).

Agent Silva testified that it was difficult to conduct surveillance

- 7 - of the home because there was not much cover, and the area was so

isolated that strange vehicles could be detected easily by the

mobile home occupants.

According to Agent Silva, the informant, Macias, and Lopez-

Gonzalez arrived at the mobile home at approximately 11:30 a.m.

During the next three hours, Agent Silva contacted the informant

three times to inquire about the status of the transaction; the

informant advised that he and several others were waiting for the

marijuana to be delivered.

At approximately 2:05 p.m., a surveillance unit observed a

minivan and another vehicle arrive at the mobile home. About 15

minutes later, at 2:20 p.m., the informant advised Agent Silva by

telephone that the marijuana had been delivered to the mobile home,

that it weighed 459 pounds, and that the owners of the marijuana

were present. Agent Silva arranged to meet with the informant and

Lopez-Gonzalez at the same restaurant in McAllen (only

approximately 15 minutes travel time from the mobile home) to

discuss the money and marijuana exchange, which was to occur

shortly thereafter. The informant and Lopez-Gonzalez left the

mobile home at approximately 2:25 p.m., and surveillance advised

Agent Silva that the informant’s car was moving.

Andres Rivas, a narcotics investigator with the Texas

Department of Public Safety, who had been maintaining surveillance

in the vicinity of the mobile home, testified that, shortly

thereafter, he saw the informant’s car pass him moving in the

opposite direction. Shortly thereafter, Investigator Rivas pulled

- 8 - his car to the side of the road, got out, opened the trunk, and put

on his holster. As the Investigator, wearing his gun belt, was

walking back to his car from the trunk, the informant’s car, having

made a U-turn and traveling at a speed of about 10-15 miles per

hour, passed the Investigator, and Lopez-Gonzalez made eye contact

with him.

Agent Silva testified that, at 2:25 or 2:30 p.m., Investigator

Rivas telephoned to report that his surveillance had been detected

by Lopez-Gonzalez. At approximately 2:35 p.m., within five

minutes of the call from the Investigator, the informant called

Agent Silva from a pay telephone at a convenience store near the

mobile home and confirmed that Lopez-Gonzalez had detected

surveillance. In addition, the informant told Agent Silva that

Lopez-Gonzalez was extremely agitated and nervous, wanted to notify

those at the mobile home that there was surveillance in the area,

and then wanted to leave the area.

Knowing that the mobile home occupants would be expecting

Lopez-Gonzalez to call or return very shortly because the money and

marijuana exchange was supposed to occur soon after he met with

Agent Silva and the informant, and that if Lopez-Gonzalez did not

do so, the co-conspirators might become suspicious and flee or move

the marijuana to another location, Agent Silva directed some of the

surveillance units to arrest Lopez-Gonzalez and directed others to

proceed to the mobile home and approach it in order to seek consent

to search.

- 9 - Agent Silva testified that no attempt had been made to obtain

a search warrant for the mobile home, because he did not learn

until 2:20 p.m. that the marijuana had been delivered and because

he had never intended to exchange the money and marijuana at the

mobile home, but had intended instead that it be done at a location

of his choosing, where he could better control the situation. He

testified further that it would have taken approximately three

hours to obtain a warrant and that the marijuana sellers were

expecting Lopez-Gonzalez to return immediately, or at least to

telephone them. When questioned by the district court about why he

did not attempt to obtain a warrant by telephone, Agent Silva

testified that he had obtained a telephonic warrant only once and

that it was his understanding that the magistrates “would rather

have it written out”. He testified further that it has been his

experience that a telephonic warrant was not normally done in that

district.

The suppression hearing testimony about what happened when the

Agents arrived at the mobile home was not entirely consistent.

Customs Agent Walker testified that he and Agent Morrison were the

first two units to approach and that as Agent Walker drove up in

front of the mobile home and stepped out of his vehicle, a man

(later identified as co-defendant Morales-Trujillo) exited the

mobile home through the front door. After Agents Walker and

Morrison identified themselves as police officers, Morales ran

behind the mobile home and jumped over a fence, with Agents Walker

and Morrison in pursuit.

- 10 - Agent Walker abandoned the chase after he looked back at the

mobile home and saw a back door; he proceeded to the rear corner of

the mobile home to cover that door. After it opened and the Agent

saw a man standing in the doorway, the Agent identified himself as

a police officer and told the man to step outside. Instead, the

man looked at Agent Walker for a moment and closed the door. Agent

Walker testified that, while the door was open, he could see

clearly into the living room area, where there were stacks of

cellophane-wrapped packages that he suspected to be marijuana.

Agent Walker testified that, when the back door opened the first

time, Agent Silva had not arrived, and that he did not believe that

anyone else could have had time to open the front door before he

saw the first individual at the back door.

Agent Walker then went around the mobile home and shouted to

the Agents in front that there were people inside who would not

exit. He saw an Agent outside the mobile home in the front, but

did not see or hear any Agents inside. Shortly thereafter, the

back door opened again, and another individual appeared in the

doorway. Agent Walker identified himself as a police officer, told

the individual to come out, and then pulled the individual out the

back door.

As noted, DEA Agent Morrison arrived at the mobile home at the

same time as Agent Walker. When he approached it, he saw an

individual (the earlier referenced Morales) walk out of the home

but (as described earlier), upon seeing Morrison’s vehicle and

other vehicles arrive, the individual ran behind the home and

- 11 - jumped over a fence. Agent Morrison chased the individual and

apprehended him, and then went to the back of the mobile home to

assist Agent Walker, who was at the open back door yelling

“police”, “come on out”.

Agent Morrison testified that Agent Tittle (who did not

testify at the hearing) was at the front door. As Agent Morrison

approached the back of the mobile home, he saw Agent Walker at the

back door and an individual, whom he believed to be Rodea, on the

ground, face down. Agents Morrison and Walker were at the back

door yelling, “Police, come on out.” At least 30-45 seconds later,

Rodea-Hernandez came out of the restroom, which faced the back

door. Agents Walker and Morrison “brought” him out of the mobile

home.

Agent Morrison then reached into the mobile home and pushed

open a bedroom door that was ajar. He could see individuals hiding

in the closet and under the bed, and yelled for them to exit. They

did so and told the Agents no one remained inside; the Agents

conducted a protective sweep to verify this. Agent Morrison

testified that he had no knowledge of law enforcement activity at

the front of the mobile home before the individuals came out the

Agent Silva testified that he was involved in apprehending

Morales, who, as noted, had fled when the first Agents arrived. He

testified that Morales left the front door slightly open and that

Agent Tittle pushed it slightly open to get a better look at the

people inside, identified himself as a police officer, and asked

- 12 - them to exit. According to Agent Silva, who was not present at the

time, Agent Tittle saw bundles of marijuana stacked in the living

room. Agent Silva testified further that the Agents, rather than

the suspects, opened the back door.

In oral findings at the conclusion of the hearing, the

district court noted the inconsistencies in the testimony, but

noted that much of Agent Silva’s testimony was hearsay, and that “a

lot of what he testified to was redeemed by way of testimony of

persons who were actually there”. Our review of the suppression

hearing transcript is consistent with the district court’s view;

the inconsistencies are of much less concern when considering Agent

Silva’s testimony that he was involved in the apprehension of

Morales and therefore was not present when Agent Walker first

approached the back door.

Based on our review of the record, we conclude that the

district court erred by holding that exigent circumstances did not

exist prior to the Agents approaching the mobile home. Apparently,

the court’s rejection of the Government’s contention that Lopez-

Gonzalez’s detection of Investigator Rivas was an exigent

circumstance justifying the decision to approach the mobile home to

seek consent is based on its finding that Investigator Rivas “was

conducting himself as though he was going to physically address the

trailer house before his presence was discovered”. But, that key

finding is clearly erroneous.

Investigator Rivas testified, without contradiction, that he

had not been given any instructions to approach the home prior to

- 13 - being spotted by Lopez-Gonzalez and that he received such

instructions only after he had called Agent Silva to report being

detected. Similarly, Agent Silva testified that he directed the

Agents to approach the home only after he spoke with both the

informant and Investigator Rivas and learned that Lopez-Gonzalez

had detected the surveillance.

The district court did not expressly find that either

Investigator Rivas or Agent Silva was not credible or that their

testimony was untruthful. (Concerning Agent Silva’s testimony that

he did not order the approach until after surveillance had been

detected, the primary basis for the appellees’ challenge to the

credibility of this testimony is the Agent’s admission, during

cross-examination, that he did not mention the surveillance

detection either in his affidavit in support of the complaint or in

his testimony at the October 4 preliminary hearing (six days after

the arrests and seizure). But, on redirect examination, the Agent

explained that neither of the appellees were involved in that

preliminary hearing and that he included information about

Investigator Rivas’ surveillance detection notification in his

October 2 report (four days after the arrests and seizure). Based

on our review of the record, the fact that Agent Silva did not

mention the surveillance detection in these two instances does not

discredit his suppression hearing testimony (and the district court

did not so find).)

After Investigator Rivas saw Lopez-Gonzalez pass him en route

to meet with Agent Silva, the marijuana and money exchange was

- 14 - fairly imminent. In light of this, the mere fact that Investigator

Rivas was putting on his “raid equipment”, which he described as

only “my holster with my gun”, does not support an inference that

he was planning to approach the mobile home before Lopez-Gonzalez

made a U-turn and saw him. Accordingly, Lopez-Gonzalez’s detection

of Investigator Rivas’ surveillance was an exigent circumstance

that set in motion the chain of events that followed.

Faced with that unplanned and unexpected development, Agent

Silva did not act unreasonably in deciding to have Agents approach

the mobile home to seek consent. In light of the length of time it

would have taken to obtain a search warrant, the difficulty of

conducting covert surveillance in the rural, isolated area while

awaiting a warrant, and the fact that the mobile home occupants

with the marijuana were expecting Lopez-Gonzalez to return or

contact them shortly (as noted, the site of the meeting Lopez-

Gonzalez left to attend was only 15 minutes travel time from the

mobile home), the Agents had no realistic alternative. The fact

that the mobile home occupants were unaware of surveillance prior

to the Agents’ approach carries little weight, because the Agents

reasonably could have believed that the occupants would soon become

suspicious when Lopez-Gonzalez did not return or contact them.

As noted, in ruling against exigent circumstances, the

district court found, inter alia, “[t]hat the large amount of

marijuana at the [mobile] home could not have easily been destroyed

or removed”. (Emphasis added.) In light of the fact that the

marijuana was delivered in a minivan, weighed only 459 pounds, and

- 15 - took only approximately 15 minutes to unload and place in the

mobile home, whether this finding is clearly erroneous is a very

close call (one we need not make). For example, the minivan was

parked nearby (only two minutes away), could have been reloaded in

approximately the same time it took to unload it (only 15 minutes),

and could have then transported the marijuana to an unknown

location, unless apprehended. In other words, a great deal, if not

all, of the marijuana could have been moved or otherwise disposed

of during the time it would have taken to obtain a warrant.

In any event, this finding does not undermine our exigent

circumstances conclusion, because the Agents reasonably could have

believed that other important evidence, such as drug ledgers (which

were found later in the mobile home), could have been destroyed

during the time it would have taken to obtain the warrant.

Moreover, the Agents also reasonably could have believed that the

unidentified suspects in the mobile home might attempt to escape.

Further exigencies developed when the Agents approached the

home. One occupant (Morales) fled as soon as the first two Agents

approached and identified themselves. The Agents could hear other

persons running inside the mobile home, and those persons

disregarded the Agents’ instructions to exit. Although the

informant had not mentioned any weapons to Agent Silva, the Agents

were aware, based on the informant’s telephone call to Agent Silva,

of the presence of a large quantity of marijuana inside the home.

Agent Silva testified that the Agents were very concerned for their

safety because they did not know how many individuals remained in

- 16 - the mobile home, and because “in drug deals ... it is not uncommon

for traffickers to carry weapons”. The legitimacy of that concern

is underscored by our court’s frequent acknowledgment of this more

and more obvious fact; “firearms are ‘tools of the trade’ of those

engaged in illegal drug activities”. United States v. Ramos, 71

F.3d 1150, 1158 n.26 (5th Cir. 1995) (internal quotation marks and

citation omitted), cert. denied, ___ U.S. ___, 116 S. Ct. 1864

(1996).

Because the Agents reasonably feared that the occupants of the

mobile home might be armed, their decision to enter the mobile home

and conduct a limited protective sweep to secure the premises and

ensure their own safety was not unreasonable. See Rico, 51 F.3d at

501 (citing with approval district court’s observation that, “if

you are standing around in the front yard arresting people in the

driveway, you need to make sure that there is not assistance to him

by people in other parts of the premises”).

In sum, the societal costs of obtaining a warrant under these

circumstances -- including the risk of loss of evidence, of

criminal suspects escaping, and, especially, of danger to law

enforcement officers attempting to conduct surveillance of a mobile

home containing nearly 500 pounds of marijuana and an unknown

number of unidentified suspects in an isolated area -- far

“outweigh the reasons for prior recourse to a neutral magistrate”.

See Arkansas v. Sanders, 442 U.S. at 759.

- 17 - B.

Needless to say, the exigent circumstances exception does not

apply if the Government created or “manufactured” the exigency.

Rico, 51 F.3d at 502. “We distinguish between cases where exigent

circumstances arise naturally during a delay in obtaining a warrant

and those where officers have deliberately created the exigent

circumstances.” Id. “In determining whether the exigent

circumstances were manufactured by the agents, we ... must consider

not only the motivation of the police in creating the exigency but

also the reasonableness and propriety of the investigative tactics

that generated the exigency.” Id. (internal quotation marks and

citation omitted).

1.

“Our first concern in analyzing a claim of a manufactured

exigency is whether agents could have obtained a search warrant

prior to the development of the exigent circumstances upon which

they relied.” Id. (internal quotation marks and citation omitted).

At the very earliest, if then, Agent Silva could not have sought to

obtain a warrant until 2:05 p.m. (when surveillance units reported

that a minivan had arrived at the mobile home). Moreover, he did

not receive confirmation of the marijuana delivery until 2:20 p.m.

The fact that the Agent did not seek to obtain a warrant at 2:05 or

2:20 p.m. does not invalidate his reliance on the exigent

circumstances that developed thereafter.

It is “axiomatic that agents are not required to obtain a

search warrant as soon as it is practicable to do so.” United

- 18 - States v. Webster, 750 F.2d 307, 327 (5th Cir. 1984), cert. denied,

471 U.S. 1106 (1985). Agents “conducting an ongoing investigation

do not need to obtain a warrant at the first opportunity. If

exigencies arise before agents can obtain a warrant, they can

justifiably act.” United States v. Richard, 994 F.2d 244, 248 (5th

Cir. 1993). Moreover, because Agent Silva never intended to

conduct the transaction at the mobile home, but instead intended

for the marijuana to be delivered to him at another location, he

was of the opinion that he had no reason then to seek a warrant for

the mobile home.

In any event, it would have been impossible for Agent Silva to

have obtained a warrant prior to when exigent circumstances arose.

It was only shortly after the marijuana delivery (approximately ten

minutes) that Lopez-Gonzalez detected surveillance (approximately

2:30 p.m.), when en route to meet with Agent Silva to finalize the

plans for the money and marijuana exchange. There was

uncontradicted testimony at the suppression hearing that it would

have taken the Agents at least three hours to obtain a warrant, far

longer than the 25 minutes that elapsed between when the minivan

was seen arriving at the mobile home and when Lopez-Gonzalez

spotted Investigator Rivas, and even longer than the ten minutes

that elapsed between when the informant confirmed delivery and when

the surveillance was detected.

Nor was it feasible for the Agents to maintain covert

surveillance of the home after Lopez-Gonzalez was arrested, while

awaiting a warrant. As noted, Agent Silva testified that the

- 19 - mobile home occupants were expecting Lopez-Gonzalez to either

return or telephone them shortly, because the transaction was

supposed to take place soon after he met with Lopez-Gonzalez and

the informant. Lopez-Gonzalez’s detection of surveillance

necessitated his arrest and prevented him from either returning to

the home or contacting the occupants. The Agents reasonably could

have believed that, if they waited to obtain a warrant, it would

jeopardize their ability to apprehend the unidentified occupants of

the mobile home and recover all the evidence. See United States v.

Riley, 968 F.2d at 425. And, as discussed, the isolated location

of the mobile home, with little cover, made it difficult, if not

impossible, for the Agents to maintain covert surveillance for the

three hours it would have taken to obtain a warrant. In short, the

Agents’ actions were reasonable responses, to say the least, to

rapidly unfolding developments in an ongoing narcotics

investigation in which it was known where a large amount of

marijuana was located. See United States v. Hultgren, 713 F.2d 79,

87 (5th Cir. 1983) (“the fluidity of an ongoing investigation of

the distribution of narcotics makes the obtaining of an adequate

search warrant more difficult to time in the flow of events”).

2.

Having determined that there was insufficient time within

which to obtain a warrant prior to the occurrence of the events

that gave rise to the exigency, “we next consider whether the

agents themselves nevertheless created the urgent situation by the

use of unreasonable law enforcement tactics.” Rico, 51 F.3d at

- 20 - 503. As stated, exigent circumstances began to develop when Lopez-

Gonzalez detected surveillance. Investigator Rivas did not engage

in unreasonable law enforcement tactics when he pulled over to the

side of the road, obtained his gun and holster from the trunk, and

put them on. He had just passed the informant’s car, which was

headed in the opposite direction to meet Agent Silva in McAllen,

and had no reason to anticipate that the informant would make a U-

turn and return to the location where he had pulled off the road.

Inasmuch as the consummation of the marijuana transaction was

imminent, it was not unreasonable for the Investigator to obtain

his weapon and holster to prepare for any eventuality.

As stated in Rico, “[t]he government cannot rely on exigent

circumstances to excuse a warrantless entry to conduct a protective

sweep if the circumstances and thus the sweep were made necessary

by the law enforcement officers’ decision to abandon a covert

surveillance and confront the suspects without any justification

whatsoever.” Rico, 51 F.3d at 505 (emphasis added). Here, the

Agents did not decide to abandon covert surveillance “without any

justification whatsoever”; far from it. Their decision was

justified -- indeed, mandated -- by the unplanned, unforeseeable

detection of surveillance by Lopez-Gonzalez.

III.

Accordingly, the district court erred by finding that the

Agents created the exigent circumstances and by, as a result,

suppressing the evidence seized and Rodea’s statements. (This

conclusion makes it unnecessary for us to address the Government’s

- 21 - alternative contention that Rodea was arrested lawfully without a

warrant, and that the protective sweep that followed his arrest was

valid.) Therefore, the order granting the motions to suppress is

REVERSED, and the case is REMANDED to the district court for

further proceedings.

REVERSED and REMANDED

- 22 -