United States v. Toledo

378 F. App'x 799
Court of Appeals for the Tenth Circuit·Decided May 18, 2010·No. 09-4103·Unpublished

Opinions

ORDER AND JUDGMENT***

TIMOTHY M. TYMKOVICH, Circuit Judge.

Carlo Joseph Toledo appeals from the denial of his motion to suppress evidence obtained during a search of his home. The district court determined the officers entered the home only after obtaining consent from his mother, and that the search was therefore constitutional. After a careful review of the record, we cannot find that this determination was clearly erroneous.

Exercising jurisdiction under 28 U.S.C. § 1291, we therefore AFFIRM the district court.

I. Background

Police officers Flores and Wall of the Salt Lake City Police Department were [801] investigating possible drug activity at a house located in an area known for drug crime. They had no warrant and therefore decided to try a “knock-and-talk” approach. When Officer Flores knocked on the front door, a man briefly opened the door, saw the officers, swore, then slammed and locked the door. A short time later, after additional officers arrived at the scene, the officers knocked at a door located on the side of the house, in an alleyway.

A woman named Esther1 Toledo eventually answered and exited the house to speak with Officer Flores in the alleyway. Officer Wall stood at the side door looking into the house, evidently out of concern for officer safety, since the officers knew that other people, including the man who slammed the front door, could still be inside the house.

At this point, testimony from the officers diverges. After Ms. Toledo exited the house, Officer Flores asked her a series of questions: whether she resided there, whether anyone else was inside, and whether she would give her permission for the officers to search the house for the other people. She answered all of these questions in the affirmative. It was at some point during this series of three questions that Officer Flores noticed a commotion involving his partner. Officer Flores testified that he looked over to the door upon hearing Officer Wall’s shouts, but that he quickly returned his attention to Ms. Toledo. According to his version of events, officers entered the home only after he had obtained consent from Ms. Toledo.

Officer Wall’s testimony paints a slightly different picture. According to Officer Wall’s testimony at the suppression hearing, while Officer Flores was questioning Ms. Toledo, he looked into the side door and noticed a person crawling out of a closet door roughly five feet away from the side entrance to the house. The person was the man who had slammed the front door and was later identified as Johnny2 Toledo, Ms. Toledo’s son. Officer Wall drew his weapon, shouted for Johnny to show his hands, then stepped into the house to apprehend him, in order to eliminate what he perceived to be a threat to officer safety. Officer Wall dragged Johnny outside and secured him. Officer Wall testified that in a “relatively close time frame” to his apprehension of Johnny, other officers entered the house. He also testified that he did not know of any reason for them to enter the house, other than his interaction with Johnny.3

Once officers entered the home, they found marijuana in plain view. This evidence was used to obtain a search warrant, which in turn led to the discovery of firearms and cocaine. These items were in the possession of defendant Carlo Toledo, another son of Ms. Toledo, who was also a resident of the house. Toledo made incriminating statements to the police about these items.

The items and his statement led to Toledo’s indictment for possession with intent to distribute a controlled substance in violation of 21 U.S.C. § 841(a)(1); possession of a firearm in furtherance of a drug trafficking scheme in violation of 18 U.S.C. § 924(c)(l)(A)(i); and being a felon in pos[802] session of a firearm in violation of 18 U.S.C. § 922(g)(1).

Toledo moved to suppress the evidence found in his home, claiming that the initial search violated the Fourth Amendment. After the district court denied this motion, Toledo pleaded guilty but reserved his right to appeal the denial of his motion to suppress.

II. Analysis

When reviewing a denial of a motion to suppress, we “view the evidence in the light most favorable to the government and accept the district court’s factual findings unless they are clearly erroneous.” United States v. Grimmett, 439 F.3d 1263, 1268 (10th Cir.2006). We review the district court’s legal conclusions de novo. Id. Furthermore, we “review the district court’s finding of consent under the clearly erroneous standard, because ‘the credibility of the witnesses and the weight to be given the evidence, together with the inferences, deductions and conclusions to be drawn from the evidence, are all matters’ most appropriate for resolution by the district court.” United States v. Guerrero, 472 F.3d 784, 789 (10th Cir.2007) (quoting United States v. Walker, 933 F.2d 812, 815 (10th Cir.1991)). The same clearly erroneous standard is used to review the district court’s conclusion that consent was voluntary. United States v. Cavely, 318 F.3d 987, 992 (10th Cir.2003) (citing United States v. Orrego-Fernandez, 78 F.3d 1497, 1505 (10th Cir.1996)).

A. Justification for Entry

A warrantless search of a home is presumptively unreasonable, and evidence obtained from such a search is inadmissible, subject only to a few limited exceptions. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). Voluntarily given consent is one such exception. Id. The district court concluded that police officers entered the Toledo home based on consent given by Ms. Toledo. Defendant Toledo argues that this conclusion is clearly erroneous, and he supports this argument by pointing to inconsistencies in the testimonies of Officers Flores and Wall. Specifically, Toledo argues it was clearly erroneous to believe that officers trained to respond instantly in the event of a threat to officer safety would wait for consent before entering the home.

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United States v. Toledo, 378 F. App'x 799 (10th Cir. 2010).

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