* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion

should not be published and is not precedent except under the limited

circumstances set forth in 5TH CIR. R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-41274

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

LORENZO LENCHO RODRIGUEZ, JR.

Defendant-Appellant

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 4:07-CR-27-ALL

Before KING, DENNIS, and OWEN, Circuit Judges.

PER CURIAM:*

Lorenzo Lencho Rodriguez, Jr. appeals the district court’s denial of his

motion to suppress evidence seized from his residence. Rodriguez was convicted,

following a jury trial of possession of a firearm in furtherance of a drugtrafficking crime and possession of a firearm while an unlawful user of a

controlled substance. 

Rodriguez argues that the police officers created exigent circumstances to

justify the warrantless search of his residence. He argues that the evidence

United States Court of Appeals

Fifth Circuit

F I L E D

September 16, 2008

Charles R. Fulbruge III

Clerk
No. 07-41274

2

showed that he did not act in a violent manner toward the confidential

informant (CI) when he suspected that he was wearing a wire and that the

officers had no reason to storm into his home with guns drawn. He contends

that the officers created the exigent circumstances by sending the CI into the

house knowing that he had weapons and a police scanner.

In reviewing a district court's ruling on a motion to suppress, factual

findings are reviewed for clear error, and questions of law are reviewed de novo.

United States v. Jones, 239 F.3d 716, 719 (5th Cir. 2001). Additionally, the

evidence must be viewed in the light most favorable to the party that prevailed

below. Id.

A warrantless entry into a dwelling is presumptively unreasonable unless

consent is given or “probable cause and exigent circumstances justify the

encroachment.” Id. The officer’s reason for the entry in this case was exigent

circumstances. The Government bears the burden of proving that exigent

circumstances existed. UnitedStates v. Blount, 123 F.3d 831, 837 (5th Cir. 1997)

The Government cannot justify a warrantless search on the basis of exigent

circumstances of its own making. See id. at 838. In determining whether the

exigent circumstances were manufactured, this court considers whether agents

could have obtained a warrant prior to the development of the exigent

circumstances on which they relied and “the reasonableness and propriety ofthe

investigative tactics that generated the exigency.” UnitedStates v. Rico, 51 F.3d

495, 502-03 (5th Cir. 1995).

The evidence showed that the officers intended to do a “buy walk,” which

would have allowed the CI to leave the premises after the transaction and the

officers could have then obtained a warrant based on the buy to search the

house. The evidence also reflected that the officers were not aware that Lorenzo

Rodriguez was the person involved in the buy and that they had not anticipated

that a scanner might disrupt the controlled buy. The officers’s lack of intent to

make the “bust” is corroborated by the fact that the officers were wearing casual
No. 07-41274

3

unmarked clothes and shoes, were not wearing protective vests, and had not

arranged for any backup.

The record supports the officers’s assertion that they felt compelled to go

into the house because they feared for the CI’s safety. The evidence also showed

that the officers put themselves personally at risk in making the entry with

insufficient manpower. Despite Rodriguez’s assertion that he reacted calmly to

the situation, it was reasonable for the officers to believe that Rodriguez would

harm the CI once he confirmed that he was cooperating with the police. 

The record does not reflectthatthe exigent circumstances were created by

unreasonable investigative tactics or as a result of a specific intent to create an

emergency to circumvent the warrant requirement. See Rico, 51 F.3d at 505. 

Viewing the evidence in the light most favorable to the Government, and

findings that the district court’s factual findings were not clearly erroneous, the

district court did not err in denying the motion to suppress. Jones, 239 F.3d at

719.

Rodriguez’s conviction is AFFIRMED.