* Pursuant to 5 TH C IR

. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR

. 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 di strict court’s denial of his motion tosuppressevidenceseized from his residence. Rodriguez was convicted, following a jury trial of possession of a firearm in furtherance of a drugtraffi cking 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 ClerkNo. 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 laware 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 intoa dwelling is presumptively unreasonable unless consent is given or “probable cause and exigent circumstances justify the encroachment.” I d. The officer’s reason for the entry in this case was exigent circumstances. The Government bears the burden of proving that exigent circumstancesexisted. U nited Statesv. 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 circumstanceswere manufactured, this court considers whether agents could have obtained a warrant prior to the development of the exigent circumstanceson which they relied and “the reasonableness and propriety ofthe investigative tactics that generated the exigency.” U nited Statesv. 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 officerswere wearing casualNo. 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 c ooperating with the police. The record does not reflect that the exigent circumstanceswere created by unreasonable investigative tactics or as a result ofa specific intent to create an emergency to circumvent the warrant requirement. See Rico, 51 F.3d at 505. View ing the evidence in the light most favorable to the Government, and findings that the district court’s factual findingswere not clearly erroneous, the district court did not err in denying the motion to suppress. J ones, 239 F.3d at 719. Rodriguez’s conviction is AFFIRMED.