UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 98-10248

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

ROSENDO MORALES

Defendant-Appellant.

No. 98-10581

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

LUIS BETANCOURT

Defendant-Appellant.2 Appeals from the United States District Court

for the Northern District of Texas

March 31, 1999

Before JOLLY, WIENER, and PARKER, Circuit Judges.

PER CURIAM:

Appellants Rosendo Morales (“Morales”) and Luis Betancourt (“Betancourt”) were charged

with possession wi t h int ent t o distribute more than five kilograms of a mixture and substance

containing a detectable amount of cocaine in violation of 21 U.S.C. § 841 (a)(1) and conspiracy to

co mmit such offense in violation of 21 U.S.C. § 846. Appellants filed a Motion to Suppress all

evidence, alleging that the evidence resulted from an illegal search and seizure. The district co urt

denied Appellants' motion. We REVERSE.

I. FACTS AND PROCEDURE

At approximately 8:50 p.m., on December 5, 1997, Fort Worth police received an anonymous

“911" call. The caller reported that two Hispanic males were unloading cocaine from flatbed trucks

at a business called Milagro's Botanica (“Milagro's”). Four Fort Worth police officers were

dispatched to investigate the call.

Upon arriving at the location at 9:00 p.m., the officers did not see flatbed trucks or Hispanic

males in the area. The officers, however, saw a pickup truck parked in front of Milagro's. One of

the officers checked the pickup truck ' s registration and determined that the pickup belonged to an

individual with a Hispanic surname. At the scene, the officers heard loud banging noises that sounded

like someone opening wood crates arising from a warehouse behind Milagro's.

Proceeding to investigate, one officer went to the back of the warehouse and attempted to

look inside. This officer observed the gloves and knees of two individuals as they opened crates. In

the meanwhile, the remaining three officers proceeded to bang on the front door. In response to the

officers' banging, one of the Appellants asked: “Who is there?” The officers responded in a loud and

commanding voice: “Fort Worth Police: Open the door.” The loud banging on the door, the tone3

of voice, its volume, and the authoritative manner unmistakably showed that the officers issued an

order as opposed to a request to open the door.

At the officers' orde r, Betancourt opened the door to the warehouse. The officers

immediately rushed in with their weapons drawn and arrested the Appellants. After placing the

Appellants face down on the floor, the officers handcuffed and searched them. Inside the warehouse,

the officers found two wooden crates each filled with 24 large, si lver, duct-taped packages. The

packages held approximately 473 ki lo grams of cocaine. On December 6, 1997, at approximately

12:40 a.m., the officers obtained a search warrant.

On December 16, 1997, Appellants were indicted on two counts: (1) possession with intent

to distribute more than five kilograms of a mixture and substance containing a detectable amount of

cocaine in violation of 21 U.S.C. § 841 (a)(1), and (2) conspiracy to commit such offense in violation

of 21 U.S.C. § 846. Appellants filed nearly identical Motions to Suppress the evidence, contending

t he evidence resulted from an illegal search and seizure. After a suppression hearing, the district

court found that the officers ordered Appellants to open the door but denied the Appellants' Motions

to Suppress.

Pursuant to a conditional plea agreement, Appellants entered guilty pleas to both counts of

the indictment, but reserved the right to appeal the denial of their Motions to Suppress. Appellants

contend the district abused its discretion in denying their Motions to Suppress. We agree.

II. STANDARD OF REVIEW

We review the district court's factual findings for clear error and its conclusions regarding the

constitutionality of a warrantless search de novo. S ee United States v. Tompkins

, 130 F.3d 117, 120

(5t h Cir. 1997). Further, the voluntariness of consent to a warrantless search is a finding o f fact

reviewed for clear error. See id.

III. ANALYSIS

The Fourth Amendment to the United States Constitution provides “[t]he right of the people

to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,

shall not be violated, and no Warrants shall issue, but upon probable c ause, supported by Oath or4

affirmation, and particularly describing the place to be se arched, and the persons or thi ngs to be

seized.” U.S. Const. amend. IV. Under the Fourth Amendment, a search and seizure conducted

without a warrant issued on probable cause is per se unreasonable with few exceptions to this rule.

See Katz v. United States , 389 U.S. 347, 357 (1967).

A. Probable Cause and Exigent Circumstances

A search conducted pursuant to probable cause and exigent circumstances is one exception

to the Fourth Amendment's warrant requirement. S ee Steagald v. United States

, 451 U.S. 204, 211

(1981); United States v. Rico

, 51 F.3d 495, 500-01 (5th Cir. 1995). The district court found that the

officers had reasonable suspicion to enter the warehouse based on the anonymous phone call and the

su r rounding circumstances. The district court then found probable cause existed after officers

ordered the Appellants to open the door and after the officers viewed the wood crates and the ducttaped packages.

The temporal aspect for the test of probable cause is whether the anonymous information is

reliable un der t he t ot ality of the circumstances. S ee Illinois v. Gates

, 462 U.S. 213, 237 (1983);

United States v. Blount

, 123 F.3d 831, 835-37 (5th Cir. 1997). The totality of the circumstances test

includes four factors: (1) the nature of the information; (2) whether there has been an opportunity

for the police to see or hear the matter reported; (3) the veracity and the basis of the knowledge of

the informant; (4) whet her there has been any independent verification of the matters reported

through police investigation. See Gates , 462 U.S. at 235-40.

An application of Gates to the facts in this record persuades us that at the time the order to

open the door was given, the officers did not have probable cause to conduct a warrantless search.

The individuals who made the 911 call did not indicate how they knew the information. The police

officers acknowledged they did not see a flatbed truck or Hispanic males. Further, the officers did

not see anything outside the warehouse to corroborate the 911 call. While the officers heard noises

coming from the direction of the warehouse, the officers admitted t hey did not spend much time

investigating after they arrived at the scene. The facts do not justify probable cause for a warrantless

search.1 Both probable cause and exigent circumstances are required to establish an exception to the

warrant requirement. S ee Rico, 51 F.3d at 501. The district court found probable cause and that the

warrantless search was justified. Thus, we believe that the district court impliedly found that exigent

circumstances were present.

5 In addition to the problem of a lack of probable cause, the officers also did not have exigent

circumstances. The government bears the burden of proving that an exigency existed. S ee Blount

,

123 F.3d at 8 37. The district court impliedly found exigent circumstances. 1 We review this

determination for clear error

. S ee Id. We conclude the district court also erred in finding exigent

circumstances.

In Rico

, we identified a non-exhaustive list of factors that may be considered in determining

whether exigent circumstances existed, including: (1) the degree of urgency involved and the amount

of time necessary to obtain a warrant; (2) the reasonable belief that contraband is abo ut 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 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 narcotics a nd t o escape are characteristic behavior of persons engaged in the

narcotics traffic. See Rico , 51 F.3d at 501.

In this case, the officers did not face any serious concerns regarding exigency. The record

reflects no evidence that the contraband was about to be removed or destroyed. The officers could

have waited while a search warrant was obtained with little or no danger to the officers guarding the

warehouse. Further, the suspects did not know that the officers were present outside the warehouse.

These facts and circumstances do not support the district court's finding of exigency, and therefore,

without probable cause and exigent circumstances, the warrantless entry was unreasonable. Absent

consent, the officers were without authority to conduct the subsequent warrantless search. The fact

that the officers obtained a warrant at 12:40 a.m., some three hours a fter they entered and searched

the warehouse and arrested the Appellants, is of no legal consequence.

B. Consent6

A search conducted pursuant to consent is another ex ception to the Fourth Am endm ent's

warrant requirem ent. S ee United States v. Jenkins

, 46 F.3d 447, 451 (5th Cir. 1995) (citing

Schneckloth v. Bustamonte

, 412 U.S. 218, 219 (1973)). The government m ust prove, by a

preponderance of the evidence, that consent was freely and voluntarily given. S ee United States v.

Tompkins , 130 F.3d 117, 121 (5th Cir. 1997).

The voluntariness of the con sent is determined from the totality of the circumstances

surrounding the search. S ee Schneckloth, 412 U.S. at 227. Relevant factors relating to voluntariness

include: (1) the voluntariness of the defendant's custodial status; (2) the presence of coercive police

procedures; (3) the extent and level of the defendant's cooperation with the police; (4) the

defendant's awareness of his right to refuse consent; (5) the defendant's education and intelligence;

and (6) the defendant's belief that no incriminat in g evidence will be found. S ee United States v.

Olivier-Becerril

, 861 F.2d 424, 426 (5th Cir. 1988) (citations omitted). “[N]o single factor is

dispositive or controlling of the voluntariness issue.” Id.

The government concedes, and therefore agr ees with the district court's finding, that the

police officers ordered the Appellants to open the door, but argues that consent still may follow a

police order under the totality of the circumstances. We agree that the mere utilization of words by

officers that would reaso nably be considered to be a command or order does not preclude the

possibility of a suspect validly consenting to a search.

After a careful review of this fact-intensive record, however, we conclude under these facts

and these circumstances, the Appellants did not freely and voluntarily give their consent to opening

the door and the subsequent warrantless search. The officers clearly issued an order, not a request.

Furthermore, the officers' actions

– rushing into the warehouse with their guns drawn and ordering

the suspects to the floor

– do not reflect a situation where suspects have provided their consent to

a warrantless search. Under these circumstances, the district court was not clearly erroneous in its

finding that the officers issued an order, and therefore, in accordance with the previous discussion,

we find that the consent was not voluntary.

IV. CONCLUSION7

Because the search was neither support ed by pro bable cause nor validated by consent, we

reverse the district court's judgment and hold that the evidence found must be suppressed. The case

is remanded for further proceedings.

REVERSED AND REMANDED.