* Pursua nt to 5 T H 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this opinion should not be published and is not precedent except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. United States Court of Appeals

Fifth Circuit



## FILED

November 18, 2005

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 04-10192

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JAMES DAVID SMITH,

Defendant-Appellant.

* * * * * *

Consolidated with

No. 04-10208

* * * * * *

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

TARA MARIE CONWAY,

Defendant-Appellant.

-------------------- Appeals from the United States District Court

for the Western District of Louisiana

USDC No. 3:03-CR-272-2-R

--------------------

Before JOLLY, DAVIS, and OWEN, Circuit Judges.

PER CURIAM: *

In this consolidated appeal, James David Smith and Tina Marie

Conway appeal their conditional guilty-plea convictions followingNo. 04-10192 c/w No. 04-10208

-2-

the denial of their motions to suppress evidence seized from the

hotel suite where they w ere staying on June 20, 2003. Smith

pleaded guilty to possession of a firearm by a convicted felon, a

violation of 18 U. S.C. §§ 922(g)(1) and 924(a)(2), and was

sentenced to 120 months in prison and three years of supervised

release. Conway pleaded guilty to possession of more than 50 grams

of methamphetamine with intent to distribute, a viol ation of 21

U.S.C. § 841(a)(1) and (b)(1)(B), and was sentenced to 135 months

in prison and five years of supervised release.

Pursuant to their conditional pleas, both Sm ith and Conway

challenge the denial of their motions to suppress. In those

motions, the defendants argued that Garland, Texas, police officers

had entered and searched their motel suite without a warrant and

wit hout the consent of Conway, who had answered the door of the

suite, an d that the search was not validated by any exception to

the warrant requirement, such as “exigent circumstances.” In

denying the suppression motions, the district court, crediting the

officers’ testimony and discrediting Conway’s, determined that

Conway had consented to the officers’ entry. According to the

officers, when they asked Conway, who answered the door in her

nightgown, if they could come in and speak to her about a traffic

violation, she answered, “Yes, but I need to get dresse d.” She

then opened the door further and walked back into the suite.

Officer Glen Shaw testified that, as soon as Conway opened the door

wider, he observed, in plain view on a table in the suite’s front

room, what he thought to be a gun (which turned out to be a novelty

cigarette lighter) and a vial of marijuana, and that when he toldNo. 04-10192 c/w No. 04-10208

-3-

2 Conway’s suppression-hearing testimony, which the district

court discredited, was that the officers had forced their way into

the suite without her consent and that none of the incriminating

evidence was in plain view in the front room. his p artner, Officer John Edmonds, “There’s a gun,” Conway

immediately began calling for codefendant Smith in the rear part of

the suite. The officers testified that, fearing the male suspect

might pose a dan ger, Officer Shaw rushed to secure the gun and

arrest the defendants, and that the following search led to the

seizure of a real pistol, methamphetamine, and other incriminating

items. 2

“The standard of review for a motion to suppress based on live

testimony at a suppression hearing is to accept the trial court’s

factual findings unless clearly erroneous or influenced by an

incorrect view of the law.” U nited States v. Outlaw

, 319 F.3d 701,

704 (5th Cir. 2003) (citations and internal quotation marks

omitted). “ A warrantless entry into and search of a dwelling i s

presumptively unreasonable unless consent is given or probable

cause and exigent circumstances justify the encroachment.” U nited

States v. Santiago

, 410 F.3d 193, 198 (5th Cir. 2005), petition for

cert. filed (U.S. Aug. 16, 2005) (No. 05-5902). This Fourth

Amendment protection extends to guests in motel rooms. U nited

States v. Richard

, 994 F. 2 d 244, 247 (5th Cir. 1993). The

Government must prove by a preponderance of the evidence that

consent to enter “‘was freely and voluntarily given.’” Santiago

,

410 F.3d at 198-99 (citation omitted). “The standard for measuring

the scope of a suspect’s consent under the Fourth Amendment is that

of ‘objective’ reasonableness--what would the typical reasonableNo. 04-10192 c/w No. 04-10208

-4-

person have understood by the exchange between the officer and the

suspect?” Florida v. Jimeno , 500 U.S. 248, 251 (1991).

The defendants have not shown that the district court clearly

er red by crediting the officers’ testimony and discrediting

Conway’s. S ee United States v. Walker

, 960 F.2d 409, 417 (5th Cir.

1992). Although Conway’s qualification of her positive response to

the officers’ request to enter with the statement that she needed

to get dressed a ppeared to be adequate, standing alone, to

“delimit” the scope of her consent so as to require the officers to

wait, see Jimeno , 500 U.S. at 252, the district court did not err

in concluding that the officers did not act unreasonably in

interpreting her actions--pulling the door open wider and stepping

back into the suite–-as an invitation to enter the room

immediately. The defendants do not explicitly challenge the

district court’s determination that Conway’s consent was voluntary.

See Outlaw , 319 F.3d at 704; Santiago , 410 F.3d at 199 (outlining

six-factor standard for determining voluntariness of consent).

The defendants also do not dispute the district court’s

determinations about what occurred immediately after the officers

entered the room: that Officer Shaw thought he saw a gun, that

Conway called for defendant Smith, and that the officers thought

they might be in danger. Only in conclusory fashion does defendant

Smith argue that these circumstances did not present “exigent

circu mstances,” but we agree with the district court that these

circumstances qualified as “exigent.” S ee United States v. Jones

,

239 F.3d 716, 720 (5th Cir. 2001). For the foregoing reasons, theNo. 04-10192 c/w No. 04-10208

-5-

district court did not err in denying the defendants’ motions to

suppress the evidence.

Defendant Conway argues that the district court erred in

failing to suppress her post-arrest statements on the grounds that

they were involuntary and that they were “tainted” by the Fourth

Amendment violations with respect to the entry and search. Insofar

as Conway argues that the statements were involuntarily elicited,

this contention was not raised below and is barred by the waiverof-appeal provision in her plea agreement. S ee United States v.

Po rtillo , 18 F.3d 290, 292-93 (5th Cir. 1994). Insofar as she

argues the confession was “tainted,” the district court was correct

in concluding that this “fruit of the poisonous tree” argument was

meritless because the thr e shold Fourth Amendment argument was

itself meritless.

Because the defendants have not established that the district

court erred in denying their motions to suppress, the convicitions

and sentences are AFFIRMED.