1On appeal, the government seeks to question Maldonado’s

standing to complain of the allegedly illegal seizure. As the

government raised no issue of standing below, we decline to

United States Court of Appeals

Fifth Circuit

FILED

December 12, 2006

Charles R. Fulbruge III

Clerk

UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 04-51293

UNITED STATES OF AMERICA,

Plaintiff-Appellee

VERSUS

JOSE ALEJANDRO MALDONADO,

Defendant-Appellant

Appeal from the United States District Court 

For the Western District of Texas

Before JOLLY, DAVIS and WIENER, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

Defendant-appellant Jose Alejandro Maldonado (Maldonado)

appeals his conviction for conspiracy to distribute marijuana in

violation of 21 U.S.C. § 846. Maldonado asserts that the district

court erred in (1) denying his motion to suppress evidence as

seized in violation of the Fourth Amendment1 and (2) in admitting
consider its contentions in this regard and accordingly assume,

as all parties did in the district court, that Maldonado has

standing. 

2

evidence of his prior arrest. We affirm. 

I.

On May 30, 2003, agents planned to execute an arrest warrant

for Gerardo Castillo (Castillo), Maldonado’s alleged coconspirator. Agents did not know where Castillo was located, but

they had his cell phone number. An agent called Castillo and asked

him if he would be willing to “move two squares” (street slang for

transporting two kilograms of cocaine). Castillo agreed, but

refused to meet the agent in a public place as the agent suggested.

Instead, Castillo asked the agent to come to the trailer home

“where he was staying.” The agent agreed. The agents were unaware

that the trailer was Maldonado’s residence. Castillo gave the

phone to Maldonado and asked him to give the caller directions,

which included only a physical description of the trailer and how

to find it by following various landmarks. The agent did not know

anything about the person who gave him directions, only that he was

Castillo’s “friend.” 

Approximately 20 to 30 minutes later, Castillo called the

agent back stating that he had something else to do and asking the

agent to hurry up and get there. The agent told Castillo that he

would be there shortly. Approximately eight agents arrived at the

trailer soon thereafter and established surveillance. When the
3

agents arrived at the trailer at approximately 4:30 P.M., they were

not certain they were at the correct location. The agents

instructed an undercover agent to drive up to the trailer and honk

his horn. At this time, a couple of agents were approximately 100

yards away in a parked vehicle. 

When the undercover agent honked his horn, Castillo came out

of the trailer and got into the undercover vehicle. Agents then

swarmed in and arrested Castillo in the driveway. Two agents

approached the trailer to cover all sides. While Castillo was

being arrested, one agent noticed someone open the trailer door,

peek out, and then quickly close the door. The agents were in

front of the trailer and had very little cover because the trailer

sits in an open area with only a telephone pole to afford cover.

Police insignia were visible on the agents’ vests and jackets. 

An agent approached the trailer door, yelled to the individual

inside that they were police executing an arrest warrant, and

opened the door. Maldonado exited and an agent placed him on the

ground. As other agents were rushing inside the trailer, Maldonado

was asked whether anyone else was inside. Maldonado indicated in

Spanish that no one else was in the trailer. Agents swept the

trailer, looking in places where a person could be hiding to make

sure no one else was inside the trailer who could attack them.

During this sweep, in the master bedroom closet, they discovered

and seized several packages in plain view that appeared to be
4

narcotics. These packages contained approximately 314 pounds of

marijuana. 

Before trial, Maldonado moved the district court to suppress

the introduction of any evidence relating to the seized marijuana

on Fourth Amendment grounds. The district court found that the

protective sweep by the agents was justified by exigent

circumstances and denied Maldonado’s motion to suppress. After a

jury trial, Maldonado was found guilty of conspiracy to distribute

marijuana and was sentenced to 120 months imprisonment with 5 years

of supervised release. Maldonado appeals his conviction. 

II.

Maldonado first challenges the district court’s denial of his

motion to suppress the evidence obtained in the warrantless entry.

The district court explained that the agents’ entry into the

trailer was motivated by exigent circumstances because the agents

feared for their safety and that the agents did not create the

exigency.

When reviewing a district court’s ruling on a motion to

suppress, we accept the court’s factual findings unless clearly

erroneous or influenced by an incorrect view of the law. United

States v. Foy, 28 F.3d 464, 474 (5th Cir. 1994). The presence of

exigent circumstances is a finding of fact reviewed for clear

error. United States v. Richard, 994 F.2d 244, 248 (5th Cir.

1993). We view the evidence in a light most favorable to the
5

prevailing party. United States v. Laury, 985 F.2d 1293, 1314 (5th

Cir. 1993). We may consider not only the evidence from the

suppression hearing, but also evidence presented during the trial.

United States v. Rico, 51 F.3d 495, 504 (5th Cir. 1995). We review

questions of law, including whether the district court’s ultimate

conclusions of Fourth Amendment reasonableness are correct, de

novo. United States v. Paige, 136 F.3d 1012, 1017 (5th Cir. 1998).

Warrantless entry into a home is presumptively unreasonable.

Payton v. New York, 445 U.S. 573, 587, 100 S. Ct. 1371, 1380, 63

L.Ed.2d 639 (1980). However, we have upheld warrantless protective

sweep searches based upon exigent circumstances. See United States

v. Watson, 273 F.3d 599 (5th Cir. 2001). Nevertheless, where

agents create the exigency, the warrantless activity is per se

unreasonable and any evidence obtained thereby must be suppressed.

United States v. Webster, 750 F.2d 307, 328 (5th Cir. 1984). 

“A ‘protective sweep’ is a quick and limited search of

premises, incident to an arrest and conducted to protect the safety

of police officers or others. It is narrowly confined to a cursory

visual inspection of those places in which a person might be

hiding.” Maryland v. Buie, 494 U.S. 325, 327, 110 S. Ct. 1093,

1094, 108 L.Ed.2d 276 (1990). The protective sweep doctrine may

apply even if the arrest occurs outside the home. See Watson, 273

F.3d 599; see also United States v. Merritt, 882 F.2d 916, 921 (5th

Cir. 1989); Kirkpatrick v. Butler, 870 F.2d 276 (5th Cir. 1989). 
6

Maldonado does not assert that the agents exceeded the

acceptable scope of a protective sweep. Maldonado argues that the

agents’ entry into the trailer was invalid because they lacked a

search warrant, no exigent circumstances were present and even if

exigent circumstances were present, the agents created any

exigency.

A.

The government has the burden of proving the existence of

exigent circumstances. Rico, 51 F.3d at 501. To justify a

protective sweep, the government must show “articulable facts

which, taken together with rational inferences from those facts,

would warrant a reasonably prudent officer in believing that the

area to be swept harbors an individual posing a danger to those on

the arrest scene.” Buie, 494 U.S. at 334, 110 S. Ct. at 1098.

Exigent circumstances include hot pursuit of a suspected felon, the

possibility that evidence may be removed or destroyed, and danger

to the lives of officers or others. Richard, 994 F.2d at 247-48.

There is no set formula for determining when exigent circumstances

justify a warrantless entry. United States v. Blount, 123 F.3d

831, 837 (5th Cir. 1997). In evaluating exigency, we “consider the

appearance of the scene of the search in the circumstances

presented as it would appear to reasonable and prudent men standing

in the shoes of the officers.” United States v. Rodea, 102 F.3d

1401, 1405 (5th Cir. 1996) (internal quotations and citation
7

omitted). If reasonable minds could differ, we do “not secondguess the judgment of experienced law enforcement officers

concerning the risks of a particular situation.” Blount, 123 F.3d

at 838 (internal quotation marks and citation omitted). 

The government argues that the agents’ protective sweep was

carried out in order to ensure that they and their colleagues would

not come under fire from other individuals inside the trailer.

Under the facts and circumstances present in this case, we conclude

that the district court did not err in concluding that a reasonable

officer would have been legitimately concerned for his safety and

that of others on the scene during the arrest. The facts in the

record and the rational inferences from those facts would warrant

“a reasonably prudent officer in believing that the area to be

swept harbor[ed] an individual posing a danger to those on the

arrest scene.” Buie, 494 U.S. at 334, 110 S. Ct. at 1098. 

Castillo was arrested in the driveway. This is near enough to

the trailer to place the agents in immediate danger. See Rico, 51

F.3d at 501. “[I]f you are standing around in the front yard

arresting people in the driveway, you need to make sure that there

is not assistance to him by people in other parts of the premises.”

Id. (internal quotation marks and citation omitted). This is of

particular concern in this case because the agents were exposed in

an open area in front of the trailer with only a telephone pole to

afford cover. The area surrounding the trailer had no structures
8

or vegetation. Agent Shuttleworth, United States Immigration and

Customs Special Agent, explained that cover behind the agents’

vehicles was also not an option because the cars were not parked

where the agents could effectively cover two sides of the trailer.

In addition to the lack of adequate cover, as Castillo was

being arrested, the agents observed Maldonado peek outside and then

close the trailer door. We have found exigent circumstances

arising from similar actions. In United States v. Webster, we held

that agents had reason to believe that evidence was in danger of

imminent destruction after “someone peered between the curtains, as

if acting as a lookout.” 750 F.2d at 326-327. Although this case

does not involve fear of evidence destruction, it does concern

danger to the lives of the agents and others. Agent Sepulveda,

Special Agent for Immigration and Customs Enforcement, testified

that the opening and closing of the door at the time of Castillo’s

arrest caused the agents concern because they did not know how many

individuals were in the trailer or if they had any weapons.

Maldonado’s actions were perceived as a threat because after he

closed the door he was hidden and his intentions were unknown. The

agents believed that the person possibly knew of Castillo’s arrest

and the presence of police because police insignia were visible on

the agents’ clothes. 

The agents had no specific knowledge that weapons were inside

the trailer. However, fear for officer safety may be reasonable
9

during drug arrests, even in the absence of any particularized

knowledge of the presence of weapons, see United States v. Howard,

106 F.3d 70, 75 (5th Cir. 1997), because “in drug deals . . . it is

not uncommon for traffickers to carry weapons.” Rodea, 102 F.3d at

1408. In this case, the agents were aware that Castillo was being

arrested for narcotics trafficking. Shuttleworth testified that

guns are a major concern when arresting a person on a drug charge.

Shuttleworth explained that “[w]hen you have narcotics, guns go

hand in hand with that because of the large amounts of money

involved.” 

The agents were only able to establish surveillance of the

trailer for approximately three to four minutes before Castillo’s

arrest so they did not know how many individuals were in the

trailer. The agents were not even certain that they were at the

correct location and Castillo indicated that he would leave if the

agent did not hurry up and get there. Also, after Sepulveda

observed the opening and closing of the trailer door, events

proceeded quickly. An agent approached the trailer door and

announced the presence of police. Maldonado exited the trailer and

was placed on the ground. Maldonado shouted that there was no one

else inside. However, at this time the agents were already rushing

inside to clear the trailer. 

We recognize that there is no general security check exception

to the warrant requirement. Kirkpatrick, 870 F.2d at 281.
10

However, depending on the circumstances, a protective sweep may be

permissible even when the agents have no certain knowledge that

other individuals are in the house. See, e.g., Watson, 273 F.3d

599; Howard, 106 F.3d 70; United States v. Mendoza-Burciaga, 981

F.2d 192 (5th Cir. 1992). In United States v. Watson, officers

arrested the suspect, Watson, on the front porch of his house.

Morse, the arresting officer, then made a protective sweep of the

house to look for dangerous persons. Police officers were

concerned that illegal drugs would be destroyed inside the

suspect’s house if they waited for a warrant. Also, the “officers

believed that there was a possibility that [the suspect] might have

additional accomplices who were still inside the house and could

pose a threat to the officers’ safety.” 273 F.3d at 603. Morse

“testified that he lacked specific reason to believe other

individuals were in the house but that the possibility always

exists.” Id. at 601. We upheld the validity of the protective

sweep even though “the factual basis for these concerns is

disputable.” Id. at 603.

In United States v. Howard, officers arrested the suspect on

the porch of his house and proceeded inside on a warrantless entry

to conduct a protective sweep to determine if anyone else was

present. We found that exigent circumstances justified the

officers’ warrantless entry into the suspect’s home on grounds of,

inter alia, fear for the officers’ own safety and the safety of
11

others, and the possibility that third persons inside the suspect’s

house may be alerted to police presence outside by the gathering of

a crowd. The officers were aware that the defendant, Howard, had

problems with his vision. We stated that “although the officers

did not observe someone looking through Howard’s window and did not

see anyone else enter Howard’s home and not exit,” our inquiry is

not so narrow. 106 F.3d at 77. “We must look to the totality of

the circumstances and for both direct and circumstantial evidence

of exigency.” Id. (emphasis added). We concluded that the record

contained enough circumstantial evidence to support a finding that

the crowd may have alerted Howard to the presence of police:

Howard’s residence had been under surveillance for only a short

time, there was a known narcotics-related traffic pattern in and

out of the home, and the agent leading the investigation testified

that he did not know whether other persons besides Howard were

inside the residence. Id. 

Like Watson and Howard, the agents did not know whether other

individuals were in the trailer, yet they were concerned for their

safety. The fact that the agents in today’s case were not also

concerned with the destruction of evidence does not preclude a

finding of exigent circumstances. When determining whether an

exigency exists, we look at the totality of the circumstances

surrounding the officers’ actions. See United States v. Wilson,

306 F.3d 231, 237-38 (5th Cir. 2002). We conclude that the brief
2In reaching this conclusion, we do not hold that a

protective sweep is permissible whenever agents do not know

whether anyone else is inside a home. Lack of information alone

cannot provide an articulable basis upon which to justify a

protective sweep. See United States v. Colbert, 76 F.3d 773, 778

(6th Cir. 1996). Under the totality of circumstances present in

this case, we find the agents had an articulable basis on which

to support their reasonable suspicion of danger from inside the

home. 

12

time available to conduct surveillance of the trailer, the exposure

of the agents in the open area surrounding the trailer, the opening

and closing of the trailer door during Castillo’s arrest, and the

reasonable expectation that weapons are present during drug

transactions are sufficient circumstantial evidence to support a

finding that the agents’ fear was reasonable. Under these

circumstances, the district court was not clearly erroneous in

finding exigent circumstances justifying the protective sweep.2

B.

However, this does not end the matter. We must also determine

whether the government manufactured the exigency. “The government

cannot rely on exigent circumstances to excuse a warrantless entry

to conduct a protective sweep if the circumstances” were created by

the government. Rodea, 102 F.3d at 1410 (internal quotation marks

and citation omitted). 

“We distinguish between cases where exigent circumstances

arise naturally during a delay in obtaining a warrant and those

where officers have deliberately created the exigent

circumstances.” Id. at 1409 (internal quotation marks and citation
3Maldonado does not assert that the agents acted in bad

faith. 

13

omitted). “In determining whether the exigent circumstances were

manufactured by the agents, we must consider not only the

motivation of the police in creating the exigency but also the

reasonableness and propriety of the investigative tactics that

generated the exigency.” Id.

3 We look to whether (1) there was

sufficient time to secure a warrant; and (2) whether the exigency

was created by unreasonable law enforcement tactics. Rico, 51 F.3d

at 502-503. 

The government argues that the agents did not obtain a search

warrant in part because they had no interest in entering the

defendant’s residence and had not even known of its existence

before Castillo arranged an immediate meeting there. Castillo was

the target rather than the trailer. In addition, the record

evidence indicates that the agents lacked sufficient time to obtain

a warrant. The agents had a warrant for Castillo’s arrest. The

agents arranged a deal with Castillo to get him to meet with them.

Despite the agent’s attempt to meet Castillo in a public place,

Castillo insisted on meeting “where he was staying.” The agents

were not certain about the location of the trailer because they did

not have an actual address. Sepulveda initially misled Castillo by

saying that he was on his way when he was actually spending a few

minutes assembling the arrest team. Castillo then called the agent

back complaining about the delay. The agent assured Castillo that
14

he would be there shortly.

We have found that, where agents only conducted twenty minutes

of surveillance, they did not have a complete address, and the

operation was short and rapidly evolving, there was not enough

time to procure a warrant. See United States v. Capote-Capote, 946

F.2d 1100, 1103 (5th Cir. 1991). In the instant case, the agents

also had a fast-moving investigation, a short period to establish

surveillance on the trailer, and were not certain about the

location of the trailer. The district court did not err in finding

that the agents had insufficient time to obtain a search warrant

between the telephone call with Castillo and the agents’ arrival.

We now consider the reasonableness of the law enforcement

tactics used in this case, particularly, whether the agents created

the exigent circumstances. The agents had the arrest warrant for

Castillo and were interested in conducting a routine arrest. At

the time of the initial telephone call to Castillo, the agents did

not know where Castillo was. It was Castillo who rejected a public

meeting in favor of the trailer where he was staying. The cocaine

deal was a ruse to locate and arrest Castillo. It was reasonable

for the agents to believe that Castillo would not have volunteered

his whereabouts if not for the cocaine deal. 

The arrangement between the undercover agent and Castillo to

meet developed quickly. Once Castillo decided that he would meet

the agents, but only at the location where he was staying, the
15

agents made a reasonable decision to go to that location. Although

the agents knew at the time of the telephone call with Castillo

that another individual was present in the trailer, had they

declined this opportunity to arrest Castillo, they did not know

when, if ever, they could locate Castillo again. Once the agents

arrived at the trailer, they could not have simply waited for

Castillo to exit the trailer. The operation was time-sensitive due

to Castillo’s call complaining about the delay and the open area

around the trailer gave them no place to wait without the risk of

discovery. It was reasonable for the agents to believe that

executing the arrest warrant while Castillo was still in the

trailer would have been more dangerous than surrounding and

subduing him from the vehicle, especially since the agents were

aware that another individual was inside the trailer. The record

supports the finding that it was reasonable for the agents to lure

Castillo out of the trailer by ordering the undercover agent to

pull up to the trailer and honk his horn. 

“In fast-moving investigations like the one in this case, law

enforcement officials can, if circumstances so require, act to

prevent a potentially volatile situation from becoming worse.”

Howard, 106 F.3d at 80. After arresting Castillo and witnessing

Maldonado opening and closing the trailer door, the agents were not

able to take cover, secure the mobile home, and wait for a warrant

because it would have taken some time for all the agents to leave
16

the premises with Castillo. During this time, the agents would

have been vulnerable to possible attack from the individuals in the

trailer. Therefore, the record supports the finding that the

agents were reasonable in approaching the trailer door and

announcing their presence. The record also supports the conclusion

that the agents’ actions were reasonably calculated to protect

themselves, Castillo, and the neighboring public. 

Under the totality of the circumstances, we conclude that the

district court correctly concluded that the agents did not

manufacture the exigent circumstances. Because the agents’ entry

into the house was valid and the sweep was narrow and confined to

areas of the trailer where persons could be hiding, their seizure

of the marijuana was also valid. The marijuana seized was in plain

view. Agents may seize evidence that is in plain view inside a

residence without obtaining a warrant. See Arizona v. Hicks, 480

U.S. 321, 326, 107 S. Ct. 1149, 1153, 94 L.Ed.2d 347 (1987). 

In sum, the district court did not err in finding that the

protective sweep was an appropriate reaction to exigent

circumstances which the agents did not create. The district court

correctly denied the motion to suppress. 

III.

Maldonado also objected to the introduction of testimony

regarding a prior incident on Rule 404(b) grounds. See Fed. R.
4Rule 404(b) provides that evidence of other crimes, wrongs,

or acts, while not admissible to show character and conformity

therewith, may be admissible for other purposes such as proof of

motive, opportunity, intent, preparation, plan, knowledge,

identity, or absence of mistake or accident. 

5Rule 403 prevents the admission of evidence that is

otherwise relevant when its probative value is substantially

outweighed by the danger of unfair prejudice. 

17

Evid. 404(b).4 The district court held a Rule 403 hearing outside

the presence of the jury. See Fed. R. Evid. 403.5 The district

court excluded the 404(b) evidence after finding the evidence

unfairly prejudicial. Nevertheless, during the trial, the district

court allowed the government to introduce the 404(b) evidence on

grounds that Maldonado opened the door to such evidence.

The 404(b) evidence concerned a prior arrest of Maldonado and

Castillo unrelated to the offense for which Maldonado was

convicted. On May 27, 2003, Maldonado and Castillo were detained

in connection with the seizure of over 100 kilograms of marijuana.

Maldonado was driving his father’s truck, which he often used,

along a road frequently used by narcotics smugglers. Maldonado and

Castillo were driving behind a vehicle carrying marijuana. The

Border Patrol noticed that the vehicle Maldonado and Castillo were

driving behind was riding low and stopped both vehicles. Maldonado

and Castillo were detained for questioning. Although Maldonado

denied any knowledge of the marijuana, testimony indicated that

both vehicles had two-way radios typically used by drug

traffickers. The radios also had the same serial numbers,
18

indicating that they had been bought together as a pair. Maldonado

was released and never indicted for this incident (“May 27th

incident”). 

This court reviews a district court’s decision to admit

evidence over a Fed. R. Evid. 404(b) objection under a heightened

abuse of discretion standard in criminal cases. United States v.

Fox, 69 F.3d 15, 20 (5th Cir. 1995). “[A] defendant may not

complain on appeal that he was prejudiced by evidence relating to

a subject which he opened up at trial.” United States v. Deisch,

20 F.3d 139, 154 (5th Cir. 1994). Maldonado testified in his own

defense at trial. On direct examination, Maldonado indicated that

he never suspected that Castillo would store marijuana in the

trailer and that he did not know for a fact or have personal

knowledge who placed the marijuana in the trailer. The government

argued that this testimony left the jury with an impression that

Maldonado did not know anything about Castillo’s involvement with

marijuana and therefore opened the door to evidence surrounding the

May 27th incident. The district court allowed the government to

question Maldonado about this incident and, in rebuttal, a

government witness testified regarding the May 27th incident to

impeach Maldonado’s statements indicating that he did not know

Castillo was involved with marijuana. The district court did not

abuse its discretion in admitting this evidence on grounds that

Maldonado opened the door to this testimony. 
19

IV.

For the above reasons, we conclude that the district court did

not err in denying Maldonado’s motion to suppress or in permitting

the testimony concerning the May 27th incident. The conviction is

therefore AFFIRMED.
20

E. GRADY JOLLY, Circuit Judge, specially concurring:

I concur because the majority opinion is not plainly

inconsistent with our precedent. It does seem, however, that we

are coming close to establishing a rule that any yard arrest

involving a drug operation can justify a protective sweep of the

residence, which would allow an intended exception to the Fourth

Amendment to become the rule.