United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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 No. 09-1890

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United States of America, *

*

Appellee, *

*

v. *

*

Alfonso Cisneros-Gutierrez, *

*

Appellant. *

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Appeals from the United States 

 No. 09-2590 District Court for the

 ___________ Western District of Missouri.

United States of America, *

*

Appellee, *

*

v. *

*

Gerardo Cisneros-Gutierrez, *

*

Appellant. *

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 No. 09-2728

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United States of America, *

*

Appellee, *

*
1

The Honorable Howard F. Sachs, United States District Judge for the Western

District of Missouri, adopting the report and recommendation of the Honorable John

T. Maughmer, United States Magistrate Judge for the Western District of Missouri.

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v. *

*

Alfredo Cisneros-Gutierrez, *

*

Appellant. *

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Submitted: December 16, 2009

Filed: March 23, 2010

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Before WOLLMAN, RILEY, and MELLOY, Circuit Judges. 

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WOLLMAN, Circuit Judge.

Alfonso Cisneros-Gutierrez (Alfonso) and Gerardo Cisneros-Gutierrez

(Gerardo) entered conditional pleas of guilty to charges of conspiracy to distribute

methamphetamine and possession of firearms in furtherance of a drug trafficking

crime. Alfredo Cisneros-Gutierrez (Alfredo) entered a conditional plea of guilty to

a charge of conspiracy to distribute methamphetamine. They each reserved the right

to appeal the district court’s1

 denial of their motions to suppress evidence and

statements obtained pursuant to the searches of multiple residences. We affirm. 

I.

During a drug investigation in 2007, law enforcement officers searched three

residences in Kansas City, Missouri. Based on information from a confidential

informant, Special Agent Mark King of Immigration and Customs Enforcement set

up surveillance of 323 South Brighton Avenue on July 12, 2007. Additional officers
2

A “knock-and-talk” is an investigatory technique in which law enforcement

officers approach the door of a dwelling seeking voluntary conversation and consent

to search. United States v. Wise, 588 F.3d 531, 534 n.3 (8th Cir. 2009).

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joined King, and they decided to conduct a “knock-and-talk.”2

 The officers

approached the residence and knocked on the door, which was then opened by Justino

Ruiz-Ramos. After entering the common entry way to the apartments, the officers

asked Ruiz-Ramos for consent to search the apartment, to which Ruiz-Ramos

responded by saying that he did not live there. While police were trying to determine

if Ruiz-Ramos lived at the apartment, Salvador Jesus Velasco-Saldana opened the

door, identified himself as the sole resident, and consented to a search of the premises.

The search revealed methamphetamine, Animed MSM (a substance commonly used

to cut methamphetamine), a digital scale, a firearm, and ammunition. The officers

interviewed Ruiz-Ramos the following day and were told that Gerardo had sold him

three pounds of crystal methamphetamine, which Gerardo’s brother had delivered.

Ruiz-Ramos did not know the brothers’ exact address, but he drew a map detailing the

location of their residence. 

Based on that information, King, Detective Luis Ortiz of the Kansas City,

Missouri Police Department Gang Unit, and five or six other officers performed a

knock-and-talk at 430 Donnelly Avenue at 6:30 a.m. on July 24, 2007. When Ortiz

and King knocked on the door, Miguel Angel Garcia-Bobadilla answered the door and

the officers identified themselves as law enforcement, explaining that they were

conducting a narcotics investigation. In response to their request, Garcia-Bobadilla

told the officers that they could enter. Once inside, the officers asked GarciaBobadilla if anyone else was in the residence and were told that no one else was

present. The officers requested and received permission to verify that this was the

case. During a protective sweep, Ortiz encountered Alfredo and Dehli HernandezPena moving between rooms. Questioning ensued and Alfredo and Garcia-Bobadilla

said that they lived in the apartment. They gave verbal and written consent to search
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the residence. The written form was in English, and Ortiz explained the form in

Spanish. According to the officers, they did not brandish their weapons during this

encounter. A search of the premises resulted in the recovery of more than 230 grams

of methamphetamine and approximately six pounds of a cutting agent. 

Alfredo recounts the search differently. According to Alfredo, Ortiz had his

gun drawn when Garcia-Bobadilla opened the door. Alfredo claims that Ortiz pointed

the gun at Garcia-Bobadilla, forcing him to walk backwards into the living room. The

officers proceeded to enter the apartment and search the premises without consent.

Ortiz threatened Garcia-Bobadilla and Alfredo that the officers would search the

house regardless of whether they signed the consent form. According to Alfredo, he

felt that he did not have a right to leave the house. Alfredo signed the consent form.

Garcia-Bobadilla also signed the consent, believing that he had no other option.

It is uncontroverted that while the search was being conducted, Hernandez-Pena

told Ortiz that she wanted to cooperate. She informed Ortiz that Alfredo’s brothers

lived at another house in Kansas City, that they possessed large quantities of illegal

narcotics and several firearms, and that they served as enforcers for the drug

trafficking organization. Hernandez-Pena stated that she had been to the residence

and had seen the drugs and weapons. Ortiz and another detective drove HernandezPena to the vicinity of the home to confirm its location for the officers, and she

identified 3907 East 12th Terrace as the brothers’ residence. 

Once the location was confirmed, the officers who had searched the Donnelly

Avenue location came to East 12th Terrace. Ortiz and King approached the front door

and the other officers deployed to the sides and back of the residence to intercept

anyone who might flee the house. Ortiz and King knocked on the front door and

Gerardo answered through a closed glass window adjacent to the front door. Ortiz,

speaking in Spanish, identified himself and King as law enforcement officers and
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explained that they were conducting a narcotics investigation. Gerardo acted confused

and repeatedly asked the officers who they were and what they wanted. 

While talking to Gerardo through the window, Ortiz saw Alfonso inside the

house. Gerardo was speaking to Alfonso as well. Ortiz saw Alfonso enter the

kitchen, immediately return in the direction from which he had come, re-enter the

kitchen with three large plastic bags, and then begin washing an unknown substance

down the kitchen sink. Ortiz told King and Sergeant Jay Pruetting that “something

is getting flushed” down the sink. King then looked through the window at the top of

the front door and saw Alfonso hurriedly leave the kitchen and enter the southwest

bedroom. Alfonso exited the bedroom carrying an unknown object to an area on the

west side of the residence, out of the officers’ field of vision. Alfonso repeated this

action one more time before convening with Gerardo. Alfonso or Gerardo eventually

opened the door. 

The officers entered the house with their guns drawn, handcuffed Alfonso and

Gerardo, and conducted a protective sweep. During the cursory sweep, the officers

observed plastic bags containing numerous empty zip-lock storage bags in the kitchen

sink, a plastic bag containing a crystal-like substance on the floor in a bedroom, a

bundle of United States currency, an electronic money counter and assault-style rifles.

The officers detained Gerardo and Alfonso and applied for and received a state search

warrant for the residence. The ensuing search produced 5880 grams of

methamphetamine, more than $160,000 in cash, and four firearms. 

Alfredo and Alfonso were individually questioned by Ortiz and King at police

headquarters after being informed of their Miranda rights and signing Miranda waiver

forms. Both Alfredo and Alfonso made inculpatory statements. 

Alfredo, Alfonso, and Gerardo, along with three other defendants, were indicted

on a variety of charges. Each defendant filed a motion to suppress, which the
3

Alfonso argues that the magistrate judge applied an incorrect legal standard

when considering his motion to suppress. The report and recommendation cited the

legal standard applied in Greiner v. City of Champlin, 27 F.2d 1346 (8th Cir. 1994),

a qualified immunity case. Applying the appropriate standard, however, the outcome

is the same. 

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magistrate judge recommended denying. The district court adopted the report and

recommendations and each brother entered a conditional guilty plea. Alfredo was

sentenced to 240 months’ imprisonment; Alfonso was sentenced to 195 months’

imprisonment, 135 months for conspiracy to distribute methamphetamine and 60

months for possession of firearms in furtherance of a drug trafficking crime; Gerardo

was sentenced to 180 months’ imprisonment. 

Alfredo appeals, arguing that the evidence found at 430 Donnelly Avenue and

the statement he made should be suppressed because: the consent to search was the

product of coercion and not voluntarily given and the protective sweep was

unnecessary because the police chose to enter the residence. Alfonso and Gerardo

appeal the denial of their motions to suppress the evidence seized at 3907 East 12th

Terrace, raising a number of issues. Additionally, Alfonso contends that the

statements he made were tainted by the illegal search and that the district court erred

in the imposition of the five-year consecutive sentence for possession of a firearm in

furtherance of a drug crime.3

 

II.

We review the district court's factual determinations underlying the denial of

a motion to suppress for clear error and its legal conclusions de novo. United States

v. Hogan, 539 F.3d 916, 921 (8th Cir. 2008). 
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A. 430 Donnelly Avenue

Alfredo contends that consent to search the Donnelly Avenue residence was

involuntarily given as a result of police coercion, rendering it unconstitutional. A

warrantless search of a residence does not violate the Fourth Amendment if voluntary

consent has been given by a resident. Schneckloth v. Bustamonte, 412 U.S. 218, 222

(1973). Consent is voluntary if it is “the product of an essentially free and

unconstrained choice by its maker,” rather than the “product of duress or coercion,

express or implied.” Id. at 225. Whether consent was voluntarily given “is a question

of fact to be determined from the totality of the circumstances.” Id. at 227. In

determining voluntariness, the personal characteristics of the individual who

supposedly consented and the environment in which the consent allegedly occurred

are relevant. United States v. Chaidez, 906 F.2d 377, 381 (8th Cir. 1990). 

 The magistrate judge and district court credited the testimony of King and

Ortiz. Credibility is a determination left to the trier-of-fact, and “its assessment is

virtually unassailable on appeal.” United States v. Rodriguez, 414 F.3d 837, 845 (8th

Cir. 2005). Only when credibility determinations are internally inconsistent, based

upon incoherent or implausible testimony, or contradicted by objective evidence is a

more searching review warranted. United States v. Jones, 254 F.3d 692, 695 (8th Cir.

2001). Finding that there was no credible evidence that the officers were physically

intimidating or made any promises in exchange for consent, the magistrate judge

concluded that Garcia-Bobadilla voluntarily consented to a limited search of the

premises to determine the presence of other individuals. The magistrate judge found

that under the totality of the circumstances, Alfredo and Garcia-Bobadilla both

voluntarily and knowingly consented to a full search of the residence. After reviewing

the record, we find no error in the magistrate judge’s determination. 
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Because the searches were based on knowing and voluntary consent, we need

not reach Alfredo’s additional arguments that officers are not entitled to a protective

sweep during a knock-and-talk and that Alfredo’s statements were tainted by an illegal

search.

B. 3907 East 12th Terrace

1. Exigent Circumstances and Probable Cause

Alfonso and Gerardo contend that the warrantless entry of 3907 East 12th

Terrrace was supported by neither exigent circumstances nor probable cause. Police

officers may not enter or search a residence without a warrant unless the entry is

justified by exigent circumstances. Payton v. New York, 445 U.S. 573, 590 (1980).

“The exception justifies immediate police action without obtaining a warrant if lives

are threatened, a suspect’s escape is imminent, or evidence is about to be destroyed.”

United States v. Ball, 90 F.3d 260, 263 (8th Cir. 1996). To evaluate “whether a

warrantless entry was justified by exigent circumstances, we consider the

circumstances that confronted police at the time of the entry.” United States v.

Leveringston, 397 F.3d 1112, 1116 (8th Cir. 2005). We look objectively at whether

a reasonable, experienced police officer would believe evidence was in danger of

removal or destruction. See United States v. Kuenstler, 325 F.3d 1015, 1021 (8th Cir.

2003). Not only must the government establish that an exigency existed, but also that

there was probable cause to search the residence. United States v. Munoz, 894 F.2d

292, 296 (8th Cir. 1990). 

In Leveringston, we held that even though the suspect had been arrested outside

the hotel room, the fact that the water and garbage disposal continued to run inside the

room gave the police “grounds to believe there was a fair probability that evidence of

drug trafficking—a serious felony offense—would be lost if they did not make

immediate entry.” 397 F.3d at 1116. We have held in a number of cases that police
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officers are justified in making an exigent-circumstances entry when, after going to

a residence with evidence that an individual was involved in a drug transaction, they

knock and identify themselves and then witness an individual retreat or conduct

himself in a way that suggests the destruction of evidence. See Ball, 90 F.3d at 262-

63 (police approached home where two men were on the porch, one was holding a

weapon and then fled into the residence); Munoz, 894 F.2d at 296 (individual ran

upstairs after the police knocked and identified themselves); United States v. Clement,

854 F.2d 1116, 1119 (8th Cir. 1988) (officers received no response after knocking,

saw someone approach the door, look through the peephole and retreat, and heard a

“scrambling” noise). 

In this case, we believe that an objectively reasonable police officer, knowing

the information supplied by Hernandez-Pena and observing Alfonso’s and Gerardo’s

conduct, would conclude that there was danger of removal or destruction of evidence

of a crime. Hernandez-Pena had told officers that the brothers possessed large

quantities of illegal narcotics and several firearms and that they served as enforcers

for the drug trafficking organization. After arriving at the house and announcing

themselves, the officers witnessed evasive behavior. Gerardo and Alfonso consulted

one another, following which Gerardo’s feigned confusion appeared to be a delaying

tactic during which Alfonso took several plastic bags to the kitchen sink and disposed

of their contents. Taken together these circumstances justified the officers’

warrantless entry. Additionally, under the totality of the circumstances, probable

cause existed: a reasonable person would believe that there was a fair probability that

drugs or evidence of drug trafficking would be found in the residence. See Kleinholz

v. United States, 339 F.3d 674, 676 (8th Cir. 2003). 

2. Curtilage

Gerardo argues that the evidence found at 3907 East 12th Terrace should be

suppressed because the officers violated his Fourth Amendment right to privacy
4

The one case cited in which no evidence was obtained while the officers were

impermissibly positioned in the curtilage is distinguishable because it was a qualified

immunity case that did not deal with suppression. See Roybal v. City of Albuquerque,

No. 08-0181, 2009 WL 1329834 (D. N.M. April 28, 2009).

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during the knock-and-talk when they positioned themselves near the rear and sides of

the house. Although the Fourth Amendment’s protection extends to the curtilage

surrounding a home, United States v. Weston, 443 F.3d 661, 666 (8th Cir. 2006), no

Fourth Amendment search occurs when officers “restrict their movements to those

areas generally made accessible to visitors—such as driveways, walkways, or similar

passageways.” United States v. Reed, 733 F.2d 492, 501 (8th Cir. 1984). 

It is unclear from the record whether the officers were actually within the

house’s curtilage. Assuming, however, that Gerardo is correct that officers

impermissibly entered the curtilage of his home during the knock-and-talk,

suppression is not required, because the officers at the front of the house

independently observed the apparent destruction of evidence and entered the home

under exigent circumstances. In the majority of cases cited by Gerardo in which

evidence was suppressed, the officers at the rear of a home obtained evidence while

positioned there—the officers observed illicit behavior, someone threw evidence from

the home or left the home.4

 See, e.g., Hobson v. United States, 226 F.2d 890, 894 (8th

Cir. 1955) (suppressing package thrown into backyard). In this case, suppression is

inappropriate because discovery of the evidence was unrelated to any misconduct.

See Wong Sun v. United States, 371 U.S. 471, 488 ( 1963) (recognizing the issue for

suppression is whether “the evidence to which instant objection is made has been

come at by exploitation of that illegality or instead by means sufficiently

distinguishable to be purged of the primary taint”). 
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3. Manufacturing Exigent Circumstances

Gerardo also argues that the police impermissibly manufactured the exigent

circumstances. Although it is true that “the situations of urgency protected by this

exception cannot be created by police officers,” United States v. Duchi, 906 F.2d

1278, 1284 (8th Cir. 1990), Gerardo’s argument fails under our cases that address

police-created exigencies. We have explained that “in some sense the police always

create the exigent circumstances that justify warrantless entries and arrests.” Id. But

the police do not necessarily act impermissibly any time they create an exigency in a

strict causal sense. See Ball, 90 F.3d at 264 (rejecting a claim that officers

manufactured an exigency when they approached a porch and an individual fled into

the residence). We must determine the “reasonableness and propriety of the

investigative tactics that generated the exigency.” Duchi, 906 F.2d at 1284. 

In Duchi, police were alerted to an undeliverable package that contained two

bricks of cocaine. Id. at 1279. The police replaced one of the bricks with a book and

allowed the package to be picked up from the shipping company. Id. at 1280. After

the suspect returned home with the parcel, the police entered the residence without a

warrant because of a fear that the evidence would be destroyed. Id. We held that the

police impermissibly manufactured the exigency, because “[t]he heightened danger

of destruction upon discovery was . . . reasonably foreseeable; it was in fact, the

replacement strategy’s probable result.” Id. at 1285. Similarly, in United States v.

Johnson, a postal inspector intercepted a package containing drugs, altered its

contents, made a controlled delivery, and then entered the residence without a warrant

because of fear that the evidence would be destroyed once the recipient realized the

package had been intercepted. 12 F.3d 760, 762 (8th Cir. 1993). We held that by

substituting another substance for a portion of the drugs, the officials “created, or at

least greatly increased, the risk that evidence would be destroyed.” Id. at 765. “Had

they not altered the package’s contents, there would have been little or no danger of

evidence being destroyed before they obtained the search warrant.” Id. Conversely,
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in a situation in which the police used an investigative technique that did not

foreseeably increase the likelihood of an exigency, we rejected the proposition that the

police impermissibly manufactured the exigency. See United States v. Williams, 521

F.3d 902, 908 (8th Cir. 2008) (holding that the police did not manufacture the

exigency that led to the warrantless entry of the motel room when the officer knocked

on the door, and heard what he thought was the slide of a handgun and the rustling of

blinds).

Police officers regularly rely on a knock-and-talk as an investigative strategy

when they do not have enough evidence to obtain a search warrant. The knock-andtalk that was conducted in this case was a reasonable and proper investigative strategy

that did not foreseeably increase the likelihood of the destruction of evidence. While

the destruction of evidence is a possible result of a knock-and-talk, other likely results

include the grant of consent to a search, the demand for a warrant for police entry, or

a consensual conversation with the resident outside the home. Accordingly, we

conclude that the police did not impermissibly manufacture the exigency in this case.

4. Protective Sweep

Alfonso and Gerardo contend that the protective sweep of the East 12th Terrace

home constituted an illegal search because it was not made in connection with an

arrest. They maintain that the officers did not have probable cause to arrest the

brothers until they confirmed that Alfonso had been disposing of drugs upon the

officers’ arrival. 

We conclude that the protective sweep was permissible under the principles

outlined in Maryland v. Buie, 494 U.S. 325 (1990). In that case, the Court held that

the Fourth Amendment permits an officer to conduct a protective sweep of the

premises if there are “articulable facts which, taken together with the rational
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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.” Id. at 334. We have declined to extend Buie to a search incident to the

service of a protection order when officers had no articulable facts suggesting that

another individual might be in the home, ready to launch an attack. United States v.

Waldner, 425 F.3d 514, 517 (8th Cir. 2005). But see id. (Murphy, J., concurring)

(explaining that this holding does not necessarily foreclose all protective sweeps when

officers are serving a protection order). 

Given the circumstances, we hold that a reasonable officer could conclude that

it was necessary for his safety to secure the premises before obtaining a warrant.

There was a reasonable possibility that other individuals were in the home, posing a

danger to the officers. The officers had been told that the brothers possessed large

quantities of illegal narcotics and several firearms and that they served as enforcers

for the drug trafficking organization. They had observed Gerardo’s evasive behavior,

and Alfonso’s actions were consistent with that of someone destroying evidence.

Accordingly, the protective sweep was permissible. 

5. Search Warrant and Alfonso’s Statement

We conclude that Alfonso’s and Gerardo’s remaining arguments are without

merit. Having determined that the entry and protective sweep were legal, the

information included in the affidavit supporting the search warrant was not illegally

obtained and it provided the requisite probable cause to support the search warrant.

Alfonso’s argument that his post-Miranda statements were tainted by an illegal search

also fails because the search of the East 12th Terrace residence was lawful. 
5

We note, however, that the Supreme Court has granted certiorari in

United States v. Abbott, 574 F.3d 203 (3d Cir. 2009), cert. granted, 2010 WL

250514 (Jan. 25, 2010) (No. 09-479), which presents the following question:

whether the term “any other provision of law” in 18 U.S.C. § 924(c)(1)(a)

includes the underlying drug trafficking offense or crime of violence. 

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C. Sentencing

Alfonso contends that the district court erred in imposing a consecutive fiveyear sentence for possession of a firearm in furtherance of a drug crime under 18

U.S.C. § 924 (c)(1)(A) after imposing the 135 months’ sentence on the predicate drug

trafficking offense. Alfonso argues that the language “[e]xcept to the extent that a

greater minimum sentence is otherwise provided by this subsection or by any other

provision of law” means that because he was subject to a longer mandatory minimum

sentence for a drug offense, the mandatory consecutive sentence under § 924 (c)(1)(A)

does not apply. This argument is contrary to our established precedent. See United

States v. Alaniz, 235 F.3d 386, 386 (8th Cir. 2000) (holding that the “greater

minimum sentence” refers only to sentences for various types of conduct proscribed

in § 924 (c)(1), not for the underlying drug offense).5

 Having disposed of this issue

based on the merits, we decline to reach the government’s argument that Alfonso

expressly waived his right to appeal his sentence. 

III.

The judgment is affirmed. 

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