United States v. Francisco Ortega-Montalvo
2017 U.S. App. LEXIS 4066
| 8th Cir. | 2017Background
- Ortega-Montalvo, a previously deported Mexican citizen convicted of aggravated assault on a police officer, was alleged to have illegally re-entered and was located after an HSI tip and vehicle/registration corroboration.
- HSI agents and Platte City officers surveilled an apartment linked to Ortega-Montalvo; they knocked, identified themselves, and spoke in Spanish to a resident, Juan Maldonado.
- Maldonado, who admitted being a Mexican citizen without documents, consented to the agents’ entry to "talk," after which agents announced they would perform a protective search for safety.
- With guns drawn, agents conducted a protective sweep inside the apartment, found a locked bedroom, knocked, and the occupant (Ortega-Montalvo, using an alias) opened and was immediately recognized and arrested.
- After the sweep, both Maldonado and Ortega-Montalvo (handcuffed) allegedly consented to a search; officers seized identification and Ortega-Montalvo later admitted illegal re-entry in a written statement.
- Ortega-Montalvo moved to suppress evidence from the entry, sweep, arrest, and statements; the magistrate and district court credited agent testimony over Maldonado’s, denied suppression, and convicted Ortega-Montalvo of illegal re-entry.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Voluntariness of Maldonado's consent to entry | Maldonado did not voluntarily consent; entry was coerced by officers pointing guns and forcefully entering | Agents assert Maldonado voluntarily consented after badges, Spanish request to enter, no threats, guns holstered | Court credited agents; consent was voluntary under totality of circumstances |
| Lawfulness of protective sweep | Sweep exceeded consent scope and was pretext to search; consent created exigency (Hassock argument) | Agents had articulable facts (tip, vehicle, prior violent conviction, suspected presence) justifying a Buie protective sweep | Protective sweep lawful: articulable facts and Crisolis-Gonzalez control support sweep |
| Voluntariness of Ortega-Montalvo’s consent to search bedroom | Consent invalid because given while arrested and under coercion | Agents say no threats, no promises, defendant experienced with legal system; not told he could refuse but that omission alone doesn’t vitiate consent | Court found Ortega-Montalvo’s consent voluntary under totality of circumstances |
| Suppression of evidence from entry/sweep/search | All evidence should be suppressed because entry, sweep, and search unlawful | Entry was by voluntary consent, sweep lawful, and bedroom search consented to; evidence admissible | Court denied suppression; conviction affirmed |
Key Cases Cited
- Schneckloth v. Bustamonte, 412 U.S. 218 (consent voluntariness evaluated under totality of circumstances)
- Maryland v. Buie, 494 U.S. 325 (permitting protective sweeps when officers have articulable facts of danger)
- United States v. Crisolis-Gonzalez, 742 F.3d 830 (8th Cir.) (protective sweep lawful after consented entry where tip and observations supported officer safety concern)
- United States v. Sigillito, 759 F.3d 913 (8th Cir.) (standard of review for suppression: factual findings for clear error, legal conclusions de novo)
- United States v. Watson, 423 U.S. 411 (failure to inform of right to refuse consent does not automatically render consent involuntary)
- United States v. Quintero, 648 F.3d 660 (8th Cir.) (a subject’s subjective fear or knowledge of guilt does not by itself make consent involuntary)