UNITED STATES оf America, Plaintiff-Appellee v. Francisco ORTEGA-MONTALVO, also known as Jerry Ortega, Defendant-Appellant
No. 16-1899
United States Court of Appeals, Eighth Circuit
March 8, 2017
850 F.3d 429
KELLY, Circuit Judge, concurring in part and dissenting in part.
I concur in sections II.A and II.C of the court‘s opinion, but I respectfully dissent as to II.B. In my view, genuine issues of material fact remain on the trustee‘s excessive force claim. I do not dispute that the officers were entitled to use some degree of force to remove Harrell-who was acting oddly, kicking the door, and howling-from his cell. See Kingsley, 135 S.Ct. at 2472-73 (noting that to bе held unconstitutional, force knowingly used against pretrial detainee must be objectively unreasonable). But evidence was offered that, viewed in the light most favorable to the trustee, the force the officers continued to use was excessive under the circumstances. See Murchison v. Rogers, 779 F.3d 882, 886-87 (8th Cir. 2015) (noting that our review of the grant of summary judgment is de novo, and we view the evidence in the light most favorable to the non-movant, giving the non-movant the benefit of all reasonable inferences). The video of the extraction showed five to six officers crowding into Harrell‘s eight by ten foot cell, in which a bunk and a toilet consume most of the space. Harrell was almost immediately taken to the ground and was quickly handcuffed behind his back. For approximately the first minute and a half of the extraction, although he is heard yelling, Harrell is not visible on the video because he is surrounded by the officers. When Harrell appears, he is face down on the floor, naked and with a wet sheet tightly wrapped around his face; he is still being restrained but he has stopped making any noise at all.
The trustee presented evidence that the officers understood that placing a person in the prone position and applying pressure to his back, as the officers admitted they did here, could cause breathing diffiсulty. The trustee also presented evidence that the officers recognized that Harrell exhibited symptoms of a condition known as excited delirium syndrome (EDS), which they knew could exacerbate the risk of asphyxiation. While the court views the video as showing Harrell actively resisting for three minutes, in my opinion, the video shows thаt after about 80 to 90 seconds, Harrell stopped struggling. While their weight was still on Harrell‘s back, the officers shackled his ankles with his legs crossed and bent back at the knees. Viewing the evidence in the light most favorable to the trustee, a reasonable jury could find that too many officers entered a small cell and exerted tоo much pressure on a distraught man lying prone, thus placing him at high risk of asphyxiation. A reasonable jury could likewise find that Harrell‘s bizarre behavior warranted the use of multiple officers to restrain him in the manner that they did. But these are factual matters that remain in dispute, and are not for the court to decide at summary judgment.
Brent B. Venneman, Asst. U.S. Atty., Kansas City, MO (Tammy Dickinson, U.S. Atty., on the brief), for appellee.
Before RILEY, Chief Judge, SMITH and BENTON, Circuit Judges.
BENTON, Circuit Judge.
Francisco G. Ortega-Montalvo was convicted of illegally re-entering the United States in violation of
In 2011, Ortega-Montalvo, a Mexican citizen illegally in the United States, was convicted of aggravated assault after shooting at a police officer. In 2013, he was deported and prohibited from re-entering.
Based on the cоrroborated tip, information about Ortega-Montalvo‘s illegal status and criminal history, and an online database search revealing an apartment address in Platte City, Agent Lindsey and his supervisor decided to locate and arrest him. Officer Lindsey briefed a team of five HSI special agents and two Platte City police officers on Ortega-Montalvo‘s illegal status, physical description (including pictures), and criminal history of aggravated assault against a police officer.
The morning of the arrest, an HSI agent surveilled the apartment‘s parking lot, finding the white truck. An agent rang the apartment‘s doorbell from outside the apartment complex. HSI special agents Timothy Ditter and Tim Kixmiller, uniformed in protective armor with guns holstered, waited outside the door. An Hispanic male (not Ortega-Montalvo) opened the door “partially dressed,” looking “like he had literally just gotten out of bed.” The agents introduced themselves and displayed their badges. Determining that the man (later identified as Juan Maldonado), did not speak English, Agent Ditter, fluent in Spanish, asked his country of citizenship and whether “he had documents to be in the United States.” Maldonado replied he was a citizen of Mexico and did not have documents. Agent Ditter asked permission to enter the apartment to talk. Maldonado consented.
Inside, Agent Ditter asked if anyone else was present. Maldonado said his friend was there, pointing to the back of the apartment. Agent Ditter told Maldonado “we‘re going to do a protective search for everyone‘s safety.” Maldonado said nothing. Special agent Jose Covarrubias, a native Spanish speaker who entered during the conversation, sat with Maldonado and questioned him.
With guns drawn, Agents Ditter and Kixmiller conducted a protective sweep, finding one bedroom door locked. They knocked on it. An Hispanic man identifying himself as Jerry Ortega opened the door. Immediately recognizing him as Ortega-Montalvo, they handсuffed him and placed him under arrest. The agents continued the protective sweep, finding no one else in the apartment.
After the protective sweep, the agents holstered their guns and asked Maldonado and Ortega-Montalvo-both handcuffed and under arrest-for consent to search the apartment. Acсording to agents, both consented. In Ortega-Montalvo‘s bedroom, officers seized three identification documents. Officers took Ortega-Montalvo to the Enforcement Removal Operations Office, advised him of his Miranda rights, and took a written statement. In the statement, he admitted he was a citizen of Mexico who had bеen deported from the United States and re-entered illegally.
A grand jury indicted Ortega-Montalvo on one count of illegal re-entry. He moved to suppress all evidence and testimony from the search, arrest, booking, and questioning. At the suppression hearing, a magistrate judge heard testimony from Maldonado and HSI agents Lindsеy, Dit-
“On review of a motion to suppress,” this court reviews “factual findings for clear error” and “legal conclusions de novo.” United States v. Sigillito, 759 F.3d 913, 923 (8th Cir. 2014), quoting United States v. Brooks, 715 F.3d 1069, 1075 (8th Cir. 2013). This court affirms the denial unless it is “unsupported by substantial evidence, based on an erroneous interpretation of applicable law, or, based on the entire record, it is clear a mistake was made.” United States v. Vanover, 630 F.3d 1108, 1114 (8th Cir. 2011).
I.
Ortega-Montalvo argues that Maldonado did not voluntarily consent to the agents’ entry into the apartment. At the suppression hearing, the magistrate judge rejected Maldonado‘s testimony on this issue, instead crediting the testimony of an HSI agent that Maldonado voluntarily consented to entry. The district court adopted the finding.
“[W]hether a consent to a search wаs in fact ‘voluntary’ or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of all the circumstances.” Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). See United States v. Sanders, 424 F.3d 768, 773 (8th Cir. 2005) (“Whether consent is voluntarily given is a question of fact.“). Evaluating consent, courts consider: (1) age; (2) general intelligence and education; (3) whether the person was intoxicated at the time of consent; (4) whether the person consented after receiving Miranda rights; and (5) whether the person was aware of his or her rights and protections due to previous arrests. United States v. Comstock, 531 F.3d 667, 676 (8th Cir. 2008). Other relevant factors include: (6) the length of detention time; (7) whether the officers acted in a thrеatening manner; (8) whether officers made any promises or misrepresentations; (9) whether the person was in custody or under arrest when giving consent; (10) whether the person consented in public; and (11) whether the person was silent as the search was conducted. Id. at 676-77. “Determination of consent necessarily involves judging the credibility of witnesses, a task generally left to the district court.” United States v. Meza-Gonzalez, 394 F.3d 587, 592 (8th Cir. 2005). “A district court‘s credibility findings are well-nigh unreviewable, so long as the findings are not internally inconsistent or based on testimony that is incoherent, implausible, or contradicted by objective evidence.” Sigillito, 759 F.3d at 923.
Here, there is no evidence that Maldonado‘s age, intelligence, оr education inhibited his ability to voluntarily consent, or that he was intoxicated. He was not in custody, threatened, or made any promises or misrepresentations to obtain his consent. The agents introduced themselves, showed their badges, and requested, in Spanish, to enter the apartment. Their guns were holstered; they did not raisе their voices. Ortega-Montalvo‘s assertion that Maldonado was “deliberately de-
Maldonado‘s partial dress, lack of sleep, or admission that he was illegally in the United States also did not make the situation “inherently coercive” as Ortega-Montalvo asserts. See United States v. Quintero, 648 F.3d 660, 670 (8th Cir. 2011) (holding that a person‘s “subjective state of mind at the time he allegedly gave his consent is not determinative” and that “[t]he internal psychological pressure associated with a suspect‘s knowledge of his or her own guilt, or fears that evidence of such guilt has been discovered by police” does not bear on whether consent was voluntary); United States v. Johnson, 619 F.3d 910, 918 (8th Cir. 2010) (finding voluntary consent despite defendant‘s state of undress, noting that defendant “chose to open the door when he was not fully clothed“); United States v. Mancias, 350 F.3d 800, 805-06 (8th Cir. 2003) (“Although [defendant] was extremely tired at the timе of his encounter with [law enforcement], we do not find [defendant‘s] physical state rendered his consent involuntary.“).
The district court properly found Maldonado voluntarily consented to entry.
II.
Ortega-Montalvo contends that even if Maldonado consented to entry, the protective sweep exceeded thе scope of consent and was unlawful.
“A protective sweep is permitted under the Fourth Amendment when an officer has ‘articulable facts which, taken together with the 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.‘” Crisolis-Gonzalez, 742 F.3d at 836, quoting Maryland v. Buie, 494 U.S. 325, 334, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990). “Protective sweeps need not always occur in conjunction with an arrest” where “a reasonable officer could conclude that it was necessary for his safety to secure the premises before obtaining a warrant.” Id. quoting United States v. Cisneros-Gutierrez, 598 F.3d 997, 1006 (8th Cir. 2010).
Articulable facts warranted thе agents’ protective sweep. Agents went to Ortega-Montalvo‘s apartment after learning he was in the country illegally. From their briefing, they knew he had a prior conviction for aggravated assault on a police officer, and from Maldonado, they knew he may be present in the apartment. These facts wеre “sufficient to alert the agents as to the possibility that the apartment harbored dangerous individuals.” Id.
Citing United States v. Hassock, Ortega-Montalvo argues the protective sweep was unreasonable because the agents used consent to gain entry and thereby created the exigent circumstances. United States v. Hassock, 631 F.3d 79, 88 (2d Cir. 2011) (“[A] protective sweep is reasonable only to safeguard officers in the pursuit of an otherwise legitimate purpose. Where no other purpose is being pursued, a sweep is
The district court did not err in finding the protective sweep lawful.
III.
Ortega-Montalvo maintains he did not voluntarily consent to the search of his bedroom.
The totality of the circumstances shows that Ortega-Montalvo did voluntarily consent. Like Maldonado, there is no evidence that Ortega-Montalvo‘s age, intelligence, or education inhibited his ability to voluntarily consent, nor is there any evidence he was intoxicated. Although he was under arrest, there is no evidence he was threatened or coerced by the agents or they made any promises or misrepresentations to him. See United States v. Sanchez, 156 F.3d 875, 878 (8th Cir. 1998) (holding the district court did not err in finding consent where there was no “evidence of duress, intimidation, or over-reaching by the officers“). Similarly, the fact that he was not informed of his right to refuse consent does not, in itself, make consent involuntary. United States v. Watson, 423 U.S. 411, 425, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976) (holding that the “failure to inform the arrestee that he could withhold consent” does not automatically make consent involuntary); United States v. Zamoran-Coronel, 231 F.3d 466, 469 (8th Cir. 2000) (considering the voluntariness of consent, the “relevant inquiry ... is whether the officers did anything to affirmatively communicate to the defendant that [he] was not free to ... refuse the consent request“). Finally, his criminal history suggests he would have been aware of his rights and protections. See United States v. Dunning, 666 F.3d 1158, 1165 (8th Cir. 2012) (finding consent voluntary “[a]lthough [dеfendant] was not read his Miranda rights prior to the search” partly because “he was experienced in the legal system and likely aware of his rights“).
The district court properly found Ortega-Montalvo‘s consent voluntary.
IV.
Ortega-Montalvo requests suppression of “all evidence obtained as a result of the agents’ unlawful entry into the apartment and the unlawful protective sweep.” Because the agents had Maldonado‘s voluntary consent to enter the apartment, lawfully conducted the protective sweep, and had Ortega-Montalvo‘s voluntary consent to search his bedroom, this argument is without merit.
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The judgment is affirmed.