Page 28 - TPA Police Officers Guide 2021

efforts to dispose of it and to escape are characteristics in which those trafficking in contraband generally engage.

Daniels argues that a “single toilet flush” was not enough to justify entry. If a solitary flush were the only evidence
of exigency in the record, he might be right. But the officers relied on more than just the flush. In fact, they were
flush with exigency evidence. After he knocked, Agent Greaves could hear “running throughout the room, running
back and forth like from the right side where the door was back to the left side by the window.” He says there were
times when James’s “voice was real close to the door” and when he “could tell he was much further away from
the door,” indicating that James was running back and forth.12 Agent Greaves had told James he was a police of-
ficer, so he was “aware that the police [were] on [his] trail.” And Agent Webber testified that it is “not uncommon
for drug dealers to flush narcotics down the toilet.”

Combined with the toilet-flushing sounds, this all reasonably suggests that the room’s occupants might have been
attempting to destroy evidence. The Aguirre factors therefore suggest that exigent circumstances existed justify-
ing the warrantless search. So, the district court did not err in finding there was an exigency to justify the war-
rantless search. The officers had a full house of evidence, and a full house beats a flush.
Now that we know an exigency existed, we must ask whether the officers created the exigency. Daniels says the
officers’ aggressive conduct made him believe that he was trapped, in violation of the Fourth Amendment, thereby
creating the exigency. But the officers acted within the bounds of our caselaw. In King, police “banged on the door
as loud as [they] could,” but that did not create the exigency. Even though the defendant argued that the officers
“demanded” entry, he couldn’t back that up with any evidence in the record. Likewise, Daniels does not point to
any evidence in the record that the agents actually threatened his Fourth Amendment rights. While the officers here
knocked vigorously, the knocking was relatively brief—around two minutes —- and the officers did not attempt
to force entry prior to hearing the toilet flush.

The officers did not create the exigency. Daniels fails to meet his burden of showing a Fourth Amendment viola-
tion. So, the district court did not err in denying his motion to suppress.
….
For the reasons explained above, we AFFIRM Daniels’s convictions.

th
th
U. S. v. Daniels, 5 Cir., July 10 , 2019.
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VEHICLE SEARCH – DURATION OF DETENTION

A federal grand jury returned a three-count indictment charging Rafael Tello with transporting an illegal alien
within the United States by means of a motor vehicle. At an immigration checkpoint, the aliens were found hid-
den in a storage compartment in the sleeper area of the tractor-trailer that Tello was driving. The case proceeded
to trial on the first two counts. Midway through the trial, after the two Border Patrol agents had testified, Tello
moved to suppress the evidence found during the immigration-checkpoint stop. The district court denied the mo-
tion and the jury found Tello guilty of both counts. Tello was sentenced to concurrent terms of 27 months of im-
prisonment and two years of supervised release. For the reasons below, we AFFIRM.

Shortly before 1:00 a.m. on August 1, 2017, a tractor-trailer entered the primary inspection lane at the U.S. Bor-
der Patrol checkpoint south of Falfurrias, Texas. Agent Villanueva was on duty in the primary inspection lane. A
Border Patrol service canine and its handler were working with him. Tello was driving the tractor-trailer. Agent
Villanueva’s first question was: “[A]re you a citizen – are you a United States citizen?” He replied that he was a
naturalized citizen. Agent Villanueva was satisfied with this answer so he did not ask for proof of citizenship.
Agent Villanueva next asked Tello what he was hauling in the trailer. He asked this question to give the Border
Patrol service canine more time to conduct a canine sniff of the tractor-trailer: Because at that point, kind of I
looked – because usually when I start [questioning], I also keep in mind that I have the K9 handler working with
me; because sometimes, you know, the vehicles coming up to our inspection, and the dog might be alerting right
away, but – and sometimes, we question these occupants. And we might be doing a simple question, so we might
relieve the vehicle right away. But at this time, the K9 [handler] kind of glanced over at me, you know, give me a
little bit more time. So that’s kind of why I questioned a little bit more.

A Peace Officer’s Guide to Texas Law 22 2021 Edition