JUST SAY NO

The Eighth Circuit Court of Appeals upheld the search of three residences in a Kansas City methamphetamine case in United States v. Cisneros-Gutierrez.

Immigration and Customs Enforcement (ICE) Special Agent Mark King set up surveillance at 323 South Brighton Avenue. Along with other agents he decided to conduct a “knock and talk.” A “knock and talk” is used by narcotics agents when they want to search a residence but they do not have probable cause to get a search warrant. They knock on the front door and when someone answers it they try to talk their way into the house and get consent from the residents to search the house. Of course the residents do not have to answer the door. Nor do they have to talk to the officers or give them permission to enter the house.

But King was either good or lucky. Justino Ruiz-Ramos answered the door. He said he did not live at the residence but Salvador Jesus Velasco-Saldana came to the door. Velasco-Saldana said he resided there and gave the officers permission to enter. He consented to the officers searching the residence. They found methamphetamine and related items. They interviewed Velasco-Saldana and he told them that Gerardo sold him three pounds of methamphetamine and that Gerardo’s brother delivered it. He drew the officers a map explaining how to get to Gerardo’s house.

Several officers including King and Luis Ortiz of the Kansas City Police Department Gang Unit went to 430 Donnelly Avenue and conducted another “knock and talk.” Miguel Angel Garcia-Bobadilla answered the door and again the officers were let in. They asked Garcia-Bobadilla if he was alone. When he answered yes they asked asked if they could perform a protective sweep in order to confirm that no one else was in the house. He gave permission. A protective sweep is done to make sure the officers are safe while in the house. But they also know that any illegal substances they see in “plain view” can be seized. They found a significant amount of methamphetamine in the house.

During the sweep they ran into Alfredo and Dehli Hernando-Pena. Alfredo and Garcia-Bobadilla said they lived in the house. Both gave verbal and written consent to the search. Dehli agreed to cooperate. She told them that Alfredo’s brothers lived at 3907 East 12th Terrace. After the officers search the Donnelly Avenue house they went to the 12th Terrace house. They knocked on the door and Gerardo answered. While talking to Gerardo they noticed Alphonso entering the kitchen with large baggies of powder and they heard what they thought to be Alphonso flushing something down the sink. The officers thinking that evidence was being destroyed entered the residence without a warrant.

After they were indicted the defendants brought motions to suppress the evidence. The court upheld all of the searches. As to the South Brighton Avenue search, it found that Velasco-Saldana gave consent to the entry and search. As a result it was not in violation of the Fourth Amendment.While there was some question about the facts of the Donnelly Avenue search. The police claim that the residents gave their consent and the residents say the police forced their way in, the court found the officers to be credible and the residents not to be. As a result it found that the entry and search was also the result of consent. As to the 12th Terrace search there is an exception to the Fourth Amendment when exigent circumstances exist. The courts have found that the eminent destruction of evidence is an exigent circumstance allowing the authorities to enter a residence without a warrant.

The question that constantly comes up in my mind is why would anyone allow the police to enter their house and search it knowing that there is a significant amount of methamphetamine in the house. If any of the defendants had just said “no” I will not talk with you or “no” you cannot come in, or “no” you cannot search none of this would have happened and they would not have be serving decades in prison. The Fifth and Fourteenth Amendments give people the absolute right not to talk to the police. The Fourth and Fourteenth Amendments Amendments give people the right to refuse entry to any officer who does not have a search warrant into their residence and to deny the officers the right to search the residence.

Even assuming that the police do not always tell the truth it is obvious that the defendants talked themselves into being arrested. Did they think that when talking with experienced officer they could talk themselves out of being arrested–unlikely. And I do not know about this case but by talking they endanger themselves because others get arrested and they may be killed. It makes no sense.