E.D.Tex.: Protective sweep was justified just after door opened on knock-and-talk, but court doesn’t even tell us why

Thirteen police came to defendant’s house, and four came on the porch for a knock-and-talk. His wife answered and opened the door three feet. She stepped back and officers entered to conduct a protective sweep. After explaining the reasonable suspicion necessity for a protective sweep, the court finds the sweep valid without identifying any facts that support reasonable suspicion. However, since nothing was found, the question is moot. She then was found to have consented to a search, despite her testifying she was scared by all the officers. United States v. Davila, 2015 U.S. Dist. LEXIS 50943 (E.D. Tex. February 13, 2015)*:

Here, Mulcahy testified that, after Defendant permitted the officers entry into the home, several additional officers entered to conduct a protective sweep. According to Mulcahy, the sweep took approximately one minute and no drugs or weapons were found, but Defendant’s sister and a minor child were found in a bedroom. The Court finds that it was reasonable to “sweep” the house for drugs, weapons, and individuals prior to any conversation with Defendant and that the search conducted was no more than a cursory inspection lasting no longer than necessary to dispel the reasonable suspicion of danger posed to officers. Further, there was no evidence found in the protective sweep, so any complaint is moot. Defendant’s arguments regarding the protective sweep are without merit.

Next, the Court turns to Defendant’s challenge of the search of her home. Mulcahy testified that after the protective sweep was completed, Detective Solis asked Defendant for her consent in Spanish to search the residence. Defendant was presented with a DEA-88A consent form in Spanish to review and sign. According to Mulcahy, Defendant completed the form by writing in the address of her residence. Defendant freely and voluntarily signed the form, and Defendant appeared to understand what she was signing. A copy of the written consent form was admitted into evidence at the hearing. Defendant now argues that this consent to search was not made of her own free will.

A search pursuant to consent is a well-settled exception to the Fourth Amendment’s warrant requirement. Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973); United States v. Tompkins 130 F. 3d 117, 121 (5th Cir. 1997). The Government must prove that consent was freely and voluntarily given, which is to be determined from the totality of the circumstances surrounding the search. Id.

Defendant does not dispute that she signed the consent form, but testified that she signed it because she was scared. This is not enough to make her consent involuntary. A person can give a valid and voluntary consent to a search while feeling scared or nervous. See United States v. Galberth, 846 F.2d 983, 985, 988, 990 (5th Cir. 1988) (finding consent to search person and bags was voluntary when defendant was “very nervous,” “appeared ‘scared,'” and was “shaking”). And, a defendant’s “nervousness” does not “preclude a finding of voluntariness in light of all the other facts and circumstances involved in [the] case.” Id. at 988.

There is nothing before the Court to indicate any coercion was used to compel Defendant to sign the consent form. She was given the option to complete it in English or Spanish. She chose Spanish and freely filled out her address on the form. Officers sat with her at a table while she completed it, and there was no testimony to indicate she was physically threatened or compelled in any way to sign it. Although she testified that she felt uncomfortable in the clothes she was wearing, there is no evidence before the Court that she indicated this to any officer or that she was denied the right to change clothes. Her claim that officers did not expressly tell her that she could decline consent also does not render her consent involuntary.