CA5: Knock-and-talk at stash house was valid, despite police created exigency

El Paso officers had a reliable tip that a van had a large quantity of marijuana in it. Officers followed the van from ground and air to a house that had all the appearances of a stash house. The unladen van left and was lost, so the officers returned to the house to make a knock-and-talk, and the smell of marijuana was powerful from the front yard. A knock at the door led to potential flight inside, and officers went to the back door to cut off an escape route and prevent access to potential weapons. The defendant then consented. The entry into the back yard had an independent source. United States v. Trejo, 378 Fed. Appx. 441 (5th Cir. 2010) (unpublished)*:

Even if we purge from the warrant affidavit any information officers obtained as a result of the intrusion of Trejo’s backyard, under the independent source doctrine, sufficient facts remain to constitute probable cause. See United States v. Hassan, 83 F.3d 693, 697 (5th Cir. 1996) (citation omitted). This includes the corroborated tip about the van, the van appearing to deliver a cargo to Trejo’s house, the appearance of the house, the smell of marijuana and masking agents, the boxes observed during the protective sweep, and the canine’s positive alert for the presence of narcotics. See United States v. Pierre, 958 F.2d 1304, 1310 (5th Cir. 1992) (en banc) (reasoning that the smell of marijuana can give rise to probable cause). Garza testified that he believed the officers had probable cause to seek a warrant after the officers smelled marijuana and the canine confirmed this observation. In light of these facts, we easily conclude that the officers would have sought a search warrant even had they not observed boxes through the back windows of Trejo’s house. See Hassan, 83 F.3d at 697.

The district court’s findings on consent were not overcome by defendant’s arguments on appeal. United States v. Toledo, No. 09-4103 (10th Cir. May 18, 2010) (unpublished).*