UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _____________________

No. 01-40300 Summary Calendar _____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

OSCAR BARRIENTOS,

Defendant-Appellant.

Appeal from the United States District Court for the Southern District of Texas (B-00-CR-402-1)

November 5, 2001

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*

Concerning his bench trial conviction for aiding and abetting

possession with intent to distribute 771 kilograms of marijuana,

Oscar Barrientos asserts the district court erred in denying his

motions to suppress (statements and the marijuana). “We review a

district court’s denial of a motion to suppress by viewing the

facts in the light most favorable to the prevailing party (here,

the government), accepting the district court’s factual findings

unless clearly erroneous, and considering all questions of law de

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. novo.” United States v. Rico,

(5th Cir.), cert.

denied,

(1995).

Simply put, a vehicle suspected of being used for drug

trafficking was seen at Barrientos’ residence; when Agents

returned, they found it at an adjoining residence. After a consent

search of the latter property, the Agents entered Barrientos’

property by using a gate between the two properties.

Barrientos contends Agents violated his Fourth Amendment

rights by, without a warrant, entering his fenced yard and

approaching his door. The Government counters that the Agents were

engaged in a permissible “knock and talk” strategy. “[We] have

recognized the ‘knock and talk’ strategy as a reasonable

investigative tool when officers seek to gain an occupant’s consent

to search or when [, as in the case at hand,] officers reasonably

suspect criminal activity”. United States v. Jones,

(5th Cir. 2001) (citing United States v. Tobin,

(11th Cir. 1991)), cert. denied,

(Oct. 1,

2001). Moreover, we have held police did not violate the curtilage

of a fenced-in apartment by approaching its front door after

passing through an open gate: (1) that was devoid of a door bell,

knocker, or any indication permission to enter was required; and

(2) that the police could reasonably have believed was the

principal means of access to the apartment. See United States v.

2 Thomas,

(5th Cir. 1997), cert. denied, Harmon

v. United States,

(1998).

The situation in the case at hand is quite different, as

evidence indicates: (1) the gate through which the agents entered

was not a public access, but rather an access to a neighbor’s yard;

and (2) the fence contained postings warning the property was

private and guarded by a dog. We need not decide, however, whether

these distinctions make a difference for Fourth Amendment purposes;

any Fourth Amendment violation stemming from the approach was cured

by Barrientos’ consent. “[A] subsequent consent to search may, but

does not necessarily, dissipate the taint of a [prior] fourth

amendment violation”. United States v. Jones,

(5th Cir. 2000) (citations and internal quotations omitted;

alteration in original). “When we evaluate consent given after a

Fourth Amendment violation, the admissibility of the challenged

evidence turns on a two-pronged inquiry: 1) whether the consent was

voluntarily given; and 2) whether the consent was an independent

act of free will.”

The district judge found no credible evidence that the consent

given was not voluntary. “To determine whether the consent was an

independent act of free will ... we must consider: 1) the temporal

proximity of the illegal conduct and the consent; 2) the presence

of intervening circumstances; and 3) the purpose and flagrancy of

the initial misconduct.”

. The facts militate for a

3 determination that Barrientos’ consent was an independent act of

free will.

Next, Barrientos asserts the subsequent search of his property

exceeded the scope of his consent. He did not move in district

court, however, to suppress on this ground. Appellate review for

suppression claims not raised in district court is waived. See,

e.g., United States v. Chavez-Valencia,

(5th Cir.

1997); FED. R. CRIM. P. 12(b)(3),(f).

AFFIRMED

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