United States v. Randy Sam Jackson , 618 F. App'x 472 ( 2015 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-13780
Non-Argument Calendar
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D.C. Docket No. 1:13-cr-20770-WJZ-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RANDY SAM JACKSON,
Defendant-Appellant.
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No. 14-13915
Non-Argument Calendar
________________________
D.C. Docket No. 1:13-cr-20770-WJZ-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BRANDEN ANTHONY JONES,
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Defendant-Appellant.
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Appeals from the United States District Court
for the Southern District of Florida
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(June 29, 2015)
Before WILSON, JULIE CARNES, and FAY, Circuit Judges.
PER CURIAM:
Randy Sam Jackson and Braden Anthony Jones appeal their convictions for
one count of conspiracy to possess 15 or more unauthorized access devices, in
violation of 18 U.S.C. § 1029(a)(3) and (b)(2), and one count of aggravated
identity theft, in violation of 18 U.S.C. §§ 1028A(a)(1) and (2). Both Jackson and
Jones appeal the district court’s denial in part of Jackson’s motion to suppress
physical evidence found after law enforcement officers conducted a knock and talk
at Jackson’s efficiency apartment, where Jones was also present. After discovering
evidence of marijuana in plain view, the officers arrested Jackson and Jones, and
they later discovered evidence of fraud and identity theft, which led to the charges
in this case. Jones also appeals the district court’s outright denial of his motion to
suppress the same evidence on the ground that he failed to establish his standing to
assert a Fourth Amendment claim.
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Standing
On appeal, Jones argues that the district court erred by, sua sponte, raising
the issue of his standing to assert a Fourth Amendment violation after it had
already conducted an evidentiary hearing on his motion to suppress. He maintains
that, while he had the ultimate burden to establish his standing, he was not required
to present evidence on the issue unless the government raised it.
Because rulings on motions to suppress present mixed questions of fact and
law, we review the district court’s factual findings for clear error, and its
application of the law to the facts de novo. United States v. Bervaldi, 226 F.3d
1256, 1262 (11th Cir. 2000). We construe the facts in the light most favorable to
the party that prevailed below. Id. In addition, Fourth Amendment violations are
subject to harmless error review. United States v. Rhind, 289 F.3d 690, 692, 694
(11th Cir. 2002) (applying harmless error review in the guilty plea context). The
relevant inquiry is “whether there is a reasonable possibility that the evidence
complained of might have contributed to the conviction.” Id. at 694 (internal
quotation marks omitted).
The Fourth Amendment prohibits law enforcement from conducting
“unreasonable searches and seizures.” U.S. Const. amend. IV. To have standing
to challenge a search or seizure under the Fourth Amendment, one must manifest
an objectively reasonable expectation of privacy in the invaded area. United States
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v. Cooper, 133 F.3d 1394, 1398 (11th Cir. 1998). The proponent of a motion to
suppress has the burden to allege, and if the allegations are disputed, to prove, that
his own Fourth Amendment rights were violated by the challenged search or
seizure. United States v. Bachner, 706 F.2d 1121, 1125 & n.5 (11th Cir. 1983). If
the movant establishes an expectation of privacy in the premises searched and the
items seized, then “the burden of proof shifts to the [government] to establish that
an exception to the search warrant requirement was applicable” and that the search
and seizure were reasonable. Id. at 1126. The movant’s standing to challenge a
search or seizure is a threshold issue that the district court must address when
ruling on a motion to suppress. United States v. Sneed, 732 F.2d 886, 888 (11th
Cir. 1984) (per curiam).
Where a motion to suppress fails to allege facts that, if proven, would
establish the defendant’s legitimate expectation of privacy in the premises searched
or items seized, the district court is not required to hold an evidentiary hearing to
receive evidence on the motion. See id at 888. “Once a defendant has failed to
make a proper pretrial request for suppression, the opportunity is waived unless the
district court grants relief for good cause shown.” United States v. Richardson,
764 F.2d 1514, 1527 (11th Cir. 1985).
Nonetheless, if the district court addresses the merits of a defendant’s Fourth
Amendment claim without receiving evidence relating to his standing to bring such
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a claim, a reviewing court may be required to remand the case for fact-finding on
the standing issue. See Combs v. United States, 408 U.S. 224, 226–28 & n.3, 92 S.
Ct. 2284, 2285–86 & n.3 (1972) (remanding for further fact-finding, where the
court of appeals upheld the denial of the defendant’s motion to suppress on the
ground that he lacked standing to pursue a Fourth Amendment claim; and where
the government did not challenge his standing and the district court, which rejected
his claim on the merits after holding an evidentiary hearing, made no factual
findings on the standing issue); Bachner, 706 F.2d at 1126–28 (in appeal by the
government, remanding for fact-finding on the defendant’s standing to pursue a
Fourth Amendment claim, where the district court declined to receive evidence on
that issue and proceeded directly to the merits of the defendant’s claim, granting in
part his motion to suppress). A remand is not necessary, however, if the
government challenged the defendant’s standing in the district court, and the
defendant had an opportunity to present evidence to prove his standing but failed to
do so. See Rakas v. Illinois, 439 U.S. 128, 130–31 & n.1, 99 S. Ct. 421, 423–24 &
n.1 (1978).
Here, even assuming arguendo that the district court erred by denying
Jones’s motion to suppress without giving him an opportunity to address the
standing issue, any error was harmless. In its order addressing both defendants’
motions to suppress, the court noted that, if Jones had standing, it would deny in
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part and grant in part his motion, consistent with its disposition of Jackson’s
motion. For the reasons discussed below, we conclude that the district court did
not err by denying in part Jackson’s motion. Thus, if Jones had prevailed on the
standing question below he would have been entitled to suppression of the
evidence suppressed in Jackson’s case, namely, a backpack that was found on the
floor in Jackson’s apartment, a laptop found inside the backpack, and three cell
phones, which were found in the backpack and on a nearby table.
However, Jackson and Jones entered closely similar plea agreements with
identical factual proffers, which did not mention the backpack, the laptop found
therein, or the three cell phones. Moreover, the government did not discuss these
items at Jackson and Jones’s joint change-of-plea hearing when it offered a factual
basis for Jones’s pleas, and the record lacks any indication that these items
incriminated Jones in the offenses to which he pled guilty, which were the same
offenses to which Jackson pled guilty. Accordingly, there is not a reasonable
possibility that the backpack, the computer found therein, and the three cell phones
contributed to Jones’s convictions. See Rhind, 289 F.3d at 694.
Suppression
On appeal, Jackson and Jones argue that the officers violated the Fourth
Amendment by entering the fenced-in yard outside Jackson’s efficiency apartment,
which was attached to a single-family house. Jackson and Jones point out that the
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fence had a beware-of-dog sign; the driveway leading through the fence gate was
unpaved; there was no delineated path leading to the apartment’s exterior door; the
door was unmarked and had no knocker or bell; and there was no mailbox nearby.
They also assert that, under Fla. Stat. § 810.09(1)(a)(1), entering the yard through
the gate constituted a trespass.
Jackson and Jones further argue that, even if the officers could lawfully
approach the apartment’s exterior door, they violated the Fourth Amendment by
searching its interior and seizing a laptop computer, notebook, and Florida Access
Card they found on the table, and Florida Access Cards and a checkbook they
found in the backpack on the floor. At that point, the officers had already arrested
Jackson and Jones and, the appellants maintain, the scene was secure. The
appellants also contend that the officers were not permitted to conduct a protective
sweep because there was no indication that the apartment harbored any other
people. In any event, they argue, the officers did not make the seizures during the
protective sweep. Instead, they exited the apartment and reentered to further
inspect the items before seizing them.
The Fourth Amendment protects individuals from unreasonable government
intrusions into their homes and the curtilages of their homes. See Oliver v. United
States, 466 U.S. 170, 180, 104 S. Ct. 1735, 1742 (1984). For Fourth Amendment
purposes, curtilage is the area surrounding the home in which an individual has a
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reasonable expectation of privacy. Id. Notwithstanding the protections of the
Fourth Amendment, law enforcement officers are not categorically excluded from
entering the curtilage of the home without a warrant. See Florida v. Jardines, 569
U.S. __, __, 133 S. Ct. 1409, 1415 (2013). Officers may approach a home “for
legitimate police purposes unconnected with a search of the premises.” United
States v. Taylor, 458 F.3d 1201, 1204 (11th Cir. 2006). Officers are permitted “to
knock on a residence’s door or otherwise approach the residence seeking to speak
to the inhabitants just a[s] any private citizen may.” Id. (internal quotation marks
omitted). Officers may not, however, cross the threshold of the home to conduct a
warrantless search or seizure absent consent or exigent circumstances. Payton v.
New York, 445 U.S. 573, 576, 582–83, 590, 100 S. Ct. 1371, 1374–75, 1378, 1382
(1980).
The Fourth Amendment also permits law enforcement officers to conduct a
“protective sweep,” incident to a lawful arrest, if they possess “a reasonable belief
based on specific and articulable facts which, taken together with the rational
inferences from those facts, reasonably warrant[] the officer[s] in believing that the
area swept harbor[s] an individual posing a danger to the officer[s] or others.”
Maryland v. Buie, 494 U.S. 325, 327, 110 S. Ct. 1093, 1094–95 (1990) (internal
quotation marks omitted). The sweep must be “narrowly confined to a cursory
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visual inspection of those places in which a person might be hiding.” Id. at 327,
110 S.Ct. at 1095.
Officers may seize an object they discover in plain view during a proper
protective sweep if they have probable cause to believe the object is contraband.
United States v. Tobin, 923 F.2d 1506, 1513 (11th Cir. 1991) (en banc); United
States v. Smith, 459 F.3d 1276, 1290 (11th Cir. 2006); see also Horton v.
California, 496 U.S. 128, 141–42, 110 S. Ct. 2301, 2310 (1990) (“The prohibition
against general searches and general warrants serves primarily as a protection
against unjustified intrusions on privacy. But reliance on privacy concerns that
support that prohibition is misplaced when the inquiry concerns the scope of an
exception that merely authorizes an officer with a lawful right of access to an item
to seize it without a warrant”). “Probable cause exists when under the totality of
the circumstances there is a fair probability that contraband or evidence of a crime
will be found in a particular place.” Tobin, 923 F.2d at 1510 (internal quotation
marks omitted). While we decide the legal issue of whether probable cause exists,
we give weight to the inferences law enforcement agents draw from the facts.
Smith, 459 F.3d at 1291.
Once a defendant’s privacy interest is “invaded legally by an official of the
State, the citizen has lost his reasonable expectation of privacy.” United States v.
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Brand, 556 F.2d 1312, 1317 (5th Cir. 1977). 1 Additional investigators or officials
may enter a citizen’s property after one official has already intruded legally, even
though the circumstance giving the first official license to enter has dissipated. Id.
Here, the district court did not err in concluding that the officers were
conducting a permissible knock and talk when they approached the exterior door of
Jackson’s efficiency apartment. The court found that the path the officers took was
the same path any person visiting the apartment would have used. The court’s
finding was supported by the undisputed fact that the apartment had only one
entrance. Moreover, the officers conducted the knock and talk in response to a tip
reporting a “high traffic of people coming and going” from the efficiency
apartment, specifically. The court noted that the apartment’s door was behind a
chain-link fence and that the fence contained a beware-of-dog sign. However, the
court concluded that no dog was present at the time and that the sign, which did not
say “No Trespassing” or “Do Not Enter” did not serve as a signal that visitors were
unwelcome. In addition, the court credited the officers’ testimony that the gate
was open on the night in question, and it noted that Jackson did not contest the fact
that he had opened the door voluntarily in response to the officers’ knock.
Jackson and Jones’s argument that the officers’ entry constituted a trespass
1
In Bonner v. City of Prichard, we agreed to be bound by decisions of the Fifth Circuit
handed down prior to the close of business on September 30, 1981. 661 F.2d 1206, 1207 (11th
Cir. 1981) (en banc).
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under Fla. Stat. § 810.09(1)(a)(1) is unavailing. That statute provides that a person
trespasses when he enters a property “[a]s to which notice against entering or
remaining is given, either by actual communication to the offender or by posting
[or] fencing.” Fla. Stat. § 810.09(1)(a)(1). However, as discussed above, the court
concluded that, in this case, the fence and beware-of-dog sign did not constitute
notice against entering. In addition, the Florida statute could not, of its own force,
control the outcome here and require exclusion of the evidence. See Virginia v.
Moore, 553 U.S. 164, 177–78, 128 S. Ct. 1598, 1608 (2008).
Jackson and Jones’ argument that, because there was no delineated path
leading up to the door, and because the door did not have markings, a doorbell or
knocker, or an adjacent mailbox, there was no implied invitation to enter is
likewise unavailing. The appellants point to no authority stating that these
attributes are necessary to find that an implied invitation to enter existed. Their
reliance on Jardines is misplaced, as that case provides only that a door knocker
serves as an implied invitation to knock, not that the absence of a knocker, or any
other specific features, is necessarily a signal not to do so. See Jardines, 569 U.S.
at __, 133 S. Ct. at 1415–16.
Jackson and Jones’ contention that the officers’ protective sweep violated
the Fourth Amendment is meritless. The district court determined that the
protective sweep was justified based on the officers’ observation of a partially
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concealed back area of the efficiency unit. The district court’s determination was
supported by the testimony of both officers that they believed a person could have
been in the back area of the apartment, and photographs entered into evidence by
the government, which depict a concealed area large enough to harbor a person.
See Buie, 494 U.S. at 327, 110 S. Ct. at 1094–95. The district court’s conclusion
that the protective sweep was appropriately limited was supported by the officers’
testimony that, during the sweep, which lasted about one minute, they examined
only the back area of the apartment and under the bed.
The officers were permitted to seize items in plain view during the
protective sweep if they had probable cause to believe the items were contraband.
Tobin, 923 F.2d at 1513. The district court found that, during the protective sweep,
one officer observed multiple Florida Access Cards in the open backpack on the
floor, which, to him, was inherently criminal, and another officer observed a laptop
computer open to a tax-return-filing website and a notebook containing names,
social security numbers, and birthdates, which indicated to him that a fraud was
taking place. The officers were correct to conclude that these items established
probable cause that Jackson and Jones were engaged in fraudulent activity.
Jackson and Jones’s argument that the officers were not permitted to seize
the evidence because they exited the apartment after the protective sweep and they
had no justification for reentering is unavailing. The testimony of the two officers
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conflicted as to whether they exited the apartment after concluding the protective
sweep, and the court did not resolve the conflict. However, even if the officers
exited and then reentered to collect the evidence, the seizures did not violate the
Fourth Amendment. By reentering the apartment, the officers would not have
violated any privacy interest of Jackson or Jones that they had not already lawfully
violated during the protective sweep. The officers were not searching the
apartment for additional evidence. They were merely collecting evidence that they
could have lawfully seized earlier. See Horton, 496 U.S. at 141–42, 110 S. Ct.
at 2310. Similarly, the district court did not err in determining that no Fourth
Amendment violation occurred when crime scene technicians entered the
apartment to take pictures of the items the officers had properly seized. See Brand,
556 F.2d at 1317.
Accordingly, for the reasons discussed above, Jackson’s and Jones’s
convictions are AFFIRMED.
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