United States v. Daniel Martinez , 498 F. App'x 902 ( 2012 )

Case: 11-16119 Date Filed: 11/20/2012 Page: 1 of 3
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 11-16119
Non-Argument Calendar
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D.C. Docket No. 6:11-cr-00037-GAP-KRS-1
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee,
versus
DANIEL MARTINEZ,
llllllllllllllllllllllllllllllllllllllllDefendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(November 20, 2012)
Before PRYOR, JORDAN and ANDERSON, Circuit Judges.
PER CURIAM:
Case: 11-16119 Date Filed: 11/20/2012 Page: 2 of 3
Daniel Martinez appeals his convictions for possessing with intent to
distribute and manufacture marijuana, 21 U.S.C. § 841(a)(1), (b)(1)(D), possessing
of a firearm in furtherance of a drug trafficking crime, 18 U.S.C. § 924(c)(1)(A),
(c)(2), and possessing a firearm and ammunition as a convicted felon, id. §§
922(g)(1), 924(a)(2). Martinez argues that the district court should have granted
his motion to suppress evidence seized during execution of a search warrant
because there were false statements in the underlying affidavit. We affirm.
On denial of a motion to suppress, we review findings of fact for clear error
and the application of law to those facts de novo. United States v. Spoerke, 568
F.3d 1236, 1244 (11th Cir. 2009). We construe all facts in the light most
favorable to the United States, id., and defer to the findings of the district court,
including those involving the credibility of witnesses, “unless [its] understanding
of the facts appears to be unbelievable.” United States v. Ramirez-Chilel, 289
F.3d 744, 749 (11th Cir. 2002) (internal quotation marks omitted).
The district court did not err by denying Martinez’s motion to suppress.
Detective Matthew Ochiuzzo’s affidavit provided probable cause to issue a
warrant to search Martinez’s residence for marijuana. See United States v. Lueck,
678 F.2d 895, 903 (11th Cir. 1982). Ochiuzzo’s affidavit stated that, while he
stood “at the front door of the target residence, [he] and Detective [Christopher]
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Case: 11-16119 Date Filed: 11/20/2012 Page: 3 of 3
Carty immediately smelled the odor of fresh cannabis omitting from inside of the
target residence”; based on “his training and experience” he knew from the
“concentrated smell” that the residence contained a “large quantity of fresh
cannabis”; and he could distinguish between “fresh cannabis [which] has a much
stronger [odor] than that of burnt cannabis cigarette.” Although Ochiuzzo averred
that he acted on an “anonymous tip from a Confidential Source” that the residence
was a marijuana grow house, and Ochiuzzo later testified that he acted on a tip
from an undercover agent, that discrepancy was immaterial. See United States v.
Ofshe, 817 F.2d 1508, 1513 (11th Cir. 1987). Ochiuzzo’s affidavit did not contain
a “deliberate falsehood.” Franks v. Delaware, 438 U.S. 154, 171, 98 S. Ct. 2674,
2684 (1978). Ochiuzzo testified that he considered the agent a “confidential
source” because “there was confusion about whether [he needed to] protect[] the
identity of the agent[].” And the district court did not clearly err by crediting
Ochiuzzo’s and Carty’s testimony about the smell of marijuana. Although three
other officers testified that they did not smell marijuana while waiting to execute
the search warrant, those officers stated that they waited in the driveway and on
the sidewalk some 15 to 25 feet away from the house.
We AFFIRM Martinez’s convictions.
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