Archive for the ‘Search and Seizure’ Category

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Physical profiling of defendant permitted as long as not the sole reason for police encounter.

Friday, January 29th, 2010

U.S. v. Quintana, 585 F.3d 1407 (11th Cir. 2009)

This defendant entered a conditional guilty plea and was convicted of illegally entering the U.S. after being previously removed following illegal entry. On appeal, the defendant argued that his right to equal protection was violated because he was only approached by police because they believed him to be of Middle Eastern descent or Muslim. The district court denied defendant’s motion to dismiss the indictment finding that the defendant’s ethnicity or religion was not the only basis for initiating an encounter. The appellate court, reviewing a motion to dismiss an indictment for abuse of discretion, reviewed the finding of fact for clear error. They determined that the totality of the circumstances known to the arresting officers were sufficient to justify a consensual encounter to decide whether further investigation might reveal criminal activity and therefore affirmed the district court’s finding that the defendant’s race or ethnicity was not the sole reason for the police encounter.

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Posted in Probable Cause, Search incident to arrest | No Comments »

Walkaway conviction not a crime of violence under ACCA.

Tuesday, January 12th, 2010

U.S. v. Lee, 586 F.3d 859 (11th Cir. 2009)

Defendant was convicted of being a felon in possession of a firearm and sentenced to 180 months in prison. On appeal, he argued that the district court erroneously denied his motion to suppress the gun found in his co-defendant’s vehicle and abused its discretion by allowing improper jury instructions. The defendant also challenged his sentence arguing that his prior NJ convictions did not meet the standard under the ACCA to enhance his sentence.

The appellate court held that because the defendant, a passenger, had no legitimate expectation of privacy in the interior of the vehicle, he neither had a privacy expectation of the glove box, and lacked standing to challenge the search.

The appellate court also found that the district court’s jury instructions constituted an accurate statement of the law and therefore did not warrant reversal.

Lastly, the appellate court examined the defendant’s NJ prior walkaway conviction to determine it if fit within the ACCA’s enumerated crimes. It found that “a non-violent walkaway escape from unsecured custody is not sufficiently similar in kind or degree of risk posed to the ACCA’s enumerated crimes to bring it within its residual provision.” Therefore, the appellate court vacated defendant’s sentence and remanded back to the district court for resentencing.

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Posted in Fourth Amendment, Jury Instructions, Motion to Suppress Evidence, Probable Cause, Search and Seizure, Search incident to arrest, sentence enhancement | No Comments »

Unsolicited private search does not constitute “search” under Fourth Amendment as long as search is confined to same scope as initial private search.

Wednesday, November 25th, 2009

U.S. v. GARCIA-BERCOVICH, 582 F.3d 1234 (11th Cir. September 10, 2009)

Appealing his convictions for both conspiracy to distribute and possession with the intent to distribute at least 100 kilograms, but less than 1000 kilograms of marijuana, the defendant argued that there was insufficient evidence to establish his knowledge or awareness that there was marijuana contained in the package seized and that the district court erred when it denied his motion to suppress because the government improperly expanded the search. However, the appellate court found that sufficient evidence did exist to support the defendant’s knowledge or awareness because the defendant made multiple trips to pick up packages from an unknown source, he had prior convictions for marijuana importation, he acted with “deliberate ignorance” regarding the existence of contraband, and he attempted to evade the police when caught. The court then examined the legality of the motion to suppress and found no error because as long as the search was confined to the same scope as the initial search, once one box was opened permissibly, the others could also be searched as part of same package.

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Posted in Conspiracy, Drug Crimes, Fourth Amendment, Motion to Suppress Evidence, Probable Cause, Search and Seizure, due process | No Comments »

State’s regulation for safety inspections of commercial motor vehicles was adequate substitute for warrant under Fourth Amendment.

Wednesday, October 21st, 2009

U.S. v. PONCE-ALDONA, 2009 WL 2450282 (11th Cir. August 12, 2009)

The defendant conditionally pled guilty to drug charges but on appeal argued that the district court erred in denying his motion to suppress because the initial stop did not fall under the administrative search exception to the warrant requirement under the Fourth Amendment. The appellate court examined the district court’s denial of the motion to suppress and found that the Georgia statute’s regulatory scheme as a whole, including the incorporated federal regulations, satisfied the third prong of the Burger test) for compatibility with the Fourth Amendment (The defendant did not raise any challenges to the first or second prong). The Georgia statue provided notice to owners that their vehicles would be searched on a regular basis, and that the time, place, and scope of the inspections placed proper restraints upon the inspecting officer’s discretion.

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Posted in Fourth Amendment, Motion to Suppress Evidence, Search Warrant, Search and Seizure | No Comments »

The defendant was not entitled to Franks hearing.

Monday, July 27th, 2009

U.S. v. Valencia-Trujillo, 2009 WL 1929157 (11th Cir. July 7, 2009)

The defendant was convicted of several drug and money laundering crimes after being extradicted to the U.S. from Colombia in 2002. He was sentenced to 480 months imprisonment and to forfeit $110 million.  The Fourth Amendment does not apply to actions against foreign citizens on foreign soil. The Supreme Court has explained that a violation of the fourth Amendment is ‘fully accomplished’ at the time of an unreasonable governmental intrusion.

The case did not warrant reversal.

The Court of Appeals stated that the defendant points out that he put into evidence handwritten notes identifying the owners of the cocaine aboard both vessels and that he was not one of them. Yet other evidence existed from which the jury could find defendant responsible for the cocaine aboard those vessels. And, again, there were three other predicate acts anyway.

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Posted in Fourth Amendment, Motion to Suppress Evidence, Probable Cause, Search Warrant, Search and Seizure | No Comments »

Arrest was supported by probable cause, therefore irrelevant for Fourth Amendment purposes.

Monday, July 27th, 2009

U.S. v. Goings, 2009 WL 1927455 (11th Cir. July 7, 2009)

The defendant pleaded guilty to possession with intent to distribute crack cocaine. He then appealed, challenging denial of his motion to suppress and argued that the District Court erred by denying his suppression motion only on the ground that the arrest leading to the discovery of the evidence violated Florida law. However, the Court of Appeals ruled that the district court correctly found that, under the Supreme Court’s Moore decision, it was irrelevant for purposes of the Fourth Amendment whether a defendant’s arrest violated state law, so long as it was supported by probable cause.

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Posted in Fourth Amendment, Motion to Suppress Evidence, Probable Cause, Search and Seizure | No Comments »

Bahamian wiretap did not shock the judicial conscience.

Monday, July 20th, 2009

U.S. v. Emmanuel, 565 F.3d 1324 (11th Cir. April 21, 2009)

The defendant, a Bahamian citizen, was arrested in 2006 and charged with conspiring to import cocaine into the U.S.; attempting to import cocaine into the U.S.; possessing with intent to distribute cocaine while on board a vessel of the U.S.; and two counts of importing cocaine into the U.S. The court determined that the “shock he conscience” standard was meant to protect against conduct that violates fundamental international norms of decency. As a Bahamian citizen, the defendant was not entitled to protections under the Fourth Amendment as he had no previous significant voluntary connection with the U.S.

The District Court did not abuse its discretion in failing to declare a mistrial or giving a curative instruction.

A government witness stated that he knew the defendant from signing in as a condition of his bail. The defendant argues that this statement prejudiced his rights. The court held that, in light of the substantial evidence against the defendant, it is unlikely that, but for the reference to his condition of bail, the outcome of the trial would have been different.

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Posted in Arrest Warrant, Conspiracy, Fourth Amendment, Motion to Suppress Evidence, Probable Cause, Search and Seizure | No Comments »

Reasonable suspicion of drug transaction led to probable cause to arrest defendant for possession of methamphetamine.

Monday, July 13th, 2009

United States v. Lopez-Garcia, 565 F.3d 1306 (11th Cir. 2009)

The defendant was convicted of being unlawfully found in the United States after having been previously removed and deported.

The defendant was pulled over for violating a traffic law in an area well-known for narcotics activity, after an officer observed his car stopped in the roadway and someone leaning into the passenger window. When asked for his driver’s license, the defendant showed the officer a Mexican license and said he had resided in the U.S. for several years. The defendant consented to the search of his car and the officer found a bulb-shaped glass tube containing a white residue believed to be methamphetamine.

He was arrested for possession and booked, and an ICE agent assigned to the jail performed a preliminary computer search where he learned that the defendant was born outside of the U.S. The ICE agent told the defendant that his purpose was to determine his immigration status. After this meeting, the agent received the Immigration Action Query that was run as part of the jail’s ordinary booking procedure, which indicated that the defendant had been deported, removed, or excluded in 2003 and no record of a legal entry was found.

At the second meeting, the agent read the defendant his Miranda warnings in Spanish from a standardized form which the defendant signed. The agent questioned the defendant in Spanish for about ten minutes and gave the defendant a copy of all the questions and answers, which he again willingly signed.

The defendant was indicted on federal charges of having been unlawfully found in the U.S. after having been previously removed and deported. The defendant moved to suppress the statements made to the ICE agent regarding his immigration status and the documentary evidence obtained. A magistrate judge held an evidentiary hearing and issued and R&R concluding that the arresting officer violated the Fourth Amendment when he stopped the defendant’s vehicle because he did not have either probable cause or reasonable suspicion. The judge then recommended that the evidence obtained at the scene of the arrest be suppressed. However, the R&R concluded that the defendants subsequent statements and documentary evidence should not be suppressed.

The officer had reasonable suspicion that defendant was engaged in hand-to-hand drug transaction and had probable cause to arrest defendant for possession of methamphetamine.

The District court held that officer’s suspicion was supported by several articulable facts including the location of the vehicle, physically, and in a high-crime area, an unknown individual leaning into the window, and the defendant leaving the scene once he noticed the officer. Furthermore, based on the substance and paraphernalia recovered from the consensual search, the officer reasonable believed that the defendant was in possession of methamphetamine.

The District court correctly concluded that the statements made to ICE agent were too removed from arrest to have suffered any taint.

Since the defendant’s seizure and arrest were not found to be unconstitutional , the fruit of the poisonous tree argument fails. In the alternative, even if the statements were tainted, they were too attenuated from the arrest to be regarded as fruit of the poisonous tree: the statements were made the day after the arrest; the arrest and questioning were done by two different individuals with two different objectives-immigration status and suspected drug activity; and neither the stop of the vehicle nor the immigration inquiry were made with an ulterior motive to prosecute the defendant for being illegally in the U.S.

The District court did not err in imposing the Guideline’s sixteen offense-level enhancement.

The defendant, prior to his removal, had a conviction for a felony firearms offense in Georgia, which, he argues, does not fall within the Guidelines 2L1.2 definition. The Court of Appeals found that the prior conviction met the Guidelines definition; and based on the facts set forth in the PSI, the District court correctly concluded that the defendant’s conduct from the previous conviction would have constituted a violation of Section 924(c) and therefore, the court was correct to impose the sixteen offense-level enhancement.

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Posted in Arrest Warrant, Fourth Amendment, Motion to Suppress Evidence, Pre-Sentence Investigation Report, Probable Cause, Procedure, Search and Seizure, Search incident to arrest, Sentencing Guidelines, sentence enhancement, upward variance | No Comments »

Sufficient evidence established that defendant’s pipe bombs were designed as weapons.

Tuesday, July 7th, 2009

United States v. Spoerke, 2009 WL 1424042 (C.A.11 (Fla.))

The defendant was convicted of conspiracy to unlawfully make destructive devices, unlawfully making one or more destructive devices, and possessing unregistered destructive devices at two different locations.  The defendant argued that the US failed to prove the devices were designed to be used as weapons. To be a destructive device under the National Firearms Act, the critical inquiry is whether the device, as designed, has any other value other than as a weapon. The defendant’s devices were destructive devices even if they contained no additional projectiles, because they have no social value.

The defendant was not entitled to a sentence reduction for acceptance of responsibility; and the imposition of a 44-month sentence did not amount to an unwarranted sentencing disparity.

The defendant challenged the calculation of his guidelines and the reasonableness of his sentence. Where a defendant who puts the government to its burden of proof at trial by denying the essential factual elements of guilt, is convicted, and only then admits guilt and expresses remorse, he has not accepted responsibility and is not entitled to a reduction. Therefore, when the district court imposes a sentence within the advisory Guidelines range, it is ordinarily expected to be reasonable.

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Posted in Motion to Suppress Evidence, Sentencing Guidelines, Uncategorized, downward variance, sentence enhancement | No Comments »

Border patrol agent with more than 15 years of experience had “reasonable suspicion” of criminal activity, of kind required to support stop of vehicle driven by defendant.

Tuesday, July 7th, 2009

United States v. Bautista-Silva, 567 F.3d 1266 (11th Cir. 2009)

The Defendant, who was charged with knowingly transporting five illegal aliens within the United States for private financial gain, moved to suppress evidence discovered by the border patrol agent during a vehicular stop, on grounds that the agent did not have the requisite “reasonable suspicion” of criminal activity needed to support such a stop. . The United States District Court for the Middle District of Florida granted the suppression motion, and the government appealed.

District court, in considering whether border patrol agent had reasonable suspicion of criminal activity, should not have engaged in “divide and conquer” analysis.

The agent’s decision to stop the defendant’s suburban was based on numerous factors that, in his professional experience, suggested that the vehicle contained illegal aliens. The District Court found that those facts were insufficient to justify a stop because they were “too commonplace to support [reasonable suspicion] or to be given meaningful weight in a ‘totality of the circumstances’ analysis.”

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Posted in Motion to Suppress Evidence, Probable Cause, Search and Seizure | No Comments »

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