United States v. Bernal Emile, 11th Cir. (2015)
United States v. Bernal Emile, 11th Cir. (2015)
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PER CURIAM:
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The UPS manager decided to open the packages, each of which consisted of
an outer and inner box with heavily-taped seams, several layers of bubble wrap,
carbon paper, and a vacuum-sealed bag. Inside each box was a large sum of cash,
totaling $28,300. The packages contained no stereo equipment.
Officer Randolph watched as the UPS manager opened the packages, but the
police did not participate physically in the search. Officer Randolph then seized
the money based on his suspicion that the money was connected to drug sales. A
police dog later alerted to the presence of narcotic odors on the money.
Two days later, Officers Morris and Gereg visited the address listed on the
UPS package invoices. Bernal answered the door, stepped outside, and closed the
door behind him. The officers detected a strong odor of marijuana coming from
the apartment and noticed that, stuck to Bernals sock, was a strip of plastic from a
vacuum-sealed bag. Bernal told the officers that he had shipped the two UPS
packages in question and that the packages contained stereo equipment. The
officers then detained and handcuffed Bernal so they could obtain a search warrant
for the apartment.
Meanwhile, Bernal told the officers that his brother, Nelino, was inside the
apartment. Officer Morris opened the apartment door, called out Police, and
instructed anyone inside to come out. Nelino came outside and was handcuffed
immediately. Officer Morris then conducted a protective sweep of the apartment
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to be sure no one else was inside. During the sweep, Officer Morris saw evidence
of marijuana, but seized nothing. Officer Gereg then went to obtain a search
warrant.
While Defendants and officers waited outside the apartment, a local news
crew arrived. At the officers suggestion, Defendants agreed to wait just inside the
front door of the apartment to avoid the media.
After the search warrant arrived, a search of Defendants apartment revealed
evidence of marijuana, guns, various packing materials, and UPS receipts.
In the district court, Defendants moved to suppress evidence found during
the searches of the UPS packages and of Defendants apartment. After a hearing,
the district court granted the motions in part. In pertinent part, the district court
found and concluded that (1) the opening of the UPS packages by the UPS
manager was a private search that constituted no joint venture between the UPS
manager and Officer Randolph; (2) no articulable reason existed to justify Officer
Morriss warrantless protective sweep of Defendants apartment, which
encompassed both the opening of Defendants apartment door and the sweep inside
the apartment; (3) after redacting the information obtained during the improper
protective sweep, the search warrant affidavit still contained sufficient information
to establish probable cause to search Defendants apartment; (4) Defendants
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consented to enter the apartment while waiting for the search warrant; and (5) no
search of Defendants apartment occurred before the search warrant arrived.
I. UPS Packages
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knew of and acquiesced in the intrusive conduct, and (2) whether the private
actors purpose was to assist law enforcement efforts rather than to further his own
ends. Id. As part of our inquiry, we also consider whether the government
openly encouraged or cooperated in the search. See United States v. Ford, 765
F.2d 1088, 1090 (11th Cir. 1985) (affirming denial of a motion to suppress in part
because nothing evidenced that the government openly encouraged or cooperated
in the private citizens search); see also United States v. Smythe, 84 F.3d 1240,
1243 (10th Cir. 1996) (noting that the knowledge and acquiescence criteria
encompass the requirement that the government agent must also affirmatively
encourage, initiate or instigate the private action.).
Considering the totality of the circumstances, the district court committed no
error in determining that the UPS manager acted as a private citizen -- and not as
an agent of the government -- when he opened the two UPS packages. The record
shows that the UPS manager became suspicious about the packages and, thus,
contacted the police, because (1) the packages seams were heavily taped, (2) the
packages had a chemical odor, and (3) the sender refused to consolidate the two
packages to reduce shipping charges.
We accept the district courts factual findings that (1) Officer Randolph did
nothing significant to encourage the UPS manager to open the packages, even
though Officer Randolph mentioned that the packages smelled of marijuana; and
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(2) Officer Randolph never participated physically in the search. The district judge
rejected expressly some kind of wink-and-nod conduct on the part of the police for
the search. Officer Randolph told the UPS manager expressly not to open the
packages for the benefit of the police. Instead, the UPS manager decided -- based
on his own suspicions and as a matter of UPS company policy -- to open the
packages himself. Viewing the evidence in the light most favorable to the
government, the UPS managers search of the two packages constituted a search by
a private citizen, triggering no Fourth Amendment protection.
Because the UPS packages were searched lawfully, we reject Defendants
assertion that evidence seized during the later search of Defendants apartment
must be excluded under the fruit of the poisonous tree doctrine. For background,
see United States v. Terzado-Madruga, 897 F.2d 1099, 1112-13 (11th Cir. 1990).
Bernal argues that the police lacked reasonable suspicion or probable cause
to detain him before searching his apartment. Because Bernal failed to raise this
argument in the district court, we review only for plain error. See United States v.
Clark, 274 F.3d 1325, 1326 (11th Cir. 2001).
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evidence obtained during the illegal protective sweep was admissible under the
independent source doctrine. See id.
Given the record and the district courts determinations, we reject
Defendants contention that officers conducted an illegal search when they and
Defendants moved inside Defendants apartment to avoid local news media.
Although Defendants contend they agreed to enter the apartment only at the
suggestion of law enforcement, we accept that their consent was voluntary.
Moreover, we accept that no officers engaged in a physical search of the apartment
before the search warrant arrived.
AFFIRMED.
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