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11th
U.S. Circuit Court of Appeals Decision
11th U.S.
Circuit Court of Appeals
United States v. Bervaldi
Nos. 98-5419 & 98-5547
D.C. Docket
No. 98-183-CR-DLG
UNITED STATES
OF AMERICA, Plaintiff-Appellant, versus JASON R. BERVALDI, Defendant-Appellee.
Appeals from
the United States District Court for the Southern District of
Florida
(September
14, 2000)
Before ANDERSON,
Chief Judge, CARNES and OAKES*, Circuit Judges.
ANDERSON,
Chief Judge:
* Honorable
James L. Oakes, U.S. Circuit Judge for the Second Circuit, sitting
by designation
In this interlocutory
appeal, the United States challenges the district court's suppression
of statements made by Jason Bervaldi and of physical evidence
seized from his residence. This appeal presents two questions:
whether the law enforcement agents who arrested Bervaldi and seized
the evidence had a reasonable belief at the time of entering his
residence that it was the dwelling of the subject of an arrest
warrant they were attempting to execute; and whether they had
a reasonable belief that this subject would be present there.
For the reasons stated below, we conclude that they did have such
reasonable beliefs and, accordingly, reverse and remand.
I. BACKGROUND
At approximately
6:00 am on March 10, 1998, Officers Wilfredo Abascal and Rafael
Masferrer and several other officers approached the house at 3621
S.W. 129th Avenue ("129th Avenue"), in Miami, Florida,
to execute an arrest warrant for Bennett Deridder. The officers
observed two trucks and a boat trailer parked in the driveway.
The officers were wearing raid jackets featuring the word "police"
on the front and back. The sky was dark and a single exterior
light shone about two feet from the front door.
Officer Abascal
knocked hard on the front door for about ten minutes without response.
As the officers were turning away to check the license tags on
the parked vehicles, the front door opened about one foot. Officer
Abascal observed the left side of a barefoot, bare-chested man
standing at the door wearing shorts, but could not, given the
lighting, clearly see the man's features. Officer Abascal observed,
however, that the man had the same height, stocky build, and complexion
as Deridder,1 and that the hair on the man's head was shaved while
Deridder had last been observed with a full head of hair. Officer
Abascal also observed that the man's left hand was behind his
back and thought that he might be armed.
Officer Abascal
announced that they were police. The man slammed the door shut.
The officers kicked the door down, entered the house, and caught
the man within ten to twenty feet of the entrance. A cocked, but
unloaded 9 millimeter pistol was found resting on a gym bag ten
feet to the right of the door. Officers Abascal and Masferrer
quickly realized that the man that they held was not Deridder.
The officers performed a protective sweep of the house believing
that Deridder or others might be in the house. During this sweep,
the officers noticed a very strong smell of marijuana coming from
the kitchen.
The officers
discovered that the apprehended man was Jason Bervaldi. After
Bervaldi was advised of his Miranda rights and indicated he understood,
the officers asked him whether marijuana was in the house. Bervaldi
showed the officers marijuana stored in the kitchen cupboard.
Bervaldi orally consented to a search, but would not sign a written
consent form. The officers did not immediately search beyond the
initial protective sweep. Instead, some officers went to get a
search warrant. When they returned with a search warrant around
5:00 p.m., a search was conducted that resulted in the discovery
and seizure of 60 pounds of marijuana stored in kitchen cupboards,
17 sealed baggies of marijuana, 1 kilogram of cocaine, 3 bags
of cocaine cutting agent, 1 Ohaus digital scale, 1 Nexus scale,
1 cellular phone ESN reader, various cellular phones and accessories,
1 Cobray MAC-119 mm semiautomatic pistol, 1 Browning rifle with
ammunition, $53,483 in U.S. currency, 1 1998 Ford pickup truck,
1 1997 Contender boat, 1 jet ski, 1 motorcycle, 1 Rolex watch,
1 large machine press, and 1 wooden mold. Although Bervaldi was
kept in custody throughout the day at his residence, he was not
formally arrested until later that evening.
On March 20,
1998, a federal grand jury sitting in Miami, Florida, returned
a three-count indictment charging Bervaldi with knowingly possessing
cocaine with intent to distribute, in violation of 21 U.S.C. §
841(a)(1), knowingly possessing marijuana with the intent to distribute,
in violation of 21 U.S.C. § 841(a)(1), and knowingly and
intentionally possessing and receiving a firearm which had the
importer and manufacturer's serial number removed, obliterated,
and altered, in violation of 18 U.S.C. § 922(k). On May 1,
1998, Bervaldi filed motions to suppress his statements and the
physical evidence seized on March 10, 1998, on Fourth Amendment
grounds.
On July 2
and 15, a magistrate judge conducted an evidentiary hearing on
the motions. At this hearing, Daniel Mahoney, a special agent
with the Drug Enforcement Administration ("DEA"), testified
that Bennett Deridder was identified in June 1997 as a person
involved in a drug operation based on telephone calls intercepted
by lawful wire taps. Mahoney indicated that Officers Abascal and
Masferrer assisted in identifying Deridder's residence. In particular,
these officers identified a vehicle that Deridder was driving
based on a traffic citation and determined that that vehicle,
a red Chevy truck, was registered to 3621 S.W. 129th Avenue in
the name of Betty Spatten. Mahoney further explained that on June
27, 1997, these two officers observed the vehicle leaving this
residence, followed the vehicle, and then spoke with the driver,
Deridder.
Abascal testified
that on June 27, 1997, he and Masferrer attempted to get a voice
identification on Deridder to link the wiretap evidence to Deridder.
Consistent with Mahoney's explanation, Abascal explained that
they sought Deridder at the 129th Avenue address after checking
Metro-Dade computer records for traffic tickets which revealed
that on June 4, 1997, Deridder had received a traffic citation
while driving a red pickup Chevy truck with tag number VAW56Y.
Although the traffic citation record listed 4406 S.W. 132nd Place
("132nd Place") as Deridder's address, they discovered
that this truck was registered in Betty Spatten's name to the
129th Avenue address. On June 27, 1998, they observed Deridder
come out of 3621 S.W. 129th Avenue residence, get in the same
red pickup truck, and drive to a "food stop." When Deridder
stopped at the food stop, Abascal and Masferrer approached him,
identified themselves, and had a brief conversation with him.
Abascal asked Deridder where he lived. Deridder provided the 129th
Avenue address and what he identified as his parents' address,
the 132nd Place address. Abascal explained that Deridder provided
two addresses, "one for his parents, and one for his residence."
Masferrer's
testimony was consistent with Abascal's testimony. Masferrer also
reported that Deridder gave the 129th Avenue address as his residence
and the 132nd Place address as his parents' address.2
At the hearing,
the Government also adduced evidence concerning queries of computer
systems. Mahony testified that he used Autotrac, a compilation
of several databases, ranging from highway safety to corporations
and real estate, to acquire information on Deridder. On June 26,
1997, Mahoney ran the first Autotrac query on Bennett Deridder.
The printout of this query, which was admitted into evidence,
included the following:
Known Subject
Addresses
DEC-85/MAR-97
- 4406 SW 132 PL, MIAMI FL 33175
Mahoney explained
that this indicated that some type of information found in one
of the databases contained in Autotrac linked Deridder to that
address from December 1985 to March 1997. Mahoney also explained
that the printout listed Phillip Deridder, Bennett Deridder's
father, as a possible relative and listed 4406 SW 132 Place, Miami,
as the father's address. The printout listed a 1991 WBON trailer,
with a tag which expired in September 1992, as registered to 132nd
Place in Bennett Deridder's name. The printout also listed Betty
Spatten as a possible associated person. Her address was also
listed as 132nd Place for various periods ending in September
1996. However, as noted above, the check of the vehicle in which
Bennett Deridder was observed revealed that it was registered
to Betty Spatten at the 129th Avenue address.
Mahoney also
testified about a computer check of Flight Equipment, Inc., conducted
on August 20, 1997. The printout of this check, which was admitted
in evidence, included:
Historical
Principles
. . . .
Registered
Agent - Status: Active
RIDDER BENNETT
D
3621 S.W.
129th AVENUE (REAR)
MIAMI FL 33175
Country: US
RIDDER, BENNETT
D
MAY- 95/MAY-95
- 4406 SW 132ND PL MIAMI FL 33175
3621 SW 129TH
AVE MIAMI FL 33175
832 E 21ST
ST HIALEAH FL 33013
Director
DE RIDDER
BENNETT
3621 S.W.
129th AVENUE (REAR)
FL 33175
DERIDDER,
BENNETT DOB: 9/11/70
SS#: [omitted]
Was issued in Florida in 1986
DEC-85/APR-96
- 4406 SW 132 PL, MIAMI FL 33175
The printout
also indicates that the previous address of Flight Equipment,
Inc., was "3621 SW 129 AVE REAR MIAMI FL 33175."
Mahoney also
testified about a second Autotrac check of Deridder conducted
on February 4, 1998. The printout of this check, which was admitted
into evidence, included:
Addresses
Linked To Subject
JUN-97/JUN-97
- 3621 S.W. 129TH AVE (REAR), MIAMI FL 33175
JUN-97/JUN-97
- 832 EAST 21ST STREET, HIALEAH FL 33013
DEC-85/JUN-97
- 4406 SW 132 PL, MIAMI FL 33175
This printout
also indicated that a 1995 homemade trailer, with a tag which
expired in September 1998, was registered to the 132nd Place address
in Bennett Deridder's name. There was no information on this printout
after June of 1997 showing any other address for Bennett Deridder.
Mahoney also
described an Information America printout, a credit report, that
was dated February 9, 1998. For Deridder, it listed the 132nd
Place address as well as some other addresses. Likewise, driver's
license records and arrest records that Mahoney checked listed
the 132nd Place as Deridder's address.
Mahoney testified
that he gave the arresting officers the 129th Avenue address and
the 132nd Place address for Deridder. He explained that he gave
them the 129th Avenue address because it was "obvious"
to the investigators that Deridder was only using his parents'
address, 132nd Place, as a "straw address" for records
and was actually residing elsewhere. The parents' address was
provided because, if Deridder needed to be tracked down, speaking
to his parents to seek his whereabouts would be part of the process.
Mahoney explained
that the arrest warrant listed 132nd Place as Deridder's last
known address because that is the permanent residence of his family,
who would be contacted if Deridder needed to be located. He explained
that 129th Avenue would be the first place to check for Deridder
because it is where he resided.
Mahoney also
testified that he observed a red Chevy pickup with tag VAW56Y
at the 3621 S.W. 129th Avenue address on August 20, 1997. A check
revealed that it was registered to Betty Spatten at that address.
Bervaldi adduced
several pieces of evidence to show that Deridder did not reside
at 129th Avenue on March 10, 1998. BRIAN MCGUINNESS, a private
investigator, testified about Autotrac. He explained that Autotrac
is a "compilation of public record data that comes from a
variety of sources" and that it is not always accurate. He
also testified that Agent Mahoney could have run a "Dossier"
search, which would have been more expansive than the searches
Mahoney ran, but that there was "not very much" difference
between these two types of searches. Bervaldi admitted introduced
into evidence a Dossier search of the 129th Avenue address, which
indicated that Bervaldi registered a vehicle there in January
1998. Mahoney testified that he did not run a Dossier search because
it generally does not have investigative value but instead just
lists trails of information about every possible individual who
lived at a residence.
Second, MCGUINNESS
testified about several records he acquired which indicated that
Deridder moved from the 129th Avenue residence around the beginning
of 1998. First, a warranty deed, dated February 17, 1998, which
indicated that Marcella and Phillip Deridder sold the property
to Jason Bervaldi, was recorded in the public records on March
5, 1998. Florida Power & Light records, acquired by subpoena,
indicated that Beatriz Ramos was a customer at the 129th Avenue
address beginning on December 30, 1997, and Felipe Deridder was
a customer from May 14, 1996, to December 30, 1997. Miami-Dade
Water & Sewer records, also acquired by subpoena, indicated
that service for the 129th Avenue address was in the name of Marcella
Deridder from May 3, 1996, to January 5, 1998, and in the name
of Beatriz Ramos starting on December 30, 1997. Likewise, BellSouth
Telecommunication records, again acquired by subpoena, indicated
that service to the 129th Avenue address was established by Ramos
on January 5, 1998.3
Bervaldi also
introduced the affidavit of Donald Brooks, a part-time carpenter,
which indicated Brooks did some repair work on the 129th Avenue
residence in the last part of January and early February of 1998
and that, to the best of Brooks' recollection, there was no for
sale sign on the property at that time. Pedro Molina, a landscaper
who provided service to the 129th Avenue address, testified that
he observed a for sale sign in the summer and fall of 1997, but
when he went to the address on December 22, he did not see the
sign. Abascal testified that he saw a for sale sign in front of
the house on June 27, 1997, and on the morning of March 10, 1998.
Masferrer testified that he recalled seeing a for sale sign prior
to March 10, 1998, but could not recall if he saw one that morning.
Pictures taken of the house on March 10, 1998, do not show a for
sale sign.4
On July 23,
1998, the magistrate issued a report and recommendation. In particular,
the magistrate judge concluded that the officers could not have
reasonably believed that Deridder resided at the 129th Avenue
house on March 10, 1998, but that, had they reasonably believed
that this was his residence, then they could have reasonably believed
that Deridder was at the house when they entered it. The magistrate
judge recommended that the motions to suppress be granted. On
August 18, 1998, the district court adopted the magistrate judge's
report and recommendation and granted the motions. The United
States appeals.
II. DISCUSSION
Because rulings
on motions to suppress involve 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. See United
States v. Magluta, 44 F.3d 1530, 1536 (11th Cir. 1995). Further,
when considering a ruling on a motion to suppress, all facts are
construed in the light most favorable to the prevailing party
below. See id. The magistrate judge's conclusion that the police
officers did not have reason to believe that the house was Deridder's
residence, adopted in full by the district court, is a legal determination
subject to de novo review. See id. at 1537 ("We therefore
hold that the magistrate judge's conclusion that the marshals
did not have reason to believe that Magluta was at home, was a
legal determination and not a factual finding.").
Although searches
and seizures inide a home without a search warrant are presumptively
unreasonable, in Payton v. New York, 445 U.S. 573, 603, 100 S.Ct.
1371, 1388 (1980), the Supreme Court held that "for Fourth
Amendment purposes, an arrest warrant founded on probable cause
implicitly carries with it the limited authority to enter a dwelling
in which the suspect lives when there is reason to believe the
suspect is within." We have since held that Payton requires
a two-part inquiry to determine if entry pursuant to an arrest
warrant complies with the Fourth Amendment's proscription of unreasonable
searches. See Magluta, 44 F.3d at 1533. In particular, we have
held that "first, there must be a reasonable belief that
the location to be searched is the suspect's dwelling, and second,
the police must have 'reason to believe' that the suspect is within
the dwelling." Id. Elaborating on this inquiry, we have explained
that "for law enforcement officials to enter a residence
to execute an arrest warrant for a resident of the premises, the
facts and circumstances within the knowledge of the law enforcement
agents, when viewed in the totality, must warrant a reasonable
belief that the location to be searched is the suspect's dwelling,
and that the suspect is within the residence at the time of entry."
Id. at 1535. Furthermore, "in evaluating this on the spot
determination, as to the second Payton prong, courts must be sensitive
to common sense factors indicating a resident's presence."
Id. We believe such "common sense factors" must also
guide courts in evaluating the first Payton prong.
We examine
first whether the officers had "a reasonable belief"
that 129th Avenue was Deridder's dwelling when they entered on
the morning of March 10, 1998. Despite the Autotrac reports and
driver's license records indicating that Deridder's address was
132nd Place, there was strong evidence indicating that Deridder
in reality resided at 129th Avenue. Both Officers Abascal and
Masferrer observed Deridder leave the 129th Avenue residence and
enter a red Chevy pickup truck on June 27, 1997. In addition,
both officers unequivocally testified that when they interviewed
Deridder on that day he indicated that he resided at 129th Avenue
but that the address on his license, 132nd Place, was his parents'
address. See supra n. 1. It is not unusual for persons of Deridder's
age-the Autotrac report and driver's license records indicate
he was twenty-seven at the time of the entry-to use their parents'
address for records, such as driver's licenses, official mailing
address, et cetera, because in a sense it may be a more permanent
or fixed address than the address of their own residence. For
example, oftentimes university students or law clerks in their
twenties use their parents' address while studying or clerking.
The officers and the courts are entitled to consider such a common
sense factor. See Magluta, 44 F.3d at 1535. Moreover, even if
the 132nd Place address was his "permanent residence"
in some sense, that is not inconsistent with Deridder's residence
at the 129th Avenue address. See United States v. Risse, 83 F.3d
212, 217 (8th Cir. 1996) ("[W]e reject Risse's contention
that, because the officers knew, or should have known, that Rhoads
maintained a permanent residence on Knoll Street, they could not
have reasonably believed that Rhoads resided on Huntington Road.").
Nor is it significant that the arrest warrant listed the 132nd
Place address. See United States v. Lauter, 57 F.3d 212, 214 (2d
Cir. 1995) (rejecting argument that when police believe that the
target of an arrest lives at an address other than the one listed
on the warrant, they must apply for a new warrant before arresting
the suspect at the new residence). The officers knew that Deridder
used his parents' address as a "permanent address" although
he actually resided elsewhere. In light of the officers' observation
of Deridder at the 129th Avenue residence and his statements to
them that he resided there and that the 132nd Place address was
his parents' address, we readily conclude that the officers had
a reasonable belief that Deridder resided at 129th Avenue on June
27, 1997.
However, this
conclusion does not end the first inquiry required by Payton.
The officers must have had a reasonable belief that 129th Avenue
was Deridder's residence at the time of entry-the morning of March
10, 1998. The question becomes, then, whether or not the passage
of time and the acquisition of additional information so eroded
the reasonable belief that 129th Avenue was Deridder's residence
on June 27, 1997, that believing this was his residence on March
10, 1998, was not reasonable. In other words, unless the belief
that Deridder resided at 129th Avenue was still a reasonable belief
on March 10, 1998, the entry was unconstitutional.
Agent Mahoney
testified that on August 20, 1997, he observed at the 129th Avenue
address the red Chevy pickup truck, in which Deridder received
a ticket on June 4, 1997, and in which Abascal and Masferrer observed
Deridder leave the 129th Avenue address on June 27, 1997. The
magistrate judge did not mention this fact in its report and recommendation,
nor did the district court note it.5 Nonetheless, we find this
fact important. It extends the basis for believing that Deridder
was dwelling at the 129th Avenue residence to August 20, 1997,
by showing that the vehicle Deridder was known to drive was there
on that date.6
Furthermore,
the August 20, 1997, Autotrac report on Flight Equipment, Inc.,
listed Deridder as an historical principle, in particular a former
registered agent and director, with an address of 129th Avenue.
This report also indicated that the previous address of Flight
Equipment, Inc., was 129th Avenue. Although the report provided
a new address for the company-832 East 21st Street, the address
also given for its current registered agent, Jaime Oubuna, this
does not suggest that Deridder's address was no longer 129th Avenue.
In fact, it suggests just the contrary-i.e., while Deridder was
the registered agent, the company's address was Deridder's address,
129th Avenue, but that when Deridder became an "Historical"
principle the company's address changed to that of its current
registered agent, Oubuna.
In light of
the August 20th observation of the Deridder vehicle at the address,
we conclude that the officers reasonably believed that Deridder
resided at 129th Avenue on August 20, 1997. However, the question
remains whether this information and Deridder's statements to
the officers became stale in the 6 months and 21 days between
August 20, 1997, and the March 10, 1998, entry.
We have developed
a staleness doctrine in the context of probable cause which requires
that the information supporting the government's application for
a warrant must show that probable cause exists at the time the
warrant issues. See United States v. Harris, 20 F.3d 445, 450
(11th Cir. 1994) ("For probable cause to exist, however,
the information supporting of the government's application for
a search warrant must be timely, for probable cause must exist
when the magistrate judge issues the search warrant."); United
States v. Domme, 753 F.2d 950, 953 (11th Cir. 1985) ("As
with other types of search warrants, the probable cause needed
to obtain a wiretap must exist at the time surveillance is authorized");
see also Sgro v. United States, 287 U.S. 206, 210, 53 S.Ct. 138,
140 (1932) ("[I]t is manifest that the proof must be of facts
so closely related to the time of the issue of the warrant as
to justify a finding of probable cause at that time."). Although
reasonable belief is different than probable cause, see Magluta,
44 F.3d at 1534-35, we find this staleness doctrine instructive
here. There is no particular rule or time limit for when information
becomes stale. See Harris, 20 F.3d at 450 ("When reviewing
staleness challenges we do not apply some talismanic rule which
establishes arbitrary time limitations."); United States
v. Bascaro, 742 F.2d 1335, 1345 (11th Cir. 1984) ("No mechanical
test exists for determining when information becomes fatally stale.").
Rather, "'staleness is an issue which must be decided on
the peculiar facts of each case.'" Bascaro, 742 F.2d at 1345
(quoting United States v. Hyde, 574 F.2d 856, 865 (5th Cir. 1978));
see Domme, 753 F.2d at 953 ("[S]taleness is an issue that
courts must decide by evaluating the facts of a particular case.").
The courts
are not without guidance, however. In addition to the length of
time, courts should consider the "nature of the suspected
crime (discrete crimes or ongoing conspiracy), habits of the accused,
character of the items sought, and nature and function of the
premises to be searched." Harris, 20 F.3d at 450; see also
United States v. Haimowitz, 706 F.2d 1549, 1555 (11th Cir. 1983)
("In general, the basic criterion as to the duration of probable
cause is the inherent nature of the crime.") (internal quotation
marks and citation omitted). For example, the former Fifth Circuit
held that four-month-old reports of projectiles in the walls and
floors of a dwelling as a result of the test-firing of the murder
weapon were not stale because the "floors and walls of a
house are relatively permanent fixtures and would not likely be
subject to removal over the period of four months." United
States v. Deicidue, 603 F.2d 535, 560 (5th Cir. 1979).7 In considering
the nature of the crime, we have distinguished between criminal
activity which is protracted and continuous and that which is
isolated:
"The
circuits hold that where an affidavit recites a mere isolated
violation then it is not unreasonable to believe that probable
cause quickly dwindles with the passage of time. On the other
hand, if an affidavit recites activity indicating protracted or
continuous conduct, time is of less significance."
Bascaro, 742
F.2d at 1345-46 (quoting Bastida v. Henderson, 487 F.2d 860, 864
(5th Cir. 1973)); see also Harris, 20 F.3d at 451 ("Although
most of the information contained in the affidavit referred to
events which took place over two years before Geer applied for
the warrant, the affidavit nonetheless alleged a longstanding
and protracted conspiracy . . . . Because the affidavit alleged
ongoing activity and a continuing relationship between the coconspirators,
the information is not fatally stale."); Domme, 753 F.2d
at 953 ("When criminal activity is protracted and continuous,
it is more likely that the passage of time will not dissipate
probable cause.").
Residency
in a house, like protracted and continuous criminal activity or
projectiles embedded in the house's walls and floors, generally
is not transitory or ephemeral, but instead endures for some length
of time. Although Deridder's statement in June of 1997 and the
observations of Deridder in June of 1997 and of his vehicle in
June and August of 1997 are isolated pieces of evidence, they
support, as we concluded above, a reasonable belief that Deridder
resided at 129th Avenue. It was reasonable for the officers to
believe that, because Deridder resided at 129th Avenue, he would
reside there for some period of time. How long the officers could
reasonably believe this period would extend is difficult to say.
As in the probable cause context, we hesitate to set an arbitrary
length of time. However, on the facts of this case, we believe
that it was reasonable for the officers to believe that the residency
extended for at least 6 months and 21 days. As explained below,
the officers' efforts in this case to refresh the information
did not indicate that Deridder had changed residence. In the probable
cause context, we have found that information can remain fresh
for longer than the period of time at issue here. For example,
in United States v. Hooshmand, 931 F.2d 725, 735-36 (11th Cir.
1991), we found that an eleven-month-old report from an informant
of his employer's fraudulent activities was not stale where the
activities were protracted and ongoing and that it was sufficient
to support probable cause for a warrant. Thus, we conclude that
the passage of time alone did not erode the reasonable belief
that Deridder resided at 129th Avenue.
We turn then
to the information acquired during this passage of time to determine
if it eroded the reasonable belief. On February 4, 1998, Agent
Mahoney conducted another Autotrac search on Deridder. Although
this Autotrac report linked Deridder to both the 129th Avenue
address and the 132nd Place address, the report indicated that
its information was as of June, 1997. As of that time, the officers
knew that Deridder was living at the 129th Avenue address, and
that the 132nd Place address was merely his parents' address.
We readily conclude that the mention here, and elsewhere, of the
132nd Place address does little to undermine the officers' reasonable
belief that Deridder actually resided at the 129th Avenue address,
and that he merely used his parents' address for various documents,
such as his driver's license. 8
Because unobserved,
extended surveillance of 129th Avenue was impractical given the
neighborhood's layout, the officers conducted occasional drive-bys
of the 129th Avenue residence. On none of these drive-bys after
Mahoney's August 20, 1997, observation did the officers observe
either Deridder or the red Chevy truck that Deridder was known
to use. The officers, however, did notice a for sale sign. The
district court found that the for sale sign was not present on
the day of the entry. Bervaldi argues that this should have put
the officers on notice that Deridder no longer resided at 129th
Avenue. The court, however, did not find that the officers noticed
that the sign was not present. Given that the officers approached
the house in predawn darkness,9 it is understandable that they
did not notice its absence. Determinations of reasonable belief
are based on "the facts and circumstances within the knowledge
of the law enforcement agents." Magluta, 44 F.3d at 1535.
Therefore, so long as the officers did not notice the sign, it
is not significant that photographs taken later in the day do
not depict the sign, that Brooks and Molina, occasional workers
at the residence, do not recall the sign being there in the winter
of 1997-98, or that the sign was not present that day.10
Bervaldi argues
that the officers could have discovered that Deridder was not
residing at 129th Avenue if they had gone beyond the occasional
drive-bys and Autotrac reports after the summer of 1997. First,
Bervaldi argues that a "Dossier" search, another more
expansive type of search on the Autotrac system, would have shown
that Bervaldi registered a vehicle to the 129th Avenue address
in January of 1998. Agent Mahoney indicated that he did not run
this type of search because in his experience it was not generally
useful. Second, Bervaldi argues that the officers should have
at least checked the county property records and that if they
had done so they would have discovered that Marcella and Phillip
Deridder had sold the house in February. We note that the transfer
was not recorded until March 5, 1998, five days before the challenged
entry. In light of the other information supporting the officers'
reasonable belief that this was Derrider's residence, we do not
believe that the Constitution required that they also check property
records. Likewise, though a check of the utility records prior
to the entry would have revealed that the customer was changed
from either Marcella Deridder or Phillip Deridder to Beatriz Ramos
around the beginning of the year, we do not believe that the officers,
in light of the information they already had, were constitutionally
obligated to check these records. At oral argument, conceding
as much, defense counsel agreed that the law does not currently
impose a requirement to check utility ecords or property records.
Although the officers could have checked into these matters, we
do not believe that their failure to do so is inconsistent with
a reasonable belief that Deridder resided at 129th Avenue. We
conclude that the officers had a reasonable belief that 129th
Avenue was Deridder's dwelling on March 10, 1998.
Having concluded
that the officers reasonably believed that 129th Avenue was Deridder's
dwelling, we turn to the second part of the inquiry: did the officers
have "reason to believe" that Deridder was within the
dwelling when they entered on the morning of March 10, 1998. The
officers approached the house around 6:00 in the morning. They
noticed several vehicles parked at the residence. When they knocked
on the front door, someone answered the door. We have noted that
"officers may presume that a person is at home at certain
times of the day-a presumption which can be rebutted by contrary
evidence regarding the suspect's known schedule." Magluta
44 F.3d at 1533. It was reasonable to believe, in the absence
of contrary evidence, that Deridder would be at his residence
at 6:00 in the morning. Even defense counsel conceded at oral
argument that if the officers reasonably believed that Deridder
resided at 129th Avenue, then they had reason to believe he was
on the premises at that time. The fact that vehicles were parked
at the residence only buttresses the belief that persons were
at the house, including presumably Deridder. Although Deridder
did not answer the door, it was not immediately clear that the
person who answered the door was not Deridder. Indeed the court
below concluded that the officers had reason to believe that the
person they saw who answered the door was Deridder. In any event,
the fact that someone other than Deridder answered the door would
not eviscerate the reasonable belief that Deridder was in the
dwelling at the time the officers approached and entered the dwelling.
We conclude that the officers had reason to believe that Deridder
was in the dwelling, which the officers reasonably believed was
his residence, at the time that they entered it. Thus, the officers
were permitted to enter the dwelling to attempt to execute the
arrest warrant and did not violate the Fourth Amendment. See Payton,
445 U.S. at 603, 100 S.Ct. at 1388.11
Because the
entry was permitted under Payton,12 we see no reason Bervaldi's
statements or the evidence seized should have been suppressed.
In Maryland v. Buie, 494 U.S. 325, 334, 110 S.Ct. 1093, 1098 (1990),
the Supreme Court held that "as an incident to the arrest
the officers could, as a precautionary matter and without probable
cause or reasonable suspicion, look in closets and other spaces
immediately adjoining the place of arrest from which an attack
could be immediately launched." In addition, the Court explained
that the officers may go beyond that to sweep an area that a reasonably
prudent officer believes, based on articulable facts, harbors
an individual posing a danger to those on the arrest scene. See
id. The officers conducted a protective sweep of the entire 129th
Avenue residence. To the extent this sweep may have exceeded the
area "immediately adjoining the place of arrest," we
conclude that a reasonably prudent officer could believe, based
on the cocked 9 millimeter pistol observed in the dwelling13 and
the reasonable belief that Deridder was in the dwelling, that
the house harbored an individual posing a danger sufficient to
permit a sweep of its entirety. See United States v. Tobin, 923
F.2d 1506, 1513 (11th Cir. 1991) (en banc) (holding that a reasonable
belief that someone else could be inside the house permits a protective
sweep). There is nothing in the record to indicate that the sweep
exceeded its proper scope, i.e., it was limited to "a cursory
inspection of those spaces where a person may be found."
Id. at 335, 110 S.Ct. at 1099.14 In the course of this sweep,
the officers detected the smell of marijuana. They only questioned
Bervaldi after he was told his Miranda rights and indicated that
he understood them. Bervaldi showed them the marijuana in the
kitchen cupboards. No evidence was seized until a search warrant
was acquired. This search warrant was supported by probable cause,
i.e., the officers' observation of the marijuana that Bervaldi
showed them. Thus, we conclude that the district court erred in
suppressing the statements and evidence in this case.
III. CONCLUSION
Accordingly,
we reverse the district court's grant of Bervaldi's motions to
suppress and remand for further proceedings.
REVERSED AND
REMANDED.
Web Published
Friday, September 15, 2000
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