226 F.3d 1256 (11th Cir. 2000), 98-5419, United States v Bervaldi

Docket Nº:98-5419, 98-5547.
Citation:226 F.3d 1256
Party Name:UNITED STATES of America, Plaintiff-Appellant, v. Jason R. BERVALDI, Defendant-Appellee.
Case Date:September 14, 2000
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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Page 1256

226 F.3d 1256 (11th Cir. 2000)

UNITED STATES of America, Plaintiff-Appellant,

v.

Jason R. BERVALDI, Defendant-Appellee.

Nos. 98-5419, 98-5547.

United States Court of Appeals, Eleventh Circuit

September 14, 2000

September 26, 2000.

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[Copyrighted Material Omitted]

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Appeals from the United States District Court for the Southern District of Florida. (No.98-00183-CR-DLG), Donald L Graham, Judge.

Before ANDERSON, Chief Judge, and CARNES and OAKES[*], Circuit Judges.

ANDERSON, Chief Judge:

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

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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

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At the hearing, the Government also adduced evidence concerning queries of computer systems. Mahoney 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

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RIDDER, BENNETT D

MAY95/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) MIAMI 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

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