363 F.3d 1141 (11th Cir. 2004), 02-16167, United States v. Acosta

Docket Nº:02-16167.
Citation:363 F.3d 1141
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Jorge Nicolas ACOSTA, Defendant-Appellant.
Case Date:March 25, 2004
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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Page 1141

363 F.3d 1141 (11th Cir. 2004)

UNITED STATES of America, Plaintiff-Appellee,

v.

Jorge Nicolas ACOSTA, Defendant-Appellant.

No. 02-16167.

United States Court of Appeals, Eleventh Circuit

March 25, 2004

Page 1142

J.C. Elso, Miami, FL, for Defendant-Appellant.

Jonathan D. Colan, Anne R. Schultz, Miami, FL, Marc Fagelson, Fort Lauderdale, FL, for Plaintiff-Appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before TJOFLAT and CARNES, Circuit Judges, and CONWAY[*], District Judge.

CARNES, Circuit Judge:

Jorge Acosta was indicted on these three drug-related counts: conspiracy to possess with intent to distribute heroin, in violation of 21 U.S.C. §§ 846, 841(b)(1)(B); possession with intent to distribute heroin, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B); and conspiracy to commit money laundering, in violation of 18 U.S.C. § 1956(a)(1)(B)(i). After the district court denied his motion to suppress some of his statements and part of the other evidence against him, Acosta conditionally pleaded guilty to all three counts reserving his right to appeal the denial of the motion. This is that appeal.

I.

An undercover officer with the United States Customs Service High Intensity Drug Trafficking Area Group (HIDTA) informed his fellow officers that he anticipated making a monetary exchange of $190,000, as part of a money laundering operation, with a then-unidentified suspect near the corner of 107th Avenue and 88th Street in Miami on the afternoon of February 26, 2002. Two officers who worked with the anti-drug group, Kenneth Loveland and Eric Sallick, were assigned to wait in a Publix Supermarket parking lot near 107th Avenue and 88th Street to conduct surveillance and take photographs of the exchange. Loveland was told by the undercover officer, who was in contact with the suspect, that the suspect was driving a silver Nissan Xterra.

On that afternoon, Officer Loveland photographed Acosta driving a silver Nissan Xterra through the Publix parking lot while talking on his cell phone. At the very moment Acosta was talking on his cell phone, the undercover officer, who was in contact with Loveland, was talking on his phone with the suspect. The undercover officer was instructed to tell the suspect that the money exchange would not take place that day. After he did so, Acosta drove the Xterra out of the parking lot and to an apartment complex. Once there, he parked his Xterra next to a gold Lexus, removed a black gym-bag with red trim from the Xterra, and gave the bag to the driver of the Lexus. Acosta then drove

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away in the Xterra. Surveillance was terminated for the evening.

The next morning officers re-established surveillance at Acosta's residence. The undercover officer informed the surveillance officers that the money exchange had been rescheduled for that day and that the amount of the exchange had increased from about $190,000 to around $300,000. While they were watching, Acosta left his residence and drove to a bank. He then drove to the apartment complex where he had handed off the gym-bag the night before. Acosta went into an apartment and came out with another man, later identified as Alberto Sade, whose apartment it was. One of them was carrying a gym-bag that appeared to the officers to be the same bag they had seen Acosta with the day before. The bag was put into the Xterra, and both men got into that car.

The undercover officer informed the surveillance officers that the suspect was on his way to deliver the money to him. The officers surveilling Acosta decided to stop him outside Sade's apartment before he and Sade could drive away. They pulled their cars behind Acosta's Xterra in the parking lot of the apartment building and five or six officers approached the car. At least one officer had his gun drawn, but all of the officer's guns were re-holstered within ten-seconds.

An officer immediately told Acosta that he was not under arrest but that they wanted to talk to him about a money laundering investigation. Acosta gave his identification to the officers and at some point was patted down. An officer asked Acosta if he had any money, weapons, or drugs in the car, and he said that he did not. Acosta then gave his written consent for officers to search his car. After consenting to the search, but before it took place, Acosta admitted to the officers that there was money in the car. The search uncovered two bags filled with currency totaling approximately $278,000.

The passenger in the Xterra, Sade, told the officers that he lived in the apartment he and Acosta had just left, and he consented to the officers searching it. Inside the apartment the officers found a duffel-bag with a small padlock on it. An officer asked Sade if he had the key to the lock and he replied that the bag belonged to Acosta, who had the key. Customs Officer Sallick went outside to ask Acosta for the key.

Officer Sallick testified at the suppression hearing that when he asked Acosta for consent to search the duffle-bag and the key, Acosta "said 'yes[,] [o]f course,' reached into his pocket and produced a set of keys and gave them to me." The officers did not attempt to get Acosta's written consent to search the duffle-bag. When they unlocked and opened the bag using the key Acosta had given them, the officers discovered more currency and some pellets. The pellets appeared to the officers to be (and later tests would confirm that they were) heroin. At that point, an officer read Acosta his Miranda rights and placed him under arrest. After he had been advised of his rights, Acosta told the officers that the heroin belonged to him and that Sade was not involved.

After making that admission, Acosta was then taken to the United States Customs Service HIDTA headquarters where he was interviewed. Shortly after the start of the interview, Officer Ocasio asked Acosta to read a Miranda rights form aloud and to initial each paragraph as he went through the form. Acosta acknowledged that he understood his Miranda rights both by initialing each paragraph of the form and also by reading the entire form aloud.

The following exchange then took place in Spanish:

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OCASIO: Now, uh ... do you want to waive your rights or not?

ACOSTA: No, I'm not going to waive my rights.

OCASIO: Okay.

ACOSTA: I can collaborate, I can talk with you now ...

OCASIO: Do you want to talk to us?

ACOSTA: I'll talk with you ... (UI) my interrogation ...

(ellipses as found in original). Officer Ocasio attempted to explain to Acosta what it meant for Acosta to waive his rights. Acosta then said: "I am going to cooperate with you at this moment, right at this very instant. To me [ ] everything you need, I can answer all your questions without the need to sign that I waive my rights [ ] because I am not going to waive my rights." Officer Ocasio then continued interviewing Acosta. During the interview Acosta identified the person who had given him the bag containing the money and heroin, and to whom he was to deliver the money he received. He also told Officer Ocasio his pay for delivering the money was $10,000.

II.

After being charged, Acosta moved to suppress all physical evidence seized from his person, the duffle-bag that was seized from Sade's apartment, and all of the statements Acosta made after being confronted by the officers outside Sade's apartment, including those he made after being arrested and read his Miranda rights. A magistrate judge held an evidentiary hearing on the motion to suppress, and filed a report and recommendation, which was followed by a corrected report and recommendation. The district court held a hearing on the issues relating to the statements that Acosta had made at the United States Customs Service HIDTA headquarters. After that hearing, the district court issued an order adopting the magistrate judge's corrected report and recommendation in its entirety and denying Acosta's motion to suppress.

Acosta then entered a conditional guilty plea reserving his right to appeal the denial of his motion to suppress. He was adjudicated guilty and sentenced to 46 months in prison to be followed by 4 years of supervised release.

III.

On a district court's denial of a motion to suppress, we review its findings of fact only for clear error and its application of law to those facts de novo. See United States v. Blackman, 66 F.3d 1572, 1577 (11th Cir. 1995).

Acosta contends that the initial stop was not the kind of stop that Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), permits to be made without probable cause, because the officers lacked reasonable suspicion to detain him. He also contends that even if they did have reasonable suspicion to make a valid Terry stop, the stop matured into an arrest at some point before the officers had probable cause, and as a result all the evidence obtained after that point should be suppressed. We disagree with both of his contentions.

In Terry, the Supreme Court adopted "a dual inquiry for evaluating the reasonableness of an investigative stop." United States v. Sharpe, 470 U.S. 675, 682, 105 S.Ct. 1568, 1573, 84 L.Ed.2d 605 (1985) (citing Terry, 392 U.S. at 20, 88 S.Ct. at 1879); see also United States v. Powell, 222 F.3d 913, 917 (11th Cir. 2000). Under Terry 's two-part inquiry, we first examine " 'whether the officer's action was justified at its inception,' " Powell, 222 F.3d at 917 (quoting Terry, 392 U.S. at 20, 88 S.Ct. at 1879), which turns on whether the officers had a reasonable suspicion that the defendant had engaged, or was about to engage,

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in a crime, id. In the second part of the inquiry, determining whether the stop went too far and matured into arrest before there...

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