502 F.3d 1297 (11th Cir. 2007), 06-13718, United States v. Delancy

Docket Nº:06-13718.
Citation:502 F.3d 1297
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Ronald DELANCY, Defendant-Appellant.
Case Date:October 03, 2007
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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Page 1297

502 F.3d 1297 (11th Cir. 2007)

UNITED STATES of America, Plaintiff-Appellee,

v.

Ronald DELANCY, Defendant-Appellant.

No. 06-13718.

United States Court of Appeals, Eleventh Circuit.

Oct. 3, 2007

Page 1298

[Copyrighted Material Omitted]

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Lawrence Besser, Samek & Besser, Miami, FL, for Delancy.

Kathleen M. Salyer; Anne R. Schultz and Jeanne Marie Mullenhooff, Asst. U.S. Attys., Miami, FL, for U.S.

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

Before DUBINA and MARCUS, Circuit Judges, and PROCTOR, [*] District Judge.

Page 1300

MARCUS, Circuit Judge:

Defendant Ronald Delancy ("Delancy") challenges the district court's denial of his motion to suppress the drugs, weapons, and cash found when police searched a home rented by his girlfriend, LaSandra Godfrey ("Godfrey"). The police did not have a warrant, and they entered the home to conduct a "protective sweep" -- a "quick and limited search of premises, incident to an arrest and conducted to protect the safety of police officers or others." Maryland v. Buie, 494 U.S. 325, 327, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990). The district court held both that the protective sweep was lawful and that Godfrey had knowingly and voluntarily consented to the search of her home. Delancy then entered a conditional guilty plea, pursuant to Fed. R. Crim. P. 11(a)(2), reserving the right to appeal the Fourth Amendment issues he raised.

We need not and do not address the legality of the protective sweep. Even if we assume that the protective sweep was unlawful, the district court properly denied Delancy's motion to suppress the evidence because Godfrey voluntarily consented to the search of her home and her consent was not tainted by the sweep. Accordingly, we affirm.

I. BACKGROUND

A. Procedure

On January 26, 2006, a federal grand jury returned an indictment charging Ronald Delancy with five counts of narcotics and firearm violations. Count 1 charged possession with intent to distribute 50 grams or more of crack, in violation of 21 U.S.C. § 841(b)(1)(A)(iii); Count 2 charged possession with intent to distribute 100 or more grams of cocaine, in violation of 21 U.S.C.§ 841(b)(1)(B)(ii); and Count 3 charged possession with intent to distribute marijuana, in violation of 21 U.S.C. § 841(b)(1)(D). The last two counts were the gun charges--possession of a firearm in relation to drug trafficking, in violation of 18 U.S.C. § 924(c)(1)(A)(i) (Count 4), and felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1) (Count 5).

Delancy moved to suppress the evidence police found in the home --including crack and powder cocaine, a fully loaded AK-47 assault rifle, two boxes of ammunition, marijuana, tens of thousands of dollars in cash, and other evidence of drug trafficking -- arguing that the police obtained it in violation of the Fourth Amendment. On March 20, after hearing several days of testimony and oral argument, the district court denied Delancy's motion in a detailed and thorough ruling entered from the bench. (The following day, the court entered a written order denying the motion for the reasons given during the hearing.) The district court determined that the protective sweep was valid, that Godfrey and Delancy both voluntarily consented to the search, and that Delancy lacked standing to pursue any Fourth Amendment challenges to the search of the house.1 After the district court denied his suppression motion, Delancy entered a conditional guilty plea to Counts 1, 3, 4, and 5, reserving (and presently exercising) the right to appeal the district court's Fourth Amendment rulings under Rule 11(a)(2) of the Federal Rules of Criminal Procedure.2

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B. Facts

On the morning of December 1, 2005, a task force of federal and state law enforcement officers approached the home of LaSandra Godfrey at 1028 Northwest 53rd Street in Miami, Florida. The officers were looking to question Delancy, Godfrey's boyfriend, in connection with some unsolved crimes, including several homicides relating to drug trafficking, in the Overtown neighborhood of Miami. Delancy was one of a number of individuals sought as material witnesses in connection with the task force investigation. After several unsuccessful efforts, the officers focused on Godfrey's address because Delancy had two vehicles registered there. The officers did not have an arrest warrant for Delancy, nor did they have probable cause to believe Delancy had committed a crime, nor, finally, did they have probable cause or a warrant to search the home for guns, drugs, or money.

The officers had received a briefing on Delancy earlier that morning. At the briefing, the district court found, the officers were informed that Delancy was a "dangerous person," and that the officers "should be on high alert with regard to their safety." R. 65 at 7. The officers were specifically informed that Delancy had a history of arrests for narcotics and other offenses, and several narcotics convictions. The officers were also told that homicide detectives wanted to speak with Delancy in connection with their investigation into a drug ring purportedly responsible for shootings in the Overtown area and other inner city neighborhoods.

As the officers approached with their weapons drawn, the door to the small house was opened and then immediately shut again. Before the door closed, one of the officers saw Delancy hiding something in the arm of a couch positioned near the door. Moments later, the door opened again, and a woman exited the house.3Delancy followed, and the officers handcuffed him and took him into custody outside the home. Several of the officers then entered the home to conduct a "protective sweep" -- a limited search of the home for any individuals who might pose a danger to the officers.

During the sweep, several officers encountered Godfrey and her two young children (an infant and a toddler) near or inside the rear bedroom of the house. These officers were in the bedroom with Godfrey for ten to twenty minutes. One of the officers, Detective Mercado, spoke with Godfrey about the situation while another, Agent Leahy, observed. Leahy was also watching Godfrey's children, trying to make sure the infant did not roll off the bed. During this time, Godfrey also called several relatives to arrange for them to pick up the children.

The officers asked Godfrey if she would consent to a search of the home. Godfrey gave spoken consent to the search, and she also signed a written consent form containing the following text:

I understand that I have a right to refuse to give my consent to a search and may demand that a search warrant be obtained prior to any search of the person or property described below.

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I understand that any contraband or evidence of a crime found during the search can be seized and used against me in any court of law or other proceeding.

I understand that I may consult with an attorney before or during the search.

I understand that I may withdraw my consent to this search at any time prior to the search's termination.

This consent to search has been given voluntarily without promises, threats, coercion or force of any kind whatsoever.

I have read the above statement of rights, understand these rights, and hereby authorize agents of the Bureau of Alcohol, Tobacco and Firearms to conduct a complete search of the property described below.

The form contains Godfrey's signature and is dated the day of the search.

The prosecution and the defense presented sharply differing accounts of both the sweep and the consent. Delancy claimed that the sweep was overbroad -- that it was too long, too intrusive, and really amounted to a "subterfuge" to give the authorities reason to justify a full-scale search of the home without a warrant or even probable cause. He presented testimony from Godfrey, who said that she could hear the officers walking around in the house while she was speaking with the officers in the back bedroom, and that this occurred after the initial protective sweep had ended. She said that she was sure that they were in the kitchen because some of the tiles on the kitchen floor were broken and made an irritating noise when someone stepped on them. R. 63 at 11. Godfrey also testified that one of the officers lifted her mattress.

Delancy claims that Godfrey did not voluntarily consent to a search of the home. During the suppression hearing, Godfrey testified that one of the officers held a rifle pointed towards her and her children, and that she "felt like a hostage. I felt like I was going to jail." R. 63 at 68. According to Godfrey, another officer told her that the Department of Children and Families would take away her children if she did not allow the police to search the house. R. 63 at 910. She also said that one of the officers got on his radio as if to call the Department of Children and Families, and she claimed that one of the officers said, "[W]hat's more important[,] your children or you going to jail?" R. 63 at 9.

The officers gave a different account of the sweep and the consent. They testified that the protective sweep was conducted quickly and unobtrusively, and that its only purpose was to make sure that there was no one inside the house who would present a danger to the officers. Cristin Rios of the City of Miami Police Department said that several officers entered the home to perform the sweep, but that all of the officers (except those speaking with Godfrey) left within a minute or two of the entry. R. 62 at 10203. Notably, Agent Frankhauser of the Drug Enforcement Agency ("DEA") testified that the contraband found in the kitchen of the home--drugs and cash in the oven, a...

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