58 F.3d 593 (11th Cir. 1995), 93-2196, United States v. Fernandez

Docket Nº:93-2196, 93-2197.
Citation:58 F.3d 593
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Richard D. FERNANDEZ, Jr., Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Steven E. GRANGER, Defendant-Appellant.
Case Date:July 14, 1995
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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Page 593

58 F.3d 593 (11th Cir. 1995)

UNITED STATES of America, Plaintiff-Appellee,

v.

Richard D. FERNANDEZ, Jr., Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee,

v.

Steven E. GRANGER, Defendant-Appellant.

Nos. 93-2196, 93-2197.

United States Court of Appeals, Eleventh Circuit

July 14, 1995

Page 594

Eugene F. Zenobi, Miami, FL, for appellants.

Randall Hensel, Asst. U.S. Atty., Pensacola, FL, for appellees.

Appeals from the United States District Court for the Northern District of Florida.

Page 595

Before KRAVITCH and HATCHETT, Circuit Judges, and CLARK, Senior Circuit Judge.

PER CURIAM:

Defendants-appellants Richard D. Fernandez, Jr., and Steven E. Granger were charged with manufacturing and possessing with intent to distribute marijuana, in violation of 21 U.S.C. Sec. 841. The charges were filed after law enforcement officers conducting an aerial surveillance discovered and seized marijuana plants growing on and adjacent to a forty acre tract of land in rural Walton County, Florida. Granger, a former police officer, owned the property and lived in a house on the property. Fernandez lived in a nearby trailer, also on the property. Before trial, defendants filed a motion to suppress, contending that the warrantless search of the property and seizure of the marijuana and other evidence violated their Fourth Amendment rights. Following a suppression hearing, the district court denied the motion, holding that the initial observation of the marijuana by law enforcement officers did not constitute a "search" for Fourth Amendment purposes, that Granger's consent to the search of the property was voluntary, and that this consent was effective to authorize the search of the trailer in which Fernandez lived. Defendants subsequently pled guilty, and the district court sentenced Granger to 70 months in prison, and Fernandez to 120 months in prison. On appeal, defendants challenge the district court's denial of their motion to suppress and calculation of their sentences. For reasons explained below, we affirm defendants' convictions and sentences.

I. The Motion to Suppress

A. The Evidence Offered at the Suppression Hearing

On August 29, 1992, Billy McKee and James Lorenz, law enforcement officers with the Walton County Sheriff's Department, conducted a routine aerial surveillance using a helicopter marked with the insignia of the Sheriff's Department. The purpose of the surveillance was to spot and destroy marijuana plants found growing in the county. McKee, who was the pilot of the helicopter, testified that they were traveling at an altitude of approximately 500 feet when he spotted marijuana plants growing on a wooded patch of property that he later learned belonged to Granger. Lorenz testified that they were flying at an altitude of approximately 400 to 450 feet. After spotting the marijuana, McKee circled the area at a lower altitude, and he and Lorenz spotted more marijuana plants. McKee then contacted the Sheriff's Department to ask for ground support and landed the helicopter near the marijuana plants.

Defendants offered the testimony of a series of witnesses regarding the altitude of the helicopter as it approached Granger's property. Fernandez testified that the helicopter made its first approach over the property at an altitude of 150 or 200 feet. Granger testified that, when he first heard the helicopter, it was at tree-top level. Granger's neighbors testified that the helicopter was traveling at an altitude of approximately 100 feet when they first saw it. A private investigator offered his opinion that the helicopter would have had to have been flying at an altitude of less than 100 feet for the occupants to have spotted the marijuana plants; he doubted whether any marijuana plants could have been spotted from 500 feet.

After McKee landed the helicopter on Granger's property, Lorenz got out of the helicopter and confirmed that the plants they had spotted were marijuana. Lorenz then saw Granger walking toward him from the direction of Granger's house. Lorenz met Granger and explained that the officers had landed the helicopter because they had spotted marijuana on the property. Shortly thereafter, Lorenz's supervisor, Captain Chapman, arrived on the scene. As he was walking toward Granger and Lorenz, Chapman saw Fernandez walking near Granger's residence carrying a bucket containing what appeared to be marijuana. Chapman arrested Fernandez for possession of marijuana. The law enforcement officers then asked Fernandez for permission to search his trailer. Fernandez declined, stating that the trailer belonged to Granger and that they would have to obtain permission from him.

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The law enforcement officers then sought Granger's permission to search the property. Lorenz read Granger a written Consent to Search Authorization, which provides:

Before any search is made, you must understand your CONSTITUTIONAL RIGHTS:

1. You may refuse to consent to a search and may demand that a Search Warrant be obtained prior to any search of the property described below.

2. If you consent to a search, anything of evidentiary value seized in the course of the search can and may be introduced into evidence in a court proceeding.

3. At anytime during the search, you may revoke the officer/investigator's permission to search.

. . . . .

I have given this permission to search of my own free will. No promises have been made to me nor have I been threatened or coerced in any way. 1

Granger signed the Consent to Search Authorization, thereby consenting to the search of his property, his residence, and all outbuildings located on the property. Both Granger and Fernandez testified that Granger signed the form under the assumption that he could be present during the search. Lorenz denied any such understanding; he testified that Granger never asked whether he could be present during the search. Shortly after Granger executed the Consent to Search Authorization, he was arrested, and he and Fernandez were transported to the Walton County jail while the search of the property was still ongoing. Granger did not complain about being taken from the scene and did not make any attempt to revoke his consent to the search.

B. The District Court's Ruling on the Motion to Suppress

After hearing the evidence, the district court found that McKee had observed...

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