638 Fed.Appx. 934 (11th Cir. 2016), 15-11275, United States v. Norman

Docket Nº:15-11275, 15-12390
Citation:638 Fed.Appx. 934
Opinion Judge:PER CURIAM:
Party Name:UNITED STATES OF AMERICA, Plaintiff-Appellee, v. KATEENA RENA NORMAN, Defendant-Appellant
Attorney:For UNITED STATES OF AMERICA, Plaintiff - Appellee (15-11275), (15-12390): Phillip Drew DiRosa, U.S. Attorney's Office, FORT LAUDERDALE, FL; Robert James Emery, Wifredo A. Ferrer, Carol Herman, Emily M. Smachetti, Vanessa Sisti Snyder, Arimentha R. Walkins, U.S. Attorney's Office, MIAMI, FL. For ...
Judge Panel:Before MARCUS, WILLIAM PRYOR and FAY, Circuit Judges.
Case Date:January 27, 2016
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

Page 934

638 Fed.Appx. 934 (11th Cir. 2016)

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

KATEENA RENA NORMAN, Defendant-Appellant

Nos. 15-11275, 15-12390

United States Court of Appeals, Eleventh Circuit

January 27, 2016

Page 935

DO NOT PUBLISH. (See Federal Rule of Appellate Procedure Rule 32.1)

Appeals from the United States District Court for the Southern District of Florida. D.C. Docket No. 1:14-cr-20499-DMM-1.

AFFIRMED.

For UNITED STATES OF AMERICA, Plaintiff - Appellee (15-11275), (15-12390): Phillip Drew DiRosa, U.S. Attorney's Office, FORT LAUDERDALE, FL; Robert James Emery, Wifredo A. Ferrer, Carol Herman, Emily M. Smachetti, Vanessa Sisti Snyder, Arimentha R. Walkins, U.S. Attorney's Office, MIAMI, FL.

For KATEENA RENA NORMAN, Defendant - Appellant (15-11275), (15-12390): Philip Robert Horowitz, Law Office of Philip R. Horowitz, Esq., MIAMI, FL.

Before MARCUS, WILLIAM PRYOR and FAY, Circuit Judges.

OPINION

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PER CURIAM:

Kateena Rena Norman appeals her convictions and 96-month total sentence for three counts of credit-card fraud, in violation of 18 U.S.C. § 1029(a)(2), and six counts of aggravated identity theft, in violation of 18 U.S.C. § 1028A(a)(1). On appeal, Norman argues that: (1) the district court erred in denying her motion to suppress evidence obtained during the warrantless " security sweep" of her home immediately following her arrest on an arrest warrant; (2) the district court erred in allowing victims to testify at trial about how the credit card fraud affected their lives; and (3) the district court clearly erred in calculating the intended loss attributable to her and the amount of restitution. After thorough review, we affirm.

A district court's ruling on a motion to suppress presents a mixed question of law and fact. United States v. Timmann, 741 F.3d 1170, 1177 (11th Cir. 2013). We review the district court's factual findings for clear error and the court's application of the law to the facts de novo. Id. We allot deference to the district court in reaching credibility determinations with respect to witness testimony. United States v. McPhee, 336 F.3d 1269, 1275 (11th Cir. 2003). We review a district court's admission of evidence for abuse of discretion. United States v. Ruiz, 253 F.3d 634, 639-40 (11th Cir. 2001). We review the district court's amount-of-loss determination for clear error. United States v. Nosrati-Shamloo,

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255 F.3d 1290, 1291 (11th Cir. 2001). We review the legality of a restitution order de novo and the underlying factual findings for clear error. United States v. Baldwin, 774 F.3d 711, 728 (11th Cir. 2014), cert. denied, 135 S.Ct. 1882, 191 L.Ed.2d 753 (2015).

First, we are unpersuaded by Norman's claim that the district court erred in denying her motion to suppress. A warrantless search inside a home is, with few exceptions, unreasonable under the Fourth Amendment. Kyllo v. United States, 533 U.S. 27, 31, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001). However, a warrantless search is permissible when both probable cause and exigent circumstances exist. United States v. Tobin, 923 F.2d 1506, 1510 (11th Cir. 1991) (en banc). The Supreme Court has also recognized that a properly limited " protective sweep," conducted incident to an arrest, is reasonable under the Fourth Amendment " when the searching officer possesses a reasonable belief based on specific and articulable facts that the area to be swept harbors an individual posing a danger to those on the arrest scene." Maryland v. Buie, 494 U.S. 325, 337, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990). A " protective sweep" must be " narrowly confined to a cursory visual inspection of those places in which a person might be hiding." Id. at 327. If there is sufficient justification, a properly limited protective sweep may occur " in conjunction with an in-home arrest." Id. at 337.

We have expanded the scope of a protective sweep to situations in which a defendant was arrested in a " portion of a structure" outside the residence. United States v. Burgos, 720 F.2d 1520, 1526 (11th Cir. 1983). In Burgos, we held that a protective sweep of a home following an arrest on an open porch built as part of the home was constitutionally permissible. There, officers had observed the defendant and another individual unloading illegal guns into the home immediately prior to the arrest -- thus, there was a significant possibility that both an arsenal and a dangerous third person might be inside. Id. We also noted that the sweep was reasonable in scope because agents went only so far as the kitchen. Id. Similarly, in United States v. Yeary, we held that a protective sweep was permissible where officers had an arrest warrant, the defendant exited the home and was arrested, and the officers spotted a firearm inside the home in plain view and learned of the presence of two unknown individuals. 740 F.3d 569, 580 (11th Cir. 2014).

Under the inevitable discovery exception to the exclusionary rule, evidence obtained unlawfully may be admissible if the government can establish by a preponderance of the evidence that it ultimately or inevitably would have been discovered by lawful means. See Nix v. Williams, 467 U.S. 431, 444, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984). But the government must do more than merely assert that the unlawfully obtained information would have been inevitably discovered through lawful means. See United States v. Virden, 488 F.3d 1317, 1322 (11th Cir. 2007). Rather, it must demonstrate that " the lawful means which made discovery inevitable were being actively pursued prior to the occurrence of the illegal conduct." Id. (emphasis omitted and quotation omitted). In other words, the government must show " that the police would have obtained the evidence by virtue of ordinary investigations of evidence or leads already in their possession." Id. at 1323 (quotation omitted).

Here, the district court did not err in denying Norman's motion to suppress. As in Burgos and Yeary, the fact that Norman was arrested as she stepped outside the

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house did not prevent officers from conducting a protective sweep inside the home, provided the sweep was otherwise permissible. As the record reflects, when the officers arrested Norman they saw another woman inside the home and at least one caged pit bull and two cages. They also had reason to believe that Norman's boyfriend, who had a criminal record and was believed to be involved in the identify theft scheme, could be inside and could fear arrest. These details provided specific, articulable facts under which officers could reasonably justify a limited sweep in order to secure their safety. In addition, the sweep was reasonable in scope. It was conducted quickly -- in a minute or less, according to testimony -- and the house was small. Further, there is no indication that officers searched areas in which a person could not hide. Thus, the protective sweep was reasonable.

In any event, the evidence...

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