676 F.3d 1252 (11th Cir. 2012), 10-12480, United States v. Noriega

Docket Nº:10-12480.
Citation:676 F.3d 1252
Opinion Judge:CARNES, Circuit Judge:
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Jose NORIEGA, Defendant-Appellant.
Attorney:Christopher Brinson, Steven E. Butler, Richard H. Loftin, George F. May, U.S. Attys., Eugene Seidel, Asst. U.S. Atty., Mobile, AL, for Plaintiff-Appellee. Ana M. Davide, Andrew Stell McCutcheon, Ana Davide Law Firm, Miami, FL, for Defendant-Appellant.
Judge Panel:Before TJOFLAT and CARNES, Circuit Judges, and MICKLE,[*] District Judge.
Case Date:April 11, 2012
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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676 F.3d 1252 (11th Cir. 2012)

UNITED STATES of America, Plaintiff-Appellee,

v.

Jose NORIEGA, Defendant-Appellant.

No. 10-12480.

United States Court of Appeals, Eleventh Circuit.

April 11, 2012

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Christopher Brinson, Steven E. Butler, Richard H. Loftin, George F. May, U.S. Attys., Eugene Seidel, Asst. U.S. Atty., Mobile, AL, for Plaintiff-Appellee.

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Ana M. Davide, Andrew Stell McCutcheon, Ana Davide Law Firm, Miami, FL, for Defendant-Appellant.

Appeals from the United States District Court for the Southern District of Alabama.

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

CARNES, Circuit Judge:

Jose Noriega was convicted of conspiracy and possession of marijuana with intent to distribute. He has appealed, contending that the district court should have suppressed evidence seized at his property because, he argues, the search was illegal and, in any event, the evidence was insufficient to support his conspiracy conviction. An alternative ground may justify affirming the district court's decision not to suppress the evidence, regardless of whether the search was illegal. Because we do not have the facts necessary to decide the suppression issue on that alternative ground, we do not yet know if it will be necessary to decide whether the search was illegal. And because we are not yet deciding the suppression issue, we do not know what evidence to consider in order to decide the sufficiency issue. So, we are sending the case back to the district court for additional factfindings before we decide the suppression and sufficiency issues.

I.

This story begins with a phone call from an anonymous tipster to a drug task force in Mobile County, Alabama, reporting that people were growing marijuana at three properties within three miles of each other in Eight Mile, an unincorporated community named for its distance from Mobile, Alabama. The tipster said that on each of the three properties, in addition to a house, there was an outbuilding equipped with large air conditioners.

A few days later, six or seven police officers led by Corporal Wilbur Williams went to the properties to investigate the anonymous tip. The first property the officers went to was located on Jib Road. Two vehicles were parked in the driveway, and there were security cameras on the corners of the house. The property also had an outbuilding behind the house, just as the tipster had alleged.

Corporal Williams obtained an oral search warrant for the Jib Road house from Alabama state court Judge George Hardesty. See Ala. R.Crim. P. 3.8(b) (permitting a judge to issue a search warrant upon oral testimony if circumstances make it reasonable to dispense with a written affidavit). When they served the warrant the officers found inside the house a marijuana growing operation, including high-intensity lighting equipment, voltage-boosting ballasts used to power that lighting equipment, timers, and 119 marijuana plants. In one of the rooms they found surveillance monitoring equipment and a .30-06 rifle with a scope. Williams ran the license plates of the two vehicles parked in the driveway, and one was registered to Juan Sabina.

Corporal Williams called Judge Hardesty and reported what he and the other officers had found inside the house and obtained an oral search warrant for the outbuilding. Officers then searched the outbuilding and found " remnants of a [marijuana] grow[ing] operation," including

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whole marijuana plants, fragments of other marijuana plants, and two 5-ton air conditioners attached to the outbuilding. Those two air conditioners were each powerful enough to cool a house about twice as large as the outbuilding, and they were used to counteract the heat from the high-intensity lighting equipment, which might otherwise burn the marijuana plants.

Corporal Williams and some of the other officers then went to the second property that had been identified in the anonymous tip, located on Chutney Drive. There they found Omar Huezo, Juan Sabina, and Jose Noriega on the back porch drinking beer. Sabina, the only one of the three who spoke English, told Williams that Noriega owned the Chutney Drive property, and Huezo, with Sabina translating, told Williams that he lived at the Jib Road property.

Based on the anonymous tip, the fact that Sabina, who owned one of the vehicles parked in the driveway at the Jib Road property, was present at the Chutney Drive property, and Huezo's statement that he lived at the Jib Road property, Corporal Williams concluded that those two properties at Jib Road and Chutney Drive were connected to a single criminal conspiracy. Because of that conclusion, and aware that a surveillance system and a rifle with a scope had been found inside the Jib Road house, Williams was concerned that someone posing a threat to the officers' safety might be hiding inside the Chutney Drive house. So he entered the house and walked through it to ensure that no one was hiding inside. During this " protective sweep," Williams saw in plain sight the same type of high-intensity lighting equipment, ballasts, and a timer that he had seen at the Jib Road property. There were, however, no marijuana plants being grown inside the Chutney Drive house at that time.

Just as the tipster had alleged, the Chutney Drive property also had an outbuilding, which was located 50 to 75 yards behind the house and was separated from the backyard by a fence. After conducting the protective sweep of the house, Corporal Williams walked around the outbuilding and smelled an " overwhelming pungent odor of fresh marijuana."

At this point, Corporal Williams prepared a handwritten search warrant affidavit in support of a warrant for the Chutney Drive property. The affidavit stated that Williams had received an anonymous tip that the Chutney Drive property and two other properties had marijuana growing operations and that he had already spoken with Judge Hardesty to request search warrants for the house and outbuilding at the Jib Road property, the first property mentioned in the anonymous tip. Williams' affidavit also included the fact that during his protective sweep of Noriega's house he had seen in a bedroom " the same elaborate electrical system that [he had] observed in the grow rooms at the [Jib Road] location" and that he had " encountered a strong odor of fresh marijuana .... [coming] from inside the" outbuilding at the Chutney Drive property. Williams called Judge Hardesty, read him the affidavit, and requested an oral search warrant to search the house and the outbuilding, which Judge Hardesty issued.

Officers then searched the house and the outbuilding at Chutney Drive. Inside the outbuilding, they found a " very large and elaborate marijuana grow[ing] operation," including high-intensity lighting equipment and ballasts, identical to what they had found at the Jib Road address, and 245 marijuana plants. And, consistent with the anonymous tip, attached to the outbuilding were two 5-ton air conditioners. Inside the Chutney Drive house, officers seized and removed the " elaborate electrical

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system" that Corporal Williams had seen during his protective sweep, as well as something he had not seen: a .22 caliber rifle located near a kitchen window that looked out to the outbuilding.

Corporal Williams and some of the other officers then went to the last property mentioned by the anonymous tipster, located on Kushla McLeod Road. After obtaining yet another oral search warrant from Judge Hardesty, the officers uncovered a marijuana growing operation on the property similar to those at the Jib Road and Chutney Drive...

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