740 F.3d 569 (11th Cir. 2014), 11-13427, United States v. Yeary

Docket Nº:11-13427.
Citation:740 F.3d 569
Opinion Judge:TJOFLAT, Circuit Judge:
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Brian Micko YEARY, Defendant-Appellant.
Attorney:Carol Herman, Wifredo A. Ferrer, Anne Ruth Schultz, U.S. Attorney's Office, Miami, FL, John C. Mcmillan, Assistant U.S. Attorney, U.S. Attorney's Office, West Palm Beach, FL, for Plaintiff-Appellee. Valentin Rodriguez, Jr., Valentin Rodriguez, PA, West Palm Beach, FL, Brian Micko Yeary, USP Atwat...
Judge Panel:Before TJOFLAT, MARTIN, and FAY, Circuit Judges. MARTIN, Circuit Judge, Concurring Specially:
Case Date:January 22, 2014
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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740 F.3d 569 (11th Cir. 2014)

UNITED STATES of America, Plaintiff-Appellee,

v.

Brian Micko YEARY, Defendant-Appellant.

No. 11-13427.

United States Court of Appeals, Eleventh Circuit.

January 22, 2014

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Carol Herman, Wifredo A. Ferrer, Anne Ruth Schultz, U.S. Attorney's Office, Miami, FL, John C. Mcmillan, Assistant U.S. Attorney, U.S. Attorney's Office, West Palm Beach, FL, for Plaintiff-Appellee.

Valentin Rodriguez, Jr., Valentin Rodriguez, PA, West Palm Beach, FL, Brian Micko Yeary, USP Atwater, Atwater, CA, for Defendant-Appellant.

Appeal from the United States District Court for the Southern District of Florida. D.C. Docket No. 9:10-cr-80159-KAM-1.

Before TJOFLAT, MARTIN, and FAY, Circuit Judges.

TJOFLAT, Circuit Judge:

A federal jury convicted Brian Micko Yeary, a felon, on multiple counts of conspiring to possess, or of possessing, various controlled substances with intent to distribute, of possessing a firearm in furtherance of a drug trafficking offense, and of possessing a firearm or ammunition by a felon. 1 The District Court sentenced

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him to prison for a total of 1,092 months.2 Yeary now appeals his convictions and sentences. He challenges his convictions on five grounds and his sentences on one ground. The only challenges meriting discussion deal with his convictions; he argues that the District Court erred in denying his motion to suppress evidence— drugs, drug paraphernalia, and firearms— that the police seized in warrantless searches of his residences. The other challenges are meritless, as indicated in the footnote below.3 At the end of the day, we affirm Yeary's convictions and sentences.

I.

In this part, we detail the facts the Government's proof established at Yeary's trial. Section A touches briefly on the criminal activities Yeary engaged in prior to his commission of the crimes charged in this case. Sections B, C and D set out the circumstances surrounding the searches Yeary contends were illegal because they were warrantless.4

A.

On May 2, 2006, Yeary was convicted of two felonies in the Circuit Court for Palm Beach County, Florida.5 Because federal law prohibited him from carrying a firearm,6 Yeary had a friend, Jeff Bell, purchase

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firearms for his use. On August 12, 2006, Yeary, accompanied by his girlfriend, Lindsey Kline, and Bell went to a gun show, where Bell purchased two firearms, a Glock Model 22 and a Kel Tec.7 Yeary gave Bell the cash required for the purchases and took possession of the guns upon leaving the gun show. On April 15, 2007, Bell purchased two Taurus 9 millimeter pistols— a Model PT-111 and a Model PT-917— for Yeary. Again, Yeary provided the cash for the purchases and took possession of the guns.

On August 10, 2007, Yeary and Kline got into an argument at a condominium they shared in Boynton Beach, Florida.8 Following the argument, Yeary left the condominium. Thereafter, Kline called the police, and Officer Connor Haugh of the Boynton Beach Police Department responded to the call. When Officer Haugh arrived, Kline requested that he stay with her while she removed her belongings from the condominium, which he did. As Haugh was helping her, he saw in plain view a Kel Tec pistol, a cylinder drum filled with assault-type rifle ammunition, a magazine of ammunition, and a box of ammunition. Because Haugh knew that Yeary was a convicted felon and was prohibited from possessing a firearm, he seized the Kel Tec. He also seized drug paraphernalia that Kline pointed out to him, including a digital scale, acetone, a bowl with residue, and super mannitol (which is used to dilute cocaine). Responding to a BOLO, 9 the police stopped Yeary on the roadway and arrested him.10

On November 15, 2007, Kline came to the Palm Springs Police Department and met with Officer Joseph Derogatis.11 After a brief conversation, she asked Derogatis to accompany her to her residence, a house in Palm Springs. 12 When they arrived, Kline took the officer to the bedroom she shared with Yeary and showed Derogatis what he described as " items consistent with drug sales, paraphernalia,

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some ammo cartridges, [and] magazine pouches." Kline also showed him two safes, " a handgun-type safe ... on top of a larger safe," and a " press," which, Derogatis concluded, was " used for compressing powered cocaine ... making it a tight package to be shipped and delivered ... to resell."

Derogatis then summoned an officer who handled a " K-9 dog." The dog alerted the officers to the presence of drugs. After a search warrant issued, Derogatis opened the safes. The larger safe contained $1,800 in cash and a Styrofoam cup with two plastic bags filled with white powder. The smaller safe contained an empty prescription bottle bearing the name Brian Yeary.

B.

At some point in time, the Palm Beach County Circuit Court issued a warrant for Yeary's arrest.13 The County Sheriff's Office was unable to find him, so it contacted the U.S. Marshal's Fugitive Task Force for assistance. The Task Force suspected that Yeary was living with Kline in a house in Stuart, in Martin County,14 and, on June 16, 2008, three Deputy U.S. Marshals and five Sheriff's Office deputies were sent to arrest him. Kline— who at the time was pregnant with Yeary's child— opened the door; Yeary stood behind her. A black semiautomatic handgun was on a table next to Yeary in the deputies' plain view.

Yeary was arrested and removed from the house. Kline was asked if there were others in the house. She said that two other people were there. During the protective sweep that followed, the deputies discovered in plain view in Kline and Yeary's bedroom a black tray that had narcotic residue, marijuana clippings, scales with cocaine residue, and Ziploc baggies used for packaging narcotics, along with other drug paraphernalia.

Based on this discovery, a Martin County Sheriff's Office deputy obtained a search warrant for the house. The ensuing search uncovered, and deputies seized, 51.8 grams of cocaine, 97.1 grams of marijuana, and a firearm. The marijuana was packaged in small baggies, all stored in a Ziploc bag. The cocaine was similarly packaged in baggies that were placed in a larger bag. A safe containing Yeary's driver's license, approximately $3,000 cash and a 9 millimeter ammunition cartridge was also seized.

Lindsey Kline testified that Yeary made his living selling drugs, including cocaine, marijuana, and prescription pills. She and others Yeary employed made sales for him. Yeary's cocaine source was a man named Pepe, who supplied Yeary with 5.25 ounces of cocaine every other week.

Kline produced several photographs depicting Yeary holding firearms and drugs. One of the photos, taken on January 1, 2008, showed Yeary holding a Remington Model 870 shotgun.15

C.

In February 2009, Yeary was placed under in-house arrest pending trial on felony

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charges in the Palm Beach County Circuit Court.16 As a condition of release, the Circuit Court required Yeary to agree with the Palm Beach County Sheriff's Office's Alternative Custody Unit (the " ACU" ) that it could search his residence 17 at any time without prior notice and without a warrant.18 Yeary agreed to this condition by executing a written agreement to that effect with the ACU.

On June 1, 2009, the ACU received an anonymous tip that Yeary was selling drugs out of his residence. Before the ACU could dispatch officers to Yeary's residence, Yeary moved his residence to a house in Lake Worth.19 He informed the ACU of the move, and it had him sign a new agreement.

Shortly thereafter, on June 24, responding to the anonymous tip, officers of the ACU, a Sheriff's Office detective, and Agent Troy Raines of the Bureau of Alcohol, Tobacco, Firearms, and Explosives went to Yeary's Lake Worth residence. Yeary and three others were at the residence when officers arrived. Yeary complied with officers' request to search his residence. Agent Raines and the detective found drugs and a Sig Sauer Model P229 firearm loaded with Fiocchi .40 caliber rounds in Yeary's bedroom. They also found a digital scale, Ziploc bags similar to the ones found during the previous search of Yeary's Stuart residence, and a pair of shorts with a concealed pocket containing a bag of cocaine. In total, they seized 50.9 grams of cocaine, 5.5 tablets of Xanax with a net weight of 1.4 grams, 39 tablets of oxycodone tables with a net weight of 19.2 grams, and 1.9 grams of marijuana.

On November 2, 2010, a federal grand jury returned a multi-count indictment against Yeary, charging him with some of the drug and firearm offenses involved in this appeal,20 and a warrant for his arrest issued.

D.

On the night of November 10, 2010, Yeary was shot in the leg outside of a bar, " Apple Bottoms," in the Palm Beach County town of Lantana. At the time, Yeary was carrying a Taurus 92AFS 9 millimeter firearm loaded with fourteen live rounds. Two friends drove him to a friend's house. Another friend, Sean East, met Yeary and his friends there, took possession of Yeary's firearm, placed it in his vehicle, and prepared to drive Yeary to the hospital. Detectives from the Palm Beach County Sheriff's Office, which had been called by one of the two friends who had been with Yeary at the bar, arrived at the scene before East could take Yeary to the hospital. Also arriving at the scene were paramedics assigned to the County's fire and rescue unit. The paramedics took Yeary to the hospital. Detective James

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Evans stayed behind to look for the gun Yeary was carrying at the time he was shot. East told him that the gun was in his vehicle. With...

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