United States v. Maxi

• Decision Date: 05 April 2018
• Docket Number: No. 15-13182,15-13182
• Citation: 886 F.3d 1318
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Willis MAXI, Markentz Blanc, a.k.a. Blind, a.k.a. Burn, Defendants–Appellants, Espere Desmond Pierre, a.k.a. Papa D, Defendant.
• Court: U.S. Court of Appeals — Eleventh Circuit

886 F.3d 1318

UNITED STATES of America, Plaintiff–Appellee,

v. Willis MAXI, Markentz Blanc, a.k.a. Blind, a.k.a. Burn, Defendants–Appellants,Espere Desmond Pierre, a.k.a. Papa D, Defendant.

No. 15-13182

United States Court of Appeals, Eleventh Circuit.

April 5, 2018

Tonya R. Long, Assistant U.S. Attorney, Aileen Cannon, Olivia Choe, Wifredo A. Ferrer, Seth Michael Schlessinger, Emily M. Smachetti, U.S. Attorney's Office, Miami, FL, for Plaintiff–Appellee.

Roy Jeffrey Kahn, Roy J. Kahn, PA, Miami, FL, for Defendant–Appellant Willis Maxi.

Willis Maxi, Pro Se.

David Scott Markus, Law Offices of David Marcus, Miami, FL, for Defendant–Appellant Markentz Blanc.

Markentz Blanc, Pro Se.

Before MARTIN, JORDAN, and WALKER,^* Circuit Judges.

MARTIN, Circuit Judge:

Willis Maxi and Markentz Blanc appeal their convictions, after a jury trial, on charges relating to their participation in an extensive drug distribution network. Mr. Maxi challenges the admission of evidence he says was the product of an illegal search. Mr. Blanc challenges the admission of evidence from wiretaps as well as an instruction given to the jury about flight. After careful review, and with the benefit of oral argument, we affirm.

I. FACTUAL BACKGROUND

On July 9, 2012, the Miami–Dade Police Department received a tip from a confidential informant that a person known as "Papa D"¹ engaged in drug activity and kept firearms at one unit of a duplex located at 132 NE 64th Street in Miami. Detective Scott Ogden and another officer met with the informant and drove him to the duplex. The informant identified the back unit as the one where guns and drugs would be found.

Officers then began surveilling the property. One officer set up to watch the house and others were positioned nearby. "[M]aybe ten or [fifteen] minutes or less" after setting up, officers saw two men leave the duplex and get into a truck. Officers stopped the truck about a quarter mile from the duplex and asked the men for identification. Mr. Blanc was the driver and Mr. Pierre was the passenger. After a search revealed no contraband, the officers let the men leave. The truck then turned immediately back toward the duplex.

When he was told the truck was returning to the duplex, Detective Ogden ordered all the officers in the area to go there as well. Detective Ogden testified: "We decided—or I decided that we should approach the residence with them there because I had a feeling that maybe they would alert the persons inside." At least five police cars, holding approximately ten police officers, pulled up to the duplex. Seeing the police approach, Mr. Blanc "took off running and was apprehended shortly after." Mr. Blanc and Mr. Pierre were both detained. They were eventually released again without being charged.

Four or five police officers ran to the door of the back unit while the remaining officers covered other strategic positions surrounding the duplex. The back unit’s door was not visible from the street. To get to it, the officers passed through a gate in a chain-link fence that surrounded the yard. At least one officer who approached the door had his gun drawn and held in a "low, ready position." It was dark out.

The door itself had an exterior metal security gate, with a wooden interior door behind it. The metal security gate had bars that were five to six inches apart—wide enough that Detective Ogden reached through the bars and knocked on the wooden door. Detective Ogden testified he was "pretty sure" no one announced "police" when he knocked.

Mr. Maxi opened the wooden interior door very soon after Detective Ogden knocked. Detective Ogden testified that "[d]irectly behind Mr. Maxi, [he] could see a clear mixing bowl as well as a white plate, with the plate having naked crack rocks, and the clear mixing bowl having packaged crack cocaine and a razor blade on the plate and a scrap piece of paper." Detective Ogden said these objects were approximately five to ten feet away from his position at the door.

When he saw the officers, Mr. Maxi "attempted to fade off" out of view, but Detective Ogden told him to stay where he was. Upon questioning, Mr. Maxi said he didn’t live at the duplex and didn’t know who did. Detective Ogden asked Mr. Maxi to step outside, but Mr. Maxi said he couldn’t because the metal security gate was locked and he didn’t have a key.² Detective Ogden asked Mr. Maxi if he was burglarizing the residence, and Mr. Maxi responded, "oh, I will go for burglary." At some point, Detective Ogden told Mr. Maxi he was under arrest.

The officers decided to force the security gate open. Detective Ogden testified he was concerned that Mr. Maxi would destroy evidence. Once the gate was pried open, Detective Ogden pulled Mr. Maxi out of the building, and handcuffed him. Approximately five officers then conducted a protective sweep of the unit, which Detective Ogden said took about two minutes. Detective Ogden testified that during the sweep, he saw more packaged crack cocaine, a semiautomatic handgun, four rifles, and a stack of money. After the sweep, the officers left the unit and applied for a search warrant.

Before the warrant was issued but after the protective sweep, Lieutenant Luis Almaguer and another officer did a walk-through of the unit. Lieutenant Almaguer said he wanted to "verify[ ] what they are writing [in the search warrant application] is what they saw." He testified that the search warrant application did not rely on any of his observations from the walk-through. After the search warrant was issued, starting at around 2:00 AM, officers went back inside the unit and collected crack cocaine, guns, and Mr. Maxi’s driver’s license and other papers. The search concluded at 4:45 AM.

Once the search was over, Mr. Maxi was advised of his Miranda rights in the back of a police car. An officer also told Mr. Maxi the police had seen guns and drugs in the house. Several hours later, Mr. Maxi signed a formal waiver of his Miranda rights and was interviewed. He told police he worked as a "cut man" for "Papa D." He said he cut up and bagged crack cocaine, provided security, and resupplied other locations with crack cocaine.

The surveillance and search of the 64th Street property was only the beginning of the investigation into the drug organization in which Mr. Blanc, Mr. Pierre, and Mr. Maxi were involved. Law enforcement worked with confidential informants to make controlled purchases of crack cocaine from suspected members of the organization. The FBI then used a pen register and tap and trace device on Mr. Pierre’s phone, and later received authorization to use a wiretap on Mr. Pierre’s phone. The wiretap on Mr. Pierre’s phone was in place for about a month during the summer of 2013.

On October 28, 2013, an FBI agent filed an application for a wiretap on Mr. Blanc’s cell phone. The application described a wiretap as necessary to accomplish the goals of the investigation into the drug organization and listed a number of other investigative techniques that had been used or considered. The wiretap application was approved, and Mr. Blanc’s phone was tapped from October 28 to November 26, 2013.

On November 21, 2013, more than a year after the search that led to Mr. Maxi’s arrest, law enforcement executed a search warrant at 262 NW 52nd Street in Miami. A police officer saw Mr. Blanc outside the property and yelled, "Police, stop." Mr. Blanc turned and ran into the house, where he was detained. Drugs, guns, ammunition, and other evidence were also collected from this house.

II. PROCEDURAL BACKGROUND

On February 20, 2014, Mr. Blanc and Mr. Maxi, along with six codefendants not part of this appeal, were indicted for crimes relating to a drug conspiracy. Both were charged with conspiracy to possess with intent to distribute a controlled substance; possession with intent to distribute a controlled substance; possession of a firearm in furtherance of a drug trafficking crime; and possession of a firearm by a convicted felon. Mr. Blanc was also charged with conspiracy to commit wire fraud, aggravated identity theft, and possession of unauthorized access devices with the intent to defraud.

Mr. Maxi and Mr. Blanc both filed motions to suppress evidence based on the government’s alleged violations of law. Mr. Maxi filed a motion to suppress physical evidence and his statements related to the search at the 64th Street duplex. At the suppression hearing, Mr. Maxi’s attorney argued that the police approach to the duplex exceeded the scope of a permissible "knock and talk." He said Mr. Maxi did not voluntarily open the duplex door, and that each of the police’s actions that followed—breaking down the door, the protective sweep, the pre-warrant walk-through, the arrest—was illegal. He also argued that Mr. Maxi’s statements should be suppressed as fruit of the poisonous tree. The government opposed, arguing that Mr. Maxi did not have standing to challenge the search; the police approach to the door was permissible; and Mr. Maxi’s opening of the door was voluntary. Also, the government argued that even if the officers’ actions after approaching the door were impermissible, there was still sufficient information to support the search warrant because they could see crack cocaine in plain view from the door.

A Magistrate Judge issued a Report and Recommendation ("R&R") recommending that Mr. Maxi’s motion be denied. The Magistrate Judge found that Mr. Maxi opened the door voluntarily and that the officers’ protective sweep of the duplex was justified. The Magistrate Judge found that the pre-warrant walk-through violated the Fourth Amendment, but the crack cocaine observed by the officers in plain view once the door opened provided an independent source of probable cause to support the search warrant. The District Court adopted the R&R and denied Mr. Maxi’s motion to suppress.

Mr. Blanc filed a motion to suppress the intercepted wire communications. He argued that the government had not shown "necessity to obtain or apply for...