U.S. v. Tobin

• Decision Date: 22 November 1989
• Docket Number: 88-5274,Nos. 87-6015,s. 87-6015
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ronald TOBIN, Clifford Roger Ackerson, Defendants-Appellants. UNITED STATES of America, Plaintiff-Appellee, v. Ronald TOBIN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 319

890 F.2d 319

UNITED STATES of America, Plaintiff-Appellee, v. Ronald TOBIN, Clifford Roger Ackerson, Defendants-Appellants.

UNITED STATES of America, Plaintiff-Appellee, v. Ronald TOBIN, Defendant-Appellant.

Nos. 87-6015, 88-5274.

United States Court of Appeals, Eleventh Circuit.

Nov. 22, 1989.

Samuel Burstyn, Robert F. Dunlap, Miami, Fla., for defendants-appellants.

Dexter W. Lehtinen, U.S. Atty., Edward C. Nucci, Linda Collins Hertz, Dawn Bowen, Asst. U.S. Attys., Miami, Fla., for U.S.

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

Before CLARK and COX, Circuit Judges, and HENDERSON, Senior Circuit Judge.

CLARK, Circuit Judge:

In these appeals we face the difficult task of further defining the parameters of the Fourth Amendment. Both appellants, Ronald Tobin and Clifford Ackerson, appeal the denial of their motions to suppress evidence seized at Ackerson's home on March 19, 1986. We find that Tobin lacks standing to challenge either the search of Ackerson's home and garage or the search of the car found inside of the garage. We further find that the search of Ackerson's home was illegal because Ackerson opened the door to his residence in acquiescence to a show of official authority. Thus, Ackerson's motion to suppress should have been granted. The district court's order is therefore affirmed in part and reversed in part.

I. FACTS

On March 19, 1986, U.S. Customs Special Agents Wayne Roberts and Gerald O'Neil and Drug Enforcement Administration Special Agents Steven Widener and Charles Cecil were conducting a surveillance in the area of 104th Street and Southwest 144th Court in Miami, Florida. They were in a field northwest of the front of appellant Clifford Ackerson's house. This surveillance was initiated pursuant to an investigation unrelated to the appellants in this case.

At about 3:30 or 4:00 p.m., Agent Roberts' attention was drawn to a Mercury Marquise traveling on 144th Street. This car attracted his attention due to the manner in which it turned and traveled up the street, and Agent Roberts began watching it because it was similar to one he had followed earlier in the day as part of the unrelated surveillance.

Agents Roberts and Widener saw the car quickly stop in the middle of the street and back into the driveway of the residence at 10411 S.W. 144th Court. There was already a pickup truck parked in the front yard of that house. Appellant Ronald Tobin then jumped out of the car, looked around, and ran to the front door of the residence. Tobin knocked and within one minute, Ackerson admitted him to the house. Shortly after Tobin entered the house, the garage door was opened three-quarters of the way by Ackerson, who looked up and down the street while holding the door. Tobin also peered out of the garage and, looking up and down the street, he crouched down and eased out of the garage. Tobin then used a key to open the trunk of the car he had parked in the driveway. He took three full tubular plastic bags out of the trunk and very quickly put them into the garage. The bags were about four feet long and were covered in heavy clear plastic wrapping, with smaller packages inside. Tobin again looked up and down the street and immediately hopped back into the garage. During this time the agents observed the front of another vehicle which had been backed into the garage. The agents were able to make these observations because they were using binoculars. Based on their experience, both Agents Widener and Roberts suspected that Tobin had put cocaine into the house.

The agents decided to go to the door, and to talk to the occupants of the house in the hopes of securing a consent search. Three of the agents pulled up to Ackerson's house in their own individual vehicles. Agent Roberts went to the front door accompanied by Agent O'Neil who served as a backup for security purposes. Agent Widener went to the corner of the house along the southern wall of the house's exterior and the garage door and stood there with his gun raised. Although there is no direct evidence, Widener was apparently out of sight because he could not see the front door from where he was positioned.

Agent Roberts knocked on the door and initially received no answer. He continued to knock for three to four minutes as he shouted in English and in Spanish, "I'm a police officer, I would like to talk to you, I need for you to come here." One of the agents began to call for uniformed back-up but stopped when Ackerson finally answered the door. When the door was opened, Agent Roberts displayed his credentials and told Ackerson he was a Customs Agent. Roberts stated that he had reason to believe someone had just put cocaine into Ackerson's garage and that he would like to talk to Ackerson about the car that Tobin had backed into the driveway.

Initially, Ackerson denied that anyone had backed up to his garage door in a car or that anyone else was in his home. During this conversation with Ackerson, Agent Roberts could smell the odor of marijuana coming from inside the house. Ackerson finally called Tobin to the front door. When Tobin appeared, Agent Roberts again identified himself and told Tobin he wanted to talk to him about the car Tobin had backed into the driveway. Both Agent Roberts and Tobin were outside the door of the house. Tobin said that he had not driven there. When Agent Roberts explained that he had witnessed Tobin take bags out of the trunk of the car by the garage door and place them inside the garage, Tobin denied it.

Agent Roberts then stated that he believed Ackerson and Tobin were "up to something." Roberts stated that they all should go to the garage and see what was there. At that time, Ackerson, who was standing in the doorway of the house turned and walked inside the house towards the garage. Agent Roberts followed, along with Tobin and Agent O'Neil to the rear. All four individuals proceeded directly to the garage. Once inside the garage, Agent Roberts asked Ackerson to open the garage door. Ackerson proceeded around the passenger side of a Mercury station wagon bearing an Oregon license plate which had been backed into the garage and opened the garage door.

As the door went up, Agent Widener, who was standing outside on the driveway with his gun drawn, reholstered the gun and saw the tubular bags he had seen earlier when they had been moved into the garage and thrown on the floor by Tobin. One bag had been pulled farther in than the others, and two or three of the smaller packages had been taken out of the bigger bag and were lying on the ground. One package was open. When Agent Widener realized that the packages spread out in front of him contained cocaine, he reported that fact to Agent Roberts who initially believed, given the smell of marijuana, that perhaps Widener was mistaken and it was marijuana in the garage. The elapsed time from the arrival of Agent Roberts at the front door to the discovery of the cocaine was between ten and fifteen minutes. Prior to finding the cocaine, Agents Roberts and O'Neil had their guns unholstered but not drawn.

After discovery of the cocaine, Tobin and Ackerson were placed under arrest. Agent Roberts asked Ackerson if anyone else was in the house and Ackerson said "no." Because Ackerson had not only lied about Tobin's presence in the house a few minutes before, but also because there were three vehicles on the premises and only two persons had been located, Roberts was not satisfied with Ackerson's answer. To ensure their own safety, Agents Roberts and O'Neil did a security sweep of the house. During this security sweep, the agents found three bales of marijuana in the shower stall of the master bedroom's bathroom. The agents then conducted a more general search, opening drawers in the master bedroom and looking under the couch cushions in the living room.

While inside the garage, Agent Widener noticed through the windows of the station wagon parked there that all of the screws had been removed from the floorplate over the wheel well in the back of the vehicle. Tobin and Ackerson had been arrested and the security sweep had been conducted. Agent Widener searched the station wagon. Upon opening the back gate and lifting up the plate in the station wagon, Agent Widener saw brown paper grocery bags inside. Based upon his experience with the way drug money is handled and his belief that a drug deal was occurring, Agent Widener believed the bags contained money. While holding the plate with one hand, Agent Widener pulled the top of one paper bag back with the other hand, revealing U.S. currency. Later, it was determined that the cash totaled approximately $775,000.

After the cocaine had been found on the garage floor, the defendants were given their Miranda warnings. Prior to either defendant invoking his Miranda rights, the agents learned from Ackerson that he owned the house. Tobin, on the other hand, told the agents that he did not live in the house. Both defendants denied any knowledge of the cocaine or possession of the marijuana. Both defendants indicated that they had no knowledge of and did not own the station wagon with Oregon tags in Ackerson's garage. Similarly, both Ackerson and Tobin denied knowledge and ownership of the money found in the station wagon in the garage. Nonetheless, the keys to the station wagon in the garage were found in Tobin's possession. A subsequent check by the DEA showed that the station wagon parked in Ackerson's garage on March 19th and bearing Oregon plates was registered to Ellen P. Mekulich of Tigar, Oregon, a suburb of Portland, as of March 3, 1986. Prior to that the station wagon's owner had been a Ben Chrystal of Portland, Oregon.

II. DISCUSSION

Both appellants Tobin and Ackerson claim that the agents gained entry to Ackerson's home only through a show of official authority. Thus, the appellants allege that the agents conducted a "search" within the meaning of the Fourth...