923 F.2d 1506 (11th Cir. 1991), 87-6015, United States v. Tobin

Docket Nº:87-6015, 88-5274.
Citation:923 F.2d 1506
Party Name: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.
Case Date:February 21, 1991
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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Page 1506

923 F.2d 1506 (11th Cir. 1991)

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

February 21, 1991

Page 1507

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 plaintiff-appellee.

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

Before TJOFLAT, Chief Judge, FAY, KRAVITCH, JOHNSON, HATCHETT, ANDERSON, CLARK, EDMONDSON, COX, BIRCH and DUBINA, Circuit Judges, and HENDERSON [*], Senior Circuit Judge.

JOHNSON, Circuit Judge:

This case arises from the district court's denial of co-defendants Ronald Tobin's and Clifford Ackerson's motions to suppress evidence seized in a search of Ackerson's home, garage, and a station wagon parked in the garage. A panel of this Court reversed the district court's finding that the search was permissible under the Fourth Amendment and held that Ackerson's motion should have been granted. The panel, however, affirmed the district court's denial of Tobin's motion, holding that Tobin did not have standing to contest the legality of the search. We vacated the panel's opinion and now affirm en banc the district court's denial of both motions to suppress.

I. STATEMENT OF THE CASE

A. Factual Background

The facts of this case are extensively reported in the panel's opinion. United States v. Tobin, 890 F.2d 319 (11th Cir.1989), reh'g granted and opinion vacated,

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902 F.2d 821 (11th Cir.1990). We therefore give only the following brief summary.

On March 19, 1986, two United States Customs agents and two Drug Enforcement Administration agents were conducting a surveillance unrelated to the instant case in a residential neighborhood in Miami. The agents watched the neighborhood from a field located northwest of the front of defendant Clifford Ackerson's house. Around 3:30 in the afternoon, one of the agents noticed a Mercury Marquis abruptly stop in front of Ackerson's house and back into the driveway. The agents began watching the activity through binoculars. Defendant Ronald Tobin got out of the car, looked around, ran to the front door, knocked, and was admitted within one minute. Shortly thereafter, Ackerson lifted the garage door three-quarters of the way up, looking up and down the street as he held the door. Tobin emerged and unlocked the trunk of the Mercury. He removed three clear plastic tubular bags, each approximately four feet long. According to one agent's testimony, smaller bundles were visible inside the bags. Tobin quickly put the bags in the garage. While the garage door was open, the agents observed a station wagon parked inside. A third vehicle, a pickup truck, was parked in the front yard.

Believing that the tubular bags contained cocaine, three of the agents decided to go to the door and talk to the occupants of the house. The fourth agent remained at the surveillance post. The three agents pulled up in front of the house in their individual unmarked vehicles. One went to the door; another accompanied the first as security backup; the third went to the corner of the house near the garage to stand out of sight.

The first agent knocked and received no answer. He continued knocking for three to four minutes, calling out in English and Spanish. 1 Ackerson opened the door. The agent showed him his credentials, told him he wanted to talk to him about the car in the driveway, and explained that he believed someone had put cocaine in his garage. Ackerson denied that anyone had recently backed into the driveway and stated that no one else was in his home. The agent smelled marijuana coming from inside the house as they spoke. Ackerson eventually called Tobin to the door. Tobin denied having driven the car there. When the agent explained all he had observed, Tobin continued to deny it.

The agent then told the two men that he thought they should all go to the garage and see what was there. Ackerson turned and walked inside the house in the direction of the garage. The agent followed him into the house. Tobin and the backup agent followed to the rear. When they got to the garage, the first agent asked Ackerson to open the outside garage door. He moved around the station wagon and opened it. The third agent, standing outside on the driveway, looked into the garage and spotted the tubular bags on the floor. One of the bags had been opened. The agent could see that it contained cocaine. The agents then placed Ackerson and Tobin under arrest. The agents did a security sweep of the house and discovered three bales of marijuana in the shower stall of the bathroom connected to the master bedroom. One of the agents also noticed through the windows of the station wagon in the garage that the screws had been removed from the floorplate over the wheel well in the rear of the vehicle. Upon opening the back of the vehicle and lifting up the wheel well cover, the agent found grocery bags full of cash, totalling $775,000.

B. Procedural History

  1. The District Court

    Ackerson and Tobin were charged with conspiracy and possession with intent to distribute cocaine in violation of 21 U.S.C.A. Secs. 841(a)(1) & 846 and 18 U.S.C.A. Sec. 2. Ackerson alone was charged with possession with intent to distribute marijuana in violation of 21 U.S.C.A. Sec. 841(a)(1).

    Both defendants filed motions to suppress the fruits of the searches. After

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    holding a hearing on the motions, the magistrate recommended that the district court grant both motions to suppress, finding that the searches were illegal and that Tobin as well as Ackerson had standing to contest the searches.

    After the government objected to the magistrate's report, the district court held a de novo hearing on the standing issue. The court subsequently entered an order denying both motions to suppress, holding that, based on the magistrate's findings, the search of the garage and protective sweep of the house were legal and that neither defendant had standing to contest the search of the station wagon because both had denied ownership of it. The court was thus not required to address Tobin's standing as to the house and garage, though it commented that the evidence adduced at the hearing did not support a finding that Tobin had a privacy interest in the house or garage to which Fourth Amendment protections could attach.

    Tobin and Ackerson thereafter entered plea agreements with the government whereby they would both plead guilty to possession with intent to distribute cocaine, reserving the right to appeal the denial of their motions to suppress and to withdraw the guilty pleas if they prevailed. They subsequently pled guilty pursuant to the agreement. The court sentenced both defendants to terms of fifteen years in prison and fines of $100,000. Both defendants remained free on bond pending the appeal.

  2. The Panel

    The panel reversed the district court's denial of Ackerson's motion to suppress, but affirmed the denial of Tobin's motion. Tobin, 890 F.2d at 332. In the panel's view, the search of the house violated the Fourth Amendment. The panel noted that the magistrate and district court had found that the agents had reasonable suspicion of criminal activity when they approached the house. 2 This suspicion alone did not, in the panel's opinion, justify detaining and questioning the occupants under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), as the district court had opined, because Terry does not apply to dwellings. The key issue then, according to the panel, was whether the agent's conduct at the door of the house, which afforded him the opportunity to smell the marijuana, precipitated an impermissible search to which Ackerson did not consent.

    The panel stated that a police officer's approach to a criminal suspect's house to make general inquiries is not a search as long as the door is not opened in response to a threat or command. United States v. Knight, 451 F.2d 275, 278 (5th Cir.1971), cert. denied, 405 U.S. 965, 92 S.Ct. 1171, 31 L.Ed.2d 240 (1972). Because in its view the agent's conduct at the door amounted to a demand of entry under color of authority, however, the panel found the opening of the door to be a search to which Ackerson could not have consented. The olfactory access to the house which the agent gained pursuant to the opening of the door was therefore illegal. The searches which followed were consequently tainted. The panel also found, however, that Tobin did not have standing to assert the Fourth Amendment violation. Consequently, the evidence uncovered in the search was admissible against him.

  3. Rehearing En Banc

    Tobin then filed a petition for a rehearing and a suggestion for rehearing en banc on the standing issue. The government did not file a cross-petition. Ackerson, who had already obtained complete relief, did not join in Tobin's petition. On May 16, 1990, we vacated the entire panel opinion and granted rehearing en banc. At en banc oral argument, the parties argued both the issue of standing and the issue of the search's legality. It is not necessary to the outcome of this case, however, that we reach the standing issue. For the purposes of the following discussion, we assume, but do not hold, that the parties have standing to raise the question of the search's legality.

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    II. ANALYSIS

    Review of a district court's denial of a motion to suppress evidence is a mixed question of law and fact. United States v. Alexander, 835 F.2d 1406, 1408...

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