United States v. Lockett, 082813 FED11, 12-11991

Docket Nº:12-11991
Opinion Judge:PER CURIAM
Party Name:UNITED STATES OF AMERICA, Plaintiff - Appellee, v. GARY LOCKETT, Defendant-Appellant.
Judge Panel:Before PRYOR and HILL, Circuit Judges, and O'KELLEY, District Judge.
Case Date:August 28, 2013
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v.

GARY LOCKETT, Defendant-Appellant.

No. 12-11991

United States Court of Appeals, Eleventh Circuit

August 28, 2013

DO NOT PUBLISH

Appeal from the United States District Court for the Middle District of Georgia D.C. Docket No. 7:11-cr-00028-H-TQL-1

Before PRYOR and HILL, Circuit Judges, and O'KELLEY, [*] District Judge.

PER CURIAM

Gary Lockett appeals his convictions for possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1), and possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A). Lockett argues that the district court erred in denying his motion to suppress evidence observed in plain view after officers entered his residence without a warrant and to suppress evidence seized after officers conducted a subsequent search pursuant to a search warrant. Specifically, Lockett contends that this evidence should be excluded because: (1) there was no probable cause to support the warrantless entry; (2) there were no exigent circumstances to support the warrantless entry; and (3) there was no probable cause to support the issuance of the search warrant.

I. FACTUAL AND PROCEDURAL HISTORY

A. Factual Background

On February 3, 2011, officers were conducting surveillance of Lockett's residence at 708 Raelyn Lane, Enigma, Berrien County, Georgia (the "Property"). The Property is surrounded by a single six-foot privacy fence and includes Lockett's residence and an outbuilding. A confidential source had previously informed law enforcement officials that Lockett was using the Property to store narcotics. A second source, Wesley Lamar Tuff, Jr. ("Tuff"), had stated that he had purchased approximately one kilogram of cocaine from Lockett or through Lockett over the course of several transactions.

Officer Jack Winningham of the Lowndes County Sheriff's Office ("Officer Winningham") and Special Agent Andrew Denmark of the Drug Enforcement Administration ("Agent Denmark") were parked in a vehicle approximately 100 yards from the Property. They used binoculars and a telephoto lens to observe the Property, but they could not see the outbuilding or inside the residence. Between 8:20 a.m. and 4:04 p.m., they observed six vehicles and 13 people come and go from the Property. One of the 13 individuals who left was Lockett. As Lockett had been inside the residence when the surveillance began, this meant that there was still at least one unidentified person on the Property before the warrantless entry.

At approximately 12:30 p.m., Officer Winningham and Agent Denmark witnessed Lockett and an unidentified man depart the Property in a green Dodge Charger (the "Dodge"). The Dodge traveled approximately 2, 000 feet away from the Property and stopped. The man got out and walked away into the woods carrying a white plastic grocery bag. Lockett returned to the Property immediately thereafter.

Another vehicle, a black Nissan Altima (the "Nissan"), entered the Property at 3:47 p.m., stayed approximately 15 minutes, and left. The Nissan was occupied by Jason Wynn ("Wynn") and Shannon Young ("Young"). Officer Winningham notified other officers in the area when the Nissan departed the Property. Special Agent Hubert Jordan ("Agent Jordan") then followed the Nissan from the time it entered the paved road outside the Property until it reached Highway 82. Agent Jordan did not observe the Nissan while it was on the dirt road immediately outside the Property. Soon thereafter, Agent Jordan turned the vehicle over to Officer Chris Strickland ("Officer Strickland") with the Tift County Sheriff's Office so that he could perform a traffic stop of the Nissan.

Officer Strickland attempted the traffic stop at approximately 4:00 p.m., but Wynn and Young refused to stop for several miles. When they did stop, they jumped out of the Nissan and fled on foot. Officer Strickland and Agent Jordan chased Wynn and Young for about 400 to 500 yards. After Wynn and Young were apprehended, the officers recovered a bag containing 58 grams of cocaine and 4 grams of marijuana. By the time the chase concluded, it had drawn a significant amount of attention. Several officers had responded with their lights and sirens activated, and people had left their homes or stopped their vehicles to watch.

While searching one of the suspects, Officer Strickland found a cell phone but did not take it. He could not remember whether he found the cell phone on Wynn or Young. Shortly thereafter, the suspect was seen talking on the cell phone in the back of a patrol car. Agent Jordan removed the suspect from the patrol car and took the cell phone. At the time, Agent Jordan did not examine the phone to see to whom the suspect was speaking, in part because he believed he would need a court order to do so.

At 4:16 p.m., Agent Denmark and Officer Winningham overheard radio traffic describing Officer Strickland and Agent Jordan's pursuit of Wynn and Young. Agent Denmark estimated that the chase lasted less than five minutes. He then observed Lockett and an unidentified man walk out of the residence and to the rear of the Property where the outbuilding was located. Lockett was on the telephone. Agent Denmark could not see whether they entered the outbuilding. When the men walked back towards the front of the Property, the unidentified man was on the telephone. The two men left the Property in the Dodge at 4:39 p.m.

At approximately 4:46 p.m., officers stopped Lockett about five to six miles away from the Property (the "Stop"). Agent Jordan arrived at the Stop approximately 10 minutes later. Agent Jordan testified before the district court that he did not remember talking to Lockett and that he observed nothing during the Stop that would lead him to believe Lockett knew about the surveillance on the Property. No drugs were found in the Dodge.

Thereafter, all of the officers involved in the operation met at the Stop to discuss the next step. While he was waiting for the officers to assemble, Agent Jordan contacted Special Agent Stripling Luke of the Georgia Bureau of Investigation ("Agent Luke") to discuss applying for a search warrant. Once they were assembled, the officers discussed what they had learned from their surveillance. They ultimately decided to secure the residence in light of the following information: (1) they did not know who was still in the residence; (2)they were concerned about preserving evidence and preventing its destruction; (3)they had observed a suspicious amount of traffic coming and going from the Property during the day; (4) they had found Wynn and Young with drugs in their possession shortly after they had left the Property; (5) they believed drugs were still on the Property, since none were recovered at the Stop; and (6) they were concerned that Lockett had been tipped off about the police activity because the Nissan traffic stop had drawn significant attention from the surrounding community, an officer had observed either Wynn or Young talking on a cell phone in the back of a patrol car, and Lockett had left the residence soon after the Nissan traffic stop.

At approximately 5:45 p.m., officers approached Lockett's residence and knocked on the door. Sophie Gordon ("Gordon"), Lockett's girlfriend, answered and the officers explained that they were there to secure the residence until a search warrant was obtained. They then conducted a walk-through of the residence and confirmed that there were no other occupants aside from Gordon and her two children. During the walk-through, the officers observed a cocaine press, a money counting machine, and packaging material that resembled the package of drugs seized from the Nissan, all of which were in plain view. The officers then remained in the living room with Gordon and her two children until a search warrant was obtained.

At approximately 7:05 p.m., Agent Luke presented an application for a search warrant to Judge Dane Perkins (the "Search Warrant"). In the supporting affidavit (the "Affidavit"), Agent Luke testified that: (1) law enforcement officers had observed the Property over the course of the day; (2) this surveillance had culminated in the Nissan traffic stop; (3) during the Nissan traffic stop, Wynn and Young were found to be in possession of cocaine and marijuana; (4) a warrantless entry into the residence to prevent the destruction of evidence had resulted in the discovery of a cocaine press, money counting machine, and suspected cocaine packaging material in plain view; (5) a reliable confidential source had stated that Lockett used the Property to store narcotics; (6) the Property was surrounded by a privacy fence with two wooden gates; and (7) in January 2011, Tuff had told officers that he had purchased approximately one kilogram of cocaine from Lockett. Judge Perkins signed the Search Warrant and the search was executed at 7:25 p.m. Pursuant to this search, officers discovered powder cocaine, crack cocaine, marijuana, and several firearms on the Property.

B. Procedural History

On May 11, 2011, Lockett was indicted by a federal grand jury for (1) possession with intent to distribute 500 grams or more of cocaine, in violation of 21 U.S.C. § 841(a)(1); (2) possession with intent to distribute 28 grams or more of cocaine base, in violation of 21 U.S.C. § 841(a)(1); (3) possession with intent to distribute marijuana, in violation of 21 U.S.C. § 841(a)(1); and (4) possession of a firearm in furtherance of drug trafficking, in violation of 18 U.S.C. § 924(c)(1)(A).

On August 18, 2011, Lockett moved to suppress the evidence discovered during the warrantless entry and all evidence seized during the search of the Property pursuant to the Search Warrant. First, Lockett argued that the evidence obtained during the warrantless entry should be suppressed because, "[w]ithout conceding that the officers . . . had probable cause to enter...

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