U.S. v. Nunez, 04-14995.

• Decision Date: 11 July 2006
• Docket Number: No. 04-14995.,04-14995.
• Citation: 455 F.3d 1223
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Carlos Alberto NUNEZ, Honorato Hernendez, Noelvis Hernandez, Jesus Barrios-Fernandez, Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1223

455 F.3d 1223

UNITED STATES of America, Plaintiff-Appellant, v. Carlos Alberto NUNEZ, Honorato Hernendez, Noelvis Hernandez, Jesus Barrios-Fernandez, Defendants-Appellees.

No. 04-14995.

United States Court of Appeals, Eleventh Circuit.

July 11, 2006.

Peggy Morris Ronca, Jacksonville, FL, Tamra Phipps, U.S. Atty., Tampa, FL, Douglas Molloy, Fort Myers, FL, for U.S.

James T. Skuthan and Rosemary T. Cakmis, Fed. Pub. Defenders, Orlando, FL, Diane Muenze (Court-Appointed), North Naples, FL, Charles M. Harris (Court-Appointed), Martin Der Ovanesian, Fed. Pub. Def., Ft. Myers, FL, Richard D. Lakeman (Court-Appointed), Cape Coral, FL, for Defendants-Appellees.

Appeal from the United States District Court for the Middle District of Florida.

Before EDMONDSON, Chief Judge, and ANDERSON and FAY, Circuit Judges.

PER CURIAM:

Defendants Carlos Nunez, Honorato Hernandez, Noelvis Hernandez, and Jesus Barrios-Fernandez were indicted for conspiracy to manufacture and possession with intent to distribute 100 or more marijuana plants in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(vii). All Defendants moved to suppress evidence stemming from investigatory vehicle stops. The district court granted suppression, determining that the officer who ordered the stops lacked reasonable suspicion. We reverse.¹

Background

In February 2004, Detective Petrovich of the Cape Coral Police Department received information from a federal "High Intensity Drug Trafficking Area" agent in Miami that an associate or relative of Jose Nunez might be operating a marijuana grow house in Cape Coral, Florida, at 1915 N.E. 21st Avenue (the "Residence"). While trying to make contact with residents of the house at this address, Petrovich smelled what he believed to be green growing cannabis. Petrovich shared this information with his partner, Detective Richardson, and showed Richardson a drivers licence photo of Defendant Carlos Nunez. Petrovich did not explain how Carlos was connected to Jose Nunez or how Carlos was developed as a suspect.

Richardson was the sole government witness at the suppression hearing. Richardson testified that several days after Petrovich smelled green growing cannabis at the Residence, Petrovich and Richardson executed a search warrant at a different marijuana grow house in Cape Coral, which Petrovich believed was related to the Residence. Petrovich then asked Richardson to observe the Residence while Petrovich obtained a search warrant for the Residence. Richardson testified that Petrovich instructed him to stop any cars leaving the Residence if the cars were loaded with items from the Residence. Later in the same hearing, Richardson testified that Petrovich had told him "if those vehicles leave there and I [Richardson] believe that there's drugs in those vehicles to have them stopped."

When Richardson began surveillance of the Residence around noon, he saw a Jeep Cherokee and Ford pickup truck parked in the driveway. Both of these vehicles had been at the residence on previous days. At about 1:00 p.m., Richardson observed Carlos Nunez carry a black garbage bag out of the Residence, place the bag in the Ford truck, and return inside. Around 2:00 p.m., Defendant Noelvis Hernandez arrived in a green Mercedes and entered the Residence. Richardson later observed three or four men standing behind the Residence, talking and drinking beer. After ten or fifteen minutes, the men returned inside. Shortly after 3:00 p.m., Noelvis Hernandez carried a cardboard box from the Residence to the Mercedes and got in the driver's seat. About ten minutes later, Defendant Jesus Barrios-Fernandez exited the Residence and got in the Mercedes; Noelvis Hernandez and Barrios-Fernandez then drove away. Richardson radioed Sgt. Urraro to stop the Mercedes.

Because Urraro was in an unmarked car, he directed Detective Scheall to make the stop. Richardson continued to observe the Residence. A few minutes later, Defendants Carlos Nunez and Honorato Hernandez exited the house, loaded a lawn mower into the Ford truck, got into the truck, and drove away. Richardson followed and directed a marked vehicle to stop the truck. Neither the Mercedes nor the truck committed a traffic violation before being stopped. Richardson testified that he received notice before the stops that Petrovich had obtained a search warrant for the Residence.

When Richardson approached the stopped truck, he smelled an overwhelming odor of green cannabis. A search of the truck revealed that the black garbage bag contained a total of 7.4 pounds of marijuana. The cardboard box in the Mercedes contained 3.05 pounds of marijuana. Defendants Honorato and Noelvis Hernandez possessed marijuana on their person and made incriminating statements. Barrios possessed cocaine. The search warrant for the Residence was executed at approximately 3:25 p.m. (a few minutes after the vehicles were searched) and revealed evidence that the house was used for growing marijuana.

The magistrate judge who conducted the suppression hearing concluded that Richardson had insufficient knowledge to support reasonable suspicion and recommended that all evidence stemming from the investigatory vehicle stops be suppressed. The district court adopted the magistrate's recommendation to suppress the evidence but clarified that, in reaching its decision, it had considered the collective knowledge of the officers, including Petrovich. Because we conclude that the facts known by...