U.S. v. Pineiro, No. 03-14723.

• Decision Date: 15 November 2004
• Docket Number: No. 03-14723.
• Citation: 389 F.3d 1359
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jahziel PINEIRO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

389 F.3d 1359

UNITED STATES of America, Plaintiff-Appellee, v. Jahziel PINEIRO, Defendant-Appellant.

No. 03-14723.

United States Court of Appeals, Eleventh Circuit.

November 15, 2004.

As Amended January 7, 2005.

COPYRIGHT MATERIAL OMITTED

Beatriz Galbe Bronis, Asst. Fed. Pub. Def., Kathleen M. Williams, Fed. Pub Def., Miami, FL, for Defendant-Appellant.

Reed Zars, Laramie, WY, Anne R. Schultz, Jeanne Marie Mullenhoff, Asst. U.S. Attys., Lauren E. Fleischer, Miami, FL, for Plaintiff-Appellee.

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

Before HULL and MARCUS, Circuit Judges, and HANCOCK^*, District Judge.

MARCUS, Circuit Judge:

Jahziel Pineiro appeals his convictions, arising from a jury verdict, for one count of conspiracy to manufacture marijuana plants, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B)(vii), 846; one count of maintaining a place for the purpose of manufacturing marijuana, in violation of 21 U.S.C. § 856 and 18 U.S.C. § 2; and two counts of possession of a firearm and ammunition by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2). Pineiro argues that the district court erred by denying his pre-trial motion to suppress and that the evidence was insufficient to support his drug-related convictions. We affirm.

I.

The relevant facts and procedural history are these. On April 25, 2003, by superseding indictment, Pineiro was charged with: beginning in or about February 2002 and continuing through on or about December 13, 2002, conspiring to manufacture 100 or more marijuana plants, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B)(vii), 846 (Count I); manufacturing 100 or more marijuana plants, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B)(vii) (Count II); maintaining a place for the purpose of manufacturing marijuana, in violation of 21 U.S.C. § 856(a)(1) and 18 U.S.C. § 2 (Count III); possession of a firearm in furtherance of a drug trafficking offense, in violation of 18 U.S.C. § 924(c)(1)(A)(i) (Count IV); possession of a firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2) (Count V); and possession of ammunition by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2) (Count VI). The indictment also included a forfeiture count.

Prior to trial, Pineiro moved to suppress evidence seized and statements made in connection with a warrantless search of his property, arguing that: the police lacked probable cause to search his home without a warrant; any consent he gave was involuntary; the search exceeded the scope of such consent; he was not given Miranda¹ warnings; and his statements were coerced.

At an evidentiary hearing on Pineiro's motion to suppress, the magistrate judge considered the following testimony. FBI Special Agent Martin Pettit stated that, in October 2002, he received information about a marijuana-growing operation at multiple locations in Miami, Florida. His subsequent investigation led to surveillance of a house located at 16001 S.W. 98th Avenue ("16001 House"). During surveillance at this location, Agent Pettit observed Pineiro's black Chevy Tahoe sports utility vehicle ("SUV"), which had white lettering on the side, parked outside. He subsequently obtained a warrant to search the 16001 House. During his search on December 12, 2002, Pettit discovered a fully functional marijuana grow site on the premises. Also at the 16001 House, the agents encountered Lazaro Vazquez, who denied knowing Pineiro² and who was subsequently arrested. In the course of his investigation of the 16001 House, Pettit learned that two other homes were associated with this location. Based on this information, four special agents went to the next house associated with the 16001 House, this one at 25768 S.W. 123rd Court ("25768 House"), where they encountered Pineiro.

Prior to obtaining Pineiro's consent to search the 25768 House, the agents spoke with Pineiro's parents and brother, all of whom lived directly across the street from the 25768 House. After Special Agent Pettit told the family he wished to speak with Pineiro, Pineiro's brother phoned him and, about 45 minutes later, Pineiro arrived in a van. The agents approached the van and identified themselves. They were armed, but their weapons were concealed. They told Pineiro they wanted to look around the 25768 House. Pineiro agreed, but stated he wanted to secure his dog before the agents entered the house.

After Pineiro secured the dog in the garage, he walked with the agents through the house. Special Agent Pettit testified that Pineiro never indicated that he did not want the agents to enter his house, nor did he limit the scope of their search. Pineiro refused to sign a consent-to-search form, but verbally consented to the search. According to Agent Pettit, Pineiro moved the dog from the garage to permit agents to search the garage. During the search of the premises, Special Agent Pettit observed a partially dismantled grow room in one of the bedrooms, a marijuana plant in the backyard, and marijuana leaves on the floor throughout the house. The other agents found drug paraphernalia in the laundry room and more marijuana leaves and clippings concealed in garbage bags in the garage. In the house, specifically, the agents discovered construction debris, buckets, potting soil, clipping scissors, leaf fragments of suspected marijuana, a ballast or transformer used to power grow lights, a scale and tray used for weighing drugs, and a three-sided box or "hood" used for growing marijuana. In the kitchen, agents found a picture of Pineiro standing alongside trays of growing marijuana plants and holding a "bong"—a device used to smoke marijuana. Finally, in the garage, the agents also found PVC pipes commonly used as irrigation tubes in hydroponic marijuana grow operations.

Agent Pettit read Pineiro his Miranda rights and questioned him. Pineiro signed a Miranda-rights waiver form and informed Pettit he had moved into the house on November 16, 2002, and admitted that the plants and drugs in the house belonged to him. When Pettit informed Pineiro of the search at the 16001 House on the prior day, Pineiro explained that the 16001 House belonged to his cousin (Vazquez). Pineiro, who described himself to Agent Pettit as a "pot-head," initially denied having any weapons and claimed the marijuana was not his, but that it had been in the house when he moved in. He later recanted and told Pettit he had constructed the apparatus in the dismantled grow room to cultivate marijuana. He also later directed agents to a gun case. The agents then asked Pineiro for permission to search his van and Pineiro consented, after which the agents found more marijuana leaves and planting materials in the van.

In support of his motion to suppress, Pineiro testified he had been living at the 25768 House for only two weeks when he was arrested. He stated that agents asked to "look around," but did not indicate that they wished to search his home. According to Pineiro, he thought the agents would only walk through his house, but would not open things and look everywhere. Pineiro also claimed he was not advised of his Miranda rights until after he was questioned and arrested.

The magistrate judge recommended denying the motion to suppress. Based on the testimony at the evidentiary hearing, the magistrate judge concluded that Pineiro gave consent to search and that his consent was voluntary. The magistrate judge observed that there was no evidence the agents used any force or threats to secure the consent. The magistrate judge further found that law enforcement officers advised Pineiro of his rights, but were not required to inform him he had the right to refuse consent. Over Pineiro's objections, the district court adopted the recommendation and denied the motion to suppress.

At trial, Special Agent Pettit presented testimony that was, in all material respects, consistent with the testimony he provided at the suppression hearing. He described for the jury the special agents' recovery of the following evidence at the 16001 House, the fully functional grow house where Pineiro's cousin and co-conspirator, Vazquez, was arrested: 131 marijuana plants in growing trays; fluorescent light fixtures (commonly used in marijuana grow houses for its ability to provide a broad spectrum of light but a low level of heat); and multiple strips of rockwool (a soil substitute commonly used in hydroponic marijuana grow houses).

The next day, when the agents conducted a search of the 25768 House, they discovered the following evidence indicating, in Pettit's opinion, that the house was a dismantled grow house: a high-pressure cylinder and safety cap (used to store carbon dioxide during the grow process); buckets and potting soil; clipping scissors; PVC pipes (commonly employed as irrigation tubing for hydroponic marijuana cultivation); leaf fragments of marijuana; a ballast or transformer (used to power "grow lights"); a scale and tray (for weighing drugs); a foil-backed insulation board; and strips of rockwool. Pettit also discovered a three-sided box, which was a home-made "hood," used to grow marijuana. In one of the bedrooms, Pettit testified that construction debris littered the floor and that the door had been removed from the hinges. An air-conditioning unit was sitting on the floor and a container of potting soil, and soil itself, were observed on the floor of this bedroom. After Pineiro also consented to a search of his van parked outside, agents found similar materials inside.

Pettit then described the third house searched, this one on December 13, 2002 right after completion of the search at the 25768 House. The third house was located at 20535 Marlin Road ("Marlin Road House") and owned by Vazquez, who had been arrested in connection with the search of the 16001 House on the previous day. At this house, the agents found another active grow site and recovered 194...