U.S. v. Segura-Baltazar

• Decision Date: 12 May 2006
• Docket Number: No. 05-12705.,05-12705.
• Citation: 448 F.3d 1281
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Roberto SEGURA-BALTAZAR, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

448 F.3d 1281

UNITED STATES of America, Plaintiff-Appellee, v. Roberto SEGURA-BALTAZAR, Defendant-Appellant.

No. 05-12705.

United States Court of Appeals, Eleventh Circuit.

May 12, 2006.

COPYRIGHT MATERIAL OMITTED

Bruce S. Harvey, Atlanta, GA, for Defendant-Appellant.

Byung J. Pak, Amy Levin Weil, U.S. Atty., Atlanta, GA, for U.S.

Appeal from the United States District Court for the Northern District of Georgia.

Before DUBINA, MARCUS and PRYOR, Circuit Judges.

MARCUS, Circuit Judge:

Roberto Segura-Baltazar ("Segura-Baltazar") appeals his conviction and ensuing sentence for possession with intent to distribute cocaine and methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(viii), and (b)(1)(C), and for possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A)(i). Segura-Baltazar was convicted on all counts after a bench trial and was sentenced to concurrent 120-month terms for the drug counts and a consecutive 60-month term for the gun charge. On appeal, the defendant argues that the district court erred in failing to suppress certain evidence seized from his home and in finding evidence of at least 500 grams of a mixture or substance containing a detectable amount of methamphetamine, which is the threshold amount necessary for the mandatory minimum 10-year sentence he received. After thorough review, we affirm.

I.

The essential facts are these. In the course of a drug investigation involving a suspect known only as "Alejandro," police identified numerous incoming calls from a phone number registered to Bernabe Perez, an alias of the defendant, at 480 Sheringham Court in Roswell, Georgia. Based on that information, police began surveillance at 480 Sheringham Court. Officer Ronald Gooden of the City of Roswell Police Department determined that it would be helpful to inspect the trash discarded from the house at 480 Sheringham Court, and he contacted the Roswell sanitation department for assistance.

Gooden learned that trash was normally collected from the suspect's home on Wednesdays. Accordingly, he met with Jerry Kimbral, the sanitation truck driver for that route, on Wednesday, January 14, 2004, the normal collection day. Officer Gooden and Kimbral drove to 480 Sheringham Court in an empty garbage truck. They found garbage left for collection in front of the house to the left of a mailbox, in an area that was not enclosed by a fence and that was approximately fifty-five to sixty-five feet from the residence and three to six feet from the curb. The garbage was contained in bags which, in turn, were found inside large garbage cans that were covered with lids. Kimbral emptied the bags into the garbage truck and drove to the Roswell police department, where Officer Gooden retrieved the trash and processed it for evidence. The same procedure was repeated on other normal collection Wednesdays — January 21, 2004, February 4, 18, and 25, 2004, and March 3 and 10, 2004.

On two other occasions, the trash-pull procedures were slightly different. The magistrate judge described the events of January 28, 2004, in these terms:

Gooden was with Kimbral and another sanitation department employee, Luiz Gordado, whom Gooden understood spoke Spanish. On that morning, part of the garbage was located in the garbage cans at the curb. Gooden also observed garbage cans, containing what appeared to be bags of garbage, sitting to the left side of the residence near the garage. Kimbral informed Gooden that it was customary for him to collect the garbage from the location next to the garage when it was left there and not at the curb. He asked if Gooden wanted him to collect that garbage. Gooden instructed Kimbral and Gordado to verify with the resident that the garbage was to be collected. Kimbral and Gordado walked up and knocked on the door of the residence. After conferring with a female at the door, they collected the garbage located next to the garage. That garbage, along with the garbage located next to the curb, was placed in the truck, and Gooden retrieved the garbage at the police department where he examined it for evidence.

(citations and footnotes omitted) (emphasis added). Similarly, on Wednesday February 11, 2004, Gooden and Kimbral retrieved trash from cans that were sitting to the left of the residence near the garage. They followed the same procedures they employed on January 28; the only difference was that there was no trash at the curb on February 11.

The police recovered many inculpatory items from the trash pulls indicating that the residents of 480 Sheringham Court were involved in illegal drug activity. Specifically, they found 42 grams of methamphetamine; 41 grams of marijuana; plastic wrappings that field-tested positive for cocaine; and numerous bags containing residue that field-tested positive for cocaine, marijuana, and methamphetamine. Additionally, the police found papers depicting names with numerical amounts listed next to each name (which they believed were drug ledgers); financial documents indicating the presence of large amounts of currency, including evidence of wire transfers exceeding $10,000; and boxes that had contained wireless surveillance cameras and monitors that would enable a user to see in low light conditions. Officer Gooden testified that, based on his experience, devices such as these are often used by drug dealers as countersurveillance tools. Finally, the police recovered two types of magazines for semiautomatic handguns, an empty box of 12-gauge shotgun shells, and one live round of .45-caliber ammunition.

Based on the evidence obtained through the trash pulls and information provided by a confidential informant, Gooden obtained a federal search warrant for the house located at 480 Sheringham Court. Because of the "exigent circumstances of potential bodily injury to law enforcement officers," the warrant was issued by the magistrate with a "no-knock" provision. The search warrant was executed on March 25, 2004, and the officers entered the residence without knocking or announcing their presence. During the ensuing search police recovered approximately 1200 grams of methamphetamine, 130 grams of cocaine, two semiautomatic handguns, two .22-caliber rifles, one shotgun, $19,631 in U.S. currency, and numerous forms of identification bearing several different names matched with the defendant's picture.

On appeal, Segura-Baltazar argues that the district court fatally erred by (1) refusing to suppress the evidence recovered from the trash pulls, (2) upholding the validity of the search warrant with a "no-knock" provision, and (3) using the total weight of the methamphetamine mixture to calculate the base offense level for sentencing purposes. We consider each argument in turn.

II.

In reviewing an order denying a motion to suppress, we review findings of fact for clear error and the application of the law to those facts de novo. United States v. Muegge, 225 F.3d 1267, 1269 (11th Cir.2000) (per curiam). To prevail on a Fourth Amendment claim, a defendant must show two things:

First, there must be a search and seizure of that individual's person, house, papers or effects, conducted by an agent of the government; stated differently, there must be an invasion of the claimant's reasonable expectation of privacy. Second, the challenged search and seizure must be "unreasonable," as not all searches and seizures are proscribed by the fourth amendment, but only those that are "unreasonable."

United States v. Bachner, 706 F.2d 1121, 1125 (11th Cir.1983) (citations omitted). The party alleging an unconstitutional search must establish both a subjective and an objective expectation of privacy. United States v. Robinson, 62 F.3d 1325, 1328 (11th Cir.1995). "The subjective component requires that a person exhibit an actual expectation of privacy, while the objective component requires that the privacy expectation be one that society is prepared to recognize as reasonable." Id. (internal quotation marks and brackets omitted); see also California v. Greenwood, 486 U.S. 35, 39, 108 S.Ct. 1625, 100 L.Ed.2d 30 (1988) ("The warrantless search and seizure of the garbage bags left at the curb outside the Greenwood house would violate the Fourth Amendment only if respondents manifested a subjective expectation of privacy in their garbage that society accepts as objectively reasonable.").

The Supreme Court has addressed a case raising similar Fourth Amendment issues and with similar facts in Greenwood. There, the police received information that a suspect might be involved with drug transactions, and they enlisted the help of the local trash collector to retrieve "plastic garbage bags that Greenwood had left on the curb in front of his house." Id. at 37, 108 S.Ct. 1625. The evidence found in the defendant's garbage was then used as the basis for obtaining a search warrant for his house, where police found drugs. The Supreme Court held that even if Greenwood had an actual (subjective) expectation of privacy in the contents of the opaque trash bags he left on the street, it was not an expectation society was willing to accept as objectively reasonable:

Here, we conclude that respondents exposed their garbage to the public sufficiently to defeat their claim to Fourth Amendment protection. It is common knowledge that plastic garbage bags left on or at the side of a public street are readily accessible to animals, children, scavengers, snoops, and other members of the public. Moreover, respondents placed their refuse at the curb for the express purpose of conveying it to a third party, the trash collector, who might himself have sorted through respondents' trash or permitted others, such as the police, to do so. Accordingly, having deposited their garbage in an area particularly suited for public inspection and, in a manner of speaking, public consumption, for the express purpose of having strangers take it, respondents could...