U.S. v. Tamari

• Decision Date: 06 July 2006
• Docket Number: No. 05-10618.,05-10618.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jesus TAMARI, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

454 F.3d 1259

UNITED STATES of America, Plaintiff-Appellee, v. Jesus TAMARI, Defendant-Appellant.

No. 05-10618.

United States Court of Appeals, Eleventh Circuit.

July 6, 2006.

John M. Weinberg (Court-Appointed), John M. Weinberg, P.A., Miami, FL, for Tamari.

Jonathan D. Colan, Anne R. Schultz and Harriett R. Galvin, Asst. U.S. Attys., Miami, FL, for U.S.

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

Before BLACK, BARKETT and COX, Circuit Judges.

BLACK, Circuit Judge:

Appellant Jesus Tamari appeals his conviction for conspiracy to possess with the intent to distribute a controlled substance in violation of 21 U.S.C. §§ 841(a)(1) and 846. Tamari argues the district court erred in denying his motion to suppress evidence and statements obtained during two unlawful searches of his vehicle. For the reasons set forth more fully below, we affirm.

I. BACKGROUND

In early 2003, federal, state, and local law enforcement agents began conducting an investigation into a large-scale conspiracy in south Florida to harvest and distribute controlled substances. The agents had reason to believe the organization was run by an individual named Humberto Febles, who owned a yellow Hummer that he used in the conspiracy. During the course of the investigation, a confidential informant alerted authorities to several properties the organization used to cultivate and house various controlled substances. Pursuant to this information, agents obtained a warrant to search a parcel of rural, isolated property located at 17540 Southwest 254th Street in Miami, Florida. The warrant authorized agents to search the property, including "[v]ehicles or vessels or trailers registered to or owned by the occupants of the place to be searched, or under the care, custody or control or on the property on which the place to be searched is situated."

Between 7:30 a.m. and 8:00 a.m. on September 1, 2004, agents arrived at 17540 Southwest 254th Street, whereupon they served the search warrant and proceeded to execute the warrant by conducting the search. Upon entering the residence on the property, they arrested three individuals: Roberto Cano, Marta Gonzalez, and Rudolfo Aguilera. The agents then searched the residence and seized cocaine, drug paraphernalia, cash, and a number of loaded weapons. Soon thereafter, agents searched a Freightliner truck parked on the property, finding slightly less than 13 kilograms of cocaine and stacks of cash totaling $536,421.

Approximately 30 minutes to one hour after combing the Freightliner truck, while the search was still in progress, Tamari drove onto the property in a yellow Hummer. He approached Special Agent Debra Crane, who was standing in the driveway, and began to speak in Spanish. Agent Crane, not fluent in Spanish, called for assistance from Detective Jorge Rodriguez, who asked for Tamari's name, identification, and his purpose for being on the property. Exiting the Hummer, Tamari responded with a name, but was unable to produce any identification or vehicle registration. Tamari then told agents the vehicle belonged to a family member, but later claimed it belonged to an individual named Humberto, who loaned him the vehicle in exchange for Tamari's Honda Accord. He also said he was on the premises to see a man about some animals, but it appeared there were no animals on the property.

Agent Crane then searched the car, looking for its registration or any indicia of ownership. After searching the glove compartment, center console, and pockets in the driver and passenger doors, Agent Crane briefly scanned the rear cargo area. She neither found nor seized any evidence during this search. Shortly thereafter agents ran a narcotics detection dog, Ho Jo, around the perimeter of the Hummer. Ho Jo gave a positive alert to a wheel well compartment in the rear cargo area, in which agents found around $45,000 in cash. Agents then searched the Hummer again, finding and seizing documents concerning Roberto Cano, photographs of Roberto Cano, a key to the Freightliner truck, calling cards, and gold jewelry.

Tamari was subsequently arrested and charged with (1) conspiring to possess with the intent to distribute a controlled substance in violation of 21 U.S.C. §§ 841(a)(1) and 846; and (2) possessing with the intent to distribute a controlled substance in violation of 21 U.S.C. § 841(a)(1).

Before trial, Tamari moved the district court to suppress physical evidence obtained during the searches of the Hummer. Tamari also moved to suppress statements he made during those searches, arguing they were the product of unlawful searches and thus inadmissible "fruit of the poisonous tree" under Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). The district court held a preliminary hearing and denied the motion, concluding the vehicle was subject to search under the warrant's authorization to search "[v]ehicles . . . on the property on which the place to be searched is situated." Alternatively, the district court found that even if the search warrant did not justify the searches, sufficient probable cause existed to permit warrantless searches of the Hummer.

The jury convicted Tamari of conspiring to possess with the intent to distribute a controlled substance. He was acquitted on the remaining count. Tamari now appeals his conviction, arguing the district court erred by denying his motion to suppress evidence and statements obtained during the September 1, 2004, vehicle searches.¹

II. STANDARD OF REVIEW

"We apply a mixed standard of review to the denial of a defendant's motion to suppress, reviewing the district court's findings of fact for clear error and its application of law to those facts de novo." United States v. Lyons, 403 F.3d 1248, 1250 (11th Cir.2005).

III. DISCUSSION

The Fourth Amendment protects the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV. This fundamental right is generally preserved by a requirement that searches be conducted pursuant to a warrant issued by an independent judicial officer upon a showing of probable cause. See Maryland v. Dyson, 527 U.S. 465, 466, 119 S.Ct. 2013, 2014, 144 L.Ed.2d 442 (1999). There are, of course, exceptions to the general rule that a warrant must be secured before a search is undertaken, one of which is the automobile exception. Under the automobile exception, agents may conduct a warrantless search of a vehicle if (1) the vehicle is readily mobile (i.e., operational); and (2) agents have probable cause to believe the vehicle contains contraband or evidence of a crime. See Dyson, 527 U.S. at 466-67, 119 S.Ct. at 2014; United States v. Watts, 329 F.3d 1282, 1285 (11th Cir.2003).

Accordingly, a vehicle search will not violate the Fourth Amendment if it is authorized by the terms of a valid search warrant or, where agents conduct a warrantless search, if the vehicle is operational and "under the totality of the circumstances, `there is a fair probability that contraband or evidence of a crime will be found'" in the vehicle. United States v. Goddard, 312 F.3d 1360, 1363 (11th Cir. 2002) (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983)).

On appeal, Tamari first argues the vehicle searches in this case were unlawful because they fell outside the scope of the search warrant. Relying primarily on United States v. Gentry, 839 F.2d 1065 (5th Cir.1988), Tamari asserts the search warrant did not authorize agents to search vehicles arriving on the subject property during the course of the agents' search. Second, Tamari argues the vehicle searches were unconstitutional under Ybarra v. Illinois, 444 U.S. 85, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979), because the Hummer's mere presence on the subject property did not give agents sufficient probable cause to search the vehicle without a warrant. Third, Tamari argues the search warrant did not encompass the vehicle searches because under United States v. Patterson, 278 F.3d 315, 318-19 (4th Cir.2002), the warrant's authorization to search vehicles on the property extended only to those vehicles "owned by or under the dominion and control of the premises' owner." Because he did not own the subject property, Tamari asserts the search warrant did not authorize the search of his vehicle. Tamari concludes, therefore, the vehicle searches in this case were unlawful, and the district court should have suppressed the evidence seized and statements made during those searches.²

A. Search Warrant

Tamari does not dispute that the Hummer could have been searched under the terms of the search warrant had it been located on the subject property at the time the warrant was served. See United States v. Cole, 628 F.2d 897, 899-900 (5th Cir.1980). Rather, relying primarily on United States v. Gentry, 839 F.2d 1065 (5th Cir.1988), Tamari asserts the search warrant did not authorize agents to search vehicles arriving on the subject property later, after the search had already begun. We lack published authority in this Circuit as to whether a valid search warrant³ authorizing the search of vehicles on the subject property encompasses the search of a vehicle arriving on that property during the course of the search.⁴ We are not, however, without guidance on this issue. In United States v. Alva, 885 F.2d 250 (5th Cir.1989), the Fifth Circuit passed on the precise question presented here.

In Alva, a search warrant authorized officers to search the house, structures, and "any and all motor vehicles found parked" on the subject property. Id. at 251. While the search was being conducted, Alva drove onto the property in a pickup truck. Id. Officers searched the vehicle, seizing the semiautomatic pistol that would eventually form the basis for Alva's felon-in-possession conviction under 18 U.S.C. § 922(g)(1). Id. The district court denied Alva's motion to...