United States v. Albury, 12–15183.

• Citation: 782 F.3d 1285
• Decision Date: 09 April 2015
• Docket Number: No. 12–15183.,12–15183.
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Michael Renard ALBURY, Jr., Defendant–Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

782 F.3d 1285

UNITED STATES of America, Plaintiff–Appellee

v.Michael Renard ALBURY, Jr., Defendant–Appellant.

No. 12–15183.

United States Court of Appeals, Eleventh Circuit.

April 9, 2015.

Todd B. Grandy, Peter J. Sholl, Anita M. Cream, Matthew Jackson, Robert E. O'Neill, U.S. Attorney's Office, Tampa, FL, for Plaintiff–Appellee.

Richard Donald Lakeman, Law Firm of Richard D. Lakeman, Cape Coral, FL, for Defendant–Appellant.

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

Before MARCUS and JILL PRYOR, Circuit Judges, and HINKLE,^* District Judge.

Opinion

MARCUS, Circuit Judge:

After a jury trial, Michael Albury, Jr. appeals from his convictions for various narcotics offenses, including possession with intent to distribute cocaine, cocaine base, and N–Benzylpiperazine (“BZP”—a schedule I controlled substance), along with various firearm offenses. Albury raises three claims on appeal: that law enforcement officers unlawfully gathered and used evidence seized in violation of the Fourth Amendment when applying for a search warrant, rendering the warrant invalid; that the district court erred in denying his motion for judgment of acquittal because insufficient evidence supported his convictions and the jury rendered inconsistent verdicts; and, finally, that the district court erred in denying his motion for a new trial based on insufficient evidence, inconsistent verdicts, and an improper flight instruction. After thorough review, we affirm.

I.

The essential facts are these. Albury checked into a hotel in Bradenton, Florida, on July 20, 2011. He arranged to stay at the hotel until July 31, making all payments with his own credit card and in cash. On July 26, the plumbing in Albury's room, room 342, began to leak. Albury was forced to transfer just down the hall to room 332, so that hotel employees could immediately fix the leak.

After Albury vacated room 342, Jackie Blackwell, the hotel maintenance supervisor, entered the room to make repairs. While picking up food and trash left behind by Albury, Blackwell stumbled on a loaded Glock pistol, which he placed in a safe at the hotel's front desk. Blackwell returned to the room, wiped up a “white powdery substance” that was on the table, picked up some empty baggies and food debris, and brought that trash to the dumpster. On his way back to room 342, Blackwell spotted Albury going into room 332. Blackwell told Albury the Glock was in the safe at the front desk. Albury said the gun was his girlfriend's, but he immediately went to the front desk to reclaim it. When Blackwell returned to room 342, he discovered more baggies with white residue, rubber bands, and a small line of white powder on the credenza—none of which were removed from the room. Blackwell reported his findings to the hotel manager, who decided to alert the police.

Officer Waker, from the Bradenton Police Department, and another officer initially responded to the call. When Blackwell escorted the officers to room 342, he pointed out Albury's new room (room 332), the door to which was closed and latched at that time. The officers entered room 342 and observed the white powder residue and baggies still on the credenza. They then asked to go to room 332. When they reached room 332, the dead bolt had been thrown so that the self-closing door was resting against the jamb without latching, but obstructing any view into the room. Officer Waker knocked and announced his presence, causing the door to swing open. He entered the room and observed a mound of white powder approximately six inches long and three inches high. When Officer Waker exited, he instructed the other officer to secure the room. Additional officers arrived at the hotel and discovered two cookies of crack in the nightstand in room 342. At the request of the police, Blackwell retrieved the garbage he previously removed from room 342. When Blackwell returned with the garbage bag, he saw police “traffic going in and out of” room 332.

A short time later, Detective Johnson arrived at the hotel. He was escorted to room 342, where he field tested the powder residue, the baggies, and the cookies of crack that were found there. All tested positive for cocaine. When he walked to room 332, he claimed the door was open, allowing him to see in plain view the mound of white powder inside the room.

Detective Johnson submitted an affidavit in support of a search warrant for room 332, detailing the following information: the evidence that the police found in room 342, including the cocaine residue, crack cookies, and baggies with cocaine residue; the Glock firearm that Blackwell discovered and that Albury personally retrieved; Albury's prior cocaine trafficking conviction, which made it unlawful for him to possess a firearm; that room 342 had been registered exclusively to Albury since July 20, and that he was relocated to room 332 that day because of a leak in room 342; that hotel employees identified Albury as the individual who paid for both rooms; and that Albury recently paid to extend his stay in room 332.

Detective Johnson also included several problematic statements in his affidavit. He said that when Officer Waker initially approached room 332, the door “was wide open.” Detective Johnson also said that when he reached room 332, the “door was still open from the last occupants that left it,” allowing him to “see in plain view from the hallway, a white substance” which he believed to be cocaine powder. Finally, he failed to state that Blackwell previously removed some of the plastic baggies with cocaine residue from room 342, only to retrieve them from the dumpster at the request of the police.

A search warrant for room 332 was issued based on Detective Johnson's affidavit. The search of that room revealed in excess of 600 grams of cocaine substance; plastic baggies and rubber bands; a scale with cocaine residue; a purse containing hundreds of N–Benzylpiperazine pills and a loaded Phoenix Arms .25 pistol; nearly $15,000 in cash; a prescription pill bottle bearing Albury's name; Albury's identification; his credit card; and various men's and women's clothing and personal effects.

Soon thereafter Albury was indicted in the United States District Court for the Middle District of Florida for one count of possession with intent to distribute cocaine base, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C), and 18 U.S.C. § 2 (Count One); one count of possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C), and 18 U.S.C. § 2 (Count Two); one count of possession with intent to distribute 500 grams or more of cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B)(ii), 851, and 18 U.S.C. § 2 (Count Five); one count of possession with intent to distribute N–Benzylpiperazine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C), and 18 U.S.C. § 2 (Count Six); two counts of possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. §§ 924(c)(1)(A) and 2 (Counts Three and Seven); and two counts of being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1), 924(e), and 2 (Counts Four and Eight).

Prior to trial, Albury moved to suppress the evidence discovered in room 332. He argued that the police unlawfully entered room 332, and used their observation of cocaine inside that room as the basis for obtaining a warrant. The government responded that the warrant was valid because, even without the observations made from inside room 332, Detective Johnson's affidavit still established probable cause that contraband would be found there. At a hearing on Albury's motion, Detective Johnson was asked if he would “have applied for the warrant had [he] not seen the cocaine in 332.” He answered, “[n]o.” The government tried to explore Detective Johnson's answer on cross examination, but the magistrate judge cut that line of questioning short.

After the hearing, the magistrate judge issued a Report and Recommendation (“R & R”). See United States v. Albury, No. 8:11–CR–410–T–23TBM, 2012 WL 1339481 (M.D.Fla. Jan. 19, 2012), report and recommendation rejected, No. 8:11–CR–410–T–23TBM, 2012 WL 1326921 (M.D.Fla. Apr. 17, 2012). In the R & R, the magistrate judge found that Officer Waker's initial entry into room 332 was unlawful, since the officers had not “observed, as set forth in the warrant application, that ‘the [door] to 332 was wide open’ ” when they arrived. Thus, “[a]ny claim of plain view exposure to the suspected cocaine in room 332” by Detective Johnson was “tainted by [Officer Waker's] preceding illegal conduct.” He also found the “independent source” rule inapplicable, because without the unlawful observation of cocaine inside room 332, Detective Johnson's affidavit made a showing of “arguable suspicion, but not probable cause,” that contraband would be located within the room.

The district court adopted the findings of fact contained in the R & R. It disagreed, however, with the magistrate judge's legal conclusion that the independent source rule did not apply. See United States v. Albury, No. 8:11–CR–410–T–23TBM, 2012 WL 1326921 (M.D.Fla. Apr. 17, 2012). It found that even without the information unlawfully observed in room 332, the remaining, untainted evidence in Detective Johnson's affidavit supported a finding of probable cause. Thus, the district court denied Albury's motion to suppress, and the case proceeded to trial.

Albury was convicted of all counts except Count Four, possession of the Glock firearm by a convicted felon. He moved for a new trial based on insufficient evidence, inconsistent verdicts, and improper jury instructions. He also renewed an earlier motion for judgment of acquittal on similar grounds. The district court denied all of Albury's motions. See United States v. Albury, No. 8:11–CR–410–T–23TBM, 2012 WL 2912517 (M.D.Fla. July 16, 2012). Albury timely appealed.

A panel of this Court previously found that although the district court denied...