United States v. Dennis
| Decision Date | 27 July 2022 |
| Docket Number | 19-50855 |
| Citation | 41 F.4th 732 |
| Parties | UNITED STATES of America, Plaintiff—Appellee, v. Michael Dewayne DENNIS, Defendant—Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Joseph H. Gay, Jr., Richard Louis Durbin, Jr., Assistant U.S. Attorneys, U.S. Attorney's Office, Western District of Texas, San Antonio, TX, for Plaintiff-Appellee.
John F. Carroll, Attorney, San Antonio, TX, Antuan Johnson, Attorney, Houston, TX, for Defendant-Appellant.
Before Higginbotham, Haynes, and Wilson, Circuit Judges.
A jury found Michael Dennis guilty of conspiracy to possess with intent to distribute more than 100 kilograms of marijuana. Dennis now appeals his conviction and sentence.
The Department of Homeland Security began investigating Michael Dennis after a number of accomplices described delivering marijuana to him. On April 30, 2018, DHS agents installed pole cameras directed at the front and back of Dennis's properties in Houston, Texas. Until July 9, 2018, the cameras captured video of incidents similar to the deliveries described by cooperating defendants Ray Trevino and Ausencio Garcia-Herrera. On June 24 and July 9, the video showed boxes being unloaded from pickup trucks into the garage, Dennis going from the garage to his house and returning with a bag, trucks departing, and Dennis moving the boxes from the garage to his house. The video also showed Jonathan Ray Alaniz delivering boxes to the garage twice; Houston police stopped Alaniz after he left the property, seizing approximately $5,000 and thirty pounds of marijuana.
On June 20, 2018, Dennis was indicted for conspiracy to possess with intent to distribute more than 100 kilograms of marijuana in violation of 21 U.S.C. §§ 841(a), (b)(1)(B), and 846. The indictment included notice of a demand of forfeiture. On July 11, 2018, law enforcement executed an arrest warrant for Dennis and a search warrant for his property. During a forced entry into his home, an agent shot Dennis on seeing him with a firearm. After his arrest, agents found an AR-15 rifle and an AK-47-type pistol with a drum magazine, 111.85 kilos of marijuana, nineteen firearms, $197,313 cash, money counters, scales, and ledgers showing prices, weights, and names for hydroponic marijuana sales for $800 to $1,000 per pound on his property.
Dennis's first retained counsel entered an appearance on August 3, 2018. Pretrial motions were due by September 16, 2018. Prior to trial, seven different lawyers represented Dennis; other than motions to substitute counsel or for continuances, counsel filed no pretrial motions. The district court granted nine continuances and set three plea hearings, then denied a motion to suppress as untimely.
Dennis was convicted in a two-day jury trial. After accepting the verdict, the district court held a hearing on forfeiture and sentenced Dennis to 216 months in prison and five years' supervised release. The district court also ordered Dennis to forfeit his weapons, boat, Houston properties, and $7,200,000 as proceeds of the offense. Dennis timely appeals.
Dennis challenges the denial of three pre-trial motions: leave to file untimely motions to suppress, its merits, and a motion for a continuance. We address each in turn.
Trial counsel filed their notice of appearance on August 9, 2019. At an August 13 docket call the district court told counsel that the trial would proceed on September 11. On August 29, 2019, Dennis moved to suppress the video surveillance and evidence from the search of his property. On September 5, 2019, Dennis moved for leave to file the motions to suppress, nearly a year after the due date of September 16, 2018 for pretrial motions. At the pretrial conference, the district court addressed the lateness of the motions, heard counsel's argument, denied the motions, and declined to suppress any evidence. Dennis contends that the district court abused its discretion by denying him leave to file an untimely motion to suppress.
We review the district court's denial of a motion to suppress as untimely for abuse of discretion.1 A motion to suppress that is filed after the deadline for pretrial motions while untimely, may be considered if the party shows good cause.2 Although we have "not ruled on the standard of review of a district court's finding of lack of good cause under Rule 12(c)(3),"3 in Williams this Court stated that a showing of good cause requires a showing of cause and prejudice.4
Dennis has shown neither cause nor prejudice. For the year prior to his trial, Dennis had at least seven different lawyers. Here, counsels' appearance a month before trial cannot justify the late filings.5 Prior counsel could have moved to suppress as they were aware of the surveillance.6 Similarly, the ongoing plea negotiations did not prevent and do not justify prior counsels' failure to file motions to suppress.7 Dennis has not shown that he was prejudiced by the denial of leave to file his untimely motions. The district court was familiar with the facts and legal issues, heard counsels' argument, and gave oral rulings on them before trial.8 The district court did not abuse its discretion in denying Dennis leave to file his untimely motion to suppress.
Dennis contends that the district court erred in denying his motion to suppress. When a pretrial motion is denied as untimely, we review the denial of the motion for plain error.9 To show plain error, Dennis must show a forfeited error that is clear or obvious, which affects his substantial rights.10 With that showing, we have the discretion to correct the error, but only if it seriously affects the fairness, integrity, or public reputation of judicial proceedings.11
Dennis argues that the pole cameras were an unreasonable intrusion into his privacy under the Fourth Amendment. "[O]fficial intrusion into that private sphere generally qualifies as a search and requires a warrant supported by probable cause."12 However, a defendant cannot assert a privacy interest in information which he "voluntarily conveyed to anyone who wanted to look."13 Dennis relies on United States v. Cuevas-Sanchez to argue that the fencing around his property established his privacy interest, but given that one can see through his fence and that the cameras captured what was open to public view from the street, this is not a clear or obvious application of our precedent.14 Dennis argues the prolonged and continuous nature of the surveillance violated his Fourth Amendment rights. Although the Supreme Court addressed a form of continuous surveillance in Carpenter , unlike cell-site location information, there is nothing inherent in the use of security cameras to cast doubt on their validity.15 It is rather whether the surveillance invades protected privacy interests. Surveillance of areas open to view of the public without any invasion of the property itself is not alone a violation.16 All that was surveilled here was from the view from the street, continuously visible to individuals.17 We do not say that the length of time surveilled is irrelevant, but we find no privacy interest was here invaded—information subject to the daily view of strollers and the community. The legal issues here are not so clear that any error would be plain or obvious. Dennis fails to show that the district court clearly erred in not suppressing the video evidence.18
Dennis also sought to suppress the fruit of the search of his property as relying on stale information, urging that the affidavit did not contain the dates of the cooperating defendants' deliveries of marijuana.
A search warrant may be invalidated upon a showing that the supporting affidavit includes assertions that were deliberate falsehoods or made with reckless disregard for the truth and the remaining portion of the affidavit is insufficient to support a finding of probable cause.19 It must be shown that the affiant made specific statements that were deliberately false or made in reckless disregard of the truth.20 It is the defendant's burden to "make[ ] a strong preliminary showing that the affiant excluded critical information from the affidavit with the intent to mislead the magistrate."21 Dennis has offered no proof that the affiant deliberately or recklessly falsified statements about the information from cooperating defendants to mislead the court. Although the dates were omitted, the defendants collectively described nineteen deliveries of hundreds of pounds of marijuana taking place over months. And the more recent video evidence showed that Dennis was engaging in the same conduct described, which freshened the information.22 Dennis cannot show that the district court plainly erred when it declined to suppress evidence from the search of his property.
Dennis argues that the district court abused its discretion in denying his final motion for a continuance. We review the denial of a continuance for abuse of discretion.23 We look to the totality of the circumstances, including:
(a) the amount of time available; (b) the defendant's role in shortening the time needed; (c) the likelihood of prejudice from denial; (d) the availability of discovery from the prosecution; (e) the complexity of the case; (f) the adequacy of the defense actually provided at trial; and (g) the experience of the attorney with the accused.24
From August 2018 to September 2019, the district court granted nine continuances, providing Dennis adequate time to prepare for trial.25 The shortened amount of time trial counsel had to prepare was of Dennis's making.26 The district court set the September trial date on June 26, 2019. Dennis retained new counsel in August and counsel undertook the representation knowing the trial date. The evidence was straight-forward and discovery was timely.27 Dennis concedes that "[t]rial [c]ounsel performed well at trial," and cites no deficiencies in their representation. None of the grounds on appeal address errors attributable to counsel...
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United States v. Flores
...... squarely in line with a host of out-of-district,. post- Carpenter cases that have found that the. Government does not undertake a Fourth Amendment search. through the use of a pole camera. See, e.g., United. States v. Dennis , 41 F.4th 732, 740-41 (5th Cir. 2022). (holding, on plain error review, that pole cameras directed. at the front and back of the defendant's properties did. not amount to a search because “[s]urveillance of areas. open to view of the public without any invasion of the. ......