United States v. Ross, No. 18-11679

• Decision Date: 24 June 2020
• Docket Number: No. 18-11679
• Citation: 963 F.3d 1056
• Parties: UNITED STATES of America, Plaintiff - Appellee, v. Wali Ebbin Rashee ROSS, a.k.a. Wali Ibn Ross, a.k.a. Wal Ebbin Rashee Ross, Defendant - Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

963 F.3d 1056

UNITED STATES of America, Plaintiff - Appellee,

v.Wali Ebbin Rashee ROSS, a.k.a. Wali Ibn Ross, a.k.a. Wal Ebbin Rashee Ross, Defendant - Appellant.

No. 18-11679

United States Court of Appeals, Eleventh Circuit.

June 24, 2020

Alicia Forbes, Robert G. Davies, U.S. Attorney Service - Northern District of Florida, U.S. Attorney's Office, PENSACOLA, FL, Jordane E. Learn, Karen E. Rhew-Miller, U.S. Attorney's Office, TALLAHASSEE, FL, for Plaintiff - Appellee.

Thomas S. Keith, Federal Public Defender's Office, PENSACOLA, FL, Richard Michael Summa, Randolph Patterson Murrell, Federal Public Defender's Office, TALLAHASSEE, FL, for Defendant - Appellant.

Ashwin Pradyumna Phatak, Constitutional Accountability Center, WASHINGTON, DC, for Amicus Curiae.

Before WILLIAM PRYOR, Chief Judge, ED CARNES, WILSON, MARTIN, JORDAN, ROSENBAUM, JILL PRYOR, NEWSOM, BRANCH, GRANT, LUCK, and LAGOA, Circuit Judges.

NEWSOM, Circuit Judge, delivered the opinion of the Court, in which WILLIAM PRYOR, Chief Judge, and ED CARNES, WILSON, MARTIN, JORDAN, ROSENBAUM, JILL PRYOR, BRANCH, GRANT, LUCK, and LAGOA, Circuit Judges, joined.

ROSENBAUM, Circuit Judge, filed a concurring opinion.

NEWSOM, Circuit Judge:

Sometimes courts make simple mistakes. And simple mistakes call for simple fixes. Just so here. In United States v. Sparks , we held that a suspect who "abandons" his privacy or possessory interest in the object of a search or seizure suffers no "injury"—and thus has no standing—in the Article III sense, and, accordingly, that an argument asserting the suspect's abandonment is jurisdictional, nonwaivable, and subject to sua sponte consideration. 806 F.3d 1323, 1341 n.15 (11th Cir. 2015). Sitting en banc, we now overrule Sparks and hold, to the contrary, that a suspect's alleged abandonment implicates only the merits of his Fourth Amendment challenge—not his Article III standing—and, accordingly, that if the government fails to argue abandonment, it waives the issue.

I

This case arises out of the denial of a defendant's motion to suppress evidence found in two separate, warrantless searches of his motel room—the first turned up a gun; the second, drugs and associated paraphernalia. On appeal, the defendant, Wali Ross, challenged the constitutionality of both searches. In response, the government not only defended the searches on the merits, but also asserted, for the first time, that Ross had "abandoned" his room and any privacy interest therein and that he therefore lacked standing to assert his Fourth Amendment rights. We must decide whether the government waived its abandonment argument by failing to raise it in the district court.

A

Early on the morning of July 21, 2017, a joint state-federal task force gathered outside a Pensacola motel to arrest Wali Ross on three outstanding felony warrants—for trafficking hydrocodone, failure to appear on a battery charge, and failure to appear on a controlled-substances charge. Although the officers had information that Ross was staying at the motel, he wasn't a registered guest, so they set up surveillance around the building and waited for him to make an appearance. The officers knew that Ross was a fugitive who had a history of violence and drug crimes.

Sometime between 9:00 and 9:30 a.m., Special Agent Jeremy England saw Ross leave Room 113, head for a truck, return to his room briefly, and then approach the truck again. When Ross spotted the officers, he made a break for it, scaling a chain-link fence and running toward the adjacent Interstate 10. The officers went after Ross, but when they reached the opposite side of the interstate to intercept him, he wasn't there. In the meantime, it dawned on Agent England that none of the officers had stayed behind at the motel, and he feared that Ross might have doubled back to the room unnoticed. So, about ten minutes after the chase began, Agent England and Detective William Wheeler returned to the motel to see if Ross had snuck back into his room. The door to Room 113 was closed, and Ross's truck remained in the parking lot.

Detective Wheeler obtained a room key and a copy of the room's registration from the front desk—the latter showed that Room 113 was rented for one night to a woman named Donicia Wilson. (Although the name meant nothing to the officers at the time, they later learned that Ross was "a friend of a friend" of Wilson's husband; she had rented the room after she and her husband refused Ross's request to spend the night at their home because they had children and didn't know him very well.) Using the key, Agent England and Detective Wheeler entered Room 113 to execute the warrants and arrest Ross; they entered without knocking, as they believed that someone inside—Ross, a third party, or both—might pose a threat to them. Agent England testified that because Ross had a history of violence it was "just protocol" to operate on the premise that there would "possibly [be] someone [in the motel room] to hurt" them—in light of that risk, he said, the officers "made a tactical entry into the room." Once inside, they conducted a quick protective sweep, and on their way out Agent England saw in plain view a grocery bag in which the outline of a firearm was clearly visible. Agent England seized the gun, touched nothing else, and left.

Deputy U.S. Marshal Nicole Dugan notified ATF about the gun while Agent England and Detective Wheeler continued to surveil the motel. ATF Special Agent Kimberly Suhi arrived at the motel around 10:45 a.m. to retrieve the firearm. The motel's manager, Karen Nelson, told Agent Suhi that she could search Room 113 after the motel's standard 11:00 a.m. checkout time; up until that point, Suhi testified, Nelson "st[ood] in the doorway of the room" to "mak[e] sure no one was entering."¹ Nelson explained that if it looked like a guest was still using his room at checkout time, she might place a courtesy call to ask if he wanted to stay longer; otherwise, she said, motel management assumed that every guest had departed by 11:00 a.m., at which point housekeepers would enter the room to clean it. Nelson also explained that it was the motel's policy to inventory and store any items that guests left in their rooms and to notify law enforcement if they found any weapons or contraband.

At 11:00 a.m., Agent Suhi again sought and received Nelson's permission to search Room 113. When ATF agents entered the room, they found a cell phone and a Crown Royal bag filled with packets of different controlled substances—including around 12 grams of a heroin-laced mixture—cigars, and a digital scale.

B

Ross was charged with one count of being a felon in possession of a firearm and ammunition, one count of knowingly possessing heroin with intent to distribute, one count of firearms-related forfeiture, and one count of forfeiture related to the property and proceeds obtained by a controlled-substances violation. He moved to suppress the evidence found in both searches of Room 113. In his motion, Ross argued that the officers' initial entry—and the ensuing protective sweep, which turned up the gun—violated the Fourth Amendment "because there were no grounds for them to believe that a dangerous individual (or anyone) was inside the room." He asserted that "it would have been unrealistic for the officers to believe that [he] had returned to the room and was inside at that time (after fleeing from them)." Accordingly, he said, the officers didn't have the requisite reasonable belief either to enter the room or to conduct the sweep. Ross also argued that the second search—which was conducted with Nelson's permission just after 11:00 a.m., and in which the drugs were discovered—violated the Fourth Amendment "regardless of the alleged consent of the hotel management because it would not have occurred absent the illegal first search." According to Ross, "[t]he illegal seizure of the firearm ... directly [led] to the agents' desire to conduct the second search and their discussion with management to try to get its consent."

With respect to the initial entry and protective sweep, the government responded (1) that because the officers couldn't find Ross near the interstate, they had reason to believe that he had returned to his motel room; (2) that Ross's multiple drug- and violence-related felony arrest warrants led the officers to conclude that he could be armed and dangerous; and (3) in addition, that exigent circumstances justified the entry, as "there was a definite likelihood that further delay could cause the escape of the defendant" and "jeopardize the safety of the officers and the public." With respect to the second search, the government argued that Ross had no reasonable expectation of privacy in Room 113 after the 11:00 a.m. checkout time and that, in any event, the search was valid because the officers reasonably believed that Nelson had the authority to consent to the search. The government further contended that even if the second search was tainted, motel staff would inevitably have entered the room after checkout time and alerted police when they found the gun in plain view.

The district court denied Ross's motion to suppress. With respect to the initial entry and sweep, the court found that "[t]he arrest warrant granted officers a limited ability to enter to effectuate the arrest on [their] reasonable belief that Ross was in the room." Moreover, the court observed, the fact that Room 113 was not registered in Ross's name gave the officers "reason to be concerned that someone else might be in the room as well." Finally, the court held that "the chase and the fact that the officers lost sight of Ross presented exigent circumstances" that further justified the sweep—because the officers were in hot pursuit of a suspect with a history of violent activity for whom they had an arrest warrant, and who reasonably could have returned to the room, the first search was lawful.

With respect to the second search, the district court concluded that...