United States v. Smith

• Decision Date: 23 December 2013
• Docket Number: No. 12–11042.,12–11042.
• Citation: 741 F.3d 1211
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Erick D. SMITH, a.k.a. Erick Smith, a.k.a. Tator, Defendant–Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

741 F.3d 1211

UNITED STATES of America, Plaintiff–Appellee,

v.Erick D. SMITH, a.k.a. Erick Smith, a.k.a. Tator, Defendant–Appellant.

No. 12–11042.

United States Court of Appeals, Eleventh Circuit.

Dec. 23, 2013.

Robert G. Davies, David Lance Goldberg, Pamela C. Marsh, U.S. Attorney's Office, Pensacola, FL, Robert D. Stinson, U.S. Attorney's Office, Tallahassee, FL, for Plaintiff–Appellee.

Michael Robert Ufferman, Michael Ufferman Law Firm, PA, Tallahassee, FL, for Defendant–Appellant.

Appeal from the United States District Court for the Northern District of Florida. D.C. Docket No. 3:11–cr–00024–MCR–2.

Before TJOFLAT, MARCUS and RIPPLE,^* Circuit Judges.

MARCUS, Circuit Judge:

Erick Smith seeks to overturn his conviction and 420-month sentence for, inter alia, conspiring to distribute and possess with intent to distribute cocaine. On appeal, Smith principally claims that the Supreme Court's recent decision in United States v. Jones, ––– U.S. ––––, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012), requires us to reverse the denial of his motion to suppress, where the evidence in question was seized from his home pursuant to a warrant that was partially supported by warrantless GPS surveillance. We disagree. When the officers in this case installed GPS trackers on Smith's vehicles without a warrant, they acted in reasonable reliance upon this Court's then-binding precedent. Suppression of reliable, competent, and probative evidence is a last resort justified only where the benefits of deterrence outweigh the substantial social costs of exclusion. Thus, as we see it, the good-faith exception to the exclusionary rule applies in this case, and the district court properly denied Smith's motion to suppress. To rule otherwise would punish the officers for the errors of judges and would plainly fail to deter future Fourth Amendment violations.

Separately, Smith argues that the district court wrongfully admitted evidence of his two prior convictions for possession of cocaine, wrongfully refused to sever his felon-in-possession charge, wrongfully considered acquitted conduct at the sentencing phase, and violated the Sixth Amendment “as applied.” Our precedent rejects each of these arguments. Thus, after thorough review, we affirm both the conviction and the sentence.

I.

The relevant facts and procedural history are straightforward. Law enforcement officers drawn from federal and local agencies suspected that Smith transported cocaine from Foley, Alabama, for distribution and sale in Pensacola, Florida. During their investigation, the officers collected considerable evidence in support of their suspicions. On November 3, 2010, Special Agent Allen Davis of the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) interviewed two cooperating defendants (Terrance Woods and “T.P.”) at the Santa Rosa County Jail. Both of them positively identified photographs of Smith and said that Smith was the “primary source for cocaine” in the Lincoln Park area of Pensacola. Woods and T.P. also explained that Smith obtained his supply of cocaine from “Mexican males” in Foley, and both recalled that Smith “routinely” carried a firearm in furtherance of the drug trafficking operation. Additionally, Woods reported that he had seen Smith in possession of as much as ten kilograms of cocaine at one time. Woods also told Special Agent Davis that he and Smith twice pooled their money for drug purchases, and that Smith sometimes provided the cocaine that Woods later sold.

On November 24 and 30, 2010, Special Agent Davis interviewed Smith's co-defendant, Telly Hill, after a search of Hill's residence uncovered 58.5 grams of cocaine base, 62.2 grams of cocaine hydrochloride, and over $2,600 in cash. During those interviews, Hill positively identified a photograph of Smith and stated that Smith supplied the cocaine powder from which Hill manufactured the cocaine base found in his home. Hill also told Special Agent Davis that Smith was the primary source of cocaine for the Lincoln Park and Ensley areas of Pensacola, and that Smith obtained his supply of cocaine from “Mexican males” in Foley. Moreover, Hill said that he had known Smith for four years and had been purchasing cocaine from Smith for over a year. According to Hill, Smith sold Hill cocaine, “typical[ly]” half of a kilogram, at least once and usually twice a week. Finally, Hill noted that Smith used various vehicles in the course of his drug-trafficking operation, including a Volvo, a white Chevrolet pick-up truck, and a red Dodge Magnum.

On December 26, 2010, Special Agent Davis obtained records from the Florida Driver and Vehicle Information Database and the Escambia County Property Tax Collector's Office. The records reported that Smith received a 2002 white Chevrolet pick-up truck on November 18, 2009, as a gift from Brenda Gail Scott, who paid $10,940 in cash for the vehicle a few months earlier. The records also indicated that Shameka Brooks, Erick Smith's sister, purchased the 2005 red Dodge Magnum for $12,299 in cash on October 14, 2010. Special Agent Davis noted that Brooks spent more money at that time on the Magnum and other vehicles than she earned through her employment of record. Finally, Special Agent Davis discovered that Smith bought a 2004 blue Ford Mustang for $5,070 in cash on August 20, 2010. Smith filed no personal income tax returns from 2008 to 2010.

After collecting this evidence, but without seeking a warrant, the officers installed GPS trackers on two of Smith's vehicles. Special Agent Davis installed the first device on the white Chevrolet truck on January 6, 2011, while the vehicle sat in a parking lot off a public road. Detective Matthew Coverdale of the Pensacola Police Department installed the second device on a Toyota Camry rental car on January 10, 2011, while the second vehicle was similarly parked in a lot off a public road. Until the officers learned on February 5, 2011 that Smith had discovered one of the trackers, law enforcement officers relied on the GPS devices to monitor Smith's movements in Pensacola, Biloxi, and Foley. In addition to facilitating more effective visual surveillance, the trackers also reported that Smith made several trips to a location identified by a confidential informant as a “stash house.”

On April 12, 2011, the officers asked a federal magistrate judge to issue a warrant to search Smith's residence at 8101 Tippin Avenue in Pensacola. The affidavit in support of the warrant application recited all of this evidence, including the locational information from the GPS trackers regarding Smith's travels in Pensacola, Biloxi, and Foley, as well as his visits to the alleged “stash house.” The warrant was granted, and the officers conducted a search of Smith's apartment on April 14, 2011. In Smith's residence, they discovered nearly ten thousand dollars in cash, an operable Sundance Industries .25 caliber handgun, a disposable cell phone with 19 recent calls to a co-defendant whom law enforcement also suspected of drug trafficking, a small quantity of marijuana, and digital media seized from Smith's computer and camera.

On May 17, 2011, a federal grand jury returned a five-count superseding indictment against Smith, Hill, and a third co-defendant, Ismael A. Rodrigues. Smith was charged with: (1) conspiring to distribute and possess with the intent to distribute five kilograms or more of cocaine, in violation of 21 U.S.C. § 846; (2) using, carrying, or possessing a firearm in furtherance of the drug crime, in violation of 18 U.S.C. § 924(c); (3) possessing a firearm in interstate commerce as a convicted felon, in violation of 18 U.S.C. § 922(g)(1); and (4 and 5) two counts of money laundering.

After the indictment, Smith filed three relevant pretrial motions. First, he moved to suppress all of the evidence that was seized from his residence.¹ According to Smith, the search was illegal because the government lacked probable cause to search his home—the warrant notwithstanding. Smith claimed that the government showed “no probable cause which established any ties to criminal activity,” and failed to demonstrate a “nexus of criminal activity to connect criminal activity to the residence.” Notably, Smith's arguments did not address the government's warrantless use of GPS trackers. Indeed, it was only in his Rule 29 motion for acquittal that Smith first raised that objection, which he later reiterated at sentencing.

The district court denied Smith's motion to suppress for two reasons. First, the court found that the warrant affidavit established probable cause to search the residence because it articulated a fair probability that relevant evidence would be found there. The court explained that the affidavit recited (1) statements from multiple cooperating witnesses who all confirmed that Smith led a cocaine distribution operation; (2) financial documentation that corroborated the suspicion that Smith led an organization that “procur[ed] illegal funds”; and (3) information from surveillance operations that tied Smith to suspected “stash houses” and known drug offenders. The court also noted that the issuing judge was justified in considering Smith's criminal history. Finally, the trial court concluded that the officers had shown a sufficient “nexus” to support a finding of probable cause. The court offered four reasons: Smith listed the apartment as his residence in the Florida Driver and Vehicle Database; Smith's suspected crimes took place in close proximity to his residence; known drug offenders frequented the residence; and the officers saw Smith traveling between the residence and the suspected “stash houses.” Thus, considering the “totality of these circumstances,” the district court concluded that there was a fair probability that Smith stored drugs or proceeds from drug transactions at his residence.

Alternatively, under United States v. Leon, 468 U.S. 897, 922, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), the district court...