[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 09-12654
JUNE 10, 2010
Non-Argument Calendar
JOHN LEY
________________________ CLERK
D. C. Docket No. 09-00051-CR-01-JEC-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CARLOS HURTADO O'CAMPO,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(June 10, 2010)
Before TJOFLAT, EDMONDSON and WILSON, Circuit Judges.
PER CURIAM:
Carlos Hurtado O’Campo appeals the denial of a motion to suppress in his
drug conspiracy conviction, 21 U.S.C. §§ 841(b)(1)(B)(vii), 846. No reversible
error has been shown; we affirm.
In reviewing the denial of a motion to suppress, we review “the findings of
fact for clear error and the application of law to those facts de novo.” United States
v. Mercer, 541 F.3d 1070, 1073-74 (11th Cir. 2008), cert. denied, 129 S.Ct. 954
(2009). And we construe all facts in the light most favorable to the prevailing
party. Id. at 1074.
O’Campo first argues that the plain language of the search warrant
authorized the seizure of no items from his residence because the search revealed
no illegal drugs; and the items seized as indicative of marijuana manufacturing
were not, by themselves, subject to seizure. A search warrant must “particularly
describ[e] the place to be searched, and the persons or things to be seized.” United
States v. Khanani, 502 F.3d 1281, 1289 (11th Cir. 2007).
Here, the warrant authorized seizure of (1) marijuana; (2) raw materials,
products, and equipment which could have been used or were intended for use in
the manufacturing of marijuana and were “themselves subject to seizure;” and (3)
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moneys and other things of value found in close proximity to controlled
substances. While the search of O’Campo’s residence revealed no illegal drugs, a
search of the basement revealed many items associated with marijuana growing
operations -- including a ballast, an amp, a molded case, a track adapter, and digital
timers -- which officers seized.
Based on the plain language of the warrant, officers properly were
authorized to seize the items which were to be used in the construction of a
marijuana grow house. The presence of illegal drugs was not required to make
these items subject to seizure. Although these items could be used for legitimate
purposes, as O’Campo suggests, here the seized items were incriminating on their
face because, before entering the house, executing officers had probable cause to
believe that the house contained a marijuana growing operation. Therefore, the
items seized were evidence of the marijuana manufacturing offense and were
“themselves subject to seizure.”
The district court here did conclude that certain seized items -- including a
treadmill, a child’s four-wheeler, several electronics items, and documents -- were
beyond the scope of the search warrant and ordered that these items be suppressed.
O’Campo argues that the district court should have granted total suppression
because the executing officers acted in flagrant disregard for the terms of the
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search warrant: seizing anything of value from his home.
A search does not become invalid merely because some items not covered
by a warrant are seized. United States v. Schandl, 947 F.2d 462, 465 (11th Cir.
1991) (explaining that “[t]his is especially true where the extra-warrant items were
not received into evidence against the defendant”). Total suppression of all items
seized, including properly seized items, “may be appropriate if the executing
officers’ conduct exceeds any reasonable interpretation of the warrant’s
provisions.” United States v. Wuagneux, 683 F.2d 1343, 1354 (11th Cir. 1982)
(citations omitted). But “absent a ‘flagrant disregard’ of the terms of the warrant,
the seizure of items outside the scope of a warrant will not affect the admissibility
of items properly seized.” Id.
Although some improper seizures occurred here, we conclude that the
executing officers did not flagrantly disregard the terms of the search warrant. The
executing officer, Slade McCullogh, testified that he seized these items, in part,
because they were items of value and could indicate ill-gotten gains or living above
one’s means; but the warrant authorized seizure of things of value only if those
things were in close proximity to controlled substances. That the executing officer
may not have fully understood what the warrant covered is insufficient to support a
conclusion of flagrant disregard. McCullough attempted to stay within the
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boundaries of the warrant by contacting the District Attorney’s Office to inquire
about what items could be seized. The DA’s office advised McCullough that he
was authorized to seize electronic equipment and other things of value. Thus,
McCullough exercised some discretion in executing the warrant and did not simply
seize all things of value.1 We cannot say that McCullough’s misunderstanding of
the warrant or lack of judgment demonstrated flagrant disregard warranting total
suppression.2
O’Campo finally challenges the district court’s conclusion that the seizure of
certain sales receipts was proper under the plain view doctrine, contending that the
record does not support the court’s assumption that the incriminating nature of the
receipts immediately was apparent to McCullough. “The ‘plain view’ doctrine
permits a warrantless seizure where (1) an officer is lawfully located in the place
from which the seized object could be plainly viewed and must have a lawful right
of access to the object itself; and (2) the incriminating character of the items is
immediately apparent.” United States v. Smith, 459 F.3d 1276, 1290 (11th Cir.
1
We reject O’Campo’s argument that the police department had a policy of seizing all
things of value during searches to enhance the budget of the Sheriff’s office. McCullough’s
testimony indicated that the amount he seized depended on the amount of drugs found and that
seized items could enhance the office’s budget.
2
Contrary to O’Campo’s argument, the court did realize that it had the discretion to
suppress all seized evidence as it noted that total suppression “may” be appropriate in certain
cases; the district court simply chose not to exercise this discretion. That the court admonished
McCullough for some of his practices did not amount to a conclusion of flagrant disregard.
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2006). For an item’s incriminating character to be “immediately apparent,” an
officer merely needs probable cause to believe the item is contraband. Texas v.
Brown, 103 S.Ct. 1535, 1543 (1983). The government bears the burden of proving
an exception to the warrant requirement. United States v. McGough, 412 F.3d
1232, 1237 n.4 (11th Cir. 2005).
Here, McCullough found a plastic bag hidden in the insulation of the attic,
which contained sales receipts of transactions from local building supply stores.
Construing all facts in favor of the government, we see no error in the district
court’s conclusion that the incriminating character of the receipts immediately was
apparent. McCullough testified that the receipts were inside the bag. Therefore,
the district court made an obvious inference that McCullough looked inside the
bag. See United States v. Van Horn, 789 F.2d 1492, 1499 (11th Cir. 1986) (district
court permitted to draw “obvious inference” that federal agents knew that
defendant was target of a state investigation because agents knew that the state had
wiretapped defendant’s phone).3
And McCullough had probable cause to believe that the receipts were
contraband given his testimony at the suppression hearing that (1) he observed the
3
That McCullough lawfully was in the attic where the bag was seized is not in dispute.
Whether McCullough looked into the bag while still in the attic or later does not matter because
he was authorized to look in the bag for drugs.
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basement being converted into a marijuana grow house; (2) before the search, he
had received information that a codefendant purchased equipment from a Lowe’s
or Home Depot store; (3) the receipts matched this information; and (4) he
previously had found contraband in the insulation of attics. See Brown, 103 S.Ct.
at 154 (probable cause “merely requires that the facts available to the officer would
warrant a man of reasonable caution in the belief . . . that certain items may be
contraband”). Therefore, the district court concluded permissibly that the
incriminating character of the receipts, which bore the logos of home improvement
stores, immediately was apparent to McCullough and admitted the receipts under
the plain view doctrine.
AFFIRMED.
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