[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JULY 20, 2010
No. 09-16168 JOHN LEY
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 09-00035-CR-4-RH-WCS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DARRYL SMITH,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(July 20, 2010)
Before TJOFLAT, EDMONDSON and MARTIN, Circuit Judges.
PER CURIAM:
Darryl Smith pled guilty to possession of marijuana with intent to distribute,
in violation of 21 U.S.C. § 841(a)(1), pursuant to a plea agreement in which he
reserved the right to appeal the district court’s denial of his motion to suppress.
We find no merit in his challenge to the district court’s ruling and therefore affirm.
I.
Several weeks prior to May 9, 2009, Scott Heath, an officer of the
Tallahassee, Florida Police Department cross-assigned to a DEA task force,
installed a GPS data-logging device on Smith’s Cadillac Escalade.1 Smith was
suspected of trafficking marijuana, obtaining the drug from California for
distribution in Tallahassee and South Georgia, and was under the task force’s
surveillance. On May 8, a Friday, Heath decided to remove the GPS device from
the Escalade, and at 3:45 a.m. the next morning, Officer Corbitt and another officer
went to Smith’s residence.2 They found the Escalade parked in the driveway
leading to the residence.3 As they walked toward the Escalade from the street, they
detected a strong odor of raw, green marijuana; the odor became stronger as they
neared the vehicle. A drug dog was brought to the scene, and immediately alerted,
1
Officer Christopher Corbitt participated in the installation of the device. He described
it as a “slap-on” magnetic device; it was installed without entry into any enclosed area and did
not damage the vehicle.
2
The residence was one of several attached townhouses.
3
The driveway was very short; the Escalade took up its full length.
2
indicating a large quantity of marijuana. At this point, the DEA took over and
prepared an application for a search warrant.4
Meanwhile, at 11:50 a.m., a DEA agent observed Smith leaving his
residence in the Escalade. A plan to have the vehicle stopped for a traffic violation
was implemented. Christopher White, a Florida Department of Transportation
officer attached to the DEA task force spotted the Escalade and followed it. After
observing that the tinting of the Escalade’s windows was illegal—it was too
dark—he activated his vehicle’s blue lights and signaled the Escalade to stop.
Smith pulled over in front of a restaurant, parked and locked the Escalade, and fled
the scene on foot. White apprehended him 150-200 yards away. He smelled of
marijuana. White searched him for the keys to the Escalade but did not find them.
Once Smith was in custody, DEA agents secured his residence. Two women
were inside. The agents swept the residence for the presence of others and in the
process observed marijuana stems and seeds in the breakfast area, a large bag of
marijuana on the floor of one room, and another bag of marijuana in an open closet
in the same room.
Following his indictment, Smith moved the district court to suppress the
4
Warrants for the Escalade and Smith’s residence were obtained in the afternoon of May
9. The delay was due to the fact that the magistrate judge was not immediately available that
Saturday morning.
3
marijuana evidence seized from his residence and the Escalade. He argued that the
law enforcement officers conducted a warrantless search of the Escalade by
retrieving the GPS device while the vehicle was parked in his driveway, and that
they conducted a warrantless search of his residence prior to the issuance of the
search warrant for the residence.
The district court, following an evidentiary hearing, denied Smith’s motion.
It found that the GPS device was installed in a public place; that, on May 9, the
officers, while standing in the street, detected an “overwhelming smell of
marijuana,” which gave them probable cause to believe that there was marijuana
Smith’s residence; that the Escalade was properly stopped because of the window-
tint violation; and that the agents subsequent warrantless entry into Smith’s
residence was irrelevant because the information contained in the affidavit
accompanying the DEA’s application for the search warrants came from
independent sources—not from what the agents found in the residence.
II.
In his brief on appeal, Smith argues that, in denying his motion to suppress,
the district court erred in two respects. First, the warrantless installation of the
GPS device on the Escalade violated his Fourth Amendment rights. Second, DEA
agents lacked exigent circumstances to enter his residence without a warrant
4
following his arrest.
“Because rulings on motions to suppress involve mixed questions of fact and
law, we review the district court’s factual findings for clear error, and its
application of the law to the facts de novo. Further, when considering a ruling on a
motion to suppress, all facts are construed in the light most favorable to the
prevailing party below.” United States v. Bervaldi, 226 F.3d 1256, 1262 (11th Cir.
2000) (citation omitted). We may affirm the denial of a motion to suppress on any
ground supported by the record. United States v. Caraballo, 595 F.3d 1214, 1222
(11th Cir. 2010).
The Fourth Amendment’s prohibition against
unreasonable searches and seizures protects an individual
in those places where [he] can demonstrate a reasonable
expectation of privacy against government intrusion, and
only individuals who actually enjoy the reasonable
expectation of privacy have standing to challenge the
validity of a government search. The party alleging an
unconstitutional search must establish both a subjective
and an objective expectation of privacy. The subjective
component requires that a person exhibit an actual
expectation of privacy, while the objective component
requires that the privacy expectation be one that society
is prepared to recognize as reasonable.
United States v. King, 509 F.3d 1338, 1341 (11th Cir. 2007) (quotations omitted);
see also United States v. Espinosa-Orlando, 704 F.2d 507, 512 (11th Cir. 1983)
(“A legitimate expectation of privacy [must] be proven by factors beyond mere
5
possession, such as a right to exclude or a right to privacy.”).
Although not applicable to a local police investigation conducted without
federal involvement, see United States v. Lehder-Rivas, 955 F.2d 1510, 1522 (11th
Cir. 1992), Federal Rule of Criminal Procedure 41(b)(4) establishes the federal
procedure for obtaining a warrant to install a tracking device. The 2006
Amendment Notes to the rule clarify that “if the officers intend to install or use the
device in a constitutionally protected area, they must obtain judicial approval to do
so.” Id. “If, on the other hand, the officers intend to install and use the device
without implicating any Fourth Amendment rights, there is no need to obtain the
warrant.” Id. In United States v. Michael, 645 F.2d 252 (5th Cir. 1981) (en banc),
we held that the placement of an electronic tracking device on the exterior of the
defendant’s vehicle when it was parked in a public parking lot did not violate his
Fourth Amendment rights. Id. at 255-56 (“[W]e hold that the minimal intrusion
involved in the attachment of a beeper to Michael’s van, parked in a public place,
was justified so as to satisfy any of Michael’s fourth amendment expectation of
privacy concerns.”).
Smith’s argument that the installation of the GPS device violated his Fourth
Amendment rights fails because the Escalade was parked in a place easily
accessible to the public and was reachable from a public thoroughfare. Smith had
6
no reasonable expectation of privacy with respect to the exterior of the vehicle.
Searches and seizures inside a home without a search warrant are
presumptively unreasonable. Bervaldi, 226 F.3d at 1262-63, citing Payton v. New
York, 445 U.S. 573, 603, 100 S.Ct. 1371, 1388, 63 L.Ed.2d 639 (1980). Under the
independent source doctrine, however, the evidence seized is admissible if it was
obtained from a lawful source, independent of the unreasonable or unlawful search.
United States v. Davis, 313 F.3d 1300, 1303-04 (11th Cir. 2002) (subsequent
warrant was supported by probable cause, not based on any information learned
during prior unlawful search); cf. United States v. Chaves, 169 F.3d 687, 692-93
(11th Cir. 1999) (sufficient probable cause established for warrant, discounting
information learned in prior unlawful search).
Smith has pointed to nothing in the affidavit supporting the search warrant
for the residence that was learned from the agents in the presumptively illegal entry
(pending the issuance of the warrant). Thus, he cannot overcome the application of
the independent source doctrine. 5
AFFIRMED.
5
Having reached this holding, we need not consider Smith’s argument that the DEA
agents lacked the exigent circumstances necessary to justify their entry into the residence.
7