[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
SEPTEMBER 7, 2007
No. 06-15987 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-00121-CR-LSC-JEO
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HUSAIN ABDUL ALIM,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(September 7, 2007)
Before DUBINA, BLACK and CARNES, Circuit Judges.
PER CURIAM:
Husain Alim appeals his conviction and sentence for trafficking in
counterfeit goods, in violation of 18 U.S.C. §§ 2320, 2322. We address the issues
raised on appeal in turn.
I.
Alim first contends the district court erred when it denied his motion to
suppress after finding (1) the plain view exception to the Fourth Amendment’s
warrant requirement applied to a search of the first storeroom in his business and
(2) he voluntarily consented to a search of the second storeroom. “Review of a
district court’s denial of a motion to suppress is a mixed question of law and fact.”
United States v. Smith, 459 F.3d 1276, 1290 (11th Cir. 2006), cert. denied 127 S.
Ct. 990 (2007). When properly preserved, we review a district court’s factual
findings for clear error, and construe those facts in the light most favorable to the
prevailing party.1 Id. We review the district court’s application of law de novo.
Id.
The Fourth Amendment protects “[t]he right of the people to be secure
against unreasonable searches and seizures.” U.S. C ONST. A MEND. IV. A search
1
Under Fed. R. Crim. P. 59(b), a defendant’s failure to object to a magistrate’s order
recommending denial of suppression within ten days of being served with a copy of the
recommended disposition “waives a party’s right to review.” See Fed. R. Crim. P. 59(b)(2). We
assume arguendo, particularly since the government did not argue to the contrary, that Alim’s
objection, filed in response to the district court’s order adopting the magistrate’s report and
recommendation denying suppression, although untimely, was sufficient to preserve for appellate
review issues with respect to the denial of his suppression motion.
2
generally is reasonable under the Fourth Amendment when it is supported by a
warrant or when the search falls within an established exception to the warrant
requirement. United States v. Prevo, 435 F.3d 1343, 1345 (11th Cir. 2006). One
such exception, the “plain view” doctrine, allows a warrantless seizure where
“(1) an officer [was] lawfully located in the place from which the seized object
could be plainly viewed and [had] a lawful right of access to the object itself; and
(2) the incriminating character of the item is immediately apparent.” Smith, 459
F.3d at 1290. For an item’s incriminating character to be “immediately apparent,”
the police merely need probable cause to believe that the item is contraband. Texas
v. Brown, 103 S. Ct. 1535, 1542-43 (1983). Probable cause, in turn, “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 . . . ; it does not
demand any showing that such a belief be correct or more likely true than false. A
practical, nontechnical probability that incriminating evidence is involved is all
that is required.” Id. at 742 (internal quotations and citations omitted).
The district court did not err in finding that the warrantless search of the first
storeroom was constitutional under the “plain view” exception to the Fourth
Amendment’s warrant requirement. Although federal authorities, including a
Customs official (Wesley Anthony) and an official trained in identifying
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counterfeit items (Wayne Grooms), were not in possession of a warrant when they
entered Alim’s business, it was undisputed that they were lawfully located in the
retail area of the business when they viewed counterfeit merchandise in the first
storeroom through a window.
Moreover, the incriminating character of the merchandise in the first
storeroom was “immediately apparent.” Anthony and Grooms had probable cause
to believe that the merchandise was contraband in light of the uncontroverted
testimony at the suppression hearing that: (1) Grooms had twenty years of
experience in identifying counterfeit products, and had received training from
various trademark holders in identifying fake products; (2) Grooms was able to
identify visually some of the counterfeit merchandise; (3) Grooms already had
observed a large volume of counterfeit merchandise in the retail area; and
(4) Anthony and Grooms both believed, based on their visual observations, that the
merchandise in the first storeroom was “consistent and the same type of
merchandise [for sale in the retail area] which . . . had already been determined to
be counterfeit.”
Accordingly, the “plain view” exception to the Fourth Amendment’s warrant
requirement applied, and the warrantless search of the first storeroom and
corresponding seizure of the counterfeit merchandise in that storeroom were
4
constitutional. See Smith, 459 F.3d at 1290 (enumerating “plain view” test);
Brown, 103 S. Ct. at 1542-43 (noting that probable cause satisfies the
“immediately apparent” requirement of the “plain view” test).
Voluntary consent provides another exception to the warrant requirement of
the Fourth Amendment. Schneckloth v. Bustamonte, 93 S. Ct. 2041 (1973). A
district court’s determination as to the voluntariness of a person’s consent to a
search is a factual finding that will not be disturbed absent clear error. See United
States v. Purcell, 236 F.3d 1274, 1281 (11th Cir. 2001). “In assessing
voluntariness, the inquiry is factual and depends on the totality of the
circumstances. . . . In evaluating the totality of the circumstances underlying
consent, the court should look at several indicators, including the presence of
coercive police procedures, the extent of the defendant’s cooperation with the
officer, the defendant’s awareness of his right to refuse consent, the defendant's
education and intelligence, and the defendant’s belief that no incriminating
evidence will be found.” Id. “[T]he absence of intimidation, threats, abuse
(physical or psychological), or other coercion is a circumstance weighing in favor
of upholding what appears to be a voluntary consent.” United States v. Jones, 475
F.2d 723, 730 (5th Cir. 1973).2
2
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cie. 1981) (en banc), this Court
adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to close
5
Consent is not voluntary if it is “a function of acquiescence to a claim of
lawful authority . . . .” United States v. Blake, 888 F.2d 795, 798 (11th Cir. 1989).
Rather, “[t]o be considered voluntary, consent ‘must be the product of an
essentially free and unconstrained choice.’” United States v. Zapata, 180 F.3d
1237, 1241 (11th Cir. 1999) (quoting United States v. Garcia, 890 F.2d 355, 360
(11th Cir.1989)).
We found an absence of undue coercion where a defendant was arrested at
gunpoint and forced to lie on the ground near the roadway, and the defendant
consented to the search of his car and suitcase while the officer still had his gun
drawn. See United States v. Espinosa-Orlando, 704 F.2d 507, 513 (11th Cir.
1983). We also determined that a defendant’s consent to a search of his home was
voluntary, where his home was surrounded by fourteen agents, he was handcuffed,
and the officers refused his consent to a limited search of his home. See Garcia,
890 F.2d at 360-61.
The district court did not clearly err in finding that, in light of the totality of
the circumstances, Alim voluntarily consented to the search of the second
storeroom in the business.3 Alim did not offer any testimony at the suppression
of business on September 30, 1981.
3
Because Alim orally consented to a search of the business premises after the search of the
retail area and during the search of the first storeroom, and those searches were legal, we need only
address whether the consent was voluntary, without regard to whether the consent was tainted by
6
hearing to show that the circumstances surrounding the search of his business were
unduly coercive, and the testimony from the suppression hearing belies such an
argument. Alim refused to execute the preprinted consent-to-search form at the
same time that he provided his oral consent to a search of the business premises
(excluding his “personal area”), thus, demonstrating that he was not merely
acquiescing to the actions of the officers.
Moreover, even assuming arguendo that the assertion by one of the officers
that they had probable cause to search the first storeroom could be construed as a
claim of lawful authority, cf. Blake, this statement was limited to the first
storeroom, and the officers did have the lawful authority to search that storeroom.
It is significant that the officers were not even aware of the existence of the second
storeroom at the time this statement was made to Alim, and there is no record
evidence to suggest that any claim of lawful authority was made with respect to the
second storeroom when Alim consented to a search of the entire business premises
(excluding his “personal area”).
Also, Anthony specifically testified that: (1) Alim was a United States
an initial illegality. See United States v. Ramirz-Chilel, 289 F.3d 744, 752, n.9 (11th Cir. 2002).
This fact distinguishes the present case from the decision relied on by Alim, Florida v. Royer, 103
S. Ct. 1319 (1983), where the Supreme Court concluded that a defendant had been illegally detained
when he gave his consent, and so “the consent was tainted by the illegality and was ineffective to
justify the search.”
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citizen and appeared to understand that he and the other investigator were asking
for his consent to search the building; (2) both his and the investigator’s guns were
concealed during that conversation; (3) no one threatened Alim to obtain his oral
consent; (4) Alim was not promised anything for his oral consent; and (5) Alim’s
movement was not restricted at any time. In this respect, this environment may be
reasonably viewed as less coercive than in Espinosa-Orlando, where the defendant
provided consent at gunpoint, or in Garcia, where the defendant was handcuffed at
the time he provided his consent. See Espinosa-Orlando, 704 F.2d at 513; Garcia,
890 F.2d at 360-61.
Finally, although there were more officers present during the search of
Alim’s business than during the search of the defendant’s premises in Garcia, we
do not view this as sufficient to affect the outcome of this case.
Accordingly, in light of the totality of the circumstances, the district court’s
conclusion that Alim voluntarily consented to the search of the second storeroom
was not clearly erroneous.
II.
Alim next argues the court erred by determining the amount of loss for
sentencing purposes based on the retail value of the infringed items rather than the
retail value of the counterfeit items. “Interpretation of the Sentencing Guidelines is
8
reviewed de novo, with factual findings reversible if clearly erroneous.” United
States v. Guerra, 293 F.3d 1279, 1291 (11th Cir. 2002). “Review of the district
court’s application of the Guidelines to the facts is for abuse of discretion.” Id.
A defendant who is convicted of violating 18 U.S.C. § 2320 is sentenced
pursuant U.S.S.G. § 2B5.3. According to that Guideline, “[i]f the infringement
amount . . . exceeds $5,000,” a court is instructed to “increase by the number of
levels from the table in § 2B1.1 (Theft, Property Destruction and
Fraud) corresponding to that amount.” U.S.S.G. § 2B5.3(b)(1). To determine the
infringement amount, the commentary to § 2B5.3 instructs a court is to use “the
retail value of the infringed item, multiplied by the number of infringing items,” if
the case involves, among other categories, an infringing item that “is, or appears to
a reasonably informed purchaser to be, identical or substantially equivalent to the
infringed item[.]” U.S.S.G. § 2B5.3, cmt. n.2(A)(i) (May 2000 amendments)
(emphasis added). In a case not covered by one of the enumerated categories in the
commentary notes, the infringement amount “is the retail value of the infringing
item, multiplied by the number of infringing items[.]” U.S.S.G. § 2B5.3, cmt.
n.2(B) (May 2000 amendments) (emphasis added).
The district court did not clearly err at sentencing in finding that a
reasonably informed purchaser would believe that the infringing items were
9
substantially equivalent to the genuine items, and so the retail value of the
infringed items, rather than of the infringing items, should be used to calculate
Alim’s offense level. Alim’s only evidence on this point came from his stepson,
Ibrahim, who testified that they sold the counterfeit items for substantially less than
the retail values of the genuine items. Ibrahaim also testified, however, that he
worked at the business and was unable to tell that the confiscated merchandise was
counterfeit. Furthermore, Grooms testified at sentencing that he was personally
familiar with the counterfeit items seized from Alim’s business and the genuine
versions of those items, and that a reasonably informed buyer would believe that
the items were the substantial equivalents of one another.
Because this testimony supports the district court’s factual finding that the
counterfeit items would appear to a reasonably informed purchaser to be
substantially equivalent to the genuine versions of the items, the district court was
instructed by the Guidelines to use the retail value of the infringed items. See
U.S.S.G. § 2B5.3, cmt. n.2(A) (May 2000 amendments). Accordingly, the district
court did not err in this regard.4
4
We also reject Alim’s argument that the district court failed to articulate its reasoning for
using the retail value of the infringed items to calculate his offense level. The district court listened
to the parties’ arguments and testimony on the matter, and then expressly adopted the factual
findings of the PSI, which noted, among other things, that “the counterfeit items [were] substantially
equivalent to the actual items . . . .”
10
III.
The district court did not err in (1) finding the plain view exception to the
Fourth Amendment’s warrant requirement applied to a search of the first
storeroom, (2) finding that Alim voluntarily consented to a search of the second
storeroom, and (3) calculating Alim’s offense level for sentencing purposes. Thus,
we affirm Alim’s conviction and sentence.
AFFIRMED.
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