[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUL 06, 2006
No. 05-10618 THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 04-20716-CR-PCH
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JESUS TAMARI,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(July 6, 2006)
Before BLACK, BARKETT and COX, Circuit Judges.
BLACK, Circuit Judge:
Appellant Jesus Tamari appeals his conviction for conspiracy to possess
with the intent to distribute a controlled substance in violation of 21 U.S.C.
§§ 841(a)(1) and 846. Tamari argues the district court erred in denying his motion
to suppress evidence and statements obtained during two unlawful searches of his
vehicle. For the reasons set forth more fully below, we affirm.
I. BACKGROUND
In early 2003, federal, state, and local law enforcement agents began
conducting an investigation into a large-scale conspiracy in south Florida to
harvest and distribute controlled substances. The agents had reason to believe the
organization was run by an individual named Humberto Febles, who owned a
yellow Hummer that he used in the conspiracy. During the course of the
investigation, a confidential informant alerted authorities to several properties the
organization used to cultivate and house various controlled substances. Pursuant to
this information, agents obtained a warrant to search a parcel of rural, isolated
property located at 17540 Southwest 254th Street in Miami, Florida. The warrant
authorized agents to search the property, including “[v]ehicles or vessels or trailers
registered to or owned by the occupants of the place to be searched, or under the
care, custody or control or on the property on which the place to be searched is
situated.”
2
Between 7:30 a.m. and 8:00 a.m. on September 1, 2004, agents arrived at
17540 Southwest 254th Street, whereupon they served the search warrant and
proceeded to execute the warrant by conducting the search. Upon entering the
residence on the property, they arrested three individuals: Roberto Cano, Marta
Gonzalez, and Rudolfo Aguilera. The agents then searched the residence and
seized cocaine, drug paraphernalia, cash, and a number of loaded weapons. Soon
thereafter, agents searched a Freightliner truck parked on the property, finding
slightly less than 13 kilograms of cocaine and stacks of cash totaling $536,421.
Approximately 30 minutes to one hour after combing the Freightliner truck,
while the search was still in progress, Tamari drove onto the property in a yellow
Hummer. He approached Special Agent Debra Crane, who was standing in the
driveway, and began to speak in Spanish. Agent Crane, not fluent in Spanish,
called for assistance from Detective Jorge Rodriguez, who asked for Tamari’s
name, identification, and his purpose for being on the property. Exiting the
Hummer, Tamari responded with a name, but was unable to produce any
identification or vehicle registration. Tamari then told agents the vehicle belonged
to a family member, but later claimed it belonged to an individual named
Humberto, who loaned him the vehicle in exchange for Tamari’s Honda Accord.
He also said he was on the premises to see a man about some animals, but it
appeared there were no animals on the property.
3
Agent Crane then searched the car, looking for its registration or any indicia
of ownership. After searching the glove compartment, center console, and pockets
in the driver and passenger doors, Agent Crane briefly scanned the rear cargo area.
She neither found nor seized any evidence during this search. Shortly thereafter,
agents ran a narcotics detection dog, Ho Jo, around the perimeter of the Hummer.
Ho Jo gave a positive alert to a wheel well compartment in the rear cargo area, in
which agents found around $45,000 in cash. Agents then searched the Hummer
again, finding and seizing documents concerning Roberto Cano, photographs of
Roberto Cano, a key to the Freightliner truck, calling cards, and gold jewelry.
Tamari was subsequently arrested and charged with (1) conspiring to
possess with the intent to distribute a controlled substance in violation of 21 U.S.C.
§§ 841(a)(1) and 846; and (2) possessing with the intent to distribute a controlled
substance in violation of 21 U.S.C. § 841(a)(1).
Before trial, Tamari moved the district court to suppress physical evidence
obtained during the searches of the Hummer. Tamari also moved to suppress
statements he made during those searches, arguing they were the product of
unlawful searches and thus inadmissible “fruit of the poisonous tree” under Wong
Sun v. United States, 371 U.S. 471, 83 S. Ct. 407 (1963). The district court held a
preliminary hearing and denied the motion, concluding the vehicle was subject to
search under the warrant’s authorization to search “[v]ehicles . . . on the property
4
on which the place to be searched is situated.” Alternatively, the district court
found that even if the search warrant did not justify the searches, sufficient
probable cause existed to permit warrantless searches of the Hummer.
The jury convicted Tamari of conspiring to possess with the intent to
distribute a controlled substance. He was acquitted on the remaining count.
Tamari now appeals his conviction, arguing the district court erred by denying his
motion to suppress evidence and statements obtained during the September 1,
2004, vehicle searches.1
II. STANDARD OF REVIEW
“We apply a mixed standard of review to the denial of a defendant’s motion
to suppress, reviewing the district court’s findings of fact for clear error and its
application of law to those facts de novo.” United States v. Lyons, 403 F.3d 1248,
1250 (11th Cir. 2005).
III. DISCUSSION
The Fourth Amendment protects the “right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures.”
1
After carefully considering the other arguments raised on appeal, we conclude they are
without merit and do not discuss them. Moreover, because the parties do not dispute the
lawfulness of any traffic stop in this case, we confine our discussion to the propriety of the
September 1, 2004, searches of the Hummer.
5
U.S. Const. amend. IV. This fundamental right is generally preserved by a
requirement that searches be conducted pursuant to a warrant issued by an
independent judicial officer upon a showing of probable cause. See Maryland v.
Dyson, 527 U.S. 465, 466, 119 S. Ct. 2013, 2014 (1999). There are, of course,
exceptions to the general rule that a warrant must be secured before a search is
undertaken, one of which is the automobile exception. Under the automobile
exception, agents may conduct a warrantless search of a vehicle if (1) the vehicle is
readily mobile (i.e., operational); and (2) agents have probable cause to believe the
vehicle contains contraband or evidence of a crime. See Dyson, 527 U.S. at 466-
67, 119 S. Ct. at 2014; United States v. Watts, 329 F.3d 1282, 1285 (11th Cir.
2003).
Accordingly, a vehicle search will not violate the Fourth Amendment if it is
authorized by the terms of a valid search warrant or, where agents conduct a
warrantless search, if the vehicle is operational and “under the totality of the
circumstances, ‘there is a fair probability that contraband or evidence of a crime
will be found’” in the vehicle. United States v. Goddard, 312 F.3d 1360, 1363
(11th Cir. 2002) (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317,
2332 (1983)).
On appeal, Tamari first argues the vehicle searches in this case were
unlawful because they fell outside the scope of the search warrant. Relying
6
primarily on United States v. Gentry, 839 F.2d 1065 (5th Cir. 1988), Tamari asserts
the search warrant did not authorize agents to search vehicles arriving on the
subject property during the course of the agents’ search. Second, Tamari argues
the vehicle searches were unconstitutional under Ybarra v. Illinois, 444 U.S. 85,
100 S. Ct. 338 (1979), because the Hummer’s mere presence on the subject
property did not give agents sufficient probable cause to search the vehicle without
a warrant. Third, Tamari argues the search warrant did not encompass the vehicle
searches because under United States v. Patterson, 278 F.3d 315, 318-19 (4th Cir.
2002), the warrant’s authorization to search vehicles on the property extended only
to those vehicles “owned by or under the dominion and control of the premises’
owner.” Because he did not own the subject property, Tamari asserts the search
warrant did not authorize the search of his vehicle. Tamari concludes, therefore,
the vehicle searches in this case were unlawful, and the district court should have
suppressed the evidence seized and statements made during those searches.2
A. Search Warrant
2
We will not discuss Tamari’s third argument because in United States v. Cole, 628 F.2d
897, 899 (5th Cir. 1980) the former Fifth Circuit held that a search warrant authorized the search
of a third party’s truck on the property covered by the search warrant. See also Bonner v. City of
Pritchard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc) (adopting as binding precedent all
decisions of the former Fifth Circuit handed down prior to October 1, 1981).
7
Tamari does not dispute that the Hummer could have been searched under
the terms of the search warrant had it been located on the subject property at the
time the warrant was served. See United States v. Cole, 628 F.2d 897, 899-900
(5th Cir. 1980). Rather, relying primarily on United States v. Gentry, 839 F.2d
1065 (5th Cir. 1988), Tamari asserts the search warrant did not authorize agents to
search vehicles arriving on the subject property later, after the search had already
begun. We lack published authority in this Circuit as to whether a valid search
warrant3 authorizing the search of vehicles on the subject property encompasses the
search of a vehicle arriving on that property during the course of the search.4 We
are not, however, without guidance on this issue. In United States v. Alva, 885
F.2d 250 (5th Cir. 1989), the Fifth Circuit passed on the precise question presented
here.
In Alva, a search warrant authorized officers to search the house, structures,
and “any and all motor vehicles found parked” on the subject property. Id. at 251.
While the search was being conducted, Alva drove onto the property in a pickup
truck. Id. Officers searched the vehicle, seizing the semiautomatic pistol that
3
Tamari does not challenge the validity of the search warrant in this case. Thus, we need
only address whether the search warrant authorized agents to search the Hummer.
4
We answered this question in the affirmative in United States v. Sears, 139 Fed. Appx.
162, 166 (11th Cir. 2005). As an unpublished opinion, however, Sears lacks precedential
authority and does not bind this Court. See 11th Cir. R. 36-2; Summers v. Dillard’s, Inc., 351
F.3d 1100, 1101 n. 1 (11th Cir. 2003).
8
would eventually form the basis for Alva’s felon-in-possession conviction under
18 U.S.C. § 922(g)(1). Id. The district court denied Alva’s motion to suppress the
pistol, finding as a “motor vehicle[] found parked” on the property, Alva’s pickup
truck was subject to search under the terms of the warrant. Id.
Like Tamari, Alva argued on appeal that the search warrant did not authorize
the search of his vehicle. He reasoned that “the warrant language requiring search
of ‘any and all vehicles found on the premises . . .’ did not encompass vehicles,
such as his, that arrived at the premises after the police had begun searching.” Id.
Because “the police had no probable cause to search his vehicle independent from
the warrant,” Alva asserted “the search was illegal,” and the resulting evidence
should have been suppressed. Id. at 252.
The Fifth Circuit disagreed. The Alva court emphasized that the “approach
of exercising reasonableness in warrant construction [applies] to timing aspects of
warrant execution.” Id. The court then held, in relevant part:
The search of Alva’s pickup truck pursuant to warrant language
authorizing the search of “any and all motor vehicles found parked on
the premises . . .” was within the scope of the warrant. Alva’s reading
of the language, that it prohibits police from searching vehicles
arriving after the search begins, unnaturally cramps the warrant’s
temporal authority. Searches do not take place in an instant; they
occur over a period of time, sometimes many hours. Thus vehicles
arriving during the course of a search are vehicles “found parked” on
the premises if they reasonably could contain the items for which law
enforcement officials are searching. Alva’s pickup truck was such a
vehicle.
9
Id.
We agree with the Fifth Circuit. A valid search warrant authorizing the
search of vehicles on the subject property permits the search of vehicles arriving on
that property during the course of the search, so long as those vehicles could
reasonably contain items the officers are searching for. In this case, like Alva, a
valid search warrant allowed agents to search “[v]ehicles . . . on the property on
which the place to be searched is situated.” After agents served and proceeded to
execute the search warrant, Tamari drove a Hummer onto the subject property.
The Hummer, moreover, reasonably could have contained items agents sought in
the search warrant, including documents, account books, currency, jewelry,
firearms, and drug paraphernalia. As a result, the vehicle searches in this case,
conducted pursuant to warrant language authorizing the search of vehicles “on the
property on which the place to be searched is situated,” were within the scope of
the search warrant.
To support his argument to the contrary, Tamari relies primarily on the Fifth
Circuit’s decision in United States v. Gentry, 839 F.2d 1065 (5th Cir. 1988). His
reliance is misplaced, however, because Gentry’s holding is irrelevant to this case.
In Gentry, the court limited its analysis to defining the physical boundaries of the
search warrant in question. See id. at 1068-69. The physical scope of the
warrant’s authority is not at issue in this case, however, because it is beyond
10
dispute that the Hummer was on the subject property, and thus within the warrant’s
physical boundaries, at the time of the searches. The question presented here is the
warrant’s temporal authority and, more specifically, whether agents may search
vehicles arriving on the subject property during the course of a search conducted
pursuant to a valid search warrant. The Gentry court expressly withheld judgment
on that issue. See id. at 1069. Indeed, the Fifth Circuit answered the question in
the affirmative the next year in Alva, which we follow here.
We hold, therefore, that the September 1, 2004, vehicle searches were
authorized by the terms of the search warrant. Consequently, the searches were
lawful under the Fourth Amendment, and the district court did not err in denying
Tamari’s motion to suppress the resulting evidence and statements.5
B. Automobile Exception
Tamari next argues the vehicle searches were unconstitutional under Ybarra
v. Illinois, 444 U.S. 85, 100 S. Ct. 338 (1979), because the Hummer’s mere
presence on the subject property did not give agents sufficient probable cause to
search the vehicle without a warrant. We disagree and hold that even if the vehicle
searches did not fall within the scope of the search warrant, the warrantless
5
Because the vehicle searches were lawful, we need not address Tamari’s argument that
statements he made during those searches should have been suppressed as fruit of the poisonous
tree under Wong Sun v. United States.
11
searches of the Hummer were nonetheless lawful under the automobile exception
to the Fourth Amendment’s warrant requirement.
Again, the automobile exception permits warrantless vehicle searches if the
vehicle is operational and agents have probable cause to believe the vehicle
contains evidence of a crime. See Dyson, 527 U.S. at 466-67, 119 S. Ct. at 2014;
United States v. Magluta, 418 F.3d 1166, 1182 (11th Cir. 2005). Probable cause,
in turn, exists when under the totality of the circumstances, “there is a fair
probability that contraband or evidence of a crime will be found” in the vehicle.
Goddard, 312 F.3d at 1363 (quotation omitted). Because there is no dispute that
the Hummer was operational, our inquiry is limited to determining whether
sufficient probable cause existed to allow warrantless searches of the vehicle.
First, we hold Agent Crane had probable cause to conduct the initial search
of the Hummer. Agents were searching a parcel of rural, isolated property they
had probable cause to believe was part of a large-scale drug conspiracy. After they
seized cocaine, cash, and firearms on the premises, a yellow Hummer drove onto
the property, the same type of vehicle agents suspected was driven by Humberto
Febles, the head of the drug conspiracy. In fact, when Tamari changed his story
regarding the vehicle’s owner, he claimed a man named Humberto loaned him the
Hummer. Upon request, Tamari was unable to produce any identification or
vehicle registration. Further, when asked about his purpose on the property,
12
Tamari proffered the untenable explanation that he was there to see a man about
some animals. Given the totality of these circumstances, a reasonable agent could
deduce with fair probability that the Hummer contained contraband or evidence of
a crime. See, e.g., Chambers v. Maroney, 399 U.S. 42, 47-48, 52, 90 S. Ct. 1975,
1979, 1981 (1970) (noting “obviously [there was] probable cause to search the car”
when officers had a description of the suspects and the vehicle they drove). Agent
Crane, therefore, had sufficient probable cause to search the Hummer.
Second, agents had probable cause to search the Hummer once more after
Ho Jo, the narcotics detection dog, circled the vehicle. Along with the facts
establishing probable cause for Agent Crane’s initial search, Ho Jo sniffed the
Hummer and alerted agents to the presence of narcotics in the rear of the vehicle.6
We have long recognized that “probable cause arises when a drug-trained canine
alerts to drugs.” United States v. Banks, 3 F.3d 399, 402 (11th Cir. 1993); see also
United States v. Dunkley, 911 F.2d 522, 527 (11th Cir. 1990); United States v.
Puglisi, 723 F.2d 779, 783 (11th Cir. 1984). Notwithstanding the facts validating
the initial search, Ho Jo’s positive alert was itself sufficient to give agents probable
cause to search the Hummer a second time.
6
We need not address whether agents had cause to walk Ho Jo around the perimeter of
the vehicle because a drug sniff performed during a lawful traffic stop is not a search implicating
Fourth Amendment concerns. See Illinois v. Caballes, 543 U.S. 405, 410, 125 S. Ct. 834, 838
(2005).
13
Thus, even if the search warrant had not justified the vehicle searches in this
case, we find the agents were entitled to search the Hummer under the automobile
exception to the warrant requirement. The district court, therefore, did not err in
denying Tamari’s motion to suppress the resulting evidence and statements.7
IV. CONCLUSION
In sum, we hold the Hummer was subject to search under the terms of the
search warrant. In the alternative, agents were entitled to search the Hummer
without a warrant under the automobile exception to the warrant requirement. The
district court, therefore, did not err in admitting evidence and statements obtained
during the September 1, 2004, vehicle searches. We accordingly affirm Tamari’s
conviction.
AFFIRMED.
7
See supra note 5.
14