United States v. Johny Dabrezil

• Court: Court of Appeals for the Eleventh Circuit
• Decided: February 20, 2015
• Docket: 14-11474
• Status: Unpublished

Opinion

Case: 14-11474 Date Filed: 02/20/2015 Page: 1 of 9

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 14-11474 Non-Argument Calendar ________________________

D.C. Docket No. 1:13-cr-20765-DLG-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOHNY DABREZIL,

Defendant-Appellant.

________________________

Appeal from the United States District Court for the Southern District of Florida ________________________

(February 20, 2015)

Before WILSON, MARTIN, and BLACK, Circuit Judges.

PER CURIAM: Case: 14-11474 Date Filed: 02/20/2015 Page: 2 of 9

Johny Dabrezil appeals his convictions for one count of possession of 15 or

more unauthorized access devices, in violation of 18 U.S.C. §§ 1029(a)(3) and 2,

and three counts of aggravated identity theft, in violation of 18 U.S.C.

§§ 1028A(a)(1) and 2.

Briefly stated, law enforcement officers received a report of a domestic

assault with injuries at an apartment in North Miami Beach, Florida. Officers from

the North Miami Beach Police Department responded to the scene. Officer Darren

Fagan arrived on the scene first, and, within a minute of his arrival, Officers Juan

Dolcine and Samuel Simon arrived. As Officer Fagan approached the apartment,

he could hear an ongoing argument between a male and a female. After a brief

series of authoritative knocks, Debrezil’s visibly agitated live-in girlfriend opened

the door. When he entered the apartment, Officer Fagan immediately detected the

smell of marijuana coming from inside the apartment. To determine what had

taken place, Officer Simon spoke with Dabrezil while Officer Fagan spoke with

Dabrezil’s live-in girlfriend. Meanwhile, Officer Dolcine entered the apartment

and within seconds, also detected the smell of marijuana. Officer Dolcine

conducted a limited inspection of the living room area, but did not extend his

inspection to any other rooms in the apartment. His inspection revealed a small

amount of marijuana along with some credit cards, both of which were located on

the coffee table. After this discovery, Dabrezil was read his Miranda rights.

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Shortly thereafter, Officer Craig Catlin arrived at Officer Dolcine’s request.

Approximately one minute later, Officers Fagan and Simon cleared the scene; their

shifts had ended. Officer Catlin asked Officer Dolcine whether the other officers

had checked the entire apartment to determine if anyone else was present, to which

he responded they had not. Officer Catlin’s subsequent inspection of the

apartment’s rooms revealed, among other things, a notebook and a ledger on top of

the notebook with names, dates of birth, and social security numbers, all found

lying on the bed in plain view.

On appeal, Dabrezil contends: 1) the officers violated his Fourth

Amendment rights by entering and searching his apartment without a warrant,

consent, or exigent circumstances; 2) the seizure of the Walmart visa card was

improper under the plain view doctrine; and 3) the security sweep of the

apartment’s bedrooms, conducted by the officers 7 to 25 minutes after their arrival,

violated the Fourth Amendment because no exigency existed at the time of the

security sweep, and, as a result, the handwritten ledger found on top of the

notebook on the bed in plain view during that sweep were seized unlawfully.

Upon review of the record and after careful consideration of the parties’

briefs, we affirm.

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I.

We review a district court’s denial of a motion to suppress as a mixed

question of law and fact. United States v. Franklin, 694 F.3d 1, 7 (11th Cir. 2012).

Unless clearly erroneous, we accept the district court’s factual findings in resolving

an exigent circumstance issue. Id. All facts are construed in the light most

favorable to the prevailing party below. Id. We determine de novo whether the

court erred in applying the law to those facts. Id. The denial of a motion to

suppress may be affirmed on any ground supported by the record. United States v.

Caraballo, 595 F.3d 1214, 1222 (11th Cir. 2010).

II.

We begin by confronting Dabrezil’s argument that the officers violated his

Fourth Amendment rights by entering and searching his apartment. The Fourth

Amendment protects persons and their “houses, papers, and effects” from

“unreasonable searches and seizures.” U.S. Const. amend. IV. Under the Fourth

Amendment, searches and seizures inside a home without a warrant are

presumptively unreasonable. Franklin, 694 F.3d at 7. However, a warrantless

search of a home may be justified “where both probable cause and exigent

circumstances exist.” Id. (internal quotation marks omitted). The exigent

circumstances doctrine applies when “there is compelling need for official action

and no time to secure a warrant.” United States v. Holloway, 290 F.3d 1331, 1334

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(11th Cir. 2002) (internal quotation marks omitted). The exigent circumstances

doctrine extends to situations involving “danger of flight or escape, loss or

destruction of evidence, risk of harm to the public or the police, mobility of a

vehicle, and hot pursuit.” Id. The government bears the burden of demonstrating

that such an exception applies. Id. at 1337.

“One of the most compelling” of these exigency exceptions is “the need to

protect or preserve life” in an emergency situation, id. at 1335, and is known as the

“emergency aid” exception, Kentucky v. King, 563 U.S. __, __, 131 S. Ct. 1849,

1856 (2011). Under this exception, “officers may enter a home without a warrant

to render emergency assistance to an injured occupant or to protect an occupant

from imminent injury.” Id. (internal quotation marks omitted). For the

emergency-aid exception to apply, officers must have an objectively reasonable

belief that someone inside is seriously injured, under threat of injury, or needs

serious aid. Brigham City, Utah v. Stuart, 547 U.S. 398, 403–04, 126 S. Ct. 1943,

1947 (2006). “The officer’s subjective motivation is irrelevant.” Id. at 404, 126 S.

Ct. at 1948; see also Kentucky, 563 U.S. at __, 131 S. Ct. at 1859.

The officers that entered Dabrezil’s home and searched it did so lawfully

because exigent circumstances existed. The initial call made to the North Miami

Beach Police Department was made by Dabrezil’s frantic and screaming live-in

girlfriend who reported injuries and requested rescue. The computer-aided

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dispatch report indicated a severity level of 3; which is associated with situations

involving domestic violence or assault. Based on this information, the officers had

probable cause and were authorized to enter the apartment upon their arrival

because it was objectively reasonable for the officers to believe that someone

inside the apartment was either in danger or in need of immediate medical

attention. Therefore, this perceived exigency legalized the officers’ presence

within Dabrezil’s apartment.

III.

Next, we address Dabrezil’s contention that the seizure of the Walmart visa

card was improper under the plain view doctrine. “The plain view doctrine permits

a warrantless seizure where (1) an officer is lawfully located in the place from

which the seized object can be plainly viewed and [has] a lawful right of access to

the object itself; and (2) the incriminating character of the item is immediately

apparent.” United States v. Smith, 459 F.3d 1276, 1290 (11th Cir. 2006) (internal

quotation marks omitted). If the initial entry into the suspect’s residence is lawful,

the officers are permitted to seize any contraband that is in plain view within the

residence. The officers must have probable cause to believe that the object in plain

view is contraband. Id. “In dealing with probable cause we deal with

probabilities. . . . The substance of all the definitions of probable cause is a

reasonable ground for belief of guilt.” Id. at 1291 (internal quotation marks

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omitted).

Officer Dolcine lawfully entered Dabrezil’s apartment because, as discussed

above, exigent circumstances existed—he was responding to a 911 call that

reported a domestic assault with injuries. Once lawfully in the apartment, Officer

Dolcine saw the Walmart visa card among pieces of paper containing account

numbers, and he immediately developed probable cause, or “reasonable

ground[s],” to believe that the Walmart visa card was being used for criminal

purposes. See id. at 1291. At the moment he saw the Walmart visa card on the

table with what he believed to be account numbers, his training and experience

exposed the incriminating character of the card and the account numbers, which

lead him to believe that Dabrezil was committing tax fraud. Officer Dolcine

confirmed his suspicion after asking Debrezil’s live-in girlfriend for Dabrezil’s

name, a name that did not match the name on the Walmart visa card. Therefore,

we conclude that the district court did not err in denying suppression of the

Walmart visa card.

IV.

Finally, we dispose of Dabrezil’s argument that the security sweep of his

apartment’s bedrooms, conducted by the officers 7 to 25 minutes after their arrival,

violated the Fourth Amendment because no exigency existed at the time of the

security sweep, and, as a result, the handwritten ledger and notebook found in plain

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view in the bedroom during that sweep were seized unlawfully. Once lawfully

inside a residence, officers may conduct a limited visual inspection, or protective

sweep, to ensure no threats to officer safety are present. United States v. Timmann,

741 F.3d 1170, 1181 (11th Cir. 2013). A protective sweep may be undertaken

“without an arrest warrant, so long as the officers are lawfully within the premises

due to, for example, the existence of exigent circumstances.” Id. A properly

limited protective sweep may include “closets and other spaces immediately

adjoining the place of arrest from which an attack could be immediately launched.”

Maryland v. Buie, 494 U.S. 325, 334, 110 S. Ct. 1093, 1098 (1990). Such a sweep

of adjoining spaces may be undertaken “without probable cause or reasonable

suspicion.” Id. The scope of a protective sweep is restricted to only areas large

enough to harbor a person and therefore does not encompass closed drawers or

containers. United States v. Hromada, 49 F.3d 685, 690 (11th Cir. 1995).

Whether or not a Fourth Amendment violation has occurred depends upon

objective reasonableness in light of the facts and circumstances, and an officer’s

actual intent or motivation is irrelevant. See id. at 690–91 (stating that an arresting

officer’s desire to search for evidence of illegal activity in executing protective

sweep of defendant’s residence pursuant to in-home arrest was irrelevant to the

legality of the search as protective sweep).

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As discussed above, like Officer Dolcine, Officer Catlin was lawfully within

the residence because exigent circumstances existed; he too was responding to a

911 call that reported a domestic assault with injuries and it was objectively

reasonable to believe that someone inside was in danger. Brigham City, 547 U.S.

at 403–04, 126 S. Ct. at 1947. It was also objectively reasonable for Officer

Catlin to conduct the protective sweep of the areas adjoining the living room for

officer safety immediately upon his arrival because none of the other officers had

done so in the 7 to 25 minutes prior to his arrival and none of the other officers

knew for sure whether someone else was in the apartment. See Maryland, 494

U.S. at 334, 110 S. Ct. at 1098; Hromada, 49 F.3d at 691. This protective sweep

was objectively reasonable even if Officer Catlin secondarily hoped to find

evidence of fraud. See Hromada, 49 F.3d at 691. During the sweep, Officer Catlin

found lying on the bed a notebook and a ledger on top of the notebook with names,

dates of birth, and social security numbers. Based on the information in the ledger

found on top of the notebook and the ledger’s close proximity to the notebook

itself, officers had probable cause to believe that the ledger was contraband and

that the contents of the notebook beneath it contained similar incriminating

information. Therefore, the ledger and notebook that were in plain view during the

protective sweep were properly seized.

AFFIRMED.