United States v. Willie Free

254 F. App'x 765
CourtCourt of Appeals for the Eleventh Circuit
DecidedNovember 19, 2007
Docket07-12109
StatusUnpublished

This text of 254 F. App'x 765 (United States v. Willie Free) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Willie Free, 254 F. App'x 765 (11th Cir. 2007).

Opinion

PER CURIAM:

Willie Free appeals his conviction for possession with intent to distribute cocaine base and cocaine, in violation of 21 U.S.C. § 841(a)(1). In October 2005, Free picked up his roommate, Omar Mims, and the two went to a nightclub in Statesboro, Georgia. While they were there, officers from the Statesboro Police Department arrested Mims for passing counterfeit money to the nightclub. During a search incident to Mims’ arrest, the officers discovered two small bags of marijuana on his person. One of the officers, Detective Robert Bryan, then asked Free for permission to search his vehicle; Free consented. After no contraband was found in Free’s car, Detective Bryan informed Free that he could leave, and Free stated that he would be returning to his home in Screven County, a rural county northwest of Statesboro.

While he was wrapping up his investigation at the nightclub, Detective Bryan received a call from another officer who had interviewed Mims. According to the officer, Mims said that Free had given him both the counterfeit money and the marijuana, and that Free would be returning to their apartment in Statesboro to destroy the remaining counterfeit money and drugs. After receiving this information, Detective Bryan drove to the apartment complex specified by Mims, where he arrived at the same time as Free. When asked what he was doing at the complex, Free said he was looking for his cousin, Big Camp, and he denied knowing who lived in the apartment near where he parked his car.

At that time, just after midnight, Corporal Kevin Weatherly arrived, and Detective Bryan asked Weatherly to knock on the door of the apartment. When a woman answered, Detective Bryan asked Corporal Weatherly to wait with Free and went to speak with her. He determined that the woman’s name was Blair Rhodes. Rhodes confirmed that Free lived at the apartment and was the father of her child, and she gave consent for the officers and Free to enter the apartment. Detective Bryan had Corporal Weatherly bring Free into the apartment with them. Because the two bedrooms were dark and the bathroom door was closed, Detective Bryan then instructed Corporal Weatherly to conduct a protective sweep of the entire apartment, which revealed a small amount of marijuana in plain view.

Rhodes then declined consent for the officers to conduct a search of the apartment. After Rhodes denied consent to search, Detective Bryan left the apartment in order to submit an affidavit for a search warrant based primarily on: (1) Mims’ statements about the counterfeit money and marijuana; and (2) the marijuana found during the protective sweep. After obtaining a warrant, the officers searched the apartment, and they found cocaine, cocaine base, marijuana, a counterfeit $20 bill, and a semi-automatic rifle.

In his subsequent prosecution for possession of cocaine base and cocaine, Free moved to suppress the evidence from the later search, arguing that: (1) Corporal Weatherly’s warrantless protective sweep of the apartment violated his Fourth Amendment right against unreasonable searches and seizures because it was not conducted incident to an arrest; and (2) the evidence found in the later search *767 should be excluded as fruit of the poisonous tree because the search warrant was based on evidence discovered during the unlawful protective sweep. The district court denied Free’s motion to suppress, finding that the protective sweep was valid because, according to the court, protective sweeps may be conducted in situations not incident to an arrest. Free then conditionally pleaded guilty to possession with intent to distribute cocaine base and cocaine, in violation of 21 U.S.C. § 841(a)(1), reserving his right to appeal on the suppression issue. Free argues on appeal that the district court erred by: (1) concluding that a valid protective sweep can occur when it is not incident to an arrest; and (2) failing to suppress all of the evidence that was discovered during the search of the apartment.

We review the district court’s denial of a defendant’s motion to suppress under a mixed standard of review, reviewing the district court’s findings of fact for clear error and its application of law to those facts de novo. United States v. Ramirez, 476 F.3d 1231, 1235-36 (11th Cir.), cert. denied, — U.S.-, 127 S.Ct. 2924, 168 L.Ed.2d 253 (2007).

Free argues that the district court erred by concluding that the protective sweep was valid because, according to Free, a protective sweep can only be valid when it is incident to an arrest, not when it occurs after the owner consents to entry. The Fourth Amendment provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

U.S. Const. amend. IV. “The Fourth Amendment demonstrates a strong preference for searches conducted pursuant to a warrant.” Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911 (1996) (quotation omitted). Searches inside a residence without a warrant are presumptively unreasonable, absent probable cause and exigent circumstances. United States v. Santa, 236 F.3d 662, 668 (11th Cir.2000).

In Maryland v. Buie, 494 U.S. 325, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990), where the police discovered evidence while conducting a protective sweep of a basement after fully executing an arrest warrant, the Supreme Court stated:

We also hold that as an incident to the arrest the officers could, as a precautionary matter and without probable cause or reasonable suspicion, look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched. Beyond that, however, we hold that there must be articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene.

Buie, 494 U.S. at 334, 110 S.Ct. at 1098. The Court in Buie permitted police officers to undertake protective sweeps incident to arrest because of the compelling “interest of the officers in taking steps to assure themselves that the house in which a suspect is being, or has just been, arrested is not harboring other persons who are dangerous and who could unexpectedly launch an attack,” emphasizing that the intrusion must be “no more than necessary to protect the officer from harm.” Id. at 333, 110 S.Ct. at 1098.

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Related

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297 F.3d 1308 (Eleventh Circuit, 2002)
United States v. Anthony Simmons
368 F.3d 1335 (Eleventh Circuit, 2004)
United States v. Omar Ramirez
476 F.3d 1231 (Eleventh Circuit, 2007)
United States v. Karo
468 U.S. 705 (Supreme Court, 1984)
Maryland v. Buie
494 U.S. 325 (Supreme Court, 1990)
Ornelas v. United States
517 U.S. 690 (Supreme Court, 1996)
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779 F.2d 585 (Eleventh Circuit, 1986)
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224 F.3d 1243 (Eleventh Circuit, 2000)

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Bluebook (online)
254 F. App'x 765, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-willie-free-ca11-2007.