United States v. Timothy Eric Alston , 598 F. App'x 730 ( 2015 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-10416
Non-Argument Calendar
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D.C. Docket No. 3:12-cr-00118-TJC-PDB-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TIMOTHY ERIC ALSTON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(February 17, 2015)
Before MARTIN, ROSENBAUM, and ANDERSON, Circuit Judges.
PER CURIAM:
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Timothy Alston was convicted of attempted possession with intent to
distribute marijuana, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(D), and 846,
and possession of a firearm by a convicted felon, in violation of 18 U.S.C.
§§ 922(g)(1) and 924(a)(2). He appeals his convictions for those offenses on the
ground that the district court erred in denying his motion to suppress evidence
found during a warrantless search of his car after his arrest. After careful review,
we affirm.
I.
Alston and another person were arrested after purchasing marijuana from
undercover officers at a flea market in Jacksonville, Florida. Upon Alston’s arrest,
officers conducted a warrantless search of his car—which Alston had driven from
Savannah, Georgia, to conduct the drug deal—and found two guns and a “wad of
cash.” After his indictment, Alston moved to suppress the evidence, arguing that
the warrantless search of his car violated the Fourth Amendment because it was not
a valid search incident to arrest under the Supreme Court’s decision in Arizona v.
Gant, 556 U.S. 332, 129 S. Ct. 1710 (2009).
The relevant facts about Alston’s arrest and the search of his car are as
follows.1 Detective Shareef Valentine of the Jacksonville Sheriff’s Office
1
We construe the facts in the light most favorable to the government, the party
prevailing below. United States v. Bervaldi, 226 F.3d 1256, 1262 (11th Cir. 2000). We also
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narcotics division was contacted on June 14, 2012, by a reliable confidential
informant, who advised Valentine that the informant had talked with an individual
who was coming to Jacksonville from Savannah, Georgia, and looking to purchase
powder cocaine and seven pounds of marijuana. With Valentine’s authorization,
the informant arranged a meeting with the individual later that day at a local flea
market. Valentine obtained about five-and-a-half pounds of marijuana from the
drug vault of the Sheriff’s Office in order to conduct a controlled drug purchase,
but he did not get any cocaine.
Valentine, a second undercover agent, and the informant arrived at the flea
market in a pickup truck, which contained audio recording equipment. Alston
arrived driving a Nissan Maxima, which he parked next to the truck. Alston then
entered the passenger seat of the truck, asking about the quantity and price of the
marijuana. Valentine said it was $950 per pound and showed some of the
marijuana to the Alston, who seemed surprised and pleased by the quality. Alston
got out of the vehicle to show a small quantity to another individual sitting in the
front passenger seat of the Maxima. After inspecting the marijuana, the second
individual gave some money to Alston, who returned to the truck and talked about
obtaining additional marijuana. Alston left and re-entered the Maxima. The
review the entire record, including trial testimony. United States v. Newsome, 475 F.3d 1221,
1224 (11th Cir. 2007).
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detectives, sitting higher in the truck, could see the second man give Alston some
additional money. Alston returned to the truck and counted out between $4,000
and $4,800 in front of the officers. Valentine then gave the takedown order, and
other officers moved in and took into custody Alston and the second man.
Once the takedown order was given, Donald Nixon, a narcotics detective
with the Sheriff’s Office, pulled the passenger out of the vehicle and handcuffed
him. As he did so, Nixon noticed a “wad of money” on the floorboard of the
vehicle that was rubber-banded in “drug folds,” which was consistent with what he
had seen in other drug investigations. After the passenger was handcuffed and
removed, Nixon searched the glove compartment and found a Hi-Point pistol.
Nixon also saw another detective pull a weapon from underneath the driver’s seat.
Nixon acknowledged at the suppression hearing that the occupants of the vehicle
no longer had access to the vehicle at the time of the search. Nixon also testified
that the vehicle was seized for evidentiary purposes, and that it was the Sheriff’s
Office’s policy for the officer to inventory the vehicle before the vehicle was
impounded.
In a report and recommendation issued after the suppression hearing, the
magistrate judge concluded that the search was permissible because “it [was] not
unreasonable to believe that other drugs, paraphernalia, cell phones, firearms or
records of drug transactions would be found in a vehicle in which a drug defendant
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has driven to a transaction.” Further, the judge explained, officers had probable
cause to believe that some money intended to be used in a drug transaction would
be in the vehicle since the quantity of marijuana purchased was less than amount
originally requested. The officers, according to the judge, also had reason to
believe that some portion of the marijuana given to Alston by the undercover
officer would be in the vehicle. Alternatively, the magistrate judge found that the
search of the vehicle was permissible as an inventory search because officers had
the authority to impound the vehicle, and they complied with departmental policy
in conducting the search, and, even if the search was not a valid inventory search,
the firearms found would have been inevitably discovered because the vehicle was
subject to inventory. Therefore, the magistrate judge recommended denying the
motion to suppress.
The district court overruled Alston’s objections to the report and
recommendation and denied the motion to suppress. After a trial, a federal jury
found Alston guilty of both counts in the indictment. The district court sentenced
Alston to a total term of 92 months’ imprisonment.
II.
In an appeal from the denial of a motion to suppress, we review the district
court’s factual findings for clear error and its application of the law to those facts
de novo. United States v. Caraballo, 595 F.3d 1214, 1222 (11th Cir. 2010). “In
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addition, we may affirm the denial of a motion to suppress on any ground
supported by the record.” Id.III.
In most circumstances, unless there is consent, police officers must obtain a
warrant supported by probable cause to justify a search under the Fourth
Amendment. United States v. Magluta, 418 F.3d 1166, 1182 (11th Cir. 2005).
There are, however, several established exceptions to the warrant requirement.
The following three exceptions are implicated by the facts of this case: (1) a
search of a vehicle incident to a lawful arrest of a recent occupant (“search incident
to arrest exception”), see Gant, 556 U.S. at 343-44, 129 S. Ct. at 1719; (2) a search
based on probable cause to believe that an operational vehicle contains evidence of
criminal activity (“automobile exception”), see United States v. Lindsey, 482 F.3d
1285, 1293 (11th Cir. 2007); and (3) an inventory search pursuant to standardized
procedures (“inventory exception”), see United States v. Khoury, 901 F.2d 948,
957-59 (11th Cir. 1990). The parties and the district court appear to have focused
their attention on the exceptions for searches incident to arrest and inventory
searches. 2 Alston’s arguments on appeal concern these two exceptions.
According to the Supreme Court in Gant, two situations permit officers to
search a vehicle incident to arrest: (1) “when the arrestee is unsecured and within
2
The transcript of the suppression hearing reflects some conflation of the search-
incident-to-arrest exception and the automobile exception.
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reaching distance of the passenger compartment at the time of the search”; or
(2) “when it is ‘reasonable to believe evidence relevant to the crime of arrest might
be found in the vehicle.’” Gant, 556 U.S. at 343, 129 S. Ct. at 1719 (quoting
Thornton v. United States, 541 U.S. 615, 632, 124 S. Ct. 2127, 2137 (2004)
(Scalia, J., concurring in the judgment)). The Court indicated that where an
occupant is arrested for a drug offense, as opposed to a traffic offense, “the offense
of arrest will supply a basis for searching the passenger compartment of an
arrestee’s vehicle and any containers therein.” See id. at 344, 129 S. Ct. at 1719.
Alston argues based on Gant that the magistrate judge and district court
erred in finding that the “crime of arrest” provided a basis for the search of the
vehicle. The officer’s booking sheet, he asserts, reflected that Alston was arrested
for conspiring to traffic in cocaine, delivering or distributing marijuana within a
thousand feet of a place of worship, and possessing a firearm. Because there was
no evidence of these crimes before the search, if at all, Alston contends, officers
could not reasonably have believed that the vehicle contained evidence of the
crimes.
Alston’s argument therefore depends on looking at the “crime of arrest”
from the officer’s subjective perspective, by reference to the booking sheet, in
essence asking whether it is reasonable to believe that evidence relevant to the
crime for which the officer believes he is arresting the defendant might be found in
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the vehicle. But both this Court and the Supreme Court have rejected inquiry into
an officer’s subjective intentions in reviewing the constitutionality of searches and
seizures under the Fourth Amendment. See, e.g., Whren v. United States, 517 U.S.
806, 811-13, 116 S. Ct. 1769, 1773-74 (1996) (holding that the “reasonableness” of
a traffic stop is viewed objectively, not based on the actual motivations of the
individual officer); United States v. Lanzon, 639 F.3d 1293, 1300 (11th Cir. 2011)
(“A police officer’s subjective reasons for a search do not control the legal
justification for his actions, as long as objective circumstances justify the search.”);
Jones, 377 F.3d at 1314 (holding that “[s]ubjective intentions play no role in
ordinary, probable-cause Fourth Amendment analysis” and that “an arrest will be
upheld if the objective circumstances justify the arrest” (quotation marks omitted)).
Although Alston’s position is doubtful, we need not further address whether
the search of Alston’s car was permissible under Gant. We affirm the denial of
the motion to suppress alternatively under the automobile exception because
officers had probable cause to believe that the vehicle contained evidence of
criminal activity. United States v. Ross, 456 U.S. 798, 799-825, 102 S. Ct. 2157,
2160-73 (1982); Lindsey, 482 F.3d at 1293; see Caraballo, 595 F.3d at 1222. In
contrast to the search-incident-to-arrest exception, the automobile exception
“allows searches for evidence relevant to offenses other than the offense of arrest,
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and the scope of the search authorized is broader.” Gant, 556 U.S. at 347, 129 S.
Ct. at 1721.
This Court has explained that the automobile exception authorizes a search
of a vehicle if “(1) the vehicle is readily mobile; and (2) the police have probable
cause for the search.” Lindsey, 482 F.3d at 1293. For the mobility requirement,
the car must simply be operational.3 See id. The fact that Alston drove the
Maxima to the drug deal shows that it was operational. “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.” Id. (quotation
marks omitted).
Here, the facts and circumstances known to the officers, construed in the
light most favorable to the government, show that Alston drove from Savannah,
Georgia, to Jacksonville, Florida, to purchase marijuana and cocaine, negotiated
the purchase of five-and-a-half pounds of marijuana, possessed several thousands
of dollars to complete the transaction, and then attempted to offer payment for the
marijuana. Furthermore, in conducting the arrest of Alston’s passenger, an officer
observed in plain view a “wad of cash” arranged in “drug folds,” which was
3
The absence of exigent circumstances does not affect the validity of the search. See
United States v. Johns, 469 U.S. 478, 484, 105 S. Ct. 881, 885 (1985) (“A vehicle lawfully in
police custody may be searched on the basis of probable cause to believe that it contains
contraband, and there is no requirement of exigent circumstances to justify such a warrantless
search.”); Lindsey, 482 F.3d at 1293 n.6 (“[W]e have made it clear that the requirement of
exigent circumstances is satisfied by the ‘ready mobility’ inherent in all automobiles that
reasonably appear to be capable of functioning.” (internal quotation marks omitted)).
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consistent with what he had seen in other drug investigations. Given the reason for
which Alston and his passenger were at the flea market, the officers reasonably
could have concluded that Alston and his passenger intended to use the money to
purchase drugs.
Under the totality of the circumstances, we are satisfied that probable cause
existed to believe that the car, which was being used as an instrument of drug-
trafficking activity, contained additional evidence of drug-trafficking activity, such
as drug paraphernalia, cash, or records of drug transactions, among other things.
See, e.g., United States v. Brazel, 102 F.3d 1120, 1146-47 (11th Cir. 1997) (finding
probable cause to justify a warrantless search of the vehicle because circumstances
indicated that the car was used to facilitate drug offenses).
Because probable cause existed to search the vehicle for evidence of drug-
trafficking activity, officers were allowed to search the areas where the two guns
were found—the glove compartment and the area under the driver’s seat. See
Ross, 456 U.S. at 825, 102 S. Ct. at 2173 (“If probable cause justifies the search of
a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its
contents that may conceal the object of the search.”). Both of these places could
have, and in fact did, conceal evidence of drug-trafficking activity. Cf. United
States v. Cruz, 805 F.2d 1464, 1474 (11th Cir. 1986) (noting that “guns are a tool
of the drug trade” and that “[t]here is a frequent and overpowering connection
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between the use of firearms and narcotics traffic”). Accordingly, we affirm the
district court’s denial of the motion to suppress. 4
IV.
In sum, the district court did not err in denying Alston’s motion to suppress,
and we, therefore, AFFIRM his convictions.
4
Because the search of Alston’s car had a valid constitutional basis, we do not address
whether the district court erred in finding that the search was a valid inventory search.
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