United States v. Deon Delguato Roundtree , 299 F. App'x 905 ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
November 7, 2008
No. 08-10194 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 07-80106-CR-DMM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DEON DELGUATO ROUNDTREE,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(November 7, 2008)
Before TJOFLAT, ANDERSON and PRYOR, Circuit Judges.
PER CURIAM:
Deon Delguato Roundtree appeals his conviction for possession with intent
to distribute crack cocaine, in violation of 21 U.S.C. § 841(a)(1). Specifically,
Roundtree appeals the district court’s denial of his motion to suppress evidence
seized during a search of his residence and the district court’s failure to grant an
evidentiary hearing on the motion.
The affidavit and application for a search warrant indicated the following.
Officers from the Riviera Beach Police Department began investigating Roundtree
after receiving numerous complaints from concerned citizens and patrol officers
about illegal narcotic transactions taking place at his residence. The officers
conducted surveillance outside Roundtree’s apartment and observed him engage in
four possible narcotic transactions over the course of two hours. Subsequently, the
officers used a reliable confidential informant to make a controlled buy of crack
cocaine from Roundtree at his apartment. The officers searched the informant to
ensure that he did not possess contraband and provided him with a pre-serialized
fifty dollar bill. Then, the officers maintained constant, unobstructed visual
contact with the informant as he approached the apartment. Roundtree opened the
door and let the informant enter. After approximately three minutes, the officers
observed the informant leave and walk back to a predetermined neutral location.
The officers again searched the informant and discovered that he had a piece of
crack cocaine and no longer had the fifty dollar bill.
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We review a district court’s denial of a defendant’s motion to suppress under
a mixed standard of review. United States v. Ramirez, 476 F.3d 1231, 1235-36
(11th Cir.), cert. denied, 127 S. Ct. 2924 (2007). The district court’s finding of
facts are reviewed for clear error and the district court’s application of the law to
those facts is reviewed de novo. Id. We review the district court’s failure to grant
an evidentiary hearing on a motion to suppress for an abuse of discretion. United
States v. Cooper, 203 F.3d 1279, 1285 (11th Cir. 2000). In particular, we have
held that:
A motion to suppress must in every critical respect be sufficiently
definite, specific, detailed, and nonconjectural to enable the [district]
court to conclude that a substantial claim is presented. In short, the
motion must allege facts which, if proven, would provide a basis for
relief. A court need not act upon general or conclusory assertions
founded on mere suspicion or conjecture, and the court has discretion
in determining the need for a hearing.
United States v. Richardson, 764 F.2d 1514, 1527 (11th Cir. 1985) (internal
citations omitted). “Defendants are not entitled to an evidentiary hearing based on
a ‘promise’ to prove at the hearing that which they did not specifically allege in
their motion to suppress.” Cooper, 201 F.3d at 1285.
Upon careful review of the record and consideration of the parties’ briefs,
we discern no reversible error. Roundtree argues that there were three allegations
in his motion to suppress that, if proven, would provide a basis for relief. First, the
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search warrant did not specify who made the initial complaints about him or when
their alleged observations took place. Second, the confidential informant was the
only person in a position to observe cocaine in Roundtree’s apartment. It is clear
that a properly executed controlled buy, as is the one at issue here, is sufficient,
standing alone, to establish probable cause. Thus, these allegations cannot provide
a basis for relief.
Third, Roundtree argues that the circuit court’s finding of probable cause
was stale because there was a four-day gap between the last time that the police
observed Roundtree and the time when the warrant was issued. Furthermore, there
was an eight-day gap between the last time the police observed Roundtree and the
execution of the warrant. There is no particular time limit for when information
becomes stale. United States v. Bervaldi, 226 F.3d 1256, 1265 (11th Cir. 2000). A
determination is made on the particular facts of each case. Id. Where the affidavit
“recites activity indicating protracted or continuous conduct, time is of less
significance.” Id. (internal quotations omitted). Here, the affidavit alleged that
the officers observed Roundtree engage in what appeared to be numerous drug
deals. The affidavit also described a controlled buy. Thus, the information in the
warrant affidavit was not stale after the passage of only four days before the
warrant was obtained and eight-days before it was executed.
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The motion to suppress did not present an issue of fact or contain allegations
that would provide a basis for relief. Therefore, the district court did not err in
either failing to hold an evidentiary hearing or denying Roundtree’s motion to
suppress evidence. Accordingly, we affirm his conviction.
AFFIRMED.1
1
Appellant’s request for oral argument is DENIED.
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