United States v. Rodell Gordon ( 2018 )


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  •             Case: 16-16910   Date Filed: 01/16/2018   Page: 1 of 6
    [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT
    ________________________
    No. 16-16910
    Non-Argument Calendar
    ________________________
    D.C. Docket No. 1:15-cr-00108-JRH-BKE-2
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    versus
    RODELL GORDON,
    a.k.a. Rodie,
    Defendant - Appellant.
    ________________________
    Appeal from the United States District Court
    for the Southern District of Georgia
    ________________________
    (January 16, 2018)
    Before TJOFLAT, JORDAN, and FAY, Circuit Judges.
    PER CURIAM:
    Case: 16-16910       Date Filed: 01/16/2018   Page: 2 of 6
    Rodell Gordon appeals his conviction after pleading guilty to conspiracy to
    distribute and possess with intent to distribute marijuana and hashish oil.1 On
    appeal, Gordon argues that the District Court erred when it denied his motion to
    withdraw his guilty plea based on ineffective assistance of counsel. He claims that
    his trial counsel’s decision not to pursue a motion to suppress evidence from an
    allegedly unconstitutional search of an apartment he was visiting establishes
    ineffective assistance.
    We review the denial of a request to withdraw a guilty plea for abuse of
    discretion. United States v. Freixas, 
    332 F.3d 1314
    , 1316 (11th Cir. 2003). A
    district court abuses its direction when it fails to apply proper legal standards or
    procedures or when it makes clearly erroneous findings of fact. United States v.
    Izquierdo, 
    448 F.3d 1269
    , 1276 (11th Cir. 2006) (quotation omitted). A challenge
    to the effectiveness of counsel is a mixed question of law and fact and is subject to
    de novo review. Thompson v. Haley, 
    255 F.3d 1292
    , 1297 (11th Cir. 2001). In
    cases where a defendant faults his lawyer for failing to pursue a motion to suppress
    prior to entering a plea, the success of his ineffective assistance claim turns on the
    viability of the motion to suppress. Arvelo v. Sec’y, Fla. Dep’t of Corr., 
    788 F.3d 1345
    , 1348 (11th Cir. 2015). Therefore, if any motion to suppress would have
    been meritless here, so would Gordon’s ineffective assistance claim.
    1
    20 U.S.C. §§ 841(a)(1), 841(b)(1)(D), 846.
    2
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    Gordon argues that his trial counsel should have challenged the search
    warrant that resulted in the seizure of incriminating evidence for two reasons. 2
    First, he claims that the warrant failed the Fourth Amendment’s particularity
    requirement because it had the wrong address listed for the apartment to be search
    and because it did not include his name. Second, he claims that the warrant was
    not actually completed by the magistrate judge because its command paragraph
    was left unedited. Both of these arguments fail. We address each in turn.
    I.
    The Fourth Amendment provides that a search warrant must “particularly
    describ[e] the place to be searched, and the persons or things to be seized.” An
    erroneous description of the location to be searched will not render a warrant
    invalid so long as the warrant describes the place to be searched with sufficient
    particularity. It does so if the searching officer is able to (1) ascertain and identify
    the place intended with reasonable effort, (2) confine his examination to the place
    described, and (3) advise those being searched of his authority. United States v.
    Burke, 
    784 F.2d 1090
    , 1092 (11th Cir. 1986).
    2
    The government argues that Gordon would not have standing to challenge the search
    warrant because he was merely a guest in the apartment with no reasonable expectation of
    privacy. Gordon, in response, claims that he was an overnight guest and therefore does have
    standing under Minnesota v. Olson, 
    495 U.S. 91
    , 
    110 S. Ct. 1684
    (1990). On this point, the
    record only indicates that Gordon agreed he was “just visiting” and had flown from California to
    Georgia hours before the search took place. Because no Fourth Amendment issue was presented
    below, there was no reason for the record to indicate whether or not he was an overnight guest in
    Georgia. For purposes of our discussion, we assume Gordon was an overnight guest and does
    have standing under Olson.
    3
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    Here, the warrant described the location in rich detail. It correctly named the
    apartment complex, noted the building was a two-story multi-dwelling building
    and the apartment was on the first floor, and described the apartment as having a
    green front door with “numerous stickers” on it. It also included the proper
    apartment number. It was, however, incorrect in one respect: it described the
    address as “2900 Perimeter Parkway, Apt. 205.” The apartment complex was
    bordered by both Perimeter Parkway and Huntington Drive, and the apartment
    address was actually 2900 Huntington Drive, Apartment 205. But this is far from a
    fatal flaw. The correct apartment was noted in every other respect and the
    searching officers executed the warrant on the correct apartment. The small
    misstep of including the wrong bordering street in the address is, in this case,
    inconsequential. See United States v. Figueroa, 
    720 F.2d 1239
    , 1243 n.5 (11th Cir.
    1983). It could not serve as a basis to challenge the warrant.
    Neither could the fact that the warrant did not include Gordon’s name. No
    contraband was found on Gordon’s person when he was searched. Rather, the
    incriminating evidence was found inside of the apartment. Even if the warrant was
    defective for not listing Gordon’s name, 3 any challenge on that basis would have
    3
    It probably wasn’t defective on that basis. The warrant listed Jamie Riley, the occupant
    of the apartment, along with “any other persons believed to be involved in illegal activity.” The
    affidavit attached to the warrant described Gordon as the only other person inside of the target
    apartment when officers had arrived earlier that day. It also included a statement from Riley that
    said Gordon had brought marijuana to the apartment. This basis would probably be sufficient to
    4
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    yielded no result. See United States v. Perkins, 
    348 F.3d 965
    , 969 (11th Cir. 2003)
    (showing that an unconstitutional search renders evidence derived from that search
    inadmissible in court). Because the warrant listed the apartment address and
    Gordon with sufficient particularity under the Fourth Amendment, any challenge to
    it on those bases would have been futile. Therefore, Gordon’s trial counsel was
    not ineffective here.
    II.
    Gordon also claims that the warrant was defective because the magistrate
    judge did not complete it. He argues that because its command paragraph was
    unedited, the magistrate did not limit the search’s scope appropriately and instead
    issued an unconstitutional general warrant. The relevant language in the warrant’s
    command paragraph appears below.
    And as I am satisfied that there is probable cause that the property so
    described is being concealed (on the person) and (on the premises) and (in
    the conveyance) above described and that the foregoing grounds for
    application for issuance of the search warrant exists. You are hereby
    commanded to search forthwith the described (person) and (premises) and
    (conveyance) for the property specified, and making the search (in the
    daytime) (at any time in the day or night) and if the property be found there
    to seize it.
    This claim ignores the rest of the warrant, which specifically lists the location and
    the occupant of the apartment as well as the property to be seized as “marijuana,
    support evidence obtained from a search of Gordon himself. But because no such evidence was
    obtained, we need not reach the question.
    5
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    U.S. currency, firearms, documents showing residency, ledgers documenting drug
    sales, purchases, and monetary profits.” A general warrant, on the other hand, is
    one that authorizes an officer to rummage through a person’s belongings for any
    item indicative of criminality. See Andresen v. Maryland, 
    427 U.S. 463
    , 480, 96 S.
    Ct. 2737, 2748 (1976). Because the items to be seized are described in the warrant
    with sufficient particularity, it is not an unconstitutional general warrant. It is
    irrelevant here that the magistrate judge did not make any edits to the command
    paragraph. Because the warrant was not defective on this basis, any challenge to it
    would also have been futile. Therefore, Gordon’s trial counsel was not ineffective
    here as well.
    III.
    Gordon’s trial counsel’s decision not to attempt to suppress evidence from
    the search warrant did not constitute ineffective assistance. Because the
    underlying motion to suppress would have been meritless, we need not go further.
    
    Arvelo, 788 F.3d at 1348
    . The District Court did not abuse its discretion in
    denying Gordon’s motion to withdraw his guilty plea. We affirm the judgment.
    AFFIRMED.
    6