United States v. Barbara Klinkosz , 163 F. App'x 827 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
____________________________ ELEVENTH CIRCUIT
January 20, 2006
No. 05-10009 THOMAS K. KAHN
Non-Argument Calendar CLERK
____________________________
D.C. Docket No. 04-20667-CR-FAM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BARBARA KLINKOSZ,
Defendant-Appellant.
__________________________________
Appeal from the United States District Court
for the Southern District of Florida
___________________________________
(January 20, 2006)
Before EDMONDSON, Chief Judge, TJOFLAT and ANDERSON, Circuit Judges.
PER CURIAM:
Defendant-Appellant Barbara Klinkosz appeals her conviction, after a jury
trial, for simple possession of MDMA (Ecstasy), in violation of 21 U.S.C.
§ 844(a). Defendant specifically challenges the district court’s denial of her
motion to suppress. No reversible error has been shown; we affirm.
Testimony at the suppression hearing showed these circumstances.
Defendant lived with her boyfriend, co-defendant Peter Plinelis. Pursuant to a
several-month investigation, Plinelis was arrested after selling 30,0000 MDMA
tablets to undercover officers. Just before the arrest, Plinelis told the officers that
he could deliver 10,000 more tablets the next day. After arresting Plinelis, the
officers decided to go to Plinelis’s apartment on the suspicion that the additional
tablets might be stored at that place. The officers had no search warrant. U.S.
Immigration and Customs Enforcement Agents Lemuel Lampkins and Sebastian
Torillo knocked on the door. Defendant, wearing only a towel, answered the door.
The agents identified themselves and asked to come inside to speak with her.
Defendant said they could come in, but asked them to wait until she dressed. She
closed the door.
Miami-Dade Police Department Sergeant Thomas Williams saw and heard
the exchange between Defendant and the agents. Williams then walked down an
exterior hallway next to Defendant’s apartment and stopped at a gate where he
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could see the rear of the apartment. About ten seconds later, he saw Defendant--
still clad only in a towel-- walk behind her apartment toward the Intercoastal
Waterway while holding a white plastic bag. Williams did not see Defendant with
this bag previously. Williams ordered Defendant to stop: she stopped, made eye
contact with him, and walked back toward the rear of the apartment. Williams
shouted to the other officers that Defendant was in the back and was trying to get
rid of the pills in the water. Williams then kicked open the gate, ran to the back
patio of the apartment, and saw Defendant and the other officers inside.
Meanwhile, after hearing Williams shout, Lampkins and Torillo entered the
apartment through the front door and saw Defendant coming in through the sliding
rear door. Lampkins told Defendant to stop: she did and dropped the plastic bag.
When she dropped the bag, it opened and Lampkins could see the MDMA tablets
inside.
Defendant challenges the district court’s denial of her motion to suppress
the MDMA tablets found in the apartment after agents entered without a warrant.
She contends that the agents lacked probable cause to believe that narcotics were
present in her apartment: she maintains that the agents had no reason to suspect
her of wrongdoing and that the agents acted only on a “hunch” after the arrest of
Plinelis, with whom she shared the apartment. She also asserts that no exigent
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circumstances justified the warrantless entry and search where Williams only
guessed that the bag she was holding contained illegal drugs. Thus, she maintains
that law enforcement could not have entered her apartment based on a fear that the
suspected narcotics would be destroyed.
In considering the denial of a defendant’s motion to suppress, we apply a
mixed standard of review: we review the district court’s findings of fact for clear
error and its application of law to those facts de novo. United States v. Desir, 257
F.3d 1233, 1235-36 (11th Cir. 2001). We construe all facts in the light most
favorable to the prevailing party: the government. United States v. Boyce, 351
F.3d 1102, 1105 (11th Cir. 2003).
Warrantless searches and seizures in a person’s home are presumptively
unreasonable under the Fourth Amendment. See United States v. Burgos, 720
F.2d 1520, 1525 (11th Cir. 1983). But a warrantless search or seizure may be
justified where both probable cause and exigent circumstances exist. Id. We
conclude that both circumstances were present here.
Probable cause exists where “where the facts lead a reasonably cautious
person to believe that the search will uncover evidence of a crime.” Id. (citation
and internal quotation marks omitted). The officers recovered 30,000 MDMA
pills from Plinelis afer a several-month investigation. The officers had very recent
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information from Plinelis that he may have had immediate access to 10,000 more
MDMA pills. The officers could not have known for certain that the 10,000 pills
would be at Plinelis’s apartment. But the officers possessed enough information
to harbor a reasonable belief that a search of the apartment would reveal evidence
of a crime. Defendant’s conduct--leaving the back of the apartment, walking
toward the Intercoastal Waterway, and ignoring Williams’s direction to stop, all
while holding a bag and being towel-clad, even after she told the agents that she
was going to get dressed--only strengthens the conclusion that probable cause
existed to support the warrantless entry and search of the apartment.
“‘Exigent circumstances’ refers to a situation where the inevitable delay
incident to obtaining a warrant must give way to an urgent need for immediate
action.” Burgos, 720 F.2d at 1526 (citation omitted). One such situation is where
a risk exists of the removal or destruction of narcotics. Id. After encountering the
officers at the front door, Defendant deceived the officers by telling them she
needed time to get dressed. But she then went out the back of the apartment, still
only wearing a towel, toward the water while holding a bag that she was not
holding when she initially opened the front door. Defendant then ignored
Williams’s direction to stop, and she turned back toward the apartment. The
circumstances at that time would lead a reasonable, experienced officer to believe
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that immediate action was needed to avoid the possibility that Defendant might
destroy the MDMA pills before a warrant was issued. See United States v. Young,
909 F.2d 442, 446 (11th Cir. 1990) (noting need for exigent circumstance doctrine
is “particularly compelling” in narcotics cases, where evidence can be destroyed
while a search is progressing). That Williams could not see the contents of the
bag, and that Lampkins entered the apartment without knowing that Defendant
was carrying a bag, does not alter the result.
In sum, probable cause and exigent circumstances existed: the officers
entered Defendant’s apartment based on a reasonable belief that she was
attempting to destroy the MDMA pills. The district court did not err in denying
Defendant’s motion to suppress.
AFFIRMED.
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