United States v. Bervaldi ( 2000 )

[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
SEPTEMBER 14, 2000
THOMAS K. KAHN
Nos. 98-5419 & 98-5547 CLERK
________________________
D. C. Docket No. 98-183-CR-DLG
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
versus
JASON R. BERVALDI,
Defendant-Appellee.
________________________
Appeals from the United States District Court
for the Southern District of Florida
_________________________
(September 14, 2000)
Before ANDERSON, Chief Judge, CARNES and OAKES*, Circuit Judges.
ANDERSON, Chief Judge:
____________________
* Honorable James L. Oakes, U.S. Circuit Judge for the Second Circuit, sitting by designation
In this interlocutory appeal, the United States challenges the district court’s
suppression of statements made by Jason Bervaldi and of physical evidence seized
from his residence. This appeal presents two questions: whether the law enforcement
agents who arrested Bervaldi and seized the evidence had a reasonable belief at the
time of entering his residence that it was the dwelling of the subject of an arrest
warrant they were attempting to execute; and whether they had a reasonable belief that
this subject would be present there. For the reasons stated below, we conclude that
they did have such reasonable beliefs and, accordingly, reverse and remand.
I. BACKGROUND
At approximately 6:00 am on March 10, 1998, Officers Wilfredo Abascal and
Rafael Masferrer and several other officers approached the house at 3621 S.W. 129th
Avenue (“129th Avenue”), in Miami, Florida, to execute an arrest warrant for Bennett
Deridder. The officers observed two trucks and a boat trailer parked in the driveway.
The officers were wearing raid jackets featuring the word “police” on the front and
back. The sky was dark and a single exterior light shone about two feet from the front
door.
Officer Abascal knocked hard on the front door for about ten minutes without
response. As the officers were turning away to check the license tags on the parked
vehicles, the front door opened about one foot. Officer Abascal observed the left side
2
of a barefoot, bare-chested man standing at the door wearing shorts, but could not,
given the lighting, clearly see the man’s features. Officer Abascal observed, however,
that the man had the same height, stocky build, and complexion as Deridder,1 and that
the hair on the man’s head was shaved while Deridder had last been observed with a
full head of hair. Officer Abascal also observed that the man’s left hand was behind
his back and thought that he might be armed.
Officer Abascal announced that they were police. The man slammed the door
shut. The officers kicked the door down, entered the house, and caught the man
within ten to twenty feet of the entrance. A cocked, but unloaded 9 millimeter pistol
was found resting on a gym bag ten feet to the right of the door. Officers Abascal and
Masferrer quickly realized that the man that they held was not Deridder. The officers
performed a protective sweep of the house believing that Deridder or others might be
in the house. During this sweep, the officers noticed a very strong smell of marijuana
coming from the kitchen.
The officers discovered that the apprehended man was Jason Bervaldi. After
Bervaldi was advised of his Miranda rights and indicated he understood, the officers
asked him whether marijuana was in the house. Bervaldi showed the officers
1
Abascal had seen Deridder the previous June, when he and another officer had a brief
conversation with him at a food stop. See infra.
3
marijuana stored in the kitchen cupboard. Bervaldi orally consented to a search, but
would not sign a written consent form. The officers did not immediately search
beyond the initial protective sweep. Instead, some officers went to get a search
warrant. When they returned with a search warrant around 5:00 p.m., a search was
conducted that resulted in the discovery and seizure of 60 pounds of marijuana stored
in kitchen cupboards, 17 sealed baggies of marijuana, 1 kilogram of cocaine, 3 bags
of cocaine cutting agent, 1 Ohaus digital scale, 1 Nexus scale, 1 cellular phone ESN
reader, various cellular phones and accessories, 1 Cobray MAC-119 mm
semiautomatic pistol, 1 Browning rifle with ammunition, $53,483 in U.S. currency,
1 1998 Ford pickup truck, 1 1997 Contender boat, 1 jet ski, 1 motorcycle, 1 Rolex
watch, 1 large machine press, and 1 wooden mold. Although Bervaldi was kept in
custody throughout the day at his residence, he was not formally arrested until later
that evening.
On March 20, 1998, a federal grand jury sitting in Miami, Florida, returned a
three-count indictment charging Bervaldi with knowingly possessing cocaine with
intent to distribute, in violation of 21 U.S.C. § 841(a)(1), knowingly possessing
marijuana with the intent to distribute, in violation of 21 U.S.C. § 841(a)(1), and
knowingly and intentionally possessing and receiving a firearm which had the
importer and manufacturer’s serial number removed, obliterated, and altered, in
4
violation of 18 U.S.C. § 922(k). On May 1, 1998, Bervaldi filed motions to suppress
his statements and the physical evidence seized on March 10, 1998, on Fourth
Amendment grounds.
On July 2 and 15, a magistrate judge conducted an evidentiary hearing on the
motions. At this hearing, Daniel Mahoney, a special agent with the Drug Enforcement
Administration (“DEA”), testified that Bennett Deridder was identified in June 1997
as a person involved in a drug operation based on telephone calls intercepted by
lawful wire taps. Mahoney indicated that Officers Abascal and Masferrer assisted in
identifying Deridder’s residence. In particular, these officers identified a vehicle that
Deridder was driving based on a traffic citation and determined that that vehicle, a red
Chevy truck, was registered to 3621 S.W. 129th Avenue in the name of Betty Spatten.
Mahoney further explained that on June 27, 1997, these two officers observed the
vehicle leaving this residence, followed the vehicle, and then spoke with the driver,
Deridder.
Abascal testified that on June 27, 1997, he and Masferrer attempted to get a
voice identification on Deridder to link the wiretap evidence to Deridder. Consistent
with Mahoney’s explanation, Abascal explained that they sought Deridder at the 129th
Avenue address after checking Metro-Dade computer records for traffic tickets which
revealed that on June 4, 1997, Deridder had received a traffic citation while driving
5
a red pickup Chevy truck with tag number VAW56Y. Although the traffic citation
record listed 4406 S.W. 132nd Place (“132nd Place”) as Deridder’s address, they
discovered that this truck was registered in Betty Spatten’s name to the 129th Avenue
address. On June 27, 1998, they observed Deridder come out of 3621 S.W. 129th
Avenue residence, get in the same red pickup truck, and drive to a “food stop.” When
Deridder stopped at the food stop, Abascal and Masferrer approached him, identified
themselves, and had a brief conversation with him. Abascal asked Deridder where he
lived. Deridder provided the 129th Avenue address and what he identified as his
parents’ address, the 132nd Place address. Abascal explained that Deridder provided
two addresses, “one for his parents, and one for his residence.”
Masferrer’s testimony was consistent with Abascal’s testimony. Masferrer also
reported that Deridder gave the 129th Avenue address as his residence and the 132nd
Place address as his parents’ address.2
2
To make the distinction clear, on redirect examination of Abascal, the Government elicited
the following:
Q. Did he give you the address for his parents’ house before or after you asked to see
his driver’s license?
A. He confirmed that his parents lived at the address that was on the face of his
driver’s license, and that he lived at 3621 129th Avenue address.
Q. Now, in your mind was he making a distinction between what was on his driver’s
license and where he was telling you he lived?
A. Absolutely.
Q. And in your mind, where was he telling you that he lived, referring to Bennett
Deridder?
A. 3621 Southwest 129th Avenue.
On direct examination of Masferrer concerning the June 27th interview with Deridder, the
6
At the hearing, the Government also adduced evidence concerning queries of
computer systems. Mahony testified that he used Autotrac, a compilation of several
databases, ranging from highway safety to corporations and real estate, to acquire
information on Deridder. On June 26, 1997, Mahoney ran the first Autotrac query on
Bennett Deridder. The printout of this query, which was admitted into evidence,
included the following:
Known Subject Addresses
--------------------------------
DEC-85/MAR-97 - 4406 S.W. 132 PL, MIAMI FL 33175
Government elicited the following:
Q. What kind of identification did you get from Deridder?
A. I got his driver’s license, and I asked him where he lives. He gave me the address.
That address 129th and the address of his father and mother 132nd Avenue.
Q. Which address is shown on his driver license?
A. The one on 132nd Avenue.
Q. You said he gave you the address, 129th Avenue address, what did he say about that
address?
A. That he lived there. That was his house. He lived there and his license, the address
on his license was his mom’s, his parent’s house.
Q. Did he give you anymore [sic] information at that time about where he was living?
A. He was living on 129th Avenue.
Mahoney also testified that Deridder gave two addresses during the June 27th stop: the 132nd
Place address and the 129th Avenue address. He did not explain if or how Deridder
distinguished between them. However, he was not present at the stop. Only Abascal and
Masferrer provided first-hand testimony about what Deridder told them about these addresses.
As explained above, both unequivocally indicated that Deridder stated that he resided at the
129th Avenue address but that his parents resided at the 132nd Place address, which was on his
license. The magistrate judge’s report and recommendation indicates that Deridder told the
officers that he lived at both addresses. The report and recommendation, however, does not
distinguish between them as the officers did when they testified. To the extent the district court,
by adopting this report and recommendation, failed to thus distinguish between these addresses,
we find clear error. This error may explain the magistrate judge’s apparent overemphasis on the
132nd Place address.
7
Mahoney explained that this indicated that some type of information found in one of
the databases contained in Autotrac linked Deridder to that address from December
1985 to March 1997. Mahoney also explained that the printout listed Phillip Deridder,
Bennett Deridder’s father, as a possible relative and listed 4406 S.W. 132 Place, Miami,
as the father’s address. The printout listed a 1991 WBON trailer, with a tag which
expired in September 1992, as registered to 132nd Place in Bennett Deridder’s name.
The printout also listed Betty Spatten as a possible associated person. Her address
was also listed as 132nd Place for various periods ending in September 1996.
However, as noted above, the check of the vehicle in which Bennett Deridder was
observed revealed that it was registered to Betty Spatten at the 129th Avenue address.
Mahoney also testified about a computer check of Flight Equipment, Inc.,
conducted on August 20, 1997. The printout of this check, which was admitted in
evidence, included:
Historical Principles
-------------------------
....
Registered Agent - Status: Active
RIDDER BENNETT D
3621 S.W. 129th AVENUE (REAR)
MIAMI FL 33175 Country: US
RIDDER, BENNETT D
MAY- 95/MAY-95 - 4406 S.W. 132ND PL MIAMI FL 33175
3621 S.W. 129TH AVE MIAMI FL 33175
8
832 E 21ST ST HIALEAH FL 33013
Director
DE RIDDER BENNETT
3621 S.W. 129th AVENUE (REAR)
MIAMI FL 33175
DERIDDER, BENNETT DOB: 9/11/70
SS#: [omitted] Was issued in Florida in 1986
DEC-85/APR-96 - 4406 S.W. 132 PL, MIAMI FL 33175
The printout also indicates that the previous address of Flight Equipment, Inc., was
“3621 SW 129 AVE REAR MIAMI FL 33175.”
Mahoney also testified about a second Autotrac check of Deridder conducted
on February 4, 1998. The printout of this check, which was admitted into evidence,
included:
Addresses Linked To Subject
------------------------------------
JUN-97/JUN-97 - 3621 S.W. 129TH AVE (REAR), MIAMI FL 33175
JUN-97/JUN-97 - 832 EAST 21ST STREET, HIALEAH FL 33013
DEC-85/JUN-97 - 4406 S.W. 132 PL, MIAMI FL 33175
This printout also indicated that a 1995 homemade trailer, with a tag which expired
in September 1998, was registered to the 132nd Place address in Bennett Deridder’s
name. There was no information on this printout after June of 1997 showing any
other address for Bennett Deridder.
Mahoney also described an Information America printout, a credit report, that
9
was dated February 9, 1998. For Deridder, it listed the 132nd Place address as well
as some other addresses. Likewise, driver’s license records and arrest records that
Mahoney checked listed the 132nd Place as Deridder’s address.
Mahoney testified that he gave the arresting officers the 129th Avenue address
and the 132nd Place address for Deridder. He explained that he gave them the 129th
Avenue address because it was “obvious” to the investigators that Deridder was only
using his parents’ address, 132nd Place, as a “straw address” for records and was
actually residing elsewhere. The parents’ address was provided because, if Deridder
needed to be tracked down, speaking to his parents to seek his whereabouts would be
part of the process.
Mahoney explained that the arrest warrant listed 132nd Place as Deridder’s last
known address because that is the permanent residence of his family, who would be
contacted if Deridder needed to be located. He explained that 129th Avenue would
be the first place to check for Deridder because it is where he resided.
Mahoney also testified that he observed a red Chevy pickup with tag VAW56Y
at the 3621 S.W. 129th Avenue address on August 20, 1997. A check revealed that
it was registered to Betty Spatten at that address.
Bervaldi adduced several pieces of evidence to show that Deridder did not
reside at 129th Avenue on March 10, 1998. Brian McGuinness, a private investigator,
10
testified about Autotrac. He explained that Autotrac is a “compilation of public record
data that comes from a variety of sources” and that it is not always accurate. He also
testified that Agent Mahoney could have run a “Dossier” search, which would have
been more expansive than the searches Mahoney ran, but that there was “not very
much” difference between these two types of searches. Bervaldi introduced into
evidence a Dossier search of the 129th Avenue address, which indicated that Bervaldi
registered a vehicle there in January 1998. Mahoney testified that he did not run a
Dossier search because it generally does not have investigative value but instead just
lists trails of information about every possible individual who lived at a residence.
Second, McGuinness testified about several records he acquired which
indicated that Deridder moved from the 129th Avenue residence around the beginning
of 1998. First, a warranty deed, dated February 17, 1998, which indicated that
Marcella and Phillip Deridder sold the property to Jason Bervaldi, was recorded in the
public records on March 5, 1998. Florida Power & Light records, acquired by
subpoena, indicated that Beatriz Ramos was a customer at the 129th Avenue address
beginning on December 30, 1997, and Felipe Deridder was a customer from May 14,
1996, to December 30, 1997. Miami-Dade Water & Sewer records, also acquired by
subpoena, indicated that service for the 129th Avenue address was in the name of
Marcella Deridder from May 3, 1996, to January 5, 1998, and in the name of Beatriz
11
Ramos starting on December 30, 1997. Likewise, BellSouth Telecommunication
records, again acquired by subpoena, indicated that service to the 129th Avenue
address was established by Ramos on January 5, 1998.3
Bervaldi also introduced the affidavit of Donald Brooks, a part-time carpenter,
which indicated Brooks did some repair work on the 129th Avenue residence in the
last part of January and early February of 1998 and that, to the best of Brooks’
recollection, there was no for sale sign on the property at that time. Pedro Molina, a
landscaper who provided service to the 129th Avenue address, testified that he
observed a for sale sign in the summer and fall of 1997, but when he went to the
address on December 22, he did not see the sign. Abascal testified that he saw a for
sale sign in front of the house on June 27, 1997, and on the morning of March 10,
1998. Masferrer testified that he recalled seeing a for sale sign prior to March 10,
1998, but could not recall if he saw one that morning. Pictures taken of the house on
March 10, 1998, do not show a for sale sign.4
On July 23, 1998, the magistrate issued a report and recommendation. In
particular, the magistrate judge concluded that the officers could not have reasonably
3
Ramos is Bervaldi’s long-time live-in girlfriend.
4
We note that though the parties stipulated that Deridder did not actually reside at 129th
Avenue on March 10, 1998, it ultimately became clear that he did not actually reside at 132nd
Place either. In fact, Bervaldi led the officers to a Calusa Club Drive residence on March 10,
1998, where officers spoke with Deridder’s girlfriend, who stated that he lived there with her.
12
believed that Deridder resided at the 129th Avenue house on March 10, 1998, but that,
had they reasonably believed that this was his residence, then they could have
reasonably believed that Deridder was at the house when they entered it. The
magistrate judge recommended that the motions to suppress be granted. On August
18, 1998, the district court adopted the magistrate judge’s report and recommendation
and granted the motions. The United States appeals.
II. DISCUSSION
Because rulings on motions to suppress involve mixed questions of fact and
law, we review the district court's factual findings for clear error, and its application
of the law to the facts de novo. See United States v. Magluta, 44 F.3d 1530, 1536
(11th Cir. 1995). Further, when considering a ruling on a motion to suppress, all facts
are construed in the light most favorable to the prevailing party below. See id. The
magistrate judge's conclusion that the police officers did not have reason to believe
that the house was Deridder's residence, adopted in full by the district court, is a legal
determination subject to de novo review. See id. at 1537 (“We therefore hold that the
magistrate judge's conclusion that the marshals did not have reason to believe that
Magluta was at home, was a legal determination and not a factual finding.”).
Although searches and seizures inside a home without a search warrant are
presumptively unreasonable, in Payton v. New York, 445 U.S. 573, 603, 100 S. Ct.
13
1371, 1388 (1980), the Supreme Court held that “for Fourth Amendment purposes,
an arrest warrant founded on probable cause implicitly carries with it the limited
authority to enter a dwelling in which the suspect lives when there is reason to believe
the suspect is within.” We have since held that Payton requires a two-part inquiry to
determine if entry pursuant to an arrest warrant complies with the Fourth
Amendment’s proscription of unreasonable searches. See Magluta, 44 F.3d at 1533.
In particular, we have held that "first, there must be a reasonable belief that the
location to be searched is the suspect’s dwelling, and second, the police must have
‘reason to believe’ that the suspect is within the dwelling.” Id. Elaborating on this
inquiry, we have explained that “for law enforcement officials to enter a residence to
execute an arrest warrant for a resident of the premises, the facts and circumstances
within the knowledge of the law enforcement agents, when viewed in the totality,
must warrant a reasonable belief that the location to be searched is the suspect’s
dwelling, and that the suspect is within the residence at the time of entry.” Id. at 1535.
Furthermore, “in evaluating this on the spot determination, as to the second Payton
prong, courts must be sensitive to common sense factors indicating a resident’s
presence.” Id. We believe such “common sense factors” must also guide courts in
evaluating the first Payton prong.
We examine first whether the officers had “a reasonable belief” that 129th
14
Avenue was Deridder’s dwelling when they entered on the morning of March 10,
1998. Despite the Autotrac reports and driver’s license records indicating that
Deridder’s address was 132nd Place, there was strong evidence indicating that
Deridder in reality resided at 129th Avenue. Both Officers Abascal and Masferrer
observed Deridder leave the 129th Avenue residence and enter a red Chevy pickup
truck on June 27, 1997. In addition, both officers unequivocally testified that when
they interviewed Deridder on that day he indicated that he resided at 129th Avenue
but that the address on his license, 132nd Place, was his parents’ address. See supra
n. 1. It is not unusual for persons of Deridder’s age–the Autotrac report and driver’s
license records indicate he was twenty-seven at the time of the entry–to use their
parents’ address for records, such as driver’s licenses, official mailing address, et
cetera, because in a sense it may be a more permanent or fixed address than the
address of their own residence. For example, oftentimes university students or law
clerks in their twenties use their parents’ address while studying or clerking. The
officers and the courts are entitled to consider such a common sense factor. See
Magluta, 44 F.3d at 1535. Moreover, even if the 132nd Place address was his
“permanent residence” in some sense, that is not inconsistent with Deridder’s
residence at the 129th Avenue address. See United States v. Risse, 83 F.3d 212, 217
(8th Cir. 1996) (“[W]e reject Risse's contention that, because the officers knew, or
15
should have known, that Rhoads maintained a permanent residence on Knoll Street,
they could not have reasonably believed that Rhoads resided on Huntington Road.”).
Nor is it significant that the arrest warrant listed the 132nd Place address. See United
States v. Lauter, 57 F.3d 212, 214 (2d Cir. 1995) (rejecting argument that when police
believe that the target of an arrest lives at an address other than the one listed on the
warrant, they must apply for a new warrant before arresting the suspect at the new
residence). The officers knew that Deridder used his parents’ address as a “permanent
address” although he actually resided elsewhere. In light of the officers’ observation
of Deridder at the 129th Avenue residence and his statements to them that he resided
there and that the 132nd Place address was his parents’ address, we readily conclude
that the officers had a reasonable belief that Deridder resided at 129th Avenue on June
27, 1997.
However, this conclusion does not end the first inquiry required by Payton. The
officers must have had a reasonable belief that 129th Avenue was Deridder’s
residence at the time of entry–the morning of March 10, 1998. The question becomes,
then, whether or not the passage of time and the acquisition of additional information
so eroded the reasonable belief that 129th Avenue was Deridder’s residence on June
27, 1997, that believing this was his residence on March 10, 1998, was not reasonable.
In other words, unless the belief that Deridder resided at 129th Avenue was still a
16
reasonable belief on March 10, 1998, the entry was unconstitutional.
Agent Mahoney testified that on August 20, 1997, he observed at the 129th
Avenue address the red Chevy pickup truck, in which Deridder received a ticket on
June 4, 1997, and in which Abascal and Masferrer observed Deridder leave the 129th
Avenue address on June 27, 1997. The magistrate judge did not mention this fact in
its report and recommendation, nor did the district court note it.5 Nonetheless, we find
this fact important. It extends the basis for believing that Deridder was dwelling at the
129th Avenue residence to August 20, 1997, by showing that the vehicle Deridder was
known to drive was there on that date.6
Furthermore, the August 20, 1997, Autotrac report on Flight Equipment, Inc.,
listed Deridder as an historical principle, in particular a former registered agent and
director, with an address of 129th Avenue. This report also indicated that the previous
5
There is no indication that the magistrate judge found Mahoney or any of the officers’
testimony noncredible; to the contrary, at the conclusion of the hearing, the magistrate judge
remarked, “I think the officers did a very nice job in being very candid,” and in his report and
recommendation, he noted conflicts in the evidence were not resolved on the basis of the
credibility of witnesses.
6
Bervaldi argues that the district court, by stating “No information obtained after June 1997
ever established or confirmed that DeRidder was still living at the 129th Avenue location, even
part-time, or as one of two residences on March 10, 1998,” and “No vehicles owned or operated
by DeRidder were traceable to that location between June 1997 and March 1998,” made an
implicit finding that the August 20, 1997, observation, which the district court failed to mention,
was not evidence linking Deridder to that location. To the extent the district court made a factual
finding that no evidence linked Deridder to the 129th Avenue residence after June 27, 1997, we
find it clearly erroneous in light of the August 20, 1997, observation of the Deridder vehicle at
that address.
17
address of Flight Equipment, Inc., was 129th Avenue. Although the report provided
a new address for the company–832 East 21st Street, the address also given for its
current registered agent, Jaime Oubuna, this does not suggest that Deridder’s address
was no longer 129th Avenue. In fact, it suggests just the contrary–i.e., while Deridder
was the registered agent, the company’s address was Deridder’s address, 129th
Avenue, but that when Deridder became an “Historical” principle the company’s
address changed to that of its current registered agent, Oubuna.
In light of the August 20th observation of the Deridder vehicle at the address,
we conclude that the officers reasonably believed that Deridder resided at 129th
Avenue on August 20, 1997. However, the question remains whether this information
and Deridder’s statements to the officers became stale in the 6 months and 21 days
between August 20, 1997, and the March 10, 1998, entry.
We have developed a staleness doctrine in the context of probable cause which
requires that the information supporting the government’s application for a warrant
must show that probable cause exists at the time the warrant issues. See United States
v. Harris, 20 F.3d 445, 450 (11th Cir. 1994) (“For probable cause to exist, however,
the information supporting of the government’s application for a search warrant must
be timely, for probable cause must exist when the magistrate judge issues the search
warrant.”); United States v. Domme, 753 F.2d 950, 953 (11th Cir. 1985) (“As with
18
other types of search warrants, the probable cause needed to obtain a wiretap must
exist at the time surveillance is authorized”); see also Sgro v. United States, 287 U.S.
206, 210, 53 S. Ct. 138, 140 (1932) (“[I]t is manifest that the proof must be of facts so
closely related to the time of the issue of the warrant as to justify a finding of probable
cause at that time.”). Although reasonable belief is different than probable cause,
see Magluta, 44 F.3d at 1534-35, we find this staleness doctrine instructive here.
There is no particular rule or time limit for when information becomes stale. See
Harris, 20 F.3d at 450 (“When reviewing staleness challenges we do not apply some
talismanic rule which establishes arbitrary time limitations.”); United States v.
Bascaro, 742 F.2d 1335, 1345 (11th Cir. 1984) (“No mechanical test exists for
determining when information becomes fatally stale.”). Rather, “‘staleness is an issue
which must be decided on the peculiar facts of each case.’” Bascaro, 742 F.2d at 1345
(quoting United States v. Hyde, 574 F.2d 856, 865 (5th Cir. 1978)); see Domme, 753
F.2d at 953 (“[S]taleness is an issue that courts must decide by evaluating the facts of
a particular case.”).
The courts are not without guidance, however. In addition to the length of time,
courts should consider the “nature of the suspected crime (discrete crimes or ongoing
conspiracy), habits of the accused, character of the items sought, and nature and
function of the premises to be searched.” Harris, 20 F.3d at 450; see also United
19
States v. Haimowitz, 706 F.2d 1549, 1555 (11th Cir. 1983) (“In general, the basic
criterion as to the duration of probable cause is the inherent nature of the crime.”)
(internal quotation marks and citation omitted). For example, the former Fifth Circuit
held that four-month-old reports of projectiles in the walls and floors of a dwelling as
a result of the test-firing of the murder weapon were not stale because the “floors and
walls of a house are relatively permanent fixtures and would not likely be subject to
removal over the period of four months.” United States v. Deicidue, 603 F.2d 535,
560 (5th Cir. 1979).7 In considering the nature of the crime, we have distinguished
between criminal activity which is protracted and continuous and that which is
isolated:
“The circuits hold that where an affidavit recites a mere isolated
violation then it is not unreasonable to believe that probable cause
quickly dwindles with the passage of time. On the other hand, if an
affidavit recites activity indicating protracted or continuous conduct,
time is of less significance.”
Bascaro, 742 F.2d at 1345-46 (quoting Bastida v. Henderson, 487 F.2d 860, 864 (5th
Cir. 1973)); see also Harris, 20 F.3d at 451 (“Although most of the information
contained in the affidavit referred to events which took place over two years before
Geer applied for the warrant, the affidavit nonetheless alleged a longstanding and
7
Decisions of the former Fifth Circuit rendered prior to October 1, 1981, are circuit
precedent in the Eleventh Circuit. See Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th
Cir. 1981) (en banc).
20
protracted conspiracy . . . . Because the affidavit alleged ongoing activity and a
continuing relationship between the coconspirators, the information is not fatally
stale.”); Domme, 753 F.2d at 953 (“When criminal activity is protracted and
continuous, it is more likely that the passage of time will not dissipate probable
cause.”).
Residency in a house, like protracted and continuous criminal activity or
projectiles embedded in the house’s walls and floors, generally is not transitory or
ephemeral, but instead endures for some length of time. Although Deridder’s
statement in June of 1997 and the observations of Deridder in June of 1997 and of his
vehicle in June and August of 1997 are isolated pieces of evidence, they support, as
we concluded above, a reasonable belief that Deridder resided at 129th Avenue. It
was reasonable for the officers to believe that, because Deridder resided at 129th
Avenue, he would reside there for some period of time. How long the officers could
reasonably believe this period would extend is difficult to say. As in the probable
cause context, we hesitate to set an arbitrary length of time. However, on the facts of
this case, we believe that it was reasonable for the officers to believe that the residency
extended for at least 6 months and 21 days. As explained below, the officers’ efforts
in this case to refresh the information did not indicate that Deridder had changed
residence. In the probable cause context, we have found that information can remain
21
fresh for longer than the period of time at issue here. For example, in United States
v. Hooshmand, 931 F.2d 725, 735-36 (11th Cir. 1991), we found that an eleven-
month-old report from an informant of his employer’s fraudulent activities was not
stale where the activities were protracted and ongoing and that it was sufficient to
support probable cause for a warrant. Thus, we conclude that the passage of time
alone did not erode the reasonable belief that Deridder resided at 129th Avenue.
We turn then to the information acquired during this passage of time to
determine if it eroded the reasonable belief. On February 4, 1998, Agent Mahoney
conducted another Autotrac search on Deridder. Although this Autotrac report linked
Deridder to both the 129th Avenue address and the 132nd Place address, the report
indicated that its information was as of June, 1997. As of that time, the officers knew
that Deridder was living at the 129th Avenue address, and that the 132nd Place
address was merely his parents’ address. We readily conclude that the mention here,
and elsewhere, of the 132nd Place address does little to undermine the officers’
reasonable belief that Deridder actually resided at the 129th Avenue address, and that
he merely used his parents’ address for various documents, such as his driver’s
license. 8
8
The district court found that the Autotrac report “showed no current information at all on
addresses linked to DeRidder after June, 1997.” We agree. Despite the agent’s efforts to refresh
the information acquired in June, the Autotrac report revealed nothing more recent about
Deridder’s residence.
22
Because unobserved, extended surveillance of 129th Avenue was impractical
given the neighborhood’s layout, the officers conducted occasional drive-bys of the
129th Avenue residence. On none of these drive-bys after Mahoney’s August 20,
1997, observation did the officers observe either Deridder or the red Chevy truck that
Deridder was known to use. The officers, however, did notice a for sale sign. The
district court found that the for sale sign was not present on the day of the entry.
Bervaldi argues that this should have put the officers on notice that Deridder no longer
resided at 129th Avenue. The court, however, did not find that the officers noticed
that the sign was not present. Given that the officers approached the house in predawn
darkness,9 it is understandable that they did not notice its absence. Determinations of
reasonable belief are based on “the facts and circumstances within the knowledge of
the law enforcement agents.” Magluta, 44 F.3d at 1535. Therefore, so long as the
officers did not notice the sign, it is not significant that photographs taken later in the
day do not depict the sign, that Brooks and Molina, occasional workers at the
residence, do not recall the sign being there in the winter of 1997-98, or that the sign
9
According to the charts calculated by the United States Naval Observatory, the sun rose in
Miami on March 10, 1998, at 6:35 a.m. See Astronomical Applications Department, U.S. Naval
Observatory, Sun or Moon Rise/Set Table for One Year, (accessed Aug. 7, 2000)
. We take judicial notice of this
fact. See Fed. R. Evid. 201.
23
was not present that day.10
Bervaldi argues that the officers could have discovered that Deridder was not
residing at 129th Avenue if they had gone beyond the occasional drive-bys and
Autotrac reports after the summer of 1997. First, Bervaldi argues that a “Dossier”
search, another more expansive type of search on the Autotrac system, would have
shown that Bervaldi registered a vehicle to the 129th Avenue address in January of
1998. Agent Mahoney indicated that he did not run this type of search because in his
experience it was not generally useful. Second, Bervaldi argues that the officers
should have at least checked the county property records and that if they had done so
they would have discovered that Marcella and Phillip Deridder had sold the house in
February. We note that the transfer was not recorded until March 5, 1998, five days
before the challenged entry. In light of the other information supporting the officers’
reasonable belief that this was Derrider’s residence, we do not believe that the
Constitution required that they also check property records. Likewise, though a check
of the utility records prior to the entry would have revealed that the customer was
changed from either Marcella Deridder or Phillip Deridder to Beatriz Ramos around
the beginning of the year, we do not believe that the officers, in light of the
10
In any event, the absence of the sign permits several possible inferences including that the
owners abandoned their attempts to sell the house and that they sold the house but that Deridder
still resided there as a tenant, as well as that the house was sold causing Deridder to move.
24
information they already had, were constitutionally obligated to check these records.
At oral argument, conceding as much, defense counsel agreed that the law does not
currently impose a requirement to check utility records or property records. Although
the officers could have checked into these matters, we do not believe that their failure
to do so is inconsistent with a reasonable belief that Deridder resided at 129th Avenue.
We conclude that the officers had a reasonable belief that 129th Avenue was
Deridder’s dwelling on March 10, 1998.
Having concluded that the officers reasonably believed that 129th Avenue was
Deridder's dwelling, we turn to the second part of the inquiry: did the officers have
“reason to believe” that Deridder was within the dwelling when they entered on the
morning of March 10, 1998. The officers approached the house around 6:00 in the
morning. They noticed several vehicles parked at the residence. When they knocked
on the front door, someone answered the door. We have noted that “officers may
presume that a person is at home at certain times of the day–a presumption which can
be rebutted by contrary evidence regarding the suspect’s known schedule.” Magluta
44 F.3d at 1533. It was reasonable to believe, in the absence of contrary evidence,
that Deridder would be at his residence at 6:00 in the morning. Even defense counsel
conceded at oral argument that if the officers reasonably believed that Deridder
resided at 129th Avenue, then they had reason to believe he was on the premises at
25
that time. The fact that vehicles were parked at the residence only buttresses the belief
that persons were at the house, including presumably Deridder. Although Deridder
did not answer the door, it was not immediately clear that the person who answered
the door was not Deridder. Indeed the court below concluded that the officers had
reason to believe that the person they saw who answered the door was Deridder. In
any event, the fact that someone other than Deridder answered the door would not
eviscerate the reasonable belief that Deridder was in the dwelling at the time the
officers approached and entered the dwelling. We conclude that the officers had
reason to believe that Deridder was in the dwelling, which the officers reasonably
believed was his residence, at the time that they entered it. Thus, the officers were
permitted to enter the dwelling to attempt to execute the arrest warrant and did not
violate the Fourth Amendment. See Payton, 445 U.S. at 603, 100 S.Ct. at 1388.11
Because the entry was permitted under Payton,12 we see no reason Bervaldi's
11
We note that Bervaldi’s reliance on Steagald v. United States, 451 U.S. 204, 101 S. Ct.
1642 (1981), is misplaced. In Steagald, the Supreme Court held that a search warrant was
required to enter one person’s residence to execute an arrest warrant on another person believed
to be in that residence. See id. at 213-16, 101 S.Ct. at 1648-49. However, the Court recognized
that under Payton, an arrest warrant for a suspect permitted officers to enter what they
reasonably believed was that suspect’s residence when they reasonably believed the suspect was
there. See id. at 214 n. 7, 101 S. Ct. at 1648 n. 7. As explained above, the officers had a
reasonable belief that the 129th Avenue residence was Deridder’s residence, not some third
party’s residence as in Steagald, and that he was there at the time; thus, Payton, not Steagald,
applies.
12
Bervaldi does not argue that the mode of entry was unreasonable under the circumstances.
Although the officers kicked the door down and entered, Bervaldi’s failure to rely on this is
26
statements or the evidence seized should have been suppressed. In Maryland v. Buie,
494 U.S. 325, 334, 110 S. Ct. 1093, 1098 (1990), the Supreme Court held 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.”
In addition, the Court explained that the officers may go beyond that to sweep an area
that a reasonably prudent officer believes, based on articulable facts, harbors an
individual posing a danger to those on the arrest scene. See id. The officers
conducted a protective sweep of the entire 129th Avenue residence. To the extent
this sweep may have exceeded the area “immediately adjoining the place of arrest,”
we conclude that a reasonably prudent officer could believe, based on the cocked 9
millimeter pistol observed in the dwelling13 and the reasonable belief that Deridder
understandable in light of the following facts: the officers had knocked on the door for ten
minutes; a man whom the officer thought was Deridder finally answered the door and seemed to
be concealing something, which the officers thought was a gun behind his back; and when the
officers, with jackets featuring the word “police,” announced themselves as police, the man
promptly slammed the door in their faces. In light of the foregoing facts and the finding of the
court below that the officers believed it was Deridder, it is understandable that Bervaldi argues
on appeal only the two prongs of the Magluta inquiry–whether there was a reasonable belief that
it was Deridder’s residence, and whether there was a reasonable belief that Deridder was there at
the time–and it is understandable that Bervaldi’s primary focus is on the former prong.
13
We note that ordinarily a firearm found on an arrestee does not imply the possible presence
of another armed individual. See United States v. Chaves, 169 F.3d 687, 692 (11th Cir.), cert.
denied, 120 S. Ct. 585 (1999). However, here a pistol was found on a gym bag on the floor
approximately ten feet from the door. Although the pistol may have been abandoned by
Bervaldi after he slammed the door and attempted to flee, it could also have been believed to be
27
was in the dwelling, that the house harbored an individual posing a danger sufficient
to permit a sweep of its entirety. See United States v. Tobin, 923 F.2d 1506, 1513
(11th Cir. 1991) (en banc) (holding that a reasonable belief that someone else could
be inside the house permits a protective sweep). There is nothing in the record to
indicate that the sweep exceeded its proper scope, i.e., it was limited to “a cursory
inspection of those spaces where a person may be found.” Id. at 335, 110 S.Ct. at
1099.14 In the course of this sweep, the officers detected the smell of marijuana. They
only questioned Bervaldi after he was told his Miranda rights and indicated that he
understood them. Bervaldi showed them the marijuana in the kitchen cupboards. No
evidence was seized until a search warrant was acquired. This search warrant was
supported by probable cause, i.e., the officers’ observation of the marijuana that
Bervaldi showed them. Thus, we conclude that the district court erred in suppressing
the statements and evidence in this case.
that of a third party whom the officers had not yet observed and who abandoned it either to flee
or, upon recalling that it was unloaded, to retrieve a more potent weapon. The presence of the
pistol and the reasonable belief that Deridder was in the dwelling amply support the protective
sweep of the entire house.
14
In his brief on appeal, Bervaldi claims that “the agents opened closets, kitchen cabinets
and bedroom drawers.” There is no support in the record for this claim. Rather, the testimony of
Officers Abascal and Masferrer indicates that the search was properly limited in scope. We also
note that during a protective sweep, officers are permitted to open closets, assuming they could
harbor a person.
28
III. CONCLUSION
Accordingly, we reverse the district court's grant of Bervaldi's motions to
suppress and remand for further proceedings.
REVERSED AND REMANDED.
29