[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
DEC 28, 2010
No. 10-12737
JOHN LEY
Non-Argument Calendar
CLERK
________________________
D. C. Docket No. 4:09-cr-00024-HLM-WEJ-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN LUIS VAZQUEZ,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(December 28, 2010)
Before DUBINA, Chief Judge, HULL and FAY, Circuit Judges.
PER CURIAM:
Appellant Juan Luis Vazquez appeals his convictions and 120-month total
sentence for possessing with intent to distribute cocaine, in violation of
21 U.S.C.
§ 841(a)(1) and (b)(1)(B)(ii), and possessing a firearm in furtherance of a
drug-trafficking crime, in violation of
18 U.S.C. § 924(c)(1)(A)(i). On appeal,
Vazquez asserts that (1) he was entitled to a hearing, pursuant to Franks v.
Delaware,
438 U.S. 154,
98 S. Ct. 2674,
57 L. Ed. 2d 667 (1978), because he
impliedly challenged the arrest warrant in his Motion to Suppress Evidence;
(2) law enforcement officers had neither a valid warrant nor probable cause to
arrest him; (3) the district court erred in denying his Motion to Suppress Evidence;
and (4) his sentence was above the guideline range that he should have received,
because the district court improperly considered the drugs and firearm that officers
seized from his residence.
I.
A district court’s denial of a motion as untimely is reviewed for abuse of
discretion. United States v. Ramirez,
324 F.3d 1225, 1226 (11th Cir. 2003). The
Constitution prohibits an officer from making perjurious or recklessly false
statements in support of a warrant. Franks,
438 U.S. at 164-65,
98 S. Ct. at 2681.
To be entitled to a Franks hearing, a defendant must allege that the affidavit
supporting the warrant contained a “deliberate falsehood” or “reckless disregard
for the truth” from the affiant, which, when set aside, leaves insufficient “content
in the warrant affidavit to support a finding of probable cause.”
Id. at 171-72, 98
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S. Ct. at 2684. The requirement of a substantial preliminary showing “is not
lightly met.” United States v. Arbolaez,
450 F.3d 1283, 1294 (11th Cir. 2006).
The false statements must have been made knowingly and intentionally, as
allegations of negligence or innocent mistake are insufficient. Franks,
438 U.S. at
171,
98 S. Ct. at 2684. “Affidavits supporting arrest warrants are presumptively
valid.” United States v. Kapordelis,
569 F.3d 1291, 1309 (11th Cir. 2009)
(citation omitted), cert. denied,
130 S. Ct. 1315 (2010). The defendant bears the
burden of establishing that, absent misrepresentations or omissions, the warrant
lacks probable cause. See United States v. Novaton,
271 F.3d 968, 986-87 (11th
Cir. 2001).
Because the record demonstrates that Vazquez did not specifically challenge
the affidavit underlying the arrest warrant until his post-suppression-hearing brief,
and because he did not present any evidence that the alleged false statements were
made knowingly, intelligently, or with reckless disregard for the truth, we
conclude that Vazquez failed to make the “substantial preliminary showing”
necessary for a Franks hearing. Accordingly, we hold that the district court
properly determined that Vazquez waived a Franks challenge.
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II.
Officers may arrest an individual without a warrant if they have reasonable
cause to believe that the individual has engaged in a felony. Parker v. Allen,
565
F.3d 1258, 1289 (11th Cir. 2009), cert. denied,
130 S. Ct. 1073 (2010). Probable
cause exists if an arrest is objectively reasonable based on the totality of the
circumstances. Lee v. Ferraro,
284 F.3d 1188, 1195 (11th Cir. 2002). “This
standard is met when the facts and circumstances within the officer’s knowledge,
of which he or she has reasonably trustworthy information, would cause a prudent
person to believe, under the circumstances shown, that the suspect has committed,
is committing, or is about to commit an offense.”
Id. (internal quotation marks
omitted).
We conclude from the record that law enforcement officers had reasonably
trustworthy information that would cause a prudent person to believe that Vazquez
was committing a felony, based on information from a confidential informant, who
had obtained cocaine previously from Vazquez and who personally observed
cocaine in the floorboard of Vazquez’s vehicle shortly before the arrest.
Accordingly, we hold that probable cause supported Vazquez’s arrest.
III.
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The denial of a motion to suppress evidence presents a mixed question of
law and fact. United States v. Holloway,
290 F.3d 1331, 1334 (11th Cir. 2002).
We review the district court’s factual findings for clear error, and its application of
the law to the facts de novo.
Id. We construe the facts in the light most favorable
to the prevailing party.
Id.
A warrantless search pursuant to valid consent is an exception to the Fourth
Amendment’s warrant requirement. Schneckloth v. Bustamonte,
412 U.S. 218,
222,
93 S. Ct. 2041, 2045,
36 L. Ed. 2d 854 (1973). We determine whether
consent was voluntarily given based on the totality of the circumstances. United
States v. Acosta,
363 F.3d 1141, 1151 (11th Cir. 2004). A person may impliedly
give consent to a search through body language. See United States v.
Ramirez-Chilel,
289 F.3d 744, 750, 752 (11th Cir. 2002) (holding that the
defendant had consented to the officers’ entry by yielding the right-of-way at his
door).
Evidence gathered from a search following an illegal arrest must be
suppressed as the tainted fruit of the illegal arrest unless the defendant’s consent to
the search was both (1) voluntary and (2) not the product of the illegal detention.
United States v. Santa,
236 F.3d 662, 676 (11th Cir. 2000). Relevant factors
include (1) the temporal proximity of the arrest and the consent to the search,
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(2) intervening circumstances, and (3) the purpose and flagrancy of the official
misconduct.
Id. at 677. Pre-consent warnings under Miranda v. Arizona,
384 U.S.
436,
86 S. Ct. 1602,
16 L.Ed.2d 694 (1966), are not required to validate consent to
searches. United States v. Garcia,
496 F.2d 670, 674 (5th Cir. 1974).
Before custodial interrogation, a suspect must be given specific warnings of
his Fifth Amendment rights. Miranda,
384 U.S. at 444,
86 S. Ct. at 1612. “[T]he
Miranda safeguards come into play whenever a person in custody is subjected to
either express questioning or its functional equivalent.” Rhode Island v. Innis,
446 U.S. 291, 300-01,
100 S. Ct. 1682, 1689,
64 L. Ed. 2d 297 (1980).
“Interrogation” under Miranda refers to express questioning and to any words or
actions on the part of the police, other than those normally attendant to an arrest,
“that the police should know are reasonably likely to elicit an incriminating
response from the suspect.”
Id. at 301,
100 S. Ct. at 1689-90.
A defendant may waive his Miranda rights “provided the waiver is made
voluntarily, knowingly, and intelligently.” Miranda,
384 U.S. at 444,
86 S. Ct.
at 1612. The waiver inquiry is two-pronged: “First, the relinquishment of the right
must have been voluntary in the sense that it was the product of a free and
deliberate choice rather than intimidation, coercion, or deception. Second, the
waiver must have been made with a full awareness of both the nature of the right
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being abandoned and the consequences of the decision to abandon it.” Moran v.
Burbine,
475 U.S. 412, 421,
106 S. Ct. 1135, 1141,
89 L. Ed. 2d 410 (1986). An
express oral statement waiving the right to remain silent is “usually strong proof of
the validity of that waiver, but is not inevitably either necessary or sufficient to
establish waiver.” North Carolina v. Butler,
441 U.S. 369, 373,
99 S. Ct. 1755,
1757,
60 L. Ed. 2d 286 (1979).
In a plurality opinion, the Supreme Court has held that a conscious decision
to use the “question-first” technique, where officers interrogate a suspect without
warning of the right to remain silent until that interrogation produces a confession,
then give the suspect Miranda warnings, and “lead[] the suspect to cover the same
ground a second time” violates the Fifth Amendment. Missouri v. Seibert,
542
U.S. 600, 604, 617,
124 S. Ct. 2601, 2605, 2613,
159 L. Ed. 2d 643 (2004).
“A ‘protective sweep’ is a quick and limited search of premises, incident to
an arrest and conducted to protect the safety of police officers and others.”
Maryland v. Buie,
494 U.S. 325, 327,
110 S. Ct. 1093, 1094,
108 L. Ed. 2d 276
(1990). Police officers do not need a warrant or probable cause to conduct a
protective sweep of a home, but must have “articulable facts which, taken together
with the rational inferences from those facts, would warrant a reasonably prudent
officer in believing that the area to be swept harbors an individual posing a danger
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to those on the arrest scene.”
Id. at 334,
110 S. Ct. at 1098. A protective sweep is
limited to a cursory inspection of the spaces where a person may be found, and
must last no longer than necessary to dispel the reasonable suspicion of danger.
Id. at 335-36,
110 S. Ct. at 1099. We have previously upheld protective sweeps of
residences that stemmed from arrests made outside those residences. See United
States v. Tobin,
923 F.2d 1506, 1513 (11th Cir. 1991) (en banc) (involving a
protective sweep of a residence after an arrest in the garage), United States v.
Burgos,
720 F.2d 1520, 1526 (11th Cir. 1983) (involving a protective sweep after
an arrest on a porch).
Because we conclude from the record that Vazquez’s initial arrest was not
illegal, his subsequent statements and consent to the searches of his vehicle and
residence were not tainted by illegal police activity. Vazquez impliedly and
expressly consented to the search of his truck. His pre-Miranda statements were
not made in response to any interrogation by officers, and his post-Miranda
statements and consent to the search of his home were made after a knowing,
voluntary, and intelligent waiver of his Miranda rights. There was no evidence
that Vazquez’s consent was coerced. Additionally, because officers were aware
that (1) the confidential informant previously had observed individuals other than
Vazquez inside Vazquez’s residence, (2) there were guns inside the residence, and
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(3) individuals had gone in and out of the residence while it was under
surveillance, the protective sweep of Vazquez’s residence was not improper.
Accordingly, we conclude that the district court properly denied Vazquez’s
Motion to Suppress Evidence.
IV.
In order for an appeal waiver to be enforceable, the district court must have
discussed the appeal waiver provision with the defendant during the guilty plea
colloquy, or it must be manifestly clear from the record that the defendant
understood the full significance of the appeal waiver. United States v. Bushert,
997 F.2d 1343, 1351 (11th Cir. 1993). The appeal waiver must also have been
knowing and voluntary. See United States v. Segarra,
582 F.3d 1269, 1273 (11th
Cir. 2009), cert. denied, ___ S. Ct. ___ (U.S. Nov. 29, 2010).
Vazquez’s sentence was within his advisory guideline range based on the
properly-admitted drugs and firearm from his vehicle and residence. Because the
record reflects that the district court discussed the appeal waiver in Vazquez’s plea
agreement during the Rule 11 colloquy, and because the waiver was knowing and
voluntary, the waiver is enforceable and bars Vazquez from appealing the sentence
that he received. Vazquez’s sentence does not fall within the exception for an
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upward departure or variance from the “guideline range as calculated by the
district court.”
For the aforementioned reasons, we affirm Vazquez’s convictions and 120-
month total sentence.
AFFIRMED.
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