United States v. Robinson Calixte , 591 F. App'x 929 ( 2015 )

Case: 14-10729 Date Filed: 01/30/2015 Page: 1 of 4
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 14-10729
Non-Argument Calendar
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D.C. Docket No. 1:13-cr-20683-DLG-1
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
versus
ROBINSON CALIXTE,
Defendant – Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(January 30, 2015)
Before TJOFLAT, WILSON and BLACK, Circuit Judges.
PER CURIAM:
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Robinson Calixte appeals his convictions for possession of 15 or more
unauthorized access devices with intent to defraud, in violation of 18 U.S.C. §
1029(a)(3), and aggravated identity theft, in violation of 18 U.S.C. § 1028A(a)(1).
Calixte raises two issues on appeal. First, he argues the district court erred in
denying his motion to suppress the evidence obtained from the initial search of one
document on his flash drive because the search exceeded the scope of his consent.
Second, he contends the district court erred in denying his motion to suppress
evidence obtained from a subsequent forensic search because the 11-month delay
between the seizure of his flash drive and the application for a warrant rendered
the search unreasonable. After careful review, we affirm. 1
We conclude the initial search of the flash drive did not exceed the scope of
Calixte’s consent. The scope of a reasonable search is limited to “what a police
officer could reasonably interpret the consent to encompass.” United States v.
Strickland, 902 F.2d 937, 941 (11th Cir. 1990). Assuming arguendo the
conversation between Calixte and Detective George Festa limited the scope of the
search to looking for homework, Special Agent Katherine Litras’s search of the
most recently opened file did not exceed the scope of this consent. To confirm the
1
When reviewing a denial of a motion to suppress, we examine the district court’s
factual findings for clear error and its application of the law to those facts de novo. United States
v. Anderton, 136 F.3d 747, 749 (11th Cir. 1998). We construe the facts in the light most
favorable to the party that prevailed in the district court. United States v. Santa, 236 F.3d 662,
668 (11th Cir. 2000). We may affirm the denial of a motion to suppress on any ground
supported by the record. United States v. Caraballo, 595 F.3d 1214, 1222 (11th Cir. 2010).
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flash drive contained homework, Litras needed to open at least one file, and
nothing in the record suggests the most recently opened file was an unreasonable
place to begin. Furthermore, Calixte was physically present for the search and
neither revoked his consent nor attempted to limit the search to specific files.
Under the totality of the circumstances, Litras’s search of the file was reasonable.
See United States v. Blake, 888 F.2d 795, 798 (11th Cir. 1989) (“[W]hether there
were any limitations placed on the consent given and whether the search
conformed to those limitations is to be determined by the totality of the
circumstances.”).
We also conclude the 11-month delay in obtaining a warrant did not render
unreasonable the Government’s subsequent search of Calixte’s flash drive. Calixte
argues our decision in United States v. Mitchell, 565 F.3d 1347 (11th Cir. 2009),
establishes the authorities’ delay between the seizure and search of the flash drive
was unreasonable. In Mitchell, we held the government’s 21-day delay in
obtaining a warrant was unreasonable. Id. at 1351-52. Mitchell, however, is
inapposite. The Fourth Amendment does not require a warrant in this case because
Calixte gave Litras consent to search the flash drive. See United States v. Stabile,
633 F.3d 219, 235 (3d Cir. 2011) (“Where a person consents to search and seizure,
no possessory interest has been infringed because valid consent, by definition,
requires voluntary tender of property.”).
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For the foregoing reasons, the district court did not err in denying the motion
to suppress, and we affirm Calixte’s convictions.
AFFIRMED.
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