United States v. Milton Wrenn ( 2023 )

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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-12621
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MILTON WRENN,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Georgia
D.C. Docket No. 7:18-cr-00058-HL-TQL-1
____________________
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2 Opinion of the Court 22-12621
Before WILLIAM PRYOR, Chief Judge, and WILSON and LUCK, Cir-
cuit Judges.
PER CURIAM:
Milton Wrenn appeals his conviction and sentence of
120 months of imprisonment for possessing child pornography, 18
U.S.C. § 2252(a)(4)(B). Wrenn challenges the denial of his motion
to suppress the images and videos found on his laptop computer
on the grounds that the search warrant was invalid and that the
plain-view doctrine did not permit the seizure of his laptop. He also
challenges the procedural and substantive reasonableness of his
sentence. We affirm.
I. BACKGROUND
On October 4, 2017, around 5:00 a.m., Deputy Alan Patton
of Union County saw an eastbound car make a U-turn across five
lanes to head westbound, and he then saw the car make another
U-turn to return eastbound. After the car passed over a
hash-marked area of the road not intended for travel, Patton initi-
ated a traffic stop for failing to maintain the lane and crossing the
fog lines during the U-turns.
As Patton approached the car, he smelled a strong odor of
marijuana. Patton identified Wrenn as the driver and asked where
the marijuana was located. After Wrenn pulled a glass jar of mari-
juana from the center console, Paton arrested him for possessing
marijuana.
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Patton asked if he wanted to call someone to retrieve his car.
Wrenn called a friend, who said he was on his way and would be
there within 30 minutes. Officers waited two hours for the friend
to retrieve Wrenn’s car.
When Wrenn’s friend failed to show, the officers decided to
impound and inventory the vehicle based on the police depart-
ment’s policies. The inventory led to the discovery of digital scales
and a trash bag containing about four pounds of raw marijuana.
The inventory also revealed electric bills in Wrenn’s name for an
address in Moultrie, Georgia. The June bill was less than $85, and
the July bill was about $400. Lieutenant Darren Osborn told nar-
cotics investigator Jerome Burgess that he believed that the erratic
power consumption reflected by the electric bills ordinarily oc-
curred with indoor marijuana grow operations.
On October 12, 2017, Burgess and another officer followed
up on an unrelated drug complaint near Wrenn’s address and de-
cided to stop by. Burgess parked about 30 yards from the mobile
home on Wrenn’s property and smelled an overwhelming odor of
marijuana coming from the house. Burgess knocked on the front
door, but no one answered. A black opaque material covered each
window and prevented Burgess from seeing inside the home. Bur-
gess saw that the electric meter was moving rapidly, but he de-
tected no lights or appliances running, including the air condition-
ing unit. When Burgess called the magistrate about his intent to go
to his office to prepare an application for a search warrant, the
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4 Opinion of the Court 22-12621
magistrate said that he could be there in a few minutes to review
the application on-site.
Burgess’s handwritten application for a search warrant listed
the facts that Wrenn’s car contained several pounds of marijuana
and irregular electric bills, that Burgess personally smelled an odor
of marijuana emanating from the house, and that the electric meter
was spinning rapidly, which suggested a large draw on power. The
application sought authority to search for “marijuana, marijuana
plant material, [and] any and all substances and[/]or compounds
containing tetrahydrocannabinol.” The magistrate parked behind
Burgess’s vehicle, reviewed the application, and signed the war-
rant. The magistrate instructed the officers to wait until after he
had left the property to execute the warrant.
During the search, the officers found numerous items in
Wrenn’s name, including bank statements, prescription pill bottles,
and packages. Officers recovered evidence of an indoor marijuana
grow operation, including hydroponic watering systems, lighting
systems, fertilizers, a vacuum sealer, plastic wrap, suspected juve-
nile marijuana plants and seeds, glass jars, envelopes, bags contain-
ing marijuana, and a marijuana pipe. The officers found a watering
filtration system installed where a washer and dryer ordinarily
would be located and injection lines running throughout the house
into the individual rooms. The officers observed power cables run-
ning from the main power panel to all three bedrooms and the liv-
ing room. And there was a tray of marijuana in the living room as
well as a laptop, which was open and powered on to display a
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screensaver of a landscape image. The officers seized the laptop and
evidence of the grow operation, including 233 marijuana plants.
On November 7, 2017, Burgess applied for and received a
warrant to search the laptop for evidence of the grow operation,
including “all stored digital images, contacts, customer and or ven-
dor lists, grow charts, harvesting amounts and schedules, search
query data, bank transactions and or account information for
online vendor transactions . . . . [related to] trafficking in mariju-
ana.” A forensic examination of the laptop revealed online searches
for “bedding material, fertilizers, [and] the planting media” related
to marijuana cultivation, as well as 2,444 images and six videos of
child pornography.
A federal grand jury indicted Wrenn for possessing child por-
nography, 18 U.S.C. § 2252(a)(4)(B). He moved to suppress the ev-
idence found on his laptop. Wrenn argued that Patton lacked rea-
sonable suspicion for the traffic stop and that the officers failed to
wait a reasonable time before impounding and conducting an in-
ventory of his car. Wrenn argued that the search warrant was in-
valid because the magistrate was not neutral and detached. He also
argued that the search warrant did not authorize his laptop to be
seized and that the incriminating nature of the laptop was not ap-
parent.
At an evidentiary hearing, Patton and Osborn testified about
the police department’s written impound and inventory policies.
Osborn explained that arrested drivers were afforded a reasonable
time to have someone retrieve their vehicle from the scene, usually
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6 Opinion of the Court 22-12621
about 30 to 40 minutes or longer, depending on how busy they
were. Osborn testified that waiting for two hours for Wrenn’s
friend was “more than reasonable” because they were a small de-
partment with only four people working that morning. Osborn ex-
plained that conducting an inventory was necessary to account for
the contents of impounded vehicles and to guard against claims of
stolen property.
Burgess testified that he had 32 years of law enforcement ex-
perience and eight years of experience investigating narcotics. He
had submitted about 100 search warrant applications in his career.
He did not believe that he had probable cause to search Wrenn’s
house until he stepped out of the car and smelled a strong mariju-
ana odor coming from the house. The smell and the electric meter
“put [him] over the edge.” Burgess recalled that the magistrate
commented that he smelled marijuana before he reviewed the
search warrant. Burgess also explained that, in his experience as a
narcotics investigator, it was common for computers and cell
phones to contain evidence of criminal activity, including ledgers,
correspondence with buyers, and images of drugs.
Chief Magistrate Judge J.J. McMillan testified that he had
held his position in Colquitt County for over 15 years and previ-
ously worked for the sheriff’s department for over 12 years. McMil-
lan had reviewed search warrants on-site about 40 times, which
was normal to do for convenience and had been done by other
magistrates when he was an investigator. In this instance, because
of how far out the officers were, it was quicker for him to come to
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them. McMillan did not approach Wrenn’s house but stayed by
Burgess’s truck. He did not participate in the investigation or
search. He did not recall whether he noticed a marijuana odor but
explained that smelling marijuana “would have just made [his] be-
lief of probable cause even stronger.” McMillan stated that the four
corners of the application established probable cause.
The district court denied Wrenn’s motion to suppress. The
district court ruled that the traffic stop was lawful and the officers
complied with the county impound and inventory policy. The dis-
trict court ruled that the magistrate was neutral and detached from
the investigation and search, and the facts listed in the search war-
rant application established probable cause. The district court ruled
that Wrenn’s computer was lawfully seized because it was in plain
view and the officers had probable cause to believe that it con-
tained additional evidence of a narcotics crime.
Wrenn waived his right to a jury trial and proceeded to a
bench trial to preserve the suppression issues for appeal. Wrenn
and the government submitted a written stipulation of facts, in-
cluding that his laptop contained 2,444 images and six videos of
child pornography and that he refused to cooperate with law en-
forcement after his arrest. The government introduced ten exhibits
of child pornography obtained from Wrenn’s laptop, which de-
picted infants, toddlers, and prepubescent children being vaginally
and anally penetrated and performing oral sex on adult males and
other children. The government also presented testimony from a
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8 Opinion of the Court 22-12621
special agent of the Georgia Bureau of Investigations about her in-
vestigation. The district court found Wrenn guilty.
Wrenn’s presentence investigation report provided a com-
bined total offense level of 31, a criminal history category of I, and
an advisory guideline range of 108 to 135 months of imprisonment,
United States Sentencing Guidelines Manual § 2G2.2(a)(1) (Nov.
2021). His offense level included a two-level increase for possessing
material involving prepubescent minors, id. § 2G2.2(b)(2), a
four-level increase for possessing material portraying sadomaso-
chistic conduct and sexual exploitation of infants and toddlers, id.
§ 2G2.2(b)(4), a two-level increase for using a computer, id.
§ 2G2.2(b)(6), and a five-level increase for possessing more than 600
images of child pornography, id. § 2G2.2(b)(7). The probation of-
ficer rejected Wrenn’s request to reduce his offense level for ac-
ceptance of responsibility, id. § 3E1.1. The report also noted that,
while in federal custody, Wrenn developed a benign tumor around
his brain and spinal cord, which was surgically removed, reap-
peared, and surgically removed again.
At sentencing, Wrenn argued that he should receive a reduc-
tion for accepting responsibility because he proceeded to trial only
after the government refused to offer him a plea conditioned on his
right to appeal the suppression issues. The government responded
that it had not heard anything resembling acceptance of responsi-
bility from Wrenn, such as an expression of remorse, and stated
that the images on Wrenn’s computer were “more than disturb-
ing, . . . vile, . . . . [and] some of the worst that the [special agent]
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had ever seen.” The government acknowledged that the sentenc-
ing hearing was not finished, so it would have to wait to “hear what
[Wrenn] has to say” about his actions, and the district court re-
served ruling on the objection.
Wrenn’s sister told the district court that Wrenn had been a
“wonderful person” throughout his life and asked for mercy in the
light of his health issues. In his allocution, Wrenn asked the district
court “to consider that [he had] already done five years of incarcer-
ation, and . . . had a lot of medical issues,” and he asked to be sen-
tenced to time served to allow him to live with his sons and be
driven to medical appointments.
The district court overruled Wrenn’s objection. After con-
sidering the statutory sentencing factors, 18 U.S.C. § 3553(a), it sen-
tenced Wrenn to 120 months of imprisonment. It explained that a
sentence of time served was inappropriate and that his physical
condition was not a controlling factor. It ruled that it was “alto-
gether probable, based on his record, that he would continue with
his misconduct and continue to break the law in ways similar to
those shown in this case.”
II. STANDARD OF REVIEW
Two standards of review govern this appeal. When review-
ing a motion to suppress, we review legal conclusions de novo and
findings of fact for clear error. United States v. Hollis, 780 F.3d 1064,
1068 (11th Cir. 2015). We review the reasonableness of a sentence
for abuse of discretion. Gall v. United States, 552 U.S. 38, 51 (2007).
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III. DISCUSSION
We divide our discussion in three parts. First, we explain
that the district court did not err by denying Wrenn’s motion to
suppress because probable cause supported the warrant to search
his home, a neutral and detached magistrate signed the warrant,
and the officer had probable cause to believe that the laptop, which
was in plain view, contained evidence of Wrenn’s drug crime. Sec-
ond, we explain that Wrenn’s sentence is procedurally and substan-
tively reasonable.
A. The District Court Did Not Err by Denying Wrenn’s Motion to
Suppress
Wrenn argues that the district court should have suppressed
the seized evidence against him for three reasons. All his arguments
fail. We address each in turn.
First, Wrenn argues that the officers failed to comply with
the Union County impound and inventory policies, so the electric
bills found inside his car were fruit of the illegal inventory and
could not be used to establish probable cause to obtain a warrant
to search his home. “[I]nventory searches are [] a well-defined ex-
ception to the warrant requirement of the Fourth Amendment.”
Colorado v. Bertine, 479 U.S. 367, 371 (1987). Officers need not obtain
a warrant to search an impounded car if they have authority to im-
pound the car and follow standardized department procedures
governing inventory searches. United States v. Cohen, 38 F.4th 1364,
1371 (11th Cir. 2022). An inventory must be authorized by
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“standard criteria” and “on the basis of something other than sus-
picion of evidence of criminal activity.” Bertine, 479 U.S. at 375.
The written department policy expressly authorized the of-
ficers to impound and inventory Wrenn’s car after they made a rea-
sonable but unsuccessful attempt to wait for Wrenn’s friend to ar-
rive. The impound policy directed “deputies [to] impound a motor
vehicle” in situations such as when “the driver of a motor vehicle
has been arrested . . . [and] [t]he driver of a vehicle has made a spe-
cific request for the disposition of the vehicle . . . and the deputy
has made a reasonable, but unsuccessful effort to comply with this re-
quest.” Wrenn fails to explain how the officers violated the policy
after the officers waited two hours, much longer than their usual
waiting period of 30 to 40 minutes, when only four officers were
on duty that morning. Wrenn does not argue that the officers acted
in bad faith, so we conclude that the inventory was lawful. See id.Insofar as Wrenn asserts that the officers’ pre-arrest retrieval of the
glass jar of marijuana from the center console was illegal, he has
abandoned that argument by raising it only in passing and without
supporting authority. See United States v. Esformes, 60 F.4th 621, 635
(11th Cir. 2023).
Second, Wrenn argues that the warrant to search his home
was invalid because the magistrate who issued it reviewed and
signed the warrant on Wrenn’s property and might have smelled
marijuana. A search warrant must be reviewed by a neutral and
detached magistrate who “read[s] the warrant and make[s] his own
independent assessment as to whether the warrant and its
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12 Opinion of the Court 22-12621
underlying affidavit contain a sufficient amount of information to
support a finding of probable cause.” United States v. Martin, 297
F.3d 1308, 1317 (11th Cir. 2002). Neutrality and detachment require
severance and disengagement from law enforcement activities.
Shadwick v. City of Tampa, 407 U.S. 345, 350 (1972). A judicial officer
fails to manifest neutrality and detachment when he “allow[s] him-
self to become a member, if not the leader, of the search party
which was essentially a police operation.” Lo-Ji Sales, Inc. v. New
York, 442 U.S. 319, 326–27 (1979).
In Lo-Ji Sales, the Supreme Court held that, by accompany-
ing officers to a store under an invalid warrant and participating in
the search by ordering officers to seize items based on his personal
judgment of the obscenity of the items, the judge had “undertook
to telescope the processes of the application for a warrant, the issu-
ance of the warrant, and its execution” and was no longer acting as
a “neutral and detached” judicial officer but as an adjunct law en-
forcement officer. Id. at 327–28. But the Court was careful not to
suggest that a neutral and detached magistrate “loses his character
as such merely because he leaves his regular office in order to make
himself readily available to law enforcement officers who may wish
to seek the issuance of warrants by him.” Id. at 328 n.6.
The record supports the ruling that a neutral and detached
magistrate issued the warrant to search Wrenn’s home. The mag-
istrate reviewed the warrant application on-site as a matter of con-
venience to the officers, who were far out in the county. He stayed
at Burgess’s truck and did not approach the home or attempt to
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investigate the facts contained in the warrant affidavit, such as by
personally inspecting the electric meter or walking close to the
home to determine whether a marijuana odor was coming from
the home. He did not substitute his own judgment for the officers’
judgment because Burgess already had written in his affidavit that
he smelled marijuana before the magistrate arrived. And the mag-
istrate did not participate in the execution of the warrant, but in-
stead detached himself from the operation by directing the officers
to wait to execute the warrant until after he had left the property.
See id. at 326–28. Moreover, the district court found that the mag-
istrate credibly testified at the suppression hearing that smelling
marijuana would not have influenced his determination that the
four corners of the warrant affidavit contained probable cause
based on Burgess’s knowledge of the electric bills, the several
pounds of marijuana in Wrenn’s car, the rapidly moving electric
meter at his home, and Burgess’s detection of a strong odor of ma-
rijuana emanating from Wrenn’s home. See United States v. Holt,
777 F.3d 1234, 1255 (11th Cir. 2015).
Third, Wrenn argues that the seizure of his laptop exceeded
the scope of the warrant to search his home. He argues that Bur-
gess failed to explain how the laptop could be related to the offense
of possessing marijuana. He also contends that the plain-view doc-
trine is inapplicable because the incriminating nature of the laptop
was not readily apparent to the officers. We disagree.
The plain-view doctrine permits the warrantless seizure of
an object where an officer is lawfully located in a place from which
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the seized object could be plainly viewed and lawfully accessed,
and the incriminating character of the object is immediately appar-
ent. United States v. Smith, 459 F.3d 1276, 1290 (11th Cir. 2009).
When an officer has access to an object under a prior justification
under the Fourth Amendment, “[t]he seizure of property in plain
view involves no invasion of privacy and is presumptively reasonable,
assuming that there is probable cause to associate the property with crim-
inal activity.” Texas v. Brown, 460 U.S. 730, 741–42 (1983) (alteration
in original). “[P]robable cause is a flexible, common-sense stand-
ard. . . . merely requir[ing] that the facts available to the officer
would warrant a man of reasonable caution in the belief that cer-
tain items may be contraband or stolen property or useful as evi-
dence of a crime . . . .” Id. at 742 (citation omitted). Police officers
may draw this inference based on their own training and experi-
ence in deciding whether probable cause exists, and we give “due
weight” to a finding of the district court that the officer was credi-
ble and his inference was reasonable. Ornelas v. United States, 517
U.S. 690, 700 (1996).
The record supports the ruling that the officers lawfully
seized Wrenn’s laptop, which was in plain view, because they had
probable cause to believe that the laptop was associated with the
marijuana grow operation. The laptop was powered on in the cen-
ter of a multi-room marijuana grow operation with 233 marijuana
plants. The mobile home was outfitted with an extensive water fil-
tration system connected to the washer and dryer hookups, and
power cables ran from the main electrical panel to all of the bed-
rooms and the living room. All the correspondence and
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prescription bottles in the home were in Wrenn’s name. The only
operable electronic device in the home was the laptop. Burgess,
who had 32 years of law enforcement experience and eight years
of experience investigating narcotics, testified that he seized the
laptop because, based on his experience, it was common for crimi-
nals involved in illicit drug operations to keep on their phones or
computers ledgers, correspondence, and images regarding the
drugs they sold and the people to whom they sold their drugs. In
the light of the extensive grow operation Burgess found in Wrenn’s
home, it was reasonable for him to conclude that the laptop in the
center of the operation contained evidence of Wrenn’s drug crime.
See id.Although Burgess seized the laptop during the home search,
he did not search the laptop until he received a warrant to do so.
His application to search the laptop explained that, in his experi-
ence as a narcotics investigator, subjects involved in illicit drug ac-
tivities often keep records and images of their activities on electric
storage devices, as well as contact information for vendors and cus-
tomers. The facts that supported probable cause for the warrant to
search Wrenn’s laptop were materially the same facts that sup-
ported probable cause to search his home and to seize his laptop in
the first place. The district court did not err by denying Wrenn’s
motion to suppress the laptop evidence.
B. Wrenn’s Sentence is Procedurally and Substantively Reasonable
Wrenn argues that the district court procedurally erred by
denying a reduction for acceptance of responsibility, U.S.S.G.
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§ 3E1.1, because he proceeded to a bench trial instead of pleading
guilty only to preserve the suppression issues for appeal.
Section 3E1.1(a) instructs the district court to reduce the of-
fense level by two levels “[i]f the defendant clearly demonstrates
acceptance of responsibility for his offense.” U.S.S.G. § 3E1.1(a).
The guideline does not define what constitutes “acceptance of re-
sponsibility,” much less state that a defendant’s willingness to plead
guilty or stipulate to facts regarding his guilt is sufficient to receive
the reduction. See id. Although Wrenn is correct that a defendant
is not precluded from receiving the reduction when he proceeds to
trial to assert and preserve issues that do not relate to factual guilt,
see id. § 3E1.1 cmt. n.2, “a determination that a defendant has ac-
cepted responsibility will be based primarily upon pre-trial state-
ments and conduct,” id. Indeed, as we have explained, remorse is a
critical component of accepting responsibility, and the district
court may consider the defendant’s conduct before, during, and af-
ter trial, including his allocution during sentencing, to ascertain
whether his actions and statements reflect remorse. See United
States v. Stanley, 739 F.3d 633, 652 (11th Cir. 2014).
Wrenn failed to meet his burden of proving that he accepted
responsibility for his crime. Setting aside his refusal to cooperate
with law enforcement and his decisions to exercise his rights to trial
and not to testify, Wrenn’s conduct established a lack of accounta-
bility. At sentencing, the government argued that Wrenn made no
expression of remorse despite his offense conduct involving images
and videos that were “more than disturbing, . . . vile, . . . . [and]
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some of the worst that the [special agent] had ever seen.” Even af-
ter the government acknowledged that the “hearing [was] not over
yet, so [it would] wait to hear what [Wrenn] has to say,” and after
the district court reserved its ruling until after Wrenn allocuted,
Wrenn declined the invitation to take accountability for his con-
duct and instead chose to ask for a sentence of time served, talked
about his health issues, and stated that he wanted to live with and
be taken care of by his sons. The district court enjoyed a “unique
position to evaluate [Wrenn’s] acceptance of responsibility,”
U.S.S.G. § 3E1.1 cmt. n.5, and in the light of Wrenn’s freely offered
statements revealing a lack of remorse, we are not left with the def-
inite and firm conviction that a mistake has been committed in
denying him the reduction. See Stanley, 739 F.3d at 652, 655.
Wrenn’s sentence is also substantively reasonable. The dis-
trict court considered the statutory sentencing factors, 18 U.S.C.
§ 3553(a), and determined that a sentence of 120 months of impris-
onment accounted for his background and provided adequate pun-
ishment. The selection of a sentence less than the statutory maxi-
mum of 20 years of imprisonment and within the guideline range
suggests that the sentence is reasonable. See United States v. Croteau,
819 F.3d 1293, 1310 (11th Cir. 2016); United States v. Hunt, 526 F.3d
739, 746 (11th Cir. 2008). Wrenn argues that the district court relied
too heavily on his likelihood to reoffend and too little on his health
issues. But “[t]he weight given to any specific § 3553(a) factor is
committed to the sound discretion of the district court.” United
States v. Croteau, 819 F.3d 1293, 1309 (11th Cir. 2016). In the light of
Wrenn’s refusal to express remorse or assure the district court that
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18 Opinion of the Court 22-12621
he would not reoffend, it was reasonable for the district court to
consider the need for deterrence more heavily than Wrenn’s desire
for mercy. See id. The district court did not abuse its discretion.
IV. CONCLUSION
We AFFIRM Wrenn’s conviction and sentence.