USCA11 Case: 22-11477 Document: 32-1 Date Filed: 11/29/2023 Page: 1 of 8
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-11477
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAQUEZ L. GILBERT,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Georgia
D.C. Docket No. 7:20-cr-00026-HL-TQL-1
____________________
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2 Opinion of the Court 22-11477
Before LAGOA, BRASHER, and DUBINA, Circuit Judges.
PER CURIAM:
Jaquez L. Gilbert appeals his conviction for possession of a
firearm and ammunition by a convicted felon, challenging the dis-
trict court’s denial of his motion to suppress based on an eviden-
tiary search of the home of his girlfriend, Rukeya Loveday. Gilbert
argues, and the government does not dispute, that he had Fourth
Amendment standing to challenge the search because he was a reg-
ular overnight guest at Loveday’s house. Gilbert contends that his
probation search waiver did not authorize the search because the
probation condition did not permit warrantless searches at third
party residences. He asserts that, contrary to the government’s ar-
guments, neither the attenuation doctrine nor the inevitable dis-
covery doctrine applies to allow the admission of the evidence. Af-
ter reading the parties’ briefs and reviewing the record, we con-
clude that the district court did not err in denying Gilbert’s motion
to suppress, and we affirm Gilbert’s conviction.
I.
Regarding a motion to suppress, we review the district
court’s factual findings for clear error and legal conclusions de novo.
United States v. Barber,
777 F.3d 1303, 1304 (11th Cir. 2015). We
may affirm the denial of a motion to suppress on any ground that
the record supports. United States v. Caraballo,
595 F.3d 1214, 1222
(11th Cir. 2010). We construe the facts “in the light most favorable
to the prevailing party below,” affording substantial deference to
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22-11477 Opinion of the Court 3
the district court’s explicit and implicit credibility determinations.
United States v. Lewis,
674 F.3d 1298, 1303 (11th Cir. 2012) (quota-
tion marks omitted).
II.
Standing under the Fourth Amendment is non-jurisdic-
tional, and “the government waives any standing objection that it
fails to raise.” United States v. Ross,
963 F.3d 1056, 1065-66 (11th Cir.
2020) (en banc). A legal claim or argument not briefed before our
court is deemed forfeited, and we will consider its merits only in
extraordinary circumstances. United States v. Campbell,
26 F.4th
860, 873 (11th Cir. 2022) (en banc), cert. denied,
143 S. Ct. 95 (2022).
The Fourth Amendment guarantees “[t]he right of the peo-
ple to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures.” U.S. CONST. AMEND. IV. The
reasonableness of a search is “[t]he touchstone of the Fourth
Amendment,” United States v. Knights,
534 U.S. 112, 118,
122 S. Ct.
587, 591 (2001), and without a warrant issued upon probable cause,
a search is unreasonable unless it falls into a specifically established
exception, Katz v. United States,
389 U.S. 347, 356-57,
88 S. Ct. 507,
514 (1967).
However, there is no rational basis to suppress evidence ob-
tained by unconstitutional methods “if the government can prove
that the evidence would have been obtained inevitably.” Nix v.
Williams,
467 U.S. 431, 447,
104 S. Ct. 2501, 2511 (1984). Thus, un-
der the inevitable discovery doctrine, the government may intro-
duce evidence that it obtained through an illegal search if it shows:
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4 Opinion of the Court 22-11477
(1) “by a preponderance of the evidence that if there had been no
constitutional violation, the evidence in question would have been
discovered by lawful means,” and (2) “that the lawful means which
made discovery inevitable were being actively pursued prior to the
occurrence of the illegal conduct.” United States v. Watkins,
13 F.4th 1202, 1211 (11th Cir. 2021) (en banc) (quotation marks
omitted). When the “active pursuit” in question does not involve
a search warrant, the government need not “have already planned
the particular legal search that would obtain the evidence.” Id. at
1215 (quotation marks omitted, alteration adopted). Rather, the
government only must show “that the police would have discov-
ered the evidence by virtue of ordinary investigations of evidence or
leads already in their possession.” Id. (quotation marks omitted, em-
phasis added).
Under the attenuation doctrine, courts are required to con-
duct two separate inquiries where a consent to search follows prior
illegal activity by the police: (1) whether the consent was volun-
tary; and (2) whether the consent, even if voluntary, requires ex-
clusion of the evidence found during the search because it was the
product of an illegal entry, i.e., that it was the “fruit of the poison-
ous tree.” United States v. Delancy,
502 F.3d 1297, 1308 (11th Cir.
2007) (quotation marks omitted). The government must prove
that the illegal action did not cause the consent, and the district
court must determine whether the evidence in question was ob-
tained by exploitation of the initial unlawful action or by “means
sufficiently distinguishable to be purged of the primary taint.”
Id.
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22-11477 Opinion of the Court 5
at 1309 (quotation marks omitted). “This is a fact-specific question,
and no single fact is dispositive.”
Id.
Three non-exhaustive factors guide the attenuation analysis,
which is a pragmatic evaluation of the extent to which the illegal
police conduct caused the consent to be given: (1) the temporal
proximity between the unlawful police conduct and the consent;
(2) the presence of intervening circumstances; and (3) the purpose
and flagrancy of the unlawful police conduct.
Id. at 1309-10. As to
temporal proximity, if only a short time has elapsed between the
illegal act and a subject’s consent, the factor weighs in favor of ex-
clusion of the evidence.
Id. at 1310. An intervening circumstance
is any event that interrupts the causal connection between the ille-
gal act and the possibly tainted consent.
Id. at 1311. As to purpose
and flagrancy of the police conduct, “when the police act with the
express purpose of exploiting an illegal action, the causation is so
obvious that no real attenuation analysis is even necessary.”
Id. at
1312.
Other factors that the court may consider are whether:
(1) the seizure brought about police observation of the particular
object for which the police sought consent to search, (2) the con-
sent was volunteered rather than requested by the officers, (3) the
detainee was made fully aware that she could decline to consent
and thus prevent an immediate search of the home, (4) there has
been a significant intervening event, and (5) the police purpose un-
derlying the illegality was to obtain the consent.
Id. at 1309-10.
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6 Opinion of the Court 22-11477
We find Delancy instructive to the present case. In that case,
officers came to LaSandra Godfrey’s home to question her boy-
friend, Ronald Delancy, about several crimes.
Id. at 1301. After
placing something in the sofa, Delancy voluntarily exited the
home, and officers arrested him outside.
Id. Officers then con-
ducted a protective sweep.
Id. Officers asked Godfrey if they could
search her home, providing a written consent form, which she
signed, that informed her of her Fourth Amendment rights.
Id. at
1301-02. Officers testified that the tone of the conversation was
conversational rather than threatening and that they did not point
a gun or threaten Godfrey for her consent.
Id. at 1303. Godfrey
agreed that the officers were polite but stated that they threatened
her about her kids.
Id. Before Godfrey consented to the search,
officers found contraband in the sofa.
Id.
We noted that, while the temporal proximity was close, tim-
ing was not the most important factor because the interaction was
conversational in tone and the officers did not threaten, handcuff,
or detain Godfrey to force consent.
Id. at 1310-11. We emphasized
that intervening circumstances required an event that severed the
causal connection between the illegal activity and the consent, such
as when the officers made Godfrey aware of her rights under the
Fourth Amendment.
Id. at 1312. As to purpose and flagrancy, we
noted that the officers intended to comply with the law, did not act
flagrantly in searching large areas of the house, and did not use the
evidence found to obtain consent.
Id. at 1312-13. We noted as sig-
nificant that Godfrey was not the defendant in the case.
Id. at 1314.
We ultimately concluded that the attenuation doctrine applied
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22-11477 Opinion of the Court 7
because Godfrey’s consent was not tainted by the illegal entry.
Id.
at 1316. As to the contraband found prior to Godfrey’s consent, we
concluded that the evidence was admissible under the inevitable
discovery doctrine because Godfrey’s consent was voluntary and
there was a reasonable probability that the officers would have
found the drugs in the sofa after Godfrey’s consent because they
had observed Delancy place something in the sofa.
Id. at 1315.
III.
As an initial matter, the record discloses that the govern-
ment has forfeited any challenge to Gilbert’s Fourth Amendment
standing by failing to raise the issue on appeal, so we need not ad-
dress that issue.
The record demonstrates that the district court did not err
in finding that exclusion of the evidence was unwarranted under
the attenuation doctrine and the inevitable discovery doctrine.
Thus, we decline to reach the issue of whether the Fourth Amend-
ment permits officers to conduct a probationary search in a third
party’s residence where a probationer is staying as an overnight
guest.
First, as to the attenuation doctrine, we conclude that the
illegal conduct did not cause Loveday’s consent because the factors
weigh against exclusion. While the temporal proximity was close,
timing was not the most important factor because nothing in the
record suggests that the officers threatened, handcuffed, or de-
tained Loveday to secure her consent. Because Investigator Wil-
liams testified that he planned to obtain Loveday’s consent to
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8 Opinion of the Court 22-11477
conduct an evidentiary search before entering the house, the pur-
pose of the search was not based on the findings of the initial
search. The record confirms that the officers did not act flagrantly
because, during the initial search, they only searched the bedroom
area rather than the entire house. Further, nothing in the record
suggests that the officers made Loveday aware of the contraband
to obtain consent. Notably, like in Delancy, Loveday is not the de-
fendant. While the record does not show any intervening circum-
stances, the other factors outweigh the lack of intervening circum-
stances.
Further, under the inevitable discovery doctrine, we con-
clude that the officers would have discovered the evidence by law-
ful means, as they searched the bedroom after obtaining consent
from Loveday. The officers were actively pursuing the lawful
means prior to discovering the evidence because Investigator Wil-
liams testified that he planned to ask Loveday for her consent to
conduct an evidentiary search when she arrived. Accordingly,
based on the aforementioned reasons, we conclude that the district
court did not err in denying Gilbert’s motion to suppress the fire-
arms and ammunition found during the search of Loveday’s home,
and, therefore, we affirm Gilbert’s conviction.
AFFIRMED.
