United States v. John Michael Lowry

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-11615 ELEVENTH CIRCUIT
DECEMBER 24, 2008
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 06-00038-CR-1-MP-AK-3
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOHN MICHAEL LOWRY,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(December 24, 2008)
Before ANDERSON, DUBINA and MARCUS, Circuit Judges.
PER CURIAM:
Appellant John Michael Lowry appeals his conviction for conspiracy to
manufacture, distribute, and possess with intent to distribute marijuana plants, in
violation of 21 U.S.C. § 846. On appeal, Lowry argues that the district court erred
by not suppressing the evidence seized from his property, as the Drug Enforcement
Administration (“DEA”) agents committed an illegal “knock and talk,” because a
reasonable person would have known that he was not permitted to enter the
property.
In reviewing the denial of a motion to suppress, we review the district
court’s factual findings for clear error, and review de novo the application of the
law to the facts. United States v. Perez, 443 F.3d 772, 774 (11th Cir. 2006). The
facts are construed in the light most favorable to the party that prevailed below. Id.The Fourth Amendment prohibits unreasonable searches and seizures. U.S.
Const. amend. IV. For a search to be unconstitutional, a defendant must establish
both a subjective and an objective expectation of privacy. United States v. Segura-
Baltazar, 448 F.3d 1281, 1286 (11th Cir. 2006). A subjective expectation of
privacy occurs if the defendant actually expected privacy, and an objective
expectation of privacy occurs only when society is prepared to recognize an
expectation of privacy as reasonable. Id. Unless expressly prohibited, an officer is
permitted to approach a residence and knock on the front door of any property to
the extent that a private citizen could do the same. United States v. Taylor, 458
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F.3d 1201, 1204 (11th Cir. 2006). The doctrines of trespass and Fourth
Amendment searches are distinct, and a trespass does not create a constitutional
violation. United States v. Hall, 47 F.3d 1091, 1095-96 (11th Cir. 1995). We have
held that a warrantless search is illegal if an officer possesses probable cause, but
instead of obtaining a search warrant, creates exigent circumstances to justify a
search. United States v. Santa, 236 F.3d 662, 671 (11th Cir. 2000) (quoting United
States v. Tobin, 923 F.2d 1506, 1511 (11th Cir. 1991)).
We conclude from the record that the district court did not err in denying the
motion to suppress, as the officers conducted a valid “knock and talk” at Lowry’s
residence, which resulted in Lowry consenting to a search of the property.
Accordingly, we affirm Lowry’s conviction.
AFFIRMED.
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