United States v. Willis Maxi

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-13182
________________________
D.C. Docket No. 1:14-cr-20104-RLR-5
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
WILLIS MAXI,
MARKENTZ BLANC,
a.k.a. Blind,
a.k.a. Burn,
Defendants - Appellants,
ESPERE DESMOND PIERRE,
a.k.a. Papa D,
Defendant.
________________________
Appeals from the United States District Court
for the Southern District of Florida
________________________
(April 5, 2018)
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Before MARTIN, JORDAN, and WALKER, * Circuit Judges.
MARTIN, Circuit Judge:
Willis Maxi and Markentz Blanc appeal their convictions, after a jury trial,
on charges relating to their participation in an extensive drug distribution network.
Mr. Maxi challenges the admission of evidence he says was the product of an
illegal search. Mr. Blanc challenges the admission of evidence from wiretaps as
well as an instruction given to the jury about flight. After careful review, and with
the benefit of oral argument, we affirm.
I. FACTUAL BACKGROUND
On July 9, 2012, the Miami-Dade Police Department received a tip from a
confidential informant that a person known as “Papa D” 1 engaged in drug activity
and kept firearms at one unit of a duplex located at 132 N.E. 64th Street in Miami.
Detective Scott Ogden and another officer met with the informant and drove him to
the duplex. The informant identified the back unit as the one where guns and drugs
would be found.
Officers then began surveilling the property. One officer set up to watch the
house and others were positioned nearby. “[M]aybe ten or [fifteen] minutes or less”
*
Honorable John M. Walker, Jr., United States Circuit Judge for the Second Circuit,
sitting by designation.
1
“Papa D” was later identified as Espere Pierre. Mr. Pierre was originally part of this
appeal. Another panel of this Court granted Mr. Pierre’s attorney’s motion to withdraw pursuant
to Anders v. California, 386 U.S. 738, 87 S. Ct. 1396 (1967), and affirmed Mr. Pierre’s
convictions and sentence in a separate order.
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after setting up, officers saw two men leave the duplex and get into a truck.
Officers stopped the truck about a quarter mile from the duplex and asked the men
for identification. Mr. Blanc was the driver and Mr. Pierre was the passenger.
After a search revealed no contraband, the officers let the men leave. The truck
then turned immediately back toward the duplex.
When he was told the truck was returning to the duplex, Detective Ogden
ordered all the officers in the area to go there as well. Detective Ogden testified:
“We decided—or I decided that we should approach the residence with them there
because I had a feeling that maybe they would alert the persons inside.” At least
five police cars, holding approximately ten police officers, pulled up to the duplex.
Seeing the police approach, Mr. Blanc “took off running and was apprehended
shortly after.” Mr. Blanc and Mr. Pierre were both detained. They were eventually
released again without being charged.
Four or five police officers ran to the door of the back unit while the
remaining officers covered other strategic positions surrounding the duplex. The
back unit’s door was not visible from the street. To get to it, the officers passed
through a gate in a chain-link fence that surrounded the yard. At least one officer
who approached the door had his gun drawn and held in a “low, ready position.” It
was dark out.
The door itself had an exterior metal security gate, with a wooden interior
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door behind it. The metal security gate had bars that were five to six inches apart—
wide enough that Detective Ogden reached through the bars and knocked on the
wooden door. Detective Ogden testified he was “pretty sure” no one announced
“police” when he knocked.
Mr. Maxi opened the wooden interior door very soon after Detective Ogden
knocked. Detective Ogden testified that “[d]irectly behind Mr. Maxi, [he] could see
a clear mixing bowl as well as a white plate, with the plate having naked crack
rocks, and the clear mixing bowl having packaged crack cocaine and a razor blade
on the plate and a scrap piece of paper.” Detective Ogden said these objects were
approximately five to ten feet away from his position at the door.
When he saw the officers, Mr. Maxi “attempted to fade off” out of view, but
Detective Ogden told him to stay where he was. Upon questioning, Mr. Maxi said
he didn’t live at the duplex and didn’t know who did. Detective Ogden asked Mr.
Maxi to step outside, but Mr. Maxi said he couldn’t because the metal security gate
was locked and he didn’t have a key. 2 Detective Ogden asked Mr. Maxi if he was
burglarizing the residence, and Mr. Maxi responded, “oh, I will go for burglary.”
At some point, Detective Ogden told Mr. Maxi he was under arrest.
The officers decided to force the security gate open. Detective Ogden
testified he was concerned that Mr. Maxi would destroy evidence. Once the gate
2
This was not true. Mr. Maxi did have a key to the security gate.
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was pried open, Detective Ogden pulled Mr. Maxi out of the building, and
handcuffed him. Approximately five officers then conducted a protective sweep of
the unit, which Detective Ogden said took about two minutes. Detective Ogden
testified that during the sweep, he saw more packaged crack cocaine, a
semiautomatic handgun, four rifles, and a stack of money. After the sweep, the
officers left the unit and applied for a search warrant.
Before the warrant was issued but after the protective sweep, Lieutenant Luis
Almaguer and another officer did a walk-through of the unit. Lieutenant Almaguer
said he wanted to “verify[] what they are writing [in the search warrant application]
is what they saw.” He testified that the search warrant application did not rely on
any of his observations from the walk-through. After the search warrant was
issued, starting at around 2:00 AM, officers went back inside the unit and collected
crack cocaine, guns, and Mr. Maxi’s driver’s license and other papers. The search
concluded at 4:45 AM.
Once the search was over, Mr. Maxi was advised of his Miranda rights in the
back of a police car. An officer also told Mr. Maxi the police had seen guns and
drugs in the house. Several hours later, Mr. Maxi signed a formal waiver of his
Miranda rights and was interviewed. He told police he worked as a “cut man” for
“Papa D.” He said he cut up and bagged crack cocaine, provided security, and
resupplied other locations with crack cocaine.
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The surveillance and search of the 64th Street property was only the
beginning of the investigation into the drug organization in which Mr. Blanc, Mr.
Pierre, and Mr. Maxi were involved. Law enforcement worked with confidential
informants to make controlled purchases of crack cocaine from suspected members
of the organization. The FBI then used a pen register and tap and trace device on
Mr. Pierre’s phone, and later received authorization to use a wiretap on Mr.
Pierre’s phone. The wiretap on Mr. Pierre’s phone was in place for about a month
during the summer of 2013.
On October 28, 2013, an FBI agent filed an application for a wiretap on Mr.
Blanc’s cell phone. The application described a wiretap as necessary to accomplish
the goals of the investigation into the drug organization and listed a number of other
investigative techniques that had been used or considered. The wiretap application
was approved, and Mr. Blanc’s phone was tapped from October 28 to November
26, 2013.
On November 21, 2013, more than a year after the search that led to Mr.
Maxi’s arrest, law enforcement executed a search warrant at 262 N.W. 52nd Street in
Miami. A police officer saw Mr. Blanc outside the property and yelled, “Police,
stop.” Mr. Blanc turned and ran into the house, where he was detained. Drugs,
guns, ammunition, and other evidence were also collected from this house.
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II. PROCEDURAL BACKGROUND
On February 20, 2014, Mr. Blanc and Mr. Maxi, along with six codefendants
not part of this appeal, were indicted for crimes relating to a drug conspiracy. Both
were charged with conspiracy to possess with intent to distribute a controlled
substance; possession with intent to distribute a controlled substance; possession of
a firearm in furtherance of a drug trafficking crime; and possession of a firearm by a
convicted felon. Mr. Blanc was also charged with conspiracy to commit wire fraud,
aggravated identity theft, and possession of unauthorized access devices with the
intent to defraud.
Mr. Maxi and Mr. Blanc both filed motions to suppress evidence based on
the government’s alleged violations of law. Mr. Maxi filed a motion to suppress
physical evidence and his statements related to the search at the 64th Street duplex.
At the suppression hearing, Mr. Maxi’s attorney argued that the police approach to
the duplex exceeded the scope of a permissible “knock and talk.” He said Mr. Maxi
did not voluntarily open the duplex door, and that each of the police’s actions that
followed—breaking down the door, the protective sweep, the pre-warrant walk-
through, the arrest—was illegal. He also argued that Mr. Maxi’s statements should
be suppressed as fruit of the poisonous tree. The government opposed, arguing that
Mr. Maxi did not have standing to challenge the search; the police approach to the
door was permissible; and Mr. Maxi’s opening of the door was voluntary. Also, the
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government argued that even if the officers’ actions after approaching the door were
impermissible, there was still sufficient information to support the search warrant
because they could see crack cocaine in plain view from the door.
A Magistrate Judge issued a Report and Recommendation (“R&R”)
recommending that Mr. Maxi’s motion be denied. The Magistrate Judge found that
Mr. Maxi opened the door voluntarily and that the officers’ protective sweep of the
duplex was justified. The Magistrate Judge found that the pre-warrant walk-
through violated the Fourth Amendment, but the crack cocaine observed by the
officers in plain view once the door opened provided an independent source of
probable cause to support the search warrant. The District Court adopted the R&R
and denied Mr. Maxi’s motion to suppress.
Mr. Blanc filed a motion to suppress the intercepted wire communications.
He argued that the government had not shown “necessity to obtain or apply for
interceptions in this case, and omitted material information from the Affidavit.” In
particular, he argued that the government’s investigation had already been
“exceedingly successful” before they applied for the wiretap and that the wiretap
affidavit downplayed the role of the government’s confidential informant.
A Magistrate Judge recommended that Mr. Blanc’s motion be denied. The
Magistrate Judge agreed with the statements in the affidavit that further physical
surveillance, tracking devices, and use of confidential sources would not have
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satisfied the goals of the investigation. The Magistrate Judge also found that the
“affiants did not intentionally or recklessly make material false statements or omit
material facts in demonstrating the necessity of the wiretaps.” The District Court
adopted the R&R and denied Mr. Blanc’s motion to suppress.
In preparation for trial, the government requested a jury instruction about
flight be given for Mr. Blanc. Mr. Blanc objected. The District Court overruled the
objection and gave the following jury instruction:
The flight of Defendant Blanc is a circumstance which may be taken
into consideration with all other facts and circumstances of the
evidence. If you find from the evidence beyond any reasonable doubt
that Defendant Blanc fled, and that his flight was for the purpose of
avoiding arrest for a charge herein, you may take this fact into
consideration in determining his guilt or innocence.
On April 21, 2015, a jury found Mr. Maxi guilty of all counts and Mr. Blanc
guilty of all counts but one. Mr. Maxi was sentenced to 312-months imprisonment,
and Mr. Blanc to 300-months imprisonment, both below-guideline sentences. This
appeal followed.
III. MR. MAXI’S CLAIMS
When reviewing the District Court’s denial of a motion to suppress evidence,
we review findings of fact for clear error and application of law to facts de novo.
United States v. Jackson, 120 F.3d 1226, 1228 (11th Cir. 1997) (per curiam).
“[W]e construe all facts in favor of the prevailing party.” United States v.
Robinson, 62 F.3d 1325, 1328 (11th Cir. 1995).
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A. STANDING
We first consider whether Mr. Maxi has standing to challenge the search of
the 64th Street property. The District Court found “in an abundance of caution”
that Mr. Maxi had standing. The court relied on Mr. Maxi’s testimony that “he had
a legitimate presence in the facility, i.e., he has the permission of the person who
leases it to be there.” On appeal, the government argues Mr. Maxi does not have
standing to challenge the search since he was only at the duplex to package cocaine.
Alternatively, the government argues Mr. Maxi abandoned any privacy interest he
may have had in the duplex when he told the officers he didn’t live there.
In order to have standing to seek suppression of evidence, a defendant must
establish both a subjective expectation of privacy in the place searched as well as
the objective reasonableness of that expectation. Robinson, 62 F.3d at 1328. Mere
presence where the search occurred is not enough to confer standing. Rakas v.
Illinois, 439 U.S. 128, 143, 99 S. Ct. 421, 430 (1978). An overnight guest has a
reasonable expectation of privacy in a residence sufficient to establish standing.
Minnesota v. Olson, 495 U.S. 91, 98–100, 110 S. Ct. 1684, 1689–90 (1990). But a
guest present only for a brief commercial transaction does not. See Minnesota v.
Carter, 525 U.S. 83, 90–91, 119 S. Ct. 469, 473–74 (1998).
Mr. Maxi gave somewhat contradictory information about his relationship to
the duplex. When he first opened the door, he told police he didn’t live there,
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didn’t know who did, and didn’t have a key. At the suppression hearing, he
testified that he had been living at the duplex for three to six months. But he also
said “I really live at my father’s house,” and that he wasn’t at the duplex every day
but “just to pay the bills only.” Mr. Maxi said he kept his clothes at his father’s
house and only his “food stamp card, Social Security and Western Union papers”
at the duplex. On cross examination, he clarified that he had lived at both the
duplex and at his father’s house, but that he’d been kicked out of his father’s
house. Mr. Maxi testified that he paid half the rent to the duplex and had a key.
We conclude that Mr. Maxi has standing to challenge the search. While this
Court has recognized that a party can disclaim his privacy interest, such a
disclaimer is only one factor that we weigh in our consideration of whether Mr.
Maxi had a reasonable expectation of privacy in the duplex. See United States v.
Sweeting, 933 F.2d 962, 964 (11th Cir. 1991). This record demonstrates that Mr.
Maxi paid rent, had a key, and had been living at the duplex intermittently for three
to six months. He also kept important papers there. While most of his personal
effects were at his father’s house, he also testified that he’d been kicked out of his
father’s house, leaving the duplex as his only place to stay. Mr. Maxi was more
than just an overnight guest—he was effectively a subtenant. The fact that he also
performed commercial activities at the duplex does not vitiate his expectations of
privacy as a subtenant. On these facts, Mr. Maxi had reasonable expectations of
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privacy in the duplex. We therefore affirm the District Court’s finding that Mr.
Maxi had standing to challenge the search. We now consider each police action in
turn.
B. ENTRY ONTO THE CURTILAGE
Mr. Maxi first argues that the police illegally entered the curtilage of the
duplex when ten officers surrounded the building at night, one with his gun drawn.
The government responds that the entry was permissible because the officers were
conducting a “knock and talk.”
The Fourth Amendment guarantees “the right of a man to retreat into his
own home and there be free from unreasonable government intrusion.” Silverman
v. United States, 365 U.S. 505, 511, 81 S. Ct. 679, 683 (1961). “A home’s
curtilage, the private property immediately adjacent to a home, is entitled to the
same protection against unreasonable search and seizure as the home itself.”
United States v. Noriega, 676 F.3d 1252, 1262 (11th Cir. 2012) (quotation omitted
and alterations adopted). Because the curtilage is a constitutionally protected
space, the police must have an express or implied license to be there without a
warrant. See Florida v. Jardines, 569 U.S. 1, 7–8, 133 S. Ct. 1409, 1415–16
(2013).
The “knock and talk” rule provides that police have an owner’s implied
permission to “approach a home and knock, precisely because that is no more than
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any private citizen might do.” Id. at 8, 133 S. Ct. at 1416 (quotation omitted).
This license, “implied from the habits of the country . . . . typically permits the
visitor to approach the home by the front path, knock promptly, wait briefly to be
received, and then (absent invitation to linger longer) leave.” Id., 133 S. Ct. at
1415 (quotation omitted).
Also, “[t]he scope of a license—express or implied—is limited not only to a
particular area but also to a specific purpose.” Id. at 9, 133 S. Ct. at 1416. In
Jardines, the Supreme Court concluded that police had exceeded the scope of a
homeowner’s customary invitation to the public when they came onto the curtilage
with a drug-sniffing dog with the intent to “engage in canine forensic
investigation.” Id. As the Court noted, “[t]here is no customary invitation to do
that.” Id.
The reasoning in Jardines is not limited to the specific facts of bringing a
drug-sniffing dog up to the front porch. It extends to any police intrusion onto
curtilage that exceeds the customary license extended to all, whether measured by
officers’ actions or their intent. See id. 9–10 & n.3, 133 S. Ct. at 1416 & n.3. It
wasn’t just that the officer walked a dog up to the front door, it was that he did so
with the intent to gather evidence. “[T]he background social norms that invite a
visitor to the front door do not invite him there to conduct a search.” Id. at 9, 133
S. Ct. at 1416. It is with equal force that the principles of Jardines do not invite an
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armed battalion into the yard to launch a raid. Such a sight “would inspire most of
us to—well, call the police.” Id.
No doubt, the officers here breached the curtilage of the duplex. There were
approximately ten officers who ran to the duplex, many going through a gate in the
fence, with four or five approaching the door and the rest taking up tactical
positions around the exterior. Mr. Maxi did not give the officers an express license
to come into his yard. And while the officers had a license “implied from the
habits of the country,” id. at 8, 133 S. Ct. at 1415 (quotation omitted), to approach
the front door and knock, they did much more than that. First, their physical
intrusion was not “geographically limited to the front door or a ‘minor departure’
from it.” United States v. Walker, 799 F.3d 1361, 1363 (11th Cir. 2015) (per
curiam) (quoting United States v. Taylor, 458 F.3d 1201, 1204–05 (11th Cir.
2006)). Officers testified they took up tactical positions not just at the front door
but around the perimeter of the duplex. Second, the officers’ intent in approaching
the duplex wasn’t that of an ordinary citizen. Detective Ogden testified: “We
decided—or I decided that we should approach the residence with them there
because I had a feeling that maybe they would alert the persons inside.” From the
record before us, we do not doubt that the officers intended to secure the duplex
and detain anyone they found inside, which is, of course, exactly what they did.
That this encounter was not intended to be a casual, informational interview is also
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supported by the fact that at least one officer had his gun drawn and in a “low,
ready position.” As in Jardines, there is no customary invitation to do that. See
Jardines, 569 U.S. at 9, 133 S. Ct. at 1416.
Because their actions did not qualify as a “knock and talk,” the officers here
did not have a license to enter the curtilage of the duplex. However, that is not the
end of our inquiry. “The question whether the exclusionary rule’s remedy is
appropriate in a particular context has long been regarded as an issue separate from
the question whether the Fourth Amendment rights of the party seeking to invoke
the rule were violated by police conduct.” Illinois v. Gates, 462 U.S. 213, 223, 103
S. Ct. 2317, 2324 (1983). In Hudson v. Michigan, 547 U.S. 586, 126 S. Ct. 2159
(2006), the Supreme Court held that exclusion of evidence was not required when
police officers committed a Fourth Amendment violation by failing to “knock and
announce” when executing a search warrant. Id. at 594, 126 S. Ct. at 2165. In that
case, the Court noted that the constitutional violation was in the manner of entry,
not in the entry itself. Id. at 588, 126 S. Ct. at 2162. The officers had a valid
warrant but conceded they had not waited an appropriate amount of time after
knocking before entering to conduct a search. Id. And the “illegal manner of entry
was not a but-for cause of obtaining the evidence. Whether that preliminary
misstep had occurred or not, the police would have executed the warrant they had
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obtained,” and they would have discovered the inculpatory evidence inside. Id. at
592, 126 S. Ct. at 2164.
Here, the constitutional violations of the officers did not result in the
production of evidence. As in Hudson, the violation was the manner in which the
officers approached the house, not that they approached at all. If Detective Ogden
had walked up the path to the door alone, knocked, and waited briefly to be
received, he would have conducted a proper “knock and talk.” See Jardines, 569
U.S. at 8, 133 S. Ct. at 1415. There is no evidence to suggest that anything would
have turned out differently if he had done so—Mr. Maxi opened the door almost
immediately after Detective Ogden knocked and seemed entirely unaware of the
scene developing outside. This is not to say, however, that “knock and talk”
violations will never result in exclusion. For example, if Mr. Maxi opened the
door because he saw a phalanx of officers descending on his location; if he did so
as a result of a show of authority by the officers outside; or if he otherwise changed
his behavior in response to a demand made by the officers, we would have a
different case. Jardines makes clear that if officers had found evidence in the yard
or peered through windows as they took up positions around the house, that
evidence would be subject to exclusion. See id. at 9, 133 S. Ct. at 1416. But those
are not our facts. Because the constitutional violations here did not produce the
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contested evidence, we conclude that exclusion is not the appropriate remedy. See
Hudson, 547 U.S. at 592, 126 S. Ct. at 2164.
C. OPENING THE DOOR
Next, Mr. Maxi argues that he did not open the door voluntarily. He says
“[g]iven the number of police officers on the property, the unlawful seizure and
detention of two individuals while on the property, and where at least one of the
officers approached the front door with his weapon drawn, a reasonable person
would believe that they had no other option but to open the door.” The
government responds that all evidence suggests Mr. Maxi didn’t know the police
were at the door and that his opening of the door was consensual.
When a person opens their door “in response to a show of official authority,”
that act cannot be seen as consensual. See United States v. Tovar-Rico, 61 F.3d
1529, 1536 (11th Cir. 1995) (quotation omitted). We review the voluntariness of
consent “in light of the totality of the circumstances.” United States v. Tobin, 923
F.2d 1506, 1512 (11th Cir. 1991) (en banc). Our circuit has a number of cases in
which “police have used their position to demand entry,” and we concluded that
the consent to enter was not voluntary. Id.
For this case, the Magistrate Judge found (and the District Court adopted the
finding) that Mr. Maxi did not open the door in response to a show of authority.
Detective Ogden testified that his recollection was that no one yelled “police,” and
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after he knocked once, Mr. Maxi quickly opened the door. Evidence was also
presented that the windows were covered so Mr. Maxi could not have seen the
police outside. Mr. Maxi’s surprise at seeing police and his immediate attempt to
move out of view also support a finding that he did not expect the police to be at
the door. Viewing the totality of the circumstances, the District Court did not err
in finding that Mr. Maxi voluntarily opened the door.
D. THE ARREST
Mr. Maxi argues that the police committed another constitutional violation
when they broke down the metal security gate and arrested him in his home
without a warrant. The government responds that the warrantless arrest was
supported by probable cause that Mr. Maxi had committed a crime (packaged
crack cocaine was visible from the front door) and by exigent circumstances based
on officer safety and the risk that evidence would be destroyed.
“A finding of probable cause alone . . . does not justify a warrantless arrest
at a suspect’s home.” United States v. Edmondson, 791 F.2d 1512, 1515 (11th Cir.
1986). To justify a warrantless arrest in a suspect’s home, the government must
show both probable cause and the presence of exigent circumstances. Id. at 1514.
“The exigent circumstances exception encompasses situations such as hot pursuit
of a suspect, risk of removal or destruction of evidence, and danger to the arresting
officers or the public.” Id. at 1515.
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Mr. Maxi’s warrantless arrest was supported by both probable cause and
exigent circumstances. Detective Ogden could see a substantial quantity of drugs
behind Mr. Maxi when Maxi opened the door, and Ogden had received a tip that
several guns were also located somewhere in the unit. There was a risk that the
evidence he saw would be destroyed if the police left the duplex to get an arrest
warrant. And because the officers could not see inside the unit’s other room, they
did not know whether other people were in the unit. Mr. Maxi suggests that the
police should have handcuffed him to the metal security gate or held him at
gunpoint while they waited for an arrest warrant. We are not persuaded. As it
was, Mr. Maxi was behind a locked metal gate, out of reach of the police. The
officers had probable cause to believe Mr. Maxi committed a crime, and it was
objectively reasonable for them to think exigent circumstances existed to justify
their entry and arrest without a warrant. See id. at 1514–15.
E. THE PROTECTIVE SWEEP AND WALK-THROUGH
Mr. Maxi also challenges what happened after the officers broke down the
security gate and arrested him. More to the point, he argues that the officers’
protective sweep and Lieutenant Almaguer’s walk-through of the duplex were both
unlawful. The government responds that even if the officers’ actions after Mr.
Maxi opened the door were illegal, the search warrant was adequately supported by
an independent source.
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“The independent source doctrine allows admission of evidence that has
been discovered by means wholly independent of any constitutional violation.”
Nix v. Williams, 467 U.S. 431, 443, 104 S. Ct. 2501, 2508 (1984). We analyze
whether an independent source exists to support a search warrant in two steps:
First, we excise from the search warrant affidavit any information
gained during the arguably illegal initial search and determine
whether the remaining information is enough to support a probable
cause finding. Second, if the remaining information establishes
probable cause, we determine whether the officer’s decision to seek
the warrant was prompted by what he had seen during the arguably
illegal search. If the officer would have sought the warrant even
without the preceding illegal search, the evidence seized under the
warrant is admissible.
United States v. Bush, 727 F.3d 1308, 1316 (11th Cir. 2013) (per curiam)
(quotations and citations omitted, alterations adopted).
Even if the protective sweep and walk-through were illegal,3 the evidence
found inside the duplex is still admissible under the independent source doctrine.
As discussed above, Mr. Maxi voluntarily opened the door. As a result, Detective
Ogden saw crack rocks and a bowl of packaged drugs five to ten feet behind Mr.
Maxi. Even excising any information learned by the officers after that moment, this
3
Lieutenant Almageur’s walk-through was particularly problematic. The officers had
already secured the duplex and knew that neither evidence nor officer safety were at risk. And
while Lieutenant Almaguer testified that his observations during the walk-through were not used
in the search warrant affidavit, the record supports the Magistrate Judge’s observation that this is
somewhat hard to believe. For example, the affidavit describes “several ledgers [containing]
names, social security numbers, and the date of births of unknown persons” supposedly seen as
part of a security sweep that lasted less than two minutes. Even so, because of the independent
source doctrine, we recognize that the remedy for this violation is not exclusion.
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was sufficient to establish a finding of probable cause and to support the officers’
decision to seek a search warrant. See id. Beyond that, there is no reason to believe
(and Mr. Maxi does not argue otherwise) that the officers’ decision to seek a
warrant was prompted by what they saw during the protective sweep or the walk-
through that followed. To the contrary, we are convinced the officers would have
sought a warrant based on the drugs seen in plain view when Mr. Maxi opened the
door. The evidence seized under the warrant is therefore admissible.
F. MR. MAXI’S STATEMENTS
Last, Mr. Maxi argues that his later statements to police should be excluded
as fruit of the poisonous tree. Statements that are the fruit of an illegal search must
be excluded. Wong Sun v. United States, 371 U.S. 471, 485, 83 S. Ct. 407, 416
(1963). But a statement is only excludable if it “derives [] immediately from an
unlawful entry and an unauthorized arrest.” Id. Because we have concluded that
the constitutional violations of the officers did not cause Mr. Maxi to open the
door, and an independent source of evidence supported Mr. Maxi’s arrest once the
door was open, his statements need not be excluded. In sum, we affirm the District
Court’s denial of Mr. Maxi’s motion to suppress.
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IV. MR. BLANC’S CLAIMS
Mr. Blanc makes two claims on appeal. First, he argues that the District
Court erred in admitting evidence gathered using wiretaps. Second, he argues that
the District Court erred in providing a jury instruction on flight.
A. THE WIRETAPS
Mr. Blanc argues that the District Court erred in not suppressing evidence
from two wiretaps because the “necessity” requirement was not met.
He says the government failed to exhaust other investigative methods and argues
that surveillance, vehicle GPS tracking, or further use of confidential sources would
have accomplished the same investigative goals as the wiretap.
The government affidavit in support of a wiretap must include “a full and
complete statement as to whether or not other investigative procedures have been
tried and failed or why they reasonably appear to be unlikely to succeed if tried or
to be too dangerous.” 18 U.S.C. 2518(1)(c). This “necessity requirement is
designed to ensure that electronic surveillance is neither routinely employed nor
used when less intrusive techniques will succeed.” United States v. Van Horn, 789
F.2d 1492, 1496 (11th Cir. 1986). To show necessity, the “affidavit need not,
however, show a comprehensive exhaustion of all possible techniques, but must
simply explain the retroactive or prospective failure of several investigative
techniques that reasonably suggest themselves.” Id. The District Court’s
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determination that the government satisfied the necessity requirement for obtaining
a wiretap is a finding of fact reviewed for clear error. United States v. Green, 40
F.3d 1167, 1172–73 (11th Cir. 1994).
The District Court did not clearly err in deciding that the government made
an adequate showing of necessity. United States v. Green is instructive. In Green,
this Court concluded that the necessity requirement was satisfied because “[t]he
affidavit established that the procedure used to distribute the cocaine made it nearly
impossible to determine the time and location of individual drug deliveries without
knowing the content of the telephone calls. Moreover, the appellants’
countersurveillance measures . . . made other investigative procedures unlikely to
succeed or too dangerous.” Id. at 1173. Many of the same facts were at play here.
The affidavit stated that even after using search warrants, confidential sources, pen
registers, and visual surveillance, law enforcement had not been able to track drug
deliveries. It stated that further work with confidential informants or with
undercover agents was unlikely to succeed because the organization was led by a
small, tight-knit group. The affidavit stated that the conspirators were using
countersurveillance and were wary of police surveillance. The alternative
investigative measures proposed by Mr. Blanc do not defeat the affidavit’s showing
of necessity. A wiretap affidavit does not have to show that “every other
imaginable method of investigation had been unsuccessfully attempted.” United
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States v. Alonso, 740 F.2d 862, 868 (11th Cir. 1984) (quotation omitted). On these
facts, there was no clear error in refusing to suppress the fruits of the wiretaps.
Mr. Blanc also argues that the District Court erred in not suppressing
evidence from the wiretaps because the affidavit omitted material facts and relied
on affiants who intentionally or recklessly made material false statements. In
particular, Mr. Blanc says it was error not to disclose that the confidential source
was a former lieutenant in the drug organization and a lessee of one of the stash
houses.
An application for a wiretap must be supported by probable cause. United
States v. Nixon, 918 F.2d 895, 900 (11th Cir. 1990). A wiretap is invalid if the
supporting application contained deliberate false statements or misleading
omissions, and without those statements or omissions, there would have been no
probable cause. See United States v. Bascaro, 742 F.2d 1335, 1344 (11th Cir.
1984) (abrogated on other grounds by United States v. Lewis, 492 F.3d 1219,
1221–22 (11th Cir. 2007) (en banc)). “Omissions that are not reckless, but are
instead negligent, or insignificant and immaterial, will not invalidate” the affidavit.
Madiwale v. Savaiko, 117 F.3d 1321, 1327 (11th Cir. 1997) (citation omitted).
Mr. Blanc fails to show that the omissions he identified were made
intentionally or recklessly, or that if the identified additional information had been
included, it would have undermined a finding of probable cause. We affirm the
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District Court’s decision denying Mr. Blanc’s motion to suppress.
B. THE JURY INSTRUCTION
At trial, the government requested that the jury be instructed on flight,
relating to two separate incidents: (1) Mr. Blanc running from the truck when the
police followed him back to the 132 N.E. 64th Street duplex where Mr. Maxi was
arrested; and (2) Mr. Blanc running back into the building when the police
executed a search warrant at 262 N.W. 52nd Street. Mr. Blanc objected, but the
court overruled his objection and gave the requested flight instruction.
We review a district court’s decision to give a particular jury instruction for
abuse of discretion. United States v. Williams, 541 F.3d 1087, 1089 (11th Cir.
2008) (per curiam). “Error in jury instructions does not constitute grounds for
reversal unless there is a reasonable likelihood that it affected the defendant’s
substantial rights.” United States v. Wright, 392 F.3d 1269, 1277 (11th Cir. 2004).
“Evidence of flight is admissible to demonstrate consciousness of guilt and
thereby guilt.” United States v. Blakey, 960 F.2d 996, 1000 (11th Cir. 1992). The
probative value of flight as evidence of guilt depends on four inferences: “(1) from
the defendant’s behavior to flight; (2) from flight to consciousness of guilt; (3)
from consciousness of guilt to consciousness of guilt concerning the crime
charged; and (4) from consciousness of guilt concerning the crime charged to
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actual guilt of the crime charged.” United States v. Myers, 550 F.2d 1036, 1049
(5th Cir. 1977).4
The District Court did not abuse its discretion in giving the flight instruction.
In general, this Court has long upheld the use of a flight instruction. See United
States v. Kennard, 472 F.3d 851, 854–55 (11th Cir. 2006); United States v.
Borders, 693 F.2d 1318, 1327–28 (11th Cir. 1982). And in Mr. Blanc’s specific
case, the government put forward sufficient evidence to support the four inferences
required by Myers. Two different officers testified that Mr. Blanc ran away from
the police on two separate occasions. And on both occasions, he fled when police
encountered him near stash houses that contained drugs, guns, and ammunition.
Also, Mr. Blanc did not flee when his truck was pulled over and he was not in
possession of drugs or guns. This evidence supports the giving of the jury
instruction, and we conclude there is no reasonable likelihood that this instruction
unfairly affected Mr. Blanc’s substantial rights.
V. CONCLUSION
We affirm the convictions of Mr. Maxi and Mr. Blanc in their entirety.
AFFIRMED.
4
In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc), we adopted as
binding precedent all decisions of the former Fifth Circuit handed down before October 1, 1981.
Id. at 1209.
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