           Case: 17-10596   Date Filed: 10/05/2017   Page: 1 of 8


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 17-10596
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 1:15-cr-00250-LMM-CMS-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                 versus

QUIYONTAY SANDERS,

                                                         Defendant-Appellant.

                      ________________________

               Appeal from the United States District Court
                  for the Northern District of Georgia
                     ________________________

                            (October 5, 2017)

Before JULIE CARNES, JILL PRYOR and ANDERSON, Circuit Judges.

PER CURIAM:
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      Quiyontay Sanders appeals his conviction for possessing a firearm as a

convicted felon, in violation of 18 U.S.C. § 922(g). On appeal, Sanders argues that

the district court erred by denying his motion to dismiss the indictment for

violation of the Double Jeopardy Clause and by denying his motions to suppress a

firearm found during a warrantless search of the apartment in which he was

staying. He further argues his subsequent statements to law enforcement should be

suppressed as fruits of the poisonous tree. We address each issue in turn.

                                I. Double Jeopardy

      Sanders argues that the instant federal prosecution violates his double

jeopardy rights because he was previously convicted by the State of Georgia for

the same conduct. He recognizes that Supreme Court precedent allows a federal

prosecution following a state prosecution, but contends that these cases should be

revisited.

      We review de novo the district court’s denial of a motion to dismiss an

indictment on double jeopardy grounds. United States v. Rivera, 77 F.3d 1348,

1350 (11th Cir. 1996). We are bound to follow the Supreme Court’s decision

unless and until the Supreme Court itself overrules that decision. See United

States v. Thomas, 242 F.3d 1028, 1035 (11th Cir. 2001).

      Under the dual-sovereignty doctrine, “a single act gives rise to distinct

offenses—and thus may subject a person to successive prosecutions—if it violates


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the laws of separate sovereigns.” Puerto Rico v. Sanchez Valle, 136 S. Ct. 1863,

1865 (2016). Under this doctrine, the Supreme Court has held that a prior state

conviction does not preclude a subsequent federal prosecution based on the same

conduct. Abbate v. United States, 359 U.S. 187, 194–96, 79 S. Ct. 666 (1959).

      The district court correctly denied Sanders’s motion to dismiss the

indictment. Binding Supreme Court precedent explicitly holds that a federal

prosecution following a state conviction based on the same conduct does not

violate the Double Jeopardy Clause. We are bound to apply the Supreme Court’s

decisions unless and until the Supreme Court itself overrules those decisions. See

Thomas, 242 F.3d at 1035.

                                II. Warrantless Search

      Sanders also argues that the district court erred by failing to suppress the

firearm found during a search of the apartment of his then-girlfriend, Meanda

Lewis, and his subsequent statements regarding the firearm. He asserts that the

warrantless search was unreasonable under the Fourth Amendment and that his

subsequent statements should be suppressed as fruits of the poisonous tree.

      The denial of a motion to suppress is a mixed question of fact and law;

therefore, we review the district court’s findings of fact for clear error and the

application of law to those facts de novo. United States v. Magluta, 44 F.3d 1530,

1536 (11th Cir. 1995). In reviewing a motion to suppress, this Court construes all


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facts in the light most favorable to the prevailing party below. United States v.

Bervaldi, 226 F.3d 1256, 1262 (11th Cir. 2000). Additionally, the district court, as

factfinder, is entitled to substantial deference in reaching credibility determinations

with respect to witness testimony. United States v. McPhee, 336 F.3d 1269, 1275

(11th Cir. 2003).

      The Fourth Amendment provides for the right to be free from unreasonable

searches and seizures. U.S. Const. Amend. IV. The reasonableness of a search

under the Fourth Amendment “is determined by assessing, on the one hand, the

degree to which it intrudes upon an individual’s privacy and, on the other, the

degree to which it is needed for the promotion of legitimate government interests.”

Samson v. California, 547 U.S. 843, 848, 126 S. Ct. 2193 (2006) (quotation

omitted). Generally, warrantless searches “are per se unreasonable under the

Fourth Amendment—subject only to a few specifically established and well-

delineated exceptions.” Mincey v. Arizona, 437 U.S. 385, 390, 98 S. Ct. 2408

(1978). Here, the magistrate judge cited three separate grounds that each justify

the warrantless search of the residence—Sanders’s status as a parolee, the need for

a protective sweep of the apartment, and Lewis’s consent permitting a search for

additional persons.

      In Samson, the Supreme Court held that the suspicionless search of a

California parolee did not violate the Fourth Amendment. Samson, 547 U.S. at


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857. The Court noted that parolees are generally subject to significant parole

conditions, and the reach of these conditions demonstrates that parolees “have

severely diminished expectations of privacy by virtue of their status alone.” Id. at

852. The Court further noted that California law required parolees to consent to

suspicionless searches, and this search condition was “clearly expressed” to the

defendant. Id. Thus, the Court determined that the defendant did not have a

legitimate expectation of privacy. Id. In contrast, the Court reasoned that the state

had substantial interests warranting the privacy intrusion, including combating

recidivism and promoting reintegration into society. Id. at 853.

      Additionally, officers may conduct a warrantless “protective sweep” of a

house while arresting a suspect inside. Maryland v. Buie, 494 U.S. 325, 331–35,

110 S. Ct. 1093 (1990). A “protective sweep” is defined as “a quick and limited

search of the premises, incident to an arrest and conducted to protect the safety of

police officers or others.” Id. at 327. These sweeps are confined to a “cursory

visual inspection” of places in which a person might be hiding. Id. Officers may

search closets and spaces immediately adjoining the place of arrest without

probable cause or reasonable suspicion. Id. at 334. However, to search areas

beyond the immediate vicinity of the place of arrest, officers must have articulable

facts that, taken together, would warrant a reasonably prudent officer’s belief that

the area to be swept harbors a person posing a threat. Id. In the course of a lawful


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protective sweep, officers are “free to seize any evidence they discovered in plain

view within the proper scope of the protective sweep.” United States v. Tobin, 923

F.2d 1506, 1513 (11th Cir. 1991) (en banc).

      Finally, even in the absence of reasonable suspicion or probable cause, law

enforcement officers may nonetheless search a person’s property without a warrant

so long as they first obtain the voluntary consent of the person in question. United

States v. Blake, 888 F.2d 795, 798 (11th Cir. 1989). When conducting a search

pursuant to validly given consent, the scope of the search is limited to the terms of

its authorization. United States v. Rackley, 742 F.2d 1266, 1270–71 (11th Cir.

1984).

      Sanders argues that all three of the grounds adopted by the district court are

erroneous, and so the evidence should be suppressed. First, Sanders argues that his

parole conditions did not permit the searching of Ms. Lewis’s apartment. The

lower court found that Sanders was staying at Ms. Lewis’s apartment, and his

argument that it was not his place of residence “rings hollow.” The court’s

determination that Ms. Lewis’s apartment was Sanders’s residence is supported by

evidence, such as the statements of Sanders’s mother and the clothing found at the

apartment. We cannot say that this conclusion is clearly erroneous, so the court’s

factual determination must be upheld. The magistrate also stated that even if

Sanders was only an overnight guest, he had no reasonable expectation of privacy


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because he was a parolee. We need not reach that issue because the other two

reasons given for upholding the search are valid.

      Second, Sanders argues that a protective sweep of the apartment was

unwarranted and, even if it was warranted, the search exceeded the permissible

scope of a protective sweep. The lower court found that the officers’ belief that the

apartment may not be empty was reasonable in light of the information available to

the officers. For instance, the officers knew that Sanders was a member of a gang

and that gang members were known to be in close proximity with each other. Once

again, the lower court’s conclusions of fact are supported by the evidence. Further,

the lower court found that Ms. Lewis had given permission to the officers to search

for other persons in the apartment. This factual conclusion was not seriously

challenged by appellant.

      The lower court further found that moving the bedding in the upstairs

bedroom did not exceed the scope of the permissible search. The court found that

the pile of bedding was “big enough for someone to be hiding under.” Sanders says

that it “defies belief” that a pile of bedding that size could be moved by an agent’s

foot. However, the lower court is entitled to substantial deference in credibility

determinations, so we defer to its determination that the bedding was substantial

enough to hide a person. Because the bedding was large enough to hide a person, it




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was not unreasonable for the agents to kick aside the pile of bedding, revealing the

gun at issue.

      The district court correctly denied Sanders’s motion to suppress the firearm

found in the apartment and his subsequent statements regarding the firearm. The

district court did not clearly err in determining that the apartment the officers

searched was Sanders’s residence, and thus, the apartment was subject to a

suspicionless search pursuant to the conditions of Sanders’s parole. See Samson,

547 U.S. at 857. Moreover, the district court correctly determined that the firearm

should not be suppressed because it was found in plain view during a lawful

protective sweep of the apartment and because Lewis had consented to allow the

officers to search the apartment for additional people inside. See Tobin, 923 F.2d

at 1513; Blake, 888 F.2d at 798. Finally, moving aside the blankets on the bed

pallet did not exceed the scope of a protective sweep or Lewis’s consent, as the

court found that a person could have been hiding in the bedding. Accordingly, we

affirm.

      AFFIRMED.




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