             Case: 12-12589     Date Filed: 03/19/2013   Page: 1 of 12

                                                              [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 12-12589
                            Non-Argument Calendar
                          ________________________

                  D.C. Docket No. 8:11-cr-00438-RAL-MAP-1



UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                      versus

JOHN JOSEPH STEELE,

                                                              Defendant-Appellant.

                          ________________________

                   Appeal from the United States District Court
                       for the Middle District of Florida
                         ________________________

                                 (March 19, 2013)

Before CARNES, BARKETT and HULL, Circuit Judges.

PER CURIAM:

      Defendant John Steele appeals his conviction for attempting to persuade or

entice a minor to engage in a sexual act, in violation of 18 U.S.C. § 2422(b). He
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argues that the district court erred in denying his motion to suppress physical

evidence—condoms and personal lubricant—found in a closed, opaque bag during

an inventory search of his car that followed his arrest. After review, we affirm.

                                I. BACKGROUND

A.    Steele’s Offense Conduct

      In June 2011, law enforcement agencies in Lake County, Florida, conducted

an undercover operation in which officers posed on the Internet as individuals who

had children available for sexual encounters. During the evening of June 18, 2011,

Orlando Police Detective Loriana Fiorino posted an ad, entitled “Beautiful Niece

and Fun Times,” on the website Craigslist. The ad was listed in the Hillsborough

County “casual encounters” section. The ad stated the poster was located in

Clermont, Florida, and inquired “Want to have fun with my beautiful and energetic

niece? Let me know.”

      Roughly 90 minutes after Detective Fiorino posted the ad online, Steele

responded with two e-mails asking the ad’s poster to contact him. Steele’s second

e-mail provided his telephone number. Using the name “Lisa Calderone,”

Detective Fiorino called Steele about 40 minutes after she received his second

e-mail. Steele stated he was in Wesley Chapel, Florida, which he estimated was a

45 to 60-minute drive away from Clermont, Florida. During their conversation,

Detective Fiorino informed Steele multiple times that her niece was 13 years old.


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Steele stated the niece’s age was “kind of a problem” and expressed concern that

he was being set up by a police officer. When Detective Fiorino responded

“obviously this isn’t something that you’re interested in,” Steele asked her not to

hang up the phone and stated he “didn’t say [he] wasn’t interested.” Detective

Fiorino then offered to send Steele photos of her and her niece “Summer.”

      Steele informed Detective Fiorino he would like “normal sex,” but he was

willing to reach whatever limits Detective Fiorino or her niece set. To alleviate

Detective Fiorino’s stated concerns about her niece possibly becoming pregnant,

Steele stated he would bring protection, was disease-free, and could “always pull it

out.” Steele explicitly declined to talk to the niece on the phone. After this phone

call, Detective Fiorino sent Steele an e-mail with an address, a photograph of her,

and a photograph of “Summer,” which was an actual photograph of another female

officer at age 13.

      On a second phone call, Steele stated he had received Detective Fiorino’s

e-mail and he found the pictures to be “very nice.” Steele also told Detective

Fiorino he would arrive at her house to meet “Summer” in “45 minutes to an hour”

and he would be driving a “green Chevy Tahoe.” During a third phone call,

Detective Fiorino asked Steele “did you bring any condoms with you just in

case?,” to which Steele replied “yes” before further indicating he was unsure

whether a 13-year-old would like condoms.


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      Shortly after the third phone call, Steele called Detective Fiorino at

11:47 p.m. to figure out which house was hers. As part of the undercover

operation, law enforcement maintained an actual house to which subjects were

directed and intercepted by police. Detective Fiorino reiterated the address and

described the house.

      When Steele arrived, law enforcement officers approached him and arrested

him once he entered the house. The officers patted him down and removed his

wallet, in which they found a condom and Steele’s driver’s license.

      After Steele’s arrest, Lake County Deputy Sheriff Richard Winn processed

Steele’s car and inventoried its contents before it was towed. In a white plastic bag

at the base of the driver’s seat, Deputy Winn found a tube of personal lubricant and

a box of condoms. A crime scene technician photographed and documented all

items collected from Steele and from his car, including the plastic bag, the

lubricant, the box of condoms, and the condom found in Steele’s wallet. Another

officer drove Steele’s car from the sting house to another location for towing.

      Steele was arrested and advised of his Miranda rights. After Steele waived

his rights, Detective Rick Salcedo, also with the Orlando Police Department,

interviewed Steele. Steele told Detective Salcedo that (1) he had come to meet

“Lisa” and her 13-year-old niece; (2) “Lisa” had offered her niece for sexual




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activities; and (3) he had come to the sting house to save the niece “from being

molested.”

B.     Steele’s Motion to Suppress

       A federal grand jury indicted Steele on one count of knowingly attempting

to persuade or entice a minor to engage in a sexual act, in violation of 18 U.S.C.

§ 2422(b).

       Prior to the beginning of trial on February 13, 2012, Steele alerted the

district court that (1) he had not received the government’s trial exhibit list, which

included photos of the condoms box and lubricant tube, until February 4 or 6; and

(2) the government did not indicate the condoms and lubricant were found in

Steele’s car until February 11 or 12. 1 The district court permitted Steele to move

orally to suppress the items seized from his car, as well as photos of them, and held

a suppression hearing following jury selection.

       At the suppression hearing, Deputy Winn testified. On the night of Steele’s

arrest, Deputy Winn served as a scribe, notating when Steele arrived and who

interviewed him. Steele’s car, like all those arriving during the undercover

operation, was inventoried to catalog items of value and thus avoid anything

turning up missing. Within a two-hour time frame, at least four suspects arrived at

       1
         Steele asserted he failed to file a motion to suppress because he was unaware any
evidence was recovered from his car. The government countered that the initial discovery list,
dated September 15, 2011, did include the condoms and lubricant, but admitted the initial list did
not say specifically where the items originated.
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the sting house and were arrested. All of the arrestees’ cars were inventoried by

police and later towed away. The police recovered evidence in every car—there

were always condoms, and occasionally some candy the suspect brought for the

minor.

      Because of the nature of the sting operation and its associated time

constraints, it was standard operating procedure for the police to quickly move the

suspects’ vehicles into the sting house’s garage, inventory them, and then remove

them to a “holding location” to await a tow.

      Deputy Winn further testified that he was sure there were written procedures

for inventory searches but that, while familiar with those procedures generally, he

was “[p]robably not verbatim” familiar with them. Deputy Winn began the search

of Steele’s car by taking the car’s keys from Steele. As Deputy Winn entered and

drove Steele’s car into the garage for further processing, he did not see any

evidence in plain view. At some point during the inventory search, Deputy Winn

saw a closed, white plastic bag at the edge of the driver’s seat. Deputy Winn

admitted opening the closed bag. Deputy Winn may have kicked the bag open as

he was getting in and out of the car, but stated that once he saw it, he “would have

opened it up just to see what it was.” Deputy Winn was “not a hundred percent

positive” as to whether his department had a written policy about how to treat

closed packages discovered during inventory searches. The completed vehicle


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impoundment and inventory sheet indicates that Deputy Winn located condoms, a

personal lubricant, a GPS, and sunglasses in Steele’s car.

      Crime scene investigator Erica Stamborski, also with the Lake County

Sheriff’s Office, testified. During the undercover operation, Stamborski

documented arriving cars and collected any items of evidentiary value. To her

knowledge, Steele’s car was not treated differently than any other vehicle.

Stamborski photographed Steele’s plastic bag first where it was found on the

driver’s side floorboard, and again after it was opened by Deputy Winn.

      The district court concluded there was no question that standard operating

procedure for the undercover operation included moving cars into the garage,

inventorying them, and impounding them as quickly as possible. The district court

determined that this procedure and the search of Steele’s car were reasonable under

the “unique fact pattern” of this undercover operation and thus denied Steele’s

motion to suppress evidence of the condoms and lubricant found in his car. The

government then introduced them, as well as the photos, at trial.

      After trial, the jury found Steele guilty of attempting to persuade or entice a

minor to engage in a sexual act. The district court sentenced Steele to a 120-month

term of imprisonment. Steele timely appealed.




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                             II. STANDARD OF REVIEW

       Because a district court’s denial of a motion to suppress presents a mixed

question of law and fact, we ordinarily review the district court’s legal rulings de

novo and its findings of fact for clear error. United States v. Lindsey, 482 F.3d

1285, 1290 (11th Cir. 2007). 2 In so doing, we view the facts “in the light most

favorable to the prevailing party in [the] district court,” id., and we defer to the

district court’s credibility determinations, unless they appear “unbelievable.”

United States v. Ramirez-Chilel, 289 F.3d 744, 749 (11th Cir. 2002).

                                      III. DISCUSION

       Before addressing the search issue, we first note that there was clearly

probable cause for Steele’s arrest.

A.     Probable Cause

        “Probable cause to arrest exists when the facts and circumstances within the

collective knowledge of law enforcement officers, or of which they have

reasonably trustworthy information, would cause a prudent person to believe that

the suspect has committed or is committing an offense.” Craig v. Singletary, 127

F.3d 1030, 1042 (11th Cir. 1997) (en banc); see United States v. Lanzon, 639 F.3d

1293, 1300 (11th Cir. 2011) (concluding probable cause supported a warrantless


       2
        We decline the government’s invitation to review the district court’s ruling on Steele’s
motion to suppress under a plain error standard of review. Steele both raised and adequately
preserved in the district court the arguments he now makes on appeal.
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search of a car where the driver (1) engaged in online communication with a

minor; (2) agreed to bring condoms and meet the minor for sex; (3) drove to the

meeting place; and (4) was arrested by police upon his arrival).

      Here, Steele several times corresponded with Detective Fiorino about having

sex with her 13-year-old niece advertised on Craigslist, and then Steele drove a

significant distance, making the nearly hour-long drive from Wesley Chapel to

Clermont to meet Detective Fiorino’s niece. These circumstances, and in

particular Steele’s stating he would like “normal sex” with “Summer” and he

would bring protection to avoid getting “Summer” pregnant, established probable

cause to arrest Steele for attempting to persuade or entice a minor to engage in

sexual activity.

      Further, Steele’s argument on appeal is not that his arrest was unlawful, or

that once he was arrested and his car was impounded the police were not permitted

to conduct an inventory search of his car. Steele’s argument instead goes to the

reasonableness of the scope of the inventory search performed. Specifically, Steele

contends that the police officers impermissibly opened the closed bag containing

the condoms and lubricant and thus those items must be suppressed.

B.    Inventory Searches and Closed Containers

      The Supreme Court has explained that police officers may open closed

containers during warrantless inventory searches of vehicles or other property


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lawfully in police custody, provided that the opening is conducted according to

“standardized criteria” or “established routine.” 3 Florida v. Wells, 495 U.S. 1, 4,

110 S. Ct. 1632, 1635 (1990); see Colorado v. Bertine, 479 U.S. 367, 369-70, 376,

107 S. Ct. 738, 740, 743 (1987) (upholding a search through a backpack

encountered during an inventory search, but noting this was explicitly allowed by

police department’s inventory procedures). “[T]he reasonableness of the inventory

search depends on the particular facts and circumstances” of each case. United

States v. Laing, 708 F.2d 1568, 1571 (11th Cir. 1983).

       Here, it is questionable whether the government sufficiently showed any

departmental policy or established routine as to closed containers. Although

Deputy Winn affirmatively testified there were written policies for inventory

searches, he was “not a hundred percent positive” they specifically addressed

closed containers. While there was also an established search routine for this

unique undercover operation, that routine did not necessarily include opening all

closed containers in the cars quickly processed. Ultimately, we do not need to


       3
        The Supreme Court has stated:
       A police officer may be allowed sufficient latitude to determine whether a
       particular container should or should not be opened in light of the nature of the
       search and characteristics of the container itself. Thus, while policies of opening
       all containers or of opening no containers are unquestionably permissible, it
       would be equally permissible, for example, to allow the opening of closed
       containers whose contents officers determine they are unable to ascertain from
       examining the containers’ exteriors.
Florida v. Wells, 495 U.S. 1, 4, 110 S. Ct. 1632, 1635 (1990). “The policy or practice governing
inventory searches should be designed to produce an inventory.” Id.
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resolve this close question because any error in admitting the items from Steele’s

car was harmless, as explained below.

C.    Harmless Error

      Fourth Amendment violations are evaluated in light of the harmless error

doctrine, which asks “whether there is a reasonable possibility that the evidence

complained of might have contributed to the conviction.” Chapman v. California,

386 U.S. 18, 23, 87 S. Ct. 824, 827 (1967) (internal quotation marks omitted).

“[I]f the jury might have relied on the unconstitutional evidence in reaching its

verdict, the error was harmful unless the other evidence of guilt was so

overwhelming that the defendant suffered no prejudice from the admitted

evidence.” United States v. Khoury, 901 F.2d 948, 960 (11th Cir. 1990). There

must be “no reasonable possibility that the unconstitutionally obtained evidence

contributed to the conviction.” Id.

      Even disregarding the condoms and lubricant seized from Steele’s car,

overwhelming evidence links Steele to the single crime for which the jury found

him guilty. Cf. id. at 961 (concluding that other than an illegally seized diary, the

evidence showing a defendant’s knowing participation in a conspiracy was “not

strong”). Here, the jury considered evidence of Steele’s e-mails to Detective

Fiorino, the transcripts of the four phone calls between them, Detective Fiorino’s

testimony, Steele’s own testimony, the condom found in Steele’s wallet, and


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Steele’s act of traveling almost an hour from Wesley Chapel to Clermont to meet

the 13-year-old niece. In fact, the condoms from Steele’s car are hardly prejudicial

when the government properly admitted the condom found on Steele’s person as

he approached the house to meet the 13-year-old niece.

      Additionally, at trial, Steele testified and essentially admitted the

government’s version of events. His only defense was that his motivation was that

he “wanted to help that child” and “talk [Detective Fiorino] out of doing what she

was doing.” In light of the overwhelming direct evidence tying Steele to the crime,

the jury was not required to credit Steele’s testimony about his motivation and

instead could have viewed his motivation claim “as substantive evidence of [his]

guilt.” United States v. Brown, 53 F.3d 312, 314 (11th Cir. 1995) (holding that

“when a defendant chooses to testify, he runs the risk that if disbelieved the jury

might conclude the opposite of his testimony is true” (internal quotation marks

omitted)). In sum, any error by the district court in admitting the box of condoms

and personal lubricant found in Steele’s car was harmless. See Khoury, 901 F.2d

at 960.

                                III. CONCLUSION

      In light of the foregoing, and after our careful review of the briefs and the

record in this case, we find no reversible error and affirm Steele’s conviction.

      AFFIRMED.


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