                                                                    [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________            FILED
                                                               U.S. COURT OF APPEALS
                                            No. 11-12274         ELEVENTH CIRCUIT
                                        Non-Argument Calendar    DECEMBER 29, 2011
                                      ________________________        JOHN LEY
                                                                       CLERK
                           D.C. Docket No. 1:10-cr-00113-TWT-AJB-2

UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                         Plaintiff–Appellee,


                                                 versus


MARK BROTEMARKLE,

llllllllllllllllllllllllllllllllllllllll                         Defendant–Appellant.

                                     ________________________

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

                                           (December 29, 2011)



Before CARNES, WILSON and KRAVITCH, Circuit Judges.

PER CURIAM:
      A jury convicted Mark Brotemarkle of conspiracy to possess with intent to

manufacture fewer than 1,000 marijuana plants and aiding and abetting the

possession of fewer than 1,000 marijuana plants with intent to manufacture, in

violation of 21 U.S.C. § 841(b)(1)(A)(vii). Prior to trial, Brotemarkle moved to

suppress certain statements that he made to the police on the evening of his arrest

before he was given the warnings required by Miranda v. Arizona, 384 U.S. 436,

478 (1966). The district court denied his motion. Brotemarkle appeals,

contending that admission of his statement violated his Fifth Amendment rights.

Because any error in admitting those statements was harmless, we affirm.

                                         I.

      Brotemarkle, Jennifer McChan, Phillip Laughlin, Sara Rae Townsend, and

Derek O’Neal were charged with, among other things, conspiracy to possess and

possession of a large number of marijuana plants. Most of those plants were

discovered at a house in Sandy Springs, Georgia, located on Habersham Waters

Road (the “Habersham house”).

      In December 2009, police received a complaint about unusual activity at

and smells emanating from the Habersham house. At Brotemarkle’s trial,

Detective Spears, the lead detective on the case, testified that, when he responded

to the complaint, he noticed two cars parked at the house. One of the cars, a tan

                                         2
Nissan, was registered to a Ms. Georgia McChan of Missouri. Brotemarkle’s

girlfriend and the mother of his one-year old son was Jennifer McChan.1 Both

Brotemarkle and McChan had Missouri driver’s licenses. Detective Spears and

other officers visited the address several times in late 2009 and early 2010 and, on

at least one occasion, detected the strong odor of fresh marijuana from the street in

front of the house, even though the temperature was below freezing.

       As six officers surveilled the house on January 8, 2010, they saw three men

emerge. One got into a black BMW and the other two got into the tan Nissan.

The officers tailed the two vehicles. One group of officers conducted a traffic stop

on the BMW. Meanwhile, Detective Spears and another detective watched as the

Nissan pulled into a gas station, where Detective Spears saw that Brotemarkle was

driving the car and O’Neal was his passenger.

       As officers approached the BMW, Laughlin opened the driver’s door and

the officers were immediately confronted with the smell of marijuana. The

officers found the remains of a marijuana cigarette under the driver’s seat and raw

marijuana leaves in the trunk. They took a cell phone from Laughlin and placed it

in the center console of the police car and then, because it was bitterly cold, placed


       1
          Although evidence elsewhere in the record establishes that Georgia McChan is
Jennifer’s mother, the precise relationship between the two does not appear to have been proved
to the jury in Brotemarkle’s trial.

                                               3
Laughlin in the backseat of the car to interview him. When both officers briefly

stepped outside to take calls related to the case, Laughlin reached through the

divider between the front and rear of the vehicle and retrieved his cell phone. He

called O’Neal and, according to a recording of the call captured on the patrol

vehicle’s recording equipment, instructed him to “[h]urry, run, go” to “[d]estroy

everything at the house” because “they’re onto us” and “[t]hey’re trying to get a

search warrant.”

      Back at the gas station, Detective Spears saw O’Neal and Brotemarkle get

back into the Nissan, but he lost sight of the car as it drove away. Shortly

thereafter, another officer stationed in a neighbor’s backyard saw Townsend,

McChan, and either O’Neal or Brotemarkle exit the backdoor of the Habersham

house with Townsend and Laughlin’s eight-year-old daughter and Brotemarkle

and McChan’s one-year-old son. One of the three adults also placed a large object

into the trunk of the tan Nissan. The two women and children got into the Nissan

and drove away, while the man returned to the house. Two officers saw the lights

go off in the house and then saw Brotemarkle and O’Neal exit through the

backdoor and begin hiding things in the backyard. When officers announced their

presence, the two men began to run but were almost immediately intercepted by

Detective Spears. Both men reeked of fresh (not smoked) marijuana.

                                          4
      Officers discovered that O’Neal had hidden a duffel bag containing three

firearms and a backpack containing a jar of marijuana and five plastic bags of

marijuana of equal weight. Brotemarkle had hidden a loaded firearm with an

attached extended magazine.

      Not far away, McChan pulled the Nissan into a grocery store parking lot.

Officers approached and identified the two women. When officers asked whether

the women had any drugs, weapons, or large sums of money, McChan pulled out a

large stack of cash ultimately determined to be in excess of $21,000. Additionally,

officers found a ballast generator, which officers testified is commonly used to

power marijuana grow lights, in the trunk.

      One officer, who had been in contact with the Division of Family and

Children Services to secure a place for the two children, asked Brotemarkle

whether he was the father of the infant. Brotemarkle said yes. Several minutes

later, another officer asked Brotemarkle for his license, address, date of birth, and

other information. During that exchange, after Brotemarkle gave a Missouri

address, one of the officers asked: “How long you been staying here? How long

you been here?” Brotemarkle responded, “about a month.”

      Inside the Habersham house, officers were greeted by five pit bulls and two

Rottweilers, at least some of whom were aggressive. The smell of marijuana

                                          5
permeated the house. On the second floor, officers discovered several rooms that

contained items indicating that they had been occupied by several adults and an

infant. At trial, the jury saw photographs of those living quarters showing a

stroller, a blanket, and toys. The basement had been converted into a marijuana

grow room with sophisticated lighting, ventilation, and irrigation systems, which

housed 853 live marijuana plants. Throughout the house, officers found discarded

trimmings from marijuana plants, marijuana residue, and paraphernalia.

      On the day before his trial began, Brotemarkle moved to suppress the

statements he made at the scene. He argued, and the government did not dispute,

that he was not given his Miranda warnings before the officers questioned him.

The government responded that the statements fell under the routine booking

exception outlined by a plurality of the Supreme Court in Pennsylvania v. Muniz,

496 U.S. 582 (1990) and accepted by this court in United States v. Sweeting, 933

F.2d 962 (11th Cir. 1991). On the third day of the trial, the government sought to

introduce a recording and transcript of those statements and, after a Jackson-

Denno2 hearing regarding their admissibility, the district court admitted the

evidence, finding the statements were responses to routine booking questions.

                                              II.


      2
          Jackson v. Denno, 378 U.S. 368 (1964).

                                               6
      “Because rulings on motions to suppress involve mixed questions of fact

and law, we review the district court’s factual findings for clear error, and its

application of the law to the facts de novo.” U.S. v. Jordan, 635 F.3d 1181, 1185

(11th Cir. 2011) (internal quotation marks omitted). We construe all facts in the

light most favorable to the prevailing party—in this case, the government. Id.

      The Constitution’s Fifth Amendment provides that “[n]o person . . . shall be

compelled in any criminal case to be a witness against himself . . . .” U.S. Const.

amend. V. To preserve that right in the face of custodial pretrial interrogation, the

Supreme Court has held that “a person must be warned that he has the right to

remain silent, that any statement he does make may be used as evidence against

him, and that he has the right to the presence of an attorney, either retained or

appointed.” Miranda v. Arizona, 384 U.S. 436, 478 (1966). Statements that a

defendant makes in response to interrogation before these warnings are given

generally may not be used at his trial. Id. at 444.

      But there are exceptions. Among those is the “well-established ‘routine

booking exception,’” under which a defendant’s answers to questions designed to

elicit the information necessary to complete booking may be used against him,

even if those answers turn out to be incriminating. United States v. Doe, 661 F.3d

550, 567 (11th Cir. 2011) (quoting Muniz, 496 U.S. at 601). The routine booking

                                           7
exception permits the use of statements made in response to questions “reasonably

related to the police’s administrative concerns.” Muniz, 496 U.S. at 601-02. We

have held that a suspect’s pre-Miranda warning responses to an officer’s request

for his address was admissible when there was no evidence that the question was

intended to elicit an incriminating response. Sweeting, 933 F.2d at 965.

      Even if no exception applies, however, “[t]he admission of statements

obtained in violation of Miranda is subject to harmless error scrutiny. ‘The

question is whether there is a reasonable possibility that the evidence complained

of might have contributed to the conviction.’” United States v. Arbolaez, 450 F.3d

1283, 1292 (11th Cir. 2006) (quoting Hart v. Att’y Gen. of Fla., 323 F.3d 884, 895

(11th Cir. 2003)). We must ask whether, “after we subtract the statements that

should not have been admitted at [Brotemarkle’s] trial, the remaining evidence is

so overwhelming that we are convinced beyond a reasonable doubt that the

improperly admitted evidence did not affect the verdict.” United States v. Street,

472 F.3d 1298, 1315 (11th Cir. 2006). The government bears the burden to

demonstrate that an error was harmless beyond a reasonable doubt. United States

v. Lee, 427 F.3d 881, 892 (11th Cir. 2005).

                                        III.

      The crux of Brotemarkle’s argument is that admission of his statements

                                         8
irrevocably prejudiced the jury against his defense that he was “merely present”

and not a participant in the drug-growing operation. He notes that the statements

on the recording that the district court admitted over his objection were not made

at a jail while he was being booked, but at the scene while officers waited for a

search warrant. We have never held that inquiry at the scene of a crime about how

long a person has been there qualifies as the kind of “routine” biographical

information “reasonably related to . . . administrative concerns” that would satisfy

the predicates for this narrow exception to the Miranda requirement. Nor,

Brotemarkle argues, does that query seem particularly relevant to placing his child.

Thus, he says, the twice-asked question intentionally extracted his incriminating

admission regarding the length of his residence at the Habersham house.

      But we need not resolve on which side of the line Brotemarkle’s statements

fall. We are convinced that any error in their admission was harmless because the

evidence of Brotemarkle’s guilt was overwhelming. See United States v. Rhind,

289 F.3d 690, 694 (11th Cir. 2002) (concluding that error was harmless beyond a

reasonable doubt where “the other evidence of guilt was so overwhelming that the

defendant[] suffered no prejudice from the admitted evidence”).

      Officers testified that, on the night of his arrest, Brotemarkle was driving a

tan Nissan registered to a family member of his girlfriend and the mother of his

                                          9
son that had previously been observed at the house for over a month. He then

returned to the Habersham house at the direction of a co-conspirator who called

his passenger, O’Neal, and instructed them to “clean the house” and “destroy

everything.” United States v. Ruz-Salazar, 764 F.2d 1433, 1435 (11th Cir. 1985)

(noting that actions to avoid detection of an ongoing drug operation evidence

participation in it). Several officers saw Brotemarkle turning off lights in the

house and then hiding a loaded firearm with an extended magazine in the backyard

while O’Neal hid other firearms and marijuana packaged for sale. When officers

confronted them, both attempted to flee. See United States v. McDonald, 935 F.2d

1212, 1219 (11th Cir. 1991) (stating that flight from police indicates more than

“mere presence” at the scene). Minutes later, Brotemarkle’s girlfriend was

stopped driving the same tan Nissan with more than $21,000 in cash on her person

and equipment peculiarly suited to growing marijuana in the trunk.

      When Brotemarkle was arrested, according to officers’ testimony, he

smelled very strongly of fresh marijuana. The same smell emanated so heavily

from the house to which he had returned after Laughlin’s phone call and from

which he was fleeing that it was detectable from the street. See Ruz-Salazar, 764

F.2d at 1435 (noting that detectable odor of marijuana may be significantly

probative evidence of knowing participation). The jury saw photographs from

                                         10
inside the house showing a child’s stroller, blankets, and toys, which indicated that

an infant had been living in a portion of the house along with a man and a woman,

presumably Brotemarkle, McChan, and their son. Also in the house, officers

found 853 marijuana plants in an extensive indoor marijuana-growing operation,

as well as marijuana trimmings and other paraphernalia strewn throughout the

house. See United States v. Cruz-Valdez, 901 F.2d 948, 962 (11th Cir. 1990)

(holding that, circumstances, including “large quantit[ies] of marijuana” at the

scene of his apprehension, may strongly indicate a defendant’s participation).

      The evidence of the circumstances under which Brotemarkle was arrested at

the Habersham house and his actions leading up to that arrest wholly overwhelm

any effect his statement, even if erroneously admitted, may have had on his “mere

presence” defense. Weighing the probative force of this evidence, we are

convinced that no jury who heard all of it, even without having heard

Brotemarkle’s admission about the length of his stay, could have had any doubt

about his guilt. Accordingly, and after thorough review of the record, we conclude

that any error in the admission of Brotemarkle’s statement was harmless.

Therefore, we affirm his conviction.

      AFFIRMED.




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