             Case: 13-12597   Date Filed: 07/17/2014   Page: 1 of 10


                                                            [DO NOT PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 13-12597
                           Non-Argument Calendar
                         ________________________

                    D.C. Docket No. 2:12-cr-14061-KMM-1



UNITED STATES OF AMERICA,

                                                                 Plaintiff-Appellee,

                                     versus

LEE VOYD MERRICKS,

                                                            Defendant-Appellant.

                         ________________________

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

                                 (July 17, 2014)

Before TJOFLAT, JORDAN, and FAY, Circuit Judges.

PER CURIAM:

      Lee Voyd Merricks appeals his conviction for possession of a firearm and

ammunition by a convicted felon. We affirm.
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                                    I. BACKGROUND

       On July 19, 2012, St. Lucie County Deputy Sheriff Ryan Register and Fort

Pierce Police Officer Steven Sobon were on routine patrol in Fort Pierce, Florida.

Before 8:00 p.m., Deputy Register observed Merricks riding his bicycle on the

wrong side of the road. The officers were traveling westbound, while Merricks

was riding eastbound. The officers and Merricks passed each other, and Deputy

Register recognized Merricks from prior investigations. The officers made a U-

turn so they could conduct a traffic stop of Merricks for violating Florida’s bicycle

regulations. 1 When Merricks saw the officers turn around, he began pedaling

faster. The officers activated their lights and followed Merricks to a private

residence, where Merricks exited the bicycle and walked through a gate. The

officers ordered Merricks to stop, but Merricks ignored their orders.

       Merricks attempted to open the front door of the residence, but the door was

locked. Both officers followed Merricks onto the property. When Merricks saw

Deputy Register approach, Merricks reached into his waistband and threw a small,

dark object into a carport near a stack of buckets. Merricks then began beating on

the front door with both hands. Following a brief struggle, the officers took

Merricks into custody. The officers searched Merricks and found an empty
       1
         In Florida, “[a]ny person operating a bicycle upon a roadway at less than the normal
speed of traffic . . . shall ride in the lane marked for bicycle use or, if no lane is marked for
bicycle use, as close as practicable to the right-hand curb or edge of the roadway,” except under
certain conditions. Fla. Stat. § 316.2065(5)(a).

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magazine clip in his pocket. They also searched the area where Merricks had

thrown the dark object and found a black firearm.

      On September 13, 2012, a federal grand jury charged Merricks with

possession of a firearm and ammunition by a convicted felon, in violation of 18

U.S.C. §§ 922(g)(1) and 924(e)(1). Merricks pled not guilty and moved to

suppress the firearm and ammunition found by the police officers. He argued he

was seized illegally under the Fourth Amendment. The government responded the

police had probable cause to arrest Merricks, who lacked standing to challenge the

seizure of the firearm found on private property.

      At the hearing on the motion to dismiss, the evidence showed Robert Reed

owned and lived in the private residence, where Merricks was arrested. Deputy

Register testified he knew Reed lived in the house and Merricks lived elsewhere.

Reed testified he had known Merricks, since Merricks was a little boy, and

Merricks went to Reed’s house daily. Merricks had open access to the house and

had a key. In addition, Merricks had stayed overnight at Reed’s house in a guest

bedroom, but the last time Merricks had stayed overnight had been three weeks

prior to his arrest. Merricks did not pay rent or receive mail at Reed’s residence,

nor did he keep clothes there. Reed testified he allowed several other individuals

to stay overnight in the guest bedroom, when entertaining women.




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      Following the hearing, the magistrate judge entered a Report and

Recommendation (“R&R”) recommending Merricks’s motion to suppress be

denied. The magistrate judge found the officers had probable cause to pursue

Merricks for committing a traffic violation. When Merricks failed to heed the

officers’ commands to stop, they had probable cause to arrest him for resisting an

officer without violence. Because Merricks lacked a reasonable expectation of

privacy in Reed’s property, the magistrate judge determined he lacked standing to

challenge the seizure of the firearm, which the officers had found in plain view.

The magistrate judge concluded the officers lawfully seized the ammunition clip

from Merricks during a search incident to his lawful arrest.

      Over Merricks’s objections, the district judge adopted the R&R and denied

the motion to suppress. Merricks subsequently pled guilty to the sole indictment

crime, pursuant to a conditional plea agreement. Merricks reserved the right to

appeal the district judge’s denial of his motion to suppress. He specifically

reserved the right to appeal (1) whether the police officers had probable cause to

stop him, and (2) whether he had standing to contest the seizure of the firearm

found in the carport area of Reed’s home.

      The district judge accepted the plea agreement and adjudicated Merricks

guilty of possessing a firearm and ammunition by a convicted felon, in violation of

18 U.S.C. §§ 922(g)(1) and 924(e)(1). The judge sentenced Merricks to 180


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months of imprisonment and 3 years of supervised release. On appeal, Merricks

argues the district judge erred by failing to suppress the firearm and empty

magazine clip discovered by the police officers. Consequently, he contends the

officers impermissibly conducted a warrantless search and seizure on the curtilage

of a private home, where he had a reasonable expectation of privacy.

                                 II. DISCUSSION

      In reviewing the denial of a motion to suppress, we assess the district

judge’s findings of fact for clear error and his application of law to those facts de

novo. United States v. Gibson, 708 F.3d 1256, 1274 (11th Cir.), cert. denied, 134

S. Ct. 342 (2013). All facts are construed in the light most favorable to the

prevailing party below. Id.

      The Fourth Amendment provides “[t]he right of the people to be secure in

their persons, houses, papers, and effects, against unreasonable searches and

seizures, shall not be violated.” U.S. Const. amend. IV. “The reasonableness of a

seizure or arrest under the Fourth Amendment turns on the presence or absence of

probable cause.” United States v. Lopez-Garcia, 565 F.3d 1306, 1314 (11th Cir.

2009) (citation and internal quotation marks omitted). “Probable cause to arrest

exists when law enforcement officials have facts and circumstances within their

knowledge sufficient to warrant a reasonable belief that the suspect had committed

or was committing a crime.” Id. (citation and internal quotation marks omitted).


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Because a custodial arrest of a suspect based on probable cause is reasonable under

the Fourth Amendment, “a search incident to the arrest requires no additional

justification.” United States v. Goddard, 312 F.3d 1360, 1364 (11th Cir. 2002).

      The “capacity to claim the protection of the Fourth Amendment depends

upon whether the person who claims the protection of the Amendment has a

legitimate expectation of privacy in the invaded place.” Minnesota v. Carter, 525

U.S. 83, 88, 119 S. Ct. 469, 473 (1998) (citation, internal quotation marks, and

ellipses omitted). Accordingly, a defendant has standing to challenge a search and

seizure only if the defendant “had a legitimate expectation of privacy in the

property when it was searched.” Gibson, 708 F.3d at 1276 (citation and internal

quotation marks omitted).

      Warrantless searches and seizures inside a person’s home are presumptively

unreasonable. United States v. Franklin, 694 F.3d 1, 7 (11th Cir. 2012). The

curtilage of a home, “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) (citation,

internal quotation marks, and alterations omitted). In some circumstances, “a

person may have a legitimate expectation of privacy in the house of someone else.”

Carter, 525 U.S. at 89, 119 S. Ct. at 473. For example, “an overnight guest in a

home may claim the protection of the Fourth Amendment, but one who is merely


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present with the consent of the householder may not.” Id. at 90, 119 S. Ct. at 473.

A defendant also may establish standing by demonstrating an unrestricted right of

occupancy or custody and control of the premises searched; ownership is not

required, but mere presence or even possession of a key is insufficient. United

States v. Sarda-Villa, 760 F.2d 1232, 1236 (11th Cir. 1985). The defendant bears

the burden of establishing a legitimate expectation of privacy in the area searched.

United States v. Harris, 526 F.3d 1334, 1338 (11th Cir. 2008) (per curiam). When

an individual abandons contraband during a chase with law enforcement, he has no

expectation of privacy to challenge seizure of the property. United States v.

Tinoco, 304 F.3d 1088, 1117 (11th Cir. 2002).

        Because Deputy Register and Officer Sobon personally observed Merricks

riding his bicycle on the wrong side of the road, in violation of Florida law, they

were permitted to pursue and detain him in order to give him a citation or a

warning. After Merricks realized the officers were following him with police

lights activated, he pedaled faster and entered Reed’s property. As Merricks was

walking through the gate of Reed’s home, he failed to heed the officers’ verbal

commands to stop. By that time, the officers had probable cause to arrest Merricks

for resisting or opposing the police without violence. 2 Lopez-Garcia, 565 F.3d at



       2
         Anyone who resists, obstructs, or opposes any law enforcement officer or other person
“legally authorized to execute process in the execution of legal process or in the lawful execution
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1314 (recognizing probable cause to arrest exists, when officers have knowledge of

facts or circumstances to warrant a reasonable belief the suspect has committed or

was committing a crime).

       Merricks argues the officers were prohibited from entering the property and

arresting him without a warrant, and the district judge erred by concluding he

lacked standing to challenge the warrantless entry onto the curtilage of the home.

This argument fails. At the time of his arrest, Merricks was not an overnight guest;

he had not stayed overnight at Reed’s house for at least three weeks. He did not

have an unrestricted right of custody or control over the residence. Sarda-Villa,

760 F.2d at 1236 (finding standing may be demonstrated through an unrestricted

right of occupancy). Although Merricks sometimes used one of the bedrooms, he

did not keep clothes in the room, and Reed permitted other individuals to use that

bedroom as well. Merricks did not receive mail at Reed’s home or pay rent. Even

though Merricks possessed a key to the house, possession of a key and mere

presence on Reed’s property is insufficient to establish he had a reasonable

expectation of privacy. Sarda-Villa, 760 F.2d at 1236 (recognizing a defendant

cannot establish standing based solely on the possession of a key to an apartment).




of any duty, without offering or doing violence to the person of the officer, shall be guilty of a
misdemeanor of the first degree.” Fla. Stat. § 843.02.

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      Deputy Register knew Reed owned the residence, and Merricks had

provided another address as his residence. Merricks was “merely present with the

consent of the householder,” and Deputy Register and Officer Sobon were

permitted to enter the property without a warrant. Carter, 525 U.S. at 90, 119 S.

Ct. at 473. Merricks lacked a reasonable expectation of privacy in Reed’s home

and the surrounding curtilage, and the officers were permitted to pursue him onto

Reed’s property without a warrant. The officers already had probable cause to

arrest Merricks for resisting arrest without violence. Because Merricks’s

warrantless arrest was lawful based on probable cause, the seizure of the empty

magazine clip incident to his arrest was reasonable under the Fourth Amendment.

Goddard, 312 F.3d at 1364 (“Since the custodial arrest of a suspect based on

probable cause is a reasonable intrusion under the Fourth Amendment, a search

incident to the arrest requires no additional justification.”).

      Merricks also challenges the subsequent search of the carport area and

seizure of the firearm. Merricks lacks standing to challenge the search and seizure,

however, because he did not have a reasonable expectation of privacy in Reed’s

home and surrounding curtilage. Gibson, 708 F.3d at 1276 (recognizing a

defendant has standing to challenge a search and seizure only if he has a legitimate

expectation of privacy). Because he voluntarily abandoned it while being pursued

by law enforcement, Merricks also lacks standing to challenge the seizure of the


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firearm. Tinoco, 304 F.3d at 1117 (concluding, when an individual abandons

contraband, he has no expectation of privacy to challenge seizure of the property).

Accordingly, the district judge did not err by denying Merricks’s motion to

suppress the firearm and the empty magazine.

      AFFIRMED.




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