             Case: 13-10616    Date Filed: 11/14/2014   Page: 1 of 10


                                                            [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                                No. 13-10616
                            Non-Argument Calendar
                          ________________________

                   D.C. Docket No. 4:12-cr-00006-RH-CAS-1

UNITED STATES OF AMERICA,

                                                                 Plaintiff-Appellee,

                                      versus

FRED SOMERS,

                                                             Defendant-Appellant.

                          ________________________

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

                              (November 14, 2014)

Before MARCUS, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:

      Fred Somers appeals his convictions for possession of a firearm by a

convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e), and possession

of an unregistered firearm, in violation of 26 U.S.C. §§ 5861(d) and 5871. On
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appeal, Somers argues that: (1) the district court plainly erred by involving itself in

his plea negotiations, in violation of Fed.R.Crim.P. 11(c)(1); and (2) the court erred

by denying his motions to suppress evidence obtained from a warrantless search of

his cell phone, as well as statements he made to law enforcement during and after

his arrest. After careful review, we affirm.

      Where, as here, the defendant fails to object to an asserted Rule 11(c)(1)

violation before the district court, we review for plain error. See United States v.

Castro, 736 F.3d 1308, 1313 (11th Cir. 2013), cert. denied, 134 S.Ct. 1331 (2014).

To show plain error, the defendant must show (1) an error, (2) that is plain, and (3)

that affected his substantial rights. United States v. Turner, 474 F.3d 1265, 1276

(11th Cir. 2007). If the defendant satisfies the three conditions, we may exercise

our discretion to recognize the error if it “seriously affects the fairness, integrity, or

public reputation of judicial proceedings.” Id. It is “the law of this circuit that, at

least where the explicit language of a statute or rule does not specifically resolve

an issue, there can be no plain error where there is no precedent from the Supreme

Court or this Court directly resolving it.” United States v. Chau, 426 F.3d 1318,

1322 (11th Cir 2005) (quotations omitted). A defendant’s substantial rights are

affected if there is a reasonable probability of a different result in the absence of

the plain error. United States v. Rodriguez, 398 F.3d 1291, 1299 (11th Cir. 2005).




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      We review a district court’s denial of a motion to suppress under a mixed

standard, reviewing the district court’s findings of fact for clear error, and its

application of the law to those facts de novo. United States v. Bervaldi, 226 F.3d

1256, 1262 (11th Cir. 2000). A factual finding is clearly erroneous only if, after

we review the evidence, we are left with the definite and firm conviction that a

mistake has been committed. United States v. Villarreal, 613 F.3d 1344, 1349

(11th Cir. 2010). Further, in reviewing the district court’s ruling, we construe the

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

Smith, 459 F.3d 1276, 1290 (11th Cir. 2006). We also accord great deference to

the district court’s credibility determinations. United States v. Clay, 376 F.3d

1296, 1302 (11th Cir. 2004). “The credibility of a witness is in the province of the

factfinder, and we will not ordinarily review the factfinder’s determination of

credibility.”   United States v. Brown, 415 F.3d 1257, 1267 (11th Cir. 2005)

(quotations omitted). “In other words, we must accept the evidence unless it is

contrary to the laws of nature, or is so inconsistent or improbable on its face that no

reasonable factfinder could accept it.” United States v. Ramirez-Chilel, 289 F.3d

744, 749 (11th Cir. 2002) (quotations and brackets omitted).

      First, we are unpersuaded by Somers’s argument that the district court

plainly erred by involving itself in his plea negotiations. Federal Rule of Criminal

Procedure 11(c)(1) provides that the government and the defendant may discuss


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and reach a plea agreement, but “[t]he court must not participate in these

discussions.”    Recently, in United States v. Davila, 133 S.Ct. 2139, 2147-48

(2013), the Supreme Court addressed violations of Rule 11(c)(1) in the context of

plain-error review. Davila instructs that “when a defendant does not complain to

the district court about its participation in plea discussions, a reviewing court

should consider whether it was reasonably probable that, but for the exhortations of

the district court, the defendant would have exercised his right to go to trial.”

Castro, 736 F.3d at 1313 (quotations and alterations omitted); see Davila, 133 S.Ct.

at 2150. We review the entire record to decide what effect the district court’s

participation had on the defendant’s guilty plea. Castro, 736 F.3d at 1313.

      In Castro, we held that the district court’s statements to the defendant did not

constitute plain error because the record did not show that, but for the district

court’s statements, the defendant would have rejected the plea agreement. Id. at

1313-15. The defendant in Castro initially entered into a written plea agreement

with the government, but later, on the day of his change of plea hearing, told

counsel that he no longer wished to plead guilty. Id. at 1310. After the defendant

expressed to the district his desire to not plead guilty, the court advised him that,

“if you don’t plead today[,] [the government] may charge you with other things

that will make your sentence even more severe.”           Id. at 1310-11 (quotations

omitted). Following the court’s comments, the defendant decided to enter a plea of


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guilty in accordance with the original plea agreement.            Id. at 1311-12.     In

concluding that the district court’s comment did not satisfy the plain-error

standard, we reasoned that, while it was arguable that the court’s comment

influenced the defendant’s decision to plead guilty, he could not meet the prejudice

prong of plain-error review based on the “speculative standard of what is

arguable.” Id. at 1314 (quotations omitted). Specifically, we determined that the

timing of the defendant’s decision to plead guilty was not dispositive, and that he

had failed to otherwise explain how the court’s comment affected his decision. Id.

      Here, the district court did not plainly err by impermissibly involving itself

in Somers’s plea negotiations. First, Somers has failed to satisfy the first prong of

plain-error analysis, i.e., that the district court committed an error by participating

in his plea negotiations. As the record shows, the court repeatedly said, throughout

the various stages of the proceedings, that it did not care whether Somers pled

guilty or went to trial, that it would not participate in the parties’ plea negotiations,

and that it was forbidden by law from doing so. Furthermore, unlike the court in

Castro, the district court did not comment on the effect that Somers’s plea decision

would have on his sentence. As a result, the court did not err by violating Rule

11(c)(1), and Somers cannot satisfy the first prong of the plain-error standard.

      But even assuming, arguendo, that the district court did err by participating

in the parties’ plea negotiations, the error, if any, was not “plain.” Neither our


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precedent nor the precedent of the Supreme Court establishes that any of the

district court’s comments violated Rule 11(c)(1).        Moreover, even assuming,

arguendo, that the district court committed error that was plain, the error did not

affect Somers’s substantial rights. A review of the record shows that, on multiple

occasions, Somers indicated to the district court that he desired to plead guilty, so

long as the court found that he did not qualify for a sentencing enhancement under

the Armed Career Criminal Act. He also indicated to the court at his change of

plea hearing that he did not think he had a strong defense. Thus, it was not

reasonably probable that, but for the district court’s comments, Somers would have

elected to go to trial.

       We also find no merit to Somers’s claim that the court erred by denying his

motions to suppress. The Fourth Amendment provides for the right to be free of

unreasonable searches and seizures and mandates that “no Warrants shall issue, but

upon probable cause, supported by Oath or affirmation.” U.S. Const. amend. IV.

Under the exclusionary rule, evidence “derived from” police misconduct is subject

to exclusion as “fruit of the poisonous tree.” United States v. Terzado-Madruga,

897 F.2d 1099, 1112 (11th Cir. 1990) (quotations omitted).

       However, the exclusionary rule has several exceptions, including, among

others, the independent source doctrine. See id. at 1115. The independent source

doctrine deems evidence admissible “if the prosecution can show that it derived


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from a lawful source independent of the illegal conduct. . . . The critical inquiry

under the independent source doctrine is whether the challenged evidence was

obtained from lawful sources and by lawful means independent of the police

misconduct.”    Id. (quotations omitted). When police officers obtain a search

warrant and seize evidence after having conducted an unlawful search, we must

assess whether the search warrant affidavit, excluding any information obtained

during the unlawful search, contains other information that supports the issuance of

the warrant based on probable cause. United States v. Chaves, 169 F.3d 687, 692-

93 (11th Cir. 1999) (relating to officers’ unlawful entry into a warehouse and

subsequent decision to seek a search warrant based on information they learned

before and during the unlawful entry). The agents must not have sought the search

warrant based on what they learned from the unlawful search. Id.

      “Probable cause to support a search warrant exists when the totality of the

circumstances allows the conclusion that there is a fair probability that contraband

or evidence of a crime will be found in a particular place.” United States v.

Kapordelis, 569 F.3d 1291, 1310 (11th Cir. 2009) (quotations omitted).

“[P]robable cause is a fluid concept -- turning on the assessment of probabilities in

particular factual contexts -- not readily, or even usefully, reduced to a neat set of

legal rules.” Illinois v. Gates, 462 U.S. 213, 232 (1983). To determine whether

probable cause exists to issue a search warrant, the magistrate judge must “make a


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practical, common-sense decision whether, given all the circumstances set forth in

the affidavit before him, . . . there is a fair probability that contraband or evidence

of a crime will be found in a particular place.” Id. at 238. We afford “great

deference to a lower court’s determination that the totality of the circumstances

supported a finding of probable cause.” United States v. Steiger, 318 F.3d 1039,

1046 (11th Cir. 2003) (quotations omitted).

      In this case, the district court did not err in denying Somers’s motion to

suppress the evidence obtained from his cell phone. Specifically, the court did not

err by concluding that, independent of the initial warrantless search of Somers’s

phone, probable cause existed to support the later search of the phone pursuant to

the state and federal search warrants. The evidence at the suppression hearing

showed that Somers had contacted a woman on his phone while she had a

restraining order against him, told her that he was going to kill himself, and was in

possession of a sawed-off shotgun. Based on the totality of the circumstances, the

court did not err in concluding that there was a “fair probability” that evidence of a

crime would be found on Somers’s phone. Additionally, the evidence relayed

above was not obtained via any police misconduct but, rather, was obtained prior

to the warrantless search of Somers’s phone. Furthermore, the probable-cause

affidavits in support of the search warrants were not based on any information

obtained during the warrantless search of the phone. Accordingly, the district


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court did not err in denying Somers’s motion to suppress evidence obtained from

his cell phone.

      Nor did the district court err in denying Somers’s motion to suppress his

statements made to law enforcement during and after his arrest. The 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. The Supreme Court, in

Miranda v. Arizona, 384 U.S. 436 (1966), “established that custodial interrogation

cannot occur before a suspect is warned of [his] rights against self-incrimination.”

United States v. Newsome, 475 F.3d 1221, 1224 (11th Cir. 2007). Under Miranda,

an individual in custody, before being questioned by the police, must be “clearly

informed” that he has, among other rights, “the right to consult with a lawyer and

to have the lawyer with him during interrogation.”                384 U.S. at 471.

“Interrogation” occurs whenever a person in custody is subjected to express

questioning or its functional equivalent. Rhode Island v. Innis, 446 U.S. 291, 300-

01 (1980). Statements made in violation of Miranda are not admissible at trial.

Miranda, 384 U.S. at 444-45.

      The Supreme Court has recognized that not “all statements obtained by the

police after a person has been taken into custody are to be considered the product

of interrogation.” Innis, 446 U.S. at 299. Rather, volunteered statements that are

given freely are admissible in evidence. Id. at 299-300.


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      Here, the district court did not err by denying Somers’s motion to suppress

the statements he made to law enforcement during and after his arrest. First,

notwithstanding Somers’s arguments to the contrary, the court did not clearly err in

finding the law enforcement officers’ testimony at the suppression hearing

credible.   Each of the three officers who testified indicated that Somers’s

statements, made during and after his arrest, were made after he had been read his

Miranda rights and were not in response to any questioning. Somers, in turn,

testified that his statements were made in response to police interrogation.

Credibility determinations are in the province of the district court, and there is

nothing in the record to suggest that the officers’ testimony was “contrary to the

laws of nature” or was “so inconsistent or improbable on its face that no reasonable

factfinder could accept it.” Therefore, according “great deference” to the district

court, we accept the court’s finding that the officers’ testimony was credible.

Accordingly, because the officers’ testimony established that Somers’s statements

were voluntarily given and were not in response to police questioning, the district

court did not err in denying his motion to suppress those statements.

      AFFIRMED.




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