         Case: 14-14332   Date Filed: 06/29/2015    Page: 1 of 10


                                                      [DO NOT PUBLISH]




          IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 14-14332
                        Non-Argument Calendar
                      ________________________

                D.C. Docket No. 4:13-cr-00109-MW-CAS-1



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

versus

BERNAL EMILE,
NELINO EMILE

                                              Defendants - Appellants.


                      ________________________

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

                            (June 29, 2015)
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Before MARCUS, JULIE CARNES, and EDMONDSON, Circuit Judges.



PER CURIAM:



      Bernal and Nelino Emile (“Defendants”) appeal their convictions for

possession and distribution of marijuana. No reversible error has been shown; we

affirm.

      In June 2013, a manager at the United Parcel Services (“UPS”) store

contacted police about two suspicious packages that had been dropped off for

overnight delivery to a California address. On the package invoices, the sender

used Bernal’s name and address and described the package contents as stereo

equipment. The UPS manager reported to police that the packages’ seams were

heavily taped, the packages had a chemical odor, and the sender had declined to

consolidate the two packages to save money on shipping.

      When Officer Randolph arrived at the UPS store, he told the UPS manager

not to open the packages on behalf of the police. Officer Randolph also told the

UPS manager that common carriers had the right to inspect packages

administratively if they suspected that a package contained a hazardous substance.

At some point, Officer Randolph also said that he detected a faint odor of burnt

marijuana on the packages.


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      The UPS manager decided to open the packages, each of which consisted of

an outer and inner box with heavily-taped seams, several layers of bubble wrap,

carbon paper, and a vacuum-sealed bag. Inside each box was a large sum of cash,

totaling $28,300. The packages contained no stereo equipment.

      Officer Randolph watched as the UPS manager opened the packages, but the

police did not participate physically in the search. Officer Randolph then seized

the money based on his suspicion that the money was connected to drug sales. A

police dog later alerted to the presence of narcotic odors on the money.

      Two days later, Officers Morris and Gereg visited the address listed on the

UPS package invoices. Bernal answered the door, stepped outside, and closed the

door behind him. The officers detected a “strong odor” of marijuana coming from

the apartment and noticed that, stuck to Bernal’s sock, was a strip of plastic from a

vacuum-sealed bag. Bernal told the officers that he had shipped the two UPS

packages in question and that the packages contained stereo equipment. The

officers then detained and handcuffed Bernal so they could obtain a search warrant

for the apartment.

      Meanwhile, Bernal told the officers that his brother, Nelino, was inside the

apartment. Officer Morris opened the apartment door, called out “Police,” and

instructed anyone inside to come out. Nelino came outside and was handcuffed

immediately. Officer Morris then conducted a “protective sweep” of the apartment


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to be sure no one else was inside. During the sweep, Officer Morris saw evidence

of marijuana, but seized nothing. Officer Gereg then went to obtain a search

warrant.

      While Defendants and officers waited outside the apartment, a local news

crew arrived. At the officers’ suggestion, Defendants agreed to wait just inside the

front door of the apartment to avoid the media.

      After the search warrant arrived, a search of Defendants’ apartment revealed

evidence of marijuana, guns, various packing materials, and UPS receipts.

      In the district court, Defendants moved to suppress evidence found during

the searches of the UPS packages and of Defendants’ apartment. After a hearing,

the district court granted the motions in part. In pertinent part, the district court

found and concluded that (1) the opening of the UPS packages by the UPS

manager was a private search that constituted no “joint venture” between the UPS

manager and Officer Randolph; (2) no articulable reason existed to justify Officer

Morris’s warrantless “protective sweep” of Defendants’ apartment, which

encompassed both the opening of Defendants’ apartment door and the sweep inside

the apartment; (3) after redacting the information obtained during the improper

protective sweep, the search warrant affidavit still contained sufficient information

to establish probable cause to search Defendants’ apartment; (4) Defendants




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consented to enter the apartment while waiting for the search warrant; and (5) no

search of Defendants’ apartment occurred before the search warrant arrived.



                                   I. UPS Packages



      In reviewing a district court’s ruling on a motion to suppress, we review

findings of fact for clear error and review de novo the application of law to those

facts. United States v. Zapata, 180 F.3d 1237, 1240 (11th Cir. 1999). We construe

all facts in the light most favorable to the prevailing party and afford substantial

deference to the factfinder’s explicit and implicit credibility determinations.

United States v. Lewis, 674 F.3d 1298, 1303 (11th Cir. 2012). We accept the

district court’s credibility determination “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).

We also defer to the district court’s factual determinations unless the district

court’s understanding of the facts is “unbelievable.” Id.

      “A search by a private person does not implicate the Fourth Amendment

unless he acts as an instrument or agent of the government.” United States v.

Steiger, 318 F.3d 1039, 1045 (11th Cir. 2003). In determining whether a private

citizen acted as a government agent, we consider “(1) whether the government


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knew of and acquiesced in the intrusive conduct, and (2) whether the private

actor’s purpose was to assist law enforcement efforts rather than to further his own

ends.” Id. As part of our inquiry, we also consider whether the government

“openly encouraged or cooperated in the search.” See United States v. Ford, 765

F.2d 1088, 1090 (11th Cir. 1985) (affirming denial of a motion to suppress in part

because nothing evidenced that the government openly encouraged or cooperated

in the private citizen’s search); see also United States v. Smythe, 84 F.3d 1240,

1243 (10th Cir. 1996) (noting that the “knowledge and acquiescence” criteria

“encompass the requirement that the government agent must also affirmatively

encourage, initiate or instigate the private action.”).

      Considering the totality of the circumstances, the district court committed no

error in determining that the UPS manager acted as a private citizen -- and not as

an agent of the government -- when he opened the two UPS packages. The record

shows that the UPS manager became suspicious about the packages and, thus,

contacted the police, because (1) the packages’ seams were heavily taped, (2) the

packages had a chemical odor, and (3) the sender refused to consolidate the two

packages to reduce shipping charges.

      We accept the district court’s factual findings that (1) Officer Randolph did

nothing significant to encourage the UPS manager to open the packages, even

though Officer Randolph mentioned that the packages smelled of marijuana; and


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(2) Officer Randolph never participated physically in the search. The district judge

rejected expressly some kind of wink-and-nod conduct on the part of the police for

the search. Officer Randolph told the UPS manager expressly not to open the

packages for the benefit of the police. Instead, the UPS manager decided -- based

on his own suspicions and as a matter of UPS company policy -- to open the

packages himself. Viewing the evidence in the light most favorable to the

government, the UPS manager’s search of the two packages constituted a search by

a private citizen, triggering no Fourth Amendment protection.

      Because the UPS packages were searched lawfully, we reject Defendants’

assertion that evidence seized during the later search of Defendants’ apartment

must be excluded under the “fruit of the poisonous tree” doctrine. For background,

see United States v. Terzado-Madruga, 897 F.2d 1099, 1112-13 (11th Cir. 1990).



                           II. Probable Cause for Arrest



      Bernal argues that the police lacked reasonable suspicion or probable cause

to detain him before searching his apartment. Because Bernal failed to raise this

argument in the district court, we review only for plain error. See United States v.

Clark, 274 F.3d 1325, 1326 (11th Cir. 2001).




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      Even if we assume -- without deciding -- that Bernal’s detainment

constituted an arrest, the arrest was supported by probable cause. “For probable

cause to exist, . . . an arrest must be objectively reasonable based on the totality of

the circumstances.” Lee v. Ferraro, 284 F.3d 1188, 1195 (11th Cir. 2002). The

probable cause standard is satisfied when “the facts and circumstances within the

officer’s knowledge, of which he or she has reasonably trustworthy information,

would cause a prudent person to believe, under the circumstances shown, that the

suspect has committed, is committing, or is about to commit an offense.” Id.

      Before arriving at Bernal’s apartment, the officers knew that (1) someone

using Bernal’s name and address tried to ship two heavily-taped packages,

containing a total of $28,300 in cash; (2) the sending of cash by a common carrier

is a violation of Florida’s money-laundering statute; (3) the packages’ sender lied

to UPS about the packages’ contents; (4) the sender refused UPS’s offer to

consolidate the packages; and (5) a drug-sniffing dog alerted to the presence of

drugs on the cash. Upon arriving at Bernal’s apartment, the officers also observed

(1) a “strong” odor of marijuana emanating from the apartment; and (2) a strip of

plastic from a vacuum-sealed bag stuck to Bernal’s sock. Bernal also told the

officers that he in fact sent the two UPS packages and lied to the officers about the

contents of the packages.




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      Based on the totality of the circumstances within the officers’ knowledge, a

prudent person would believe that Bernal was involved in a drug-related offense.

Probable cause existed to arrest Bernal; the district court committed no plain error.



                      III. Searches of Defendants’ Apartment



      When a search warrant affidavit is based, at least in part, on information

acquired illegally, we look to whether other information contained in the affidavit

supports sufficiently a probable cause finding. United States v. Chaves, 169 F.3d

687, 692 (11th Cir. 1999). If it does, suppression of evidence is not required

because the exclusionary rule does not apply “where the government learned of the

evidence from an independent source.” Id. at 692-93.

      When we redact the information obtained during the improper “protective

sweep” of Defendants’ apartment, the search warrant affidavit still contained

sufficient information -- including evidence obtained during the search of the UPS

packages and the officers’ initial encounter with Bernal -- to support a probable

cause finding. And nothing evidences that the officers were prompted to seek a

warrant only after conducting the protective sweep. Because probable cause

existed to support the issuance of a search warrant for Defendants’ apartment, the




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evidence obtained during the illegal protective sweep was admissible under the

independent source doctrine. See id.

      Given the record and the district court’s determinations, we reject

Defendants’ contention that officers conducted an illegal search when they and

Defendants moved inside Defendants’ apartment to avoid local news media.

Although Defendants contend they agreed to enter the apartment only “at the

suggestion of law enforcement,” we accept that their consent was voluntary.

Moreover, we accept that no officers engaged in a physical search of the apartment

before the search warrant arrived.

      AFFIRMED.




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