                                                                   [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________             FILED
                                                               U.S. COURT OF APPEALS
                                            No. 10-13912         ELEVENTH CIRCUIT
                                        Non-Argument Calendar        JULY 11, 2011
                                      ________________________        JOHN LEY
                                                                        CLERK
                           D.C. Docket No. 3:09-cr-00131-HES-MCR-2

UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                                  Plaintiff-Appellee,

                                                   versus

JAMES CHARLES JONES, JR.,

lllllllllllllllllllllllllllllllllllllll    l                        Defendant-Appellant.

                                     ________________________

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

                                               (July 11, 2011)

Before CARNES, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:

         James Charles Jones appeals his convictions for (1) conspiracy to distribute

5 kilograms or more of cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A),
851, and 846; (2) possession with intent to distribute 5 kilograms or more of

cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 851, and 18 U.S.C.

§ 2; (3) managing a residence for the purpose of unlawfully storing and

distributing cocaine and cocaine base, in violation of 21 U.S.C. §§ 856(a)(2) &

(b), 841(b)(1)(A), and 851; (4) conspiracy to distribute 50 grams or more of

cocaine base, in violation of 21 U.S.C. §§ 846, 841(a)(1) & (b)(1)(A), and 851;

and (5) possession with intent to distribute 50 grams or more of cocaine base, in

violation of 21 U.S.C. §§ 841(a)(1) & (b)(1)(A), 851, and 18 U.S.C. § 2. On

appeal, Jones argues that the district court erred in denying his motion to suppress

evidence. After review, we affirm.

                                         I.

      This case arises from a narcotics investigation. On April 17, 2009,

confidential informants (“CIs”) working with Immigration and Customs

Enforcement (“ICE”) met co-defendant Albertano Hernando-Sanchez, who was

driving a white Malibu, at a gas station in Palatka, Florida. Law enforcement

provided the CIs with a recording device so that they could listen to the

conversation. At the meeting, Hernando-Sanchez instructed the CIs to follow him

to another location. The CIs followed Hernando-Sanchez to a parking area outside

of 230 San Jose Avenue and then discussed purchasing cocaine from him.

                                          2
Herando-Sanchez told the CIs that the cocaine was was very close—less than a

block away—and instructed them to leave for fifteen minutes and wait for his call.

       Once the CIs left, two law enforcement officers conducted ground

surveillance of 230 San Jose Avenue.1 From their vantage point, the officers could

also see the house next door, 228 San Jose Avenue. The officers observed several

individuals walk back and forth between the residences. The officers also

observed Hernando-Sanchez’s white Malibu move from 230 San Jose Avenue to

the driveway of 228 San Jose Avenue. Around the same time, Jones, who was

driving a black truck, parked in front of 228 San Jose Avenue. Several individuals

came out of that residence and spoke with Jones. After the white Malibu moved to

the road, Jones backed his truck into the driveway of 228. A short time later,

Jones left 228, drove around the block, and then parked his truck in the driveway

of 230 San Jose Avenue.2 The white Malibu also moved to 230 San Jose Avenue.

At some point during that activity, Hernando-Sanchez called the CIs and told them

it would be a little longer—maybe twenty minutes—before the transaction could

take place.


       1
         Before this time, law enforcement used aerial surveillance, but not ground surveillance,
because they feared that ground surveillance would impede the investigation.
       2
         Two law enforcement officers testified at Jones’s suppression hearing that he appeared
to be conducting counter-surveillance.

                                                3
      About an hour after Hernando-Sanchez’s initial call, he contacted the CIs

again and told them to return to 230 San Jose Avenue. The CIs went inside the

residence and were shown fifty kilograms of cocaine by Hernando-Sanchez and

another male. The CIs believed that a third individual was also in the residence.

The CIs offered to pay $1.5 million for the cocaine and then left the residence,

purportedly to retrieve the money to pay for the cocaine.

      About six minutes later, law enforcement entered 228 and 230 San Jose

Avenue without warrants. The officers moved all the occupants outside and then

secured the residences. While search warrants for the residences were being

obtained, one officer interviewed Jones. Once officers returned with warrants, law

enforcement searched both properties, seizing inter alia money and cocaine.

      Jones was indicted and moved to suppress the evidence seized from 228 and

230 San Jose Avenue and his statements to law enforcement. After holding a

hearing, the magistrate judge recommended that the district court deny Jones’s

motion to the extent that it sought to suppress the physical evidence seized from

the residences. The magistrate judge found that law enforcement’s initial

warrantless entry violated the Fourth Amendment but determined that the search

warrants were obtained based on information from an independent source. The

magistrate judge recommended granting Jones’s motion, however, insofar as it

                                         4
pertained to his statements as fruit of the illegal warrantless entry.

      While adopting the magistrate judge’s factual findings, the district court

denied Jones’s motion to suppress in its entirety, concluding that law

enforcement’s initial warrantless entry of 228 and 230 San Jose Avenue was

justified by probable cause and exigent circumstances. After the district court’s

ruling, Jones pleaded guilty to the charges in the superseding indictment and

reserved the right to appeal the adverse determination on his motion to suppress.

This is Jones’s appeal.

                                          II.

      “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.” United States v. Jordan, 635 F.3d

1181, 1185 (11th Cir. 2011) (quotation marks omitted). “Further, when

considering a ruling on a motion to suppress, all facts are construed in the light

most favorable to the prevailing party below.” United States v. Bervaldi, 226 F.3d

1256, 1262 (11th Cir. 2000). “We are not restricted to the evidence presented at

the suppression hearing and instead consider the whole record.” Jordan, 635 F.3d

at 1185. “[W]e may affirm for any reason supported by the record, even if not

relied upon by the district court.” United States v. Al-Arian, 514 F.3d 1184, 1189

                                           5
(11th Cir. 2008) (quotation marks omitted).

      Under the independent source doctrine, even where a Fourth Amendment

violation has occurred, evidence “obtained from a lawful source, independent of

the illegal conduct” is admissible. United States v. Davis, 313 F.3d 1300, 1303

(11th Cir. 2002); see also Segura v. United States, 468 U.S. 796, 805, 104 S. Ct.

3380, 3385 (1984) (explaining that the exclusionary rule is not implicated when

the government learned of the challenged evidence from an independent source).

The rationale for the independent source doctrine is that the government should be

put “in the same, not a worse, position tha[n] [it] would have been in if no . . .

error or misconduct had occurred.” Murray v. United States, 487 U.S. 533, 537,

108 S. Ct. 2529, 2533 (1988) (quoting Nix v. Williams, 467 U.S. 431, 443, 104 S.

Ct. 2501, 2509 (1984)). As in this case, where law enforcement makes an initial

warrantless entry of a residence and then obtains a search warrant, “if the search

warrant was obtained based upon information from an independent source, then

the warrantless entry, even though illegal, [does] not require exclusion of [the]

evidence.” United States v. Glinton, 154 F.3d 1245, 1254 (11th Cir. 1998).

      When the affidavit for the search warrant contains information obtained as a

result of the initial warrantless entry, “we . . . look to whether the other

information provided in the affidavit is sufficient to support a probable cause

                                           6
finding.” United States v. Chaves, 169 F.3d 687, 692 (11th Cir. 1999); see also

United States v. Virden, 488 F.3d 1317, 1322 (11th Cir. 2007) (“Probable cause

exists when there is ‘a fair probability that contraband or evidence of a crime will

be found.’” (quoting United States v. Sokolow, 490 U.S. 1, 7, 109 S. Ct. 1581,

1585 (1989))). “If so, suppression is not required . . . provided . . . that ‘the

agents’ decision to seek the warrant was not prompted by what they had seen

during the initial entry.’” Chaves, 169 F.3d at 692–93 (quoting Murray, 487 U.S.

at 542, 108 S. Ct. at 2536).

       Ignoring the information law enforcement obtained during the initial

warrantless entry of 228 and 230 San Jose Avenue,3 the affidavits state that: (1) a

CI, who was equipped with an audio monitoring device, met with an unknown

Hispanic male at a gas station; (2) the Hispanic male told the CI to follow him to

another location, which turned out to be 230 San Jose Avenue; (3) once there, the

Hispanic male told the CI that the cocaine was “very close and not even a block

away” and instructed the CI to leave for fifteen minutes; (4) surveillance revealed

that a white Chevrolet Malibu, used initially to bring the CI to 230 San Jose



       3
         Because we find that the search warrant affidavits for 228 and 230 San Jose Avenue
support a probable cause finding and that law enforcement did not seek the search warrants
because of what they saw during the initial entry, we assume, without deciding, that the initial
warrantless entry violated the Fourth Amendment.

                                                 7
Avenue, was moved from 230 to 228 San Jose Avenue; (5) law enforcement saw

numerous individuals move between 228 and 230 San Jose Avenue; and (6) the CI

observed fifty kilograms of cocaine in 230 San Jose Avenue. In view of those

facts, there was “a fair probability that contraband or evidence of a crime” would

be found in the residences, and thus the search warrants were supported by

probable cause.4 United States v. Tobin, 923 F.2d 1506, 1510 (11th Cir. 1991) (en

banc); see also United States v. Miller, 24 F.3d 1357, 1361 (11th Cir. 1994)

(“Probable cause deals with probabilities. These are not technical; they are the

factual and practical considerations of everday life on which reasonable and

prudent men, not legal technicians act.” (quotation marks omitted)).

       We also conclude that the district court did not clearly err in finding that

law enforcement’s decision to seek search warrants for 228 and 230 San Jose

Avenue was “not prompted by what they had seen during the initial entry.”

       4
           We reject Jones’s argument that remand is necessary in order for the district court to
make a factual finding that the issuing judge’s probable cause decision was not affected by the
information in the search warrant affidavits that was obtained during the initial warrantless entry.
Jones relies on Murray v. United States, 487 U.S. 533, 108 S. Ct. 2529 (1988), in support of his
argument. In Murray, the district court failed to make a specific factual finding that law
enforcement would have sought a warrant in the absence of the prior illegal entry. Id. at 543, 108
S. Ct. at 2536. The Supreme Court remanded the case for an explicit factual finding on that
issue. Id. at 543–44, 108 S. Ct. at 2536. Unlike that issue, whether probable cause existed to
support the search warrants in the absence of the unlawfully acquired information is a legal
conclusion. For that reason, no factual finding by the district court is required. See Glinton, 154
F.3d at 1254–55 (explaining that if the warrantless entry was illegal, “the warrant itself must be
appraised to determine whether it was sufficient to establish probable cause for the search on
independent grounds”).

                                                 8
Chaves, 169 F.3d at 692–93 (quotation marks omitted); see also United States v.

Siciliano, 578 F.3d 61, 69 (1st Cir. 2009) (“[W]hether the agents’ decision to seek

the warrant was prompted by unlawfully acquired information—is a factual

finding subject to clear error review.”). Detective Swart testified at Jones’s

suppression hearing that law enforcement decided to make the initial entry after

witnessing “a lot of movement between 228 and 230.” The officers feared that the

cocaine, which had been observed in 230, would be moved out of the area. Once

the initial entry was made, the residences were secured and officers left within ten

minutes of the entry to obtain search warrants. In light of those facts, we cannot

say that the district court’s finding was clearly erroneous. For these reasons, the

district court did not err in denying Jones’s motion to suppress the evidence seized

from 228 and 230 San Jose Avenue.5

       AFFIRMED.




       5
         To the extent that the district court erred in denying Jones’s motion to suppress his
statements to law enforcement as fruit of the illegal initial warrantless entry, the error was
harmless beyond a reasonable doubt. See United States v. Turner, 871 F.2d 1574, 1581–82 (11th
Cir. 1989). Even without the statements, the evidence against Jones would have been sufficient
to support his convictions. See United States v. Villabona-Garnica, 63 F.3d 1051, 1057 n.5 (11th
Cir. 1995).

                                               9
