                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                    FILED
                     FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                       ________________________ ELEVENTH CIRCUIT
                                                             JULY 12, 2007
                              No. 07-10005                 THOMAS K. KAHN
                          Non-Argument Calendar                 CLERK
                        ________________________

                      D. C. Docket No. 05-00187-CR-E

UNITED STATES OF AMERICA,

                                                                Plaintiff-Appellee,

                                   versus

SAWELIJA TYREE FLOYD,

                                                          Defendant-Appellant.


                        ________________________

                 Appeal from the United States District Court
                     for the Middle District of Alabama
                       _________________________

                               (July 12, 2007)

Before TJOFLAT, HULL and FAY, Circuit Judges.

PER CURIAM:
      Sawelija Tyree Floyd appeals his convictions for possession with the intent

to distribute cocaine base, marijuana, cocaine hydrochloride, and MDMA,1 all in

violation of 21 U.S.C. § 841(a)(1). On appeal, Floyd argues that the district court

erred in denying his motion to suppress evidence because the arresting officers did

not rely in good faith upon an invalid arrest warrant and, furthermore, there existed

no probable cause or exigent circumstances supporting the officers’ entry into his

home. The district court determined that the arresting officers reasonably relied in

good faith upon the arrest warrant because there was no evidence that the officers

influenced the issuing judge, that the judge acted outside of his judicial role, or that

the arrest warrant was so facially deficient as to prevent the officers from

reasonably presuming its validity. Additionally, the court concluded that, because

Floyd was a known drug dealer, a smell of burning marijuana emanated from

Floyd’s house, and there were multiple occupants of the house, the officers had

probable cause and exigent circumstances to enter. For the reasons set forth more

fully below, we affirm.

                                     I. Background

      A federal grand jury issued an initial two-count indictment against Floyd,

charging him with possession with the intent to distribute cocaine base and



      1
          3,4-methylenedioxymethamphetamine.

                                               2
marijuana, in violation of § 841(a)(1).2 Thereafter, Floyd filed a motion to

suppress statements taken and physical evidence seized as a result of his arrest and

subsequent search of his home. In his motion, Floyd argued that the police officers

did not have a legitimate warrant or probable cause to approach his house in the

first instance. He further asserted that the initial opening of his house was not

consensual and did not create probable cause or exigent circumstances. He

concluded that, because the warrantless search was illegal, the subsequent search

warrant, which the officers secured after entering the house, was also invalid

because it was based upon evidence discovered during the warrantless search.

       The following factual history is taken from the testimony of the

government’s witnesses at Floyd’s suppression hearing. The basic underlying facts

are undisputed.

       On July 27, 2005, Sergeant Chris Murray and Lieutenant Jerry Holder, both

of the Auburn, Alabama Police Department, met with Municipal Judge Joe Bailey

regarding individuals who were involved in one of the officers’ other

investigations. The officers asked Judge Bailey to review the files of those

individuals in connection with that investigation. In so doing, Judge Bailey


       2
        After the suppression hearing, a federal grand jury returned a four-count superseding
indictment against Floyd, charging him with possession with the intent to distribute: (1) cocaine
base; (2) marijuana; (3) cocaine hydrochloride; and (4) MDMA/ecstasy, all in violation of §
841(a).

                                                3
reviewed Floyd’s file and determined that the file indicated that Floyd had violated

a pre-existing order. Thus, Judge Bailey issued a Violation of Court Order

(“VCO”) warrant for Floyd’s arrest. The officers testified that they did not request

that Judge Bailey issue a VCO for Floyd and they did not know the exact violation

for which Judge Bailey issued Floyd’s VCO. The VCO identified Floyd by name,

but it did not include a case number or indicate which order Floyd had violated,

and it was not filed in the clerk’s office. The officers also indicated that they

routinely relied upon VCOs in making arrests and that they knew Judge Bailey

routinely issued such VCOs. According to Judge Bailey, he typically issued VCOs

and wrote them from a standard form on his computer.

      On July 29, 2005, Sergeant Murray and six other officers executed the

outstanding VCO, which was a misdemeanor warrant, at Floyd’s home. Because

the officers had information from confidential informants (“CI”) that Floyd was a

substantial drug-dealer, they utilized a group of officers to execute the arrest

warrant. Four officers went to Floyd’s front door and knocked. A male’s voice

came from inside the house and asked, “Who is it?” The officers responded that it

was the police and that they should open the door. Seconds later, Jamillah

McCray, Floyd’s girlfriend, opened the door. The officers inquired into Floyd’s

whereabouts. Almost immediately, Floyd approached the door, officers informed



                                           4
him that they had a warrant for his arrest, and the officers took him into custody

outside of his house. However, when McCray first opened the door, the officers

smelled the odor of burning marijuana emanating from inside the house.

      Thereafter, the officers stepped inside the house, where McCray and J.B.

Mitchell were located. Upon entering the house, Sergeant Murray saw three or

four large pieces of crack cocaine on the kitchen counter-top. Sergeant Murray

asked who had been smoking marijuana, and Mitchell answered that he and Floyd

had been smoking just prior to the officers’ knocking on the door. Sergeant

Murray then asked for permission to search the house, but both Floyd and McCray

declined permission. At that point, Sergeant Murray left to obtain a search

warrant. Once he obtained a search warrant, the officers executed it and located

crack cocaine, marijuana, powder cocaine, $3000, and other drug paraphernalia in

the house.

      After the suppression hearing, the magistrate judge considered the evidence

and the parties’ post-hearing briefs and recommended denying Floyd’s motion to

suppress. The district court adopted the magistrate’s report and recommendation,

over Floyd’s objections, and denied Floyd’s motion to suppress. Floyd then pled

guilty to all four counts of his superseding indictment. In his plea agreement with

the government, Floyd reserved his right to appeal the denial of his motion to



                                          5
suppress. The court sentenced Floyd to 210 months’ imprisonment.

                                      II. Discussion

       We review the district court’s denial of a defendant’s motion to suppress

under a mixed standard of review, reviewing the court’s findings of fact for clear

error and application of the law to those facts de novo. United States v. Smith, 459

F.3d 1276, 1290 (11th Cir. 2006), cert. denied, ___ U.S. ___, 127 S.Ct. 990, 166

L.Ed.2d 747 (2007). Moreover, we will “construe the facts in the light most

favorable to the party who prevailed below.” United States v. Muegge, 225 F.3d

1267, 1269 (11th Cir. 2000).

       The Fourth Amendment provides that: “[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. We have held that

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

unreasonable. United States v. Burgos, 720 F.2d 1520, 1525 (11th Cir. 1983).

(A)    Good Faith Reliance On Invalid VCO 3

       Generally, the Fourth Amendment excludes from a criminal prosecution

evidence that has been seized as a result of an illegal search. United States v.

Martin, 297 F.3d 1308, 1312 (11th Cir. 2002). However, one exception to the


       3
         The government concedes that the VCO that Judge Bailey issued for Floyd’s arrest was
invalid under Alabama law. Thus, we need not address the issue of the validity of the VCO.

                                              6
exclusionary rule is the good faith exception, as carved out by the Supreme Court

in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984).

Martin, 297 F.3d at 1312. As such, we must first determine whether the executing

officers in Floyd’s case nevertheless relied upon the invalid VCO in good faith.

      In Leon, the Supreme Court held that courts generally should not exclude

evidence seized by officers acting in reasonable reliance upon a search warrant that

ultimately was found to be invalid. Leon, 468 U.S. at 922, 104 S.Ct. at 3420. The

good faith exception applies in all but four circumstances:

      (1) where the magistrate or judge in issuing a warrant was misled by
      information in an affidavit that the affiant knew was false or would
      have known was false except for his reckless disregard of the truth;
      (2) where the issuing magistrate wholly abandoned his judicial role . .
      . ; (3) where the affidavit supporting the warrant is so lacking in
      indicia of probable cause as to render official belief in its existence
      entirely unreasonable; and (4) where, depending upon the
      circumstances of the particular case, a warrant is so facially deficient -
      i.e., in failing to particularize the place to be searched or the things to
      be seized - that the executing officers cannot reasonably presume it to
      be valid.

Martin, 297 F.3d at 1313 (quotations and citation omitted). The Leon good faith

analysis has been invoked in cases involving invalid arrest warrants, as opposed to

an invalid search warrant, as was the case in Leon. See Arizona v. Evans, 514 U.S.

1, 14-15, 115 S.Ct. 1185, 1187, 1193-94, 131 L.Ed.2d 34 (1995). “The purpose of

the exclusionary rule is to deter unlawful police misconduct; therefore, when



                                           7
officers engage in objectively reasonable law enforcement activity and have acted

in good faith when obtaining a search warrant from a judge or magistrate, the Leon

good faith exception applies.” Martin, 297 F.3d at 1313 (quotation omitted).

      Floyd argues on appeal that the circumstances in his case fit into at least two

of the four limitations to the good faith rule. Reviewing the facts of this case under

each limitation to the good faith exception, we conclude that none of the

limitations apply. First, the testimony from the suppression hearing indicates that

there existed no affidavit from the officers upon which Judge Bailey relied in

issuing the VCO. While the officers did ask Judge Bailey to review Floyd’s file in

connection with a separate investigation, they unequivocally testified that they did

not request that Judge Bailey issue the VCO. Judge Bailey confirmed that he

issued the VCO of his own volition. Therefore, the first limitation to the good faith

exception does not apply because there was no affidavit that could have misled

Judge Bailey. Similarly, the third limitation to the good faith exception also does

not apply because there existed no affidavit that could have been so lacking in

probable cause as to render official belief in its validity unreasonable.

      As to the second limitation to the good faith exception, namely, that the

issuing judge abandoned his judicial role, the evidence does not support such a

conclusion. Judge Bailey testified that, while he was asked by the officers to



                                           8
review Floyd’s file, his independent review of the file revealed facts that he

believed warranted the recall of Floyd’s probation. There was no testimony at the

hearing to indicate that Judge Bailey was influenced in any way by the officers or

their desire to speak with Floyd regarding the other investigation. To the extent

that Floyd argues that the officers asked Judge Bailey to issue the VCO, the record

stands contrary to that assertion. Thus, there is no evidence to suggest that Judge

Bailey abandoned his judicial role in issuing the VCO for Floyd’s arrest.

Moreover, the evidence supports the conclusion that the error that caused the

invalidity of the VCO was solely attributable to Judge Bailey, and, thus, exclusion

under the second limitation here would not further the purpose of the exclusionary

rule, namely, to deter police misconduct. See Evans, 514 U.S. at 11-12, 115 S.Ct.

at 1191-92 (reiterating that “there was no sound reason to apply the exclusionary

rule as a means of deterring misconduct on the part of judicial officers who are

responsible for issuing warrants” because such exclusion would not meet the

ultimate goal of deterring police misconduct).

      Finally, the record does not support a conclusion that the VCO was so

facially deficient as to prevent the officers from reasonably presuming its validity.

The Fourth Amendment provides that, “no Warrants shall issue, but upon probable

cause, supported by Oath or affirmation, and particularly describing the place to be



                                           9
searched, and the persons or things to be seized.” U.S. Const. amend. IV. Judge

Bailey’s VCO identified Floyd by his full name and indicated that, “[f]or good

cause shown, it is the Court’s opinion that [Floyd] should be taken into custody . . .

to serve the balance of the sentence(s) of incarceration heretofore suspended.” The

officers testified that they observed Judge Bailey review Floyd’s file and find that

he had violated a term of his probation. While the officers were unclear as to the

exact violation, they nonetheless witnessed the judge perform an independent

review and reach that conclusion. Furthermore, the officers routinely relied upon

judge-issued VCOs and Judge Bailey routinely issued them from a standard form

on his computer.

      As to the missing case number on the VCO, Sergeant Murray testified that

he believed that the number was missing because Judge Bailey wanted to avoid

alerting the clerk’s office due to the on-going White investigation. Despite the fact

that such a motivation for leaving a case number off of a court order is arguably

questionable, the officer’s testimony nevertheless supplied a reason why he

believed the number was missing. The magistrate observed the officer’s testimony

and obviously found it credible. See United States v. Ramirez-Chilel, 289 F.3d

744, 749 (11th Cir. 2002) (stating that credibility determinations are typically

within the province of the fact finder). Additionally, Judge Bailey explained that



                                          10
the missing case number was an inadvertent mistake on his part. As such,

considering the totality of the circumstances, the officers had no reason to believe

from the face of the VCO that it was invalid.

(B)   Entry Into And Search Of Floyd’s Home

      As discussed above, warrantless entries into and searches inside a person’s

home are presumptively unreasonable. United States v. Santa, 236 F.3d 662, 668

(11th Cir. 2000). With regard to an officer’s entry into a person’s home, a person

does not show consent to enter when the consent is prompted by an official show

of authority. Ramirez-Chilel, 289 F.3d at 751. However, as to warrantless

searches, they may be justified where both probable cause and exigent

circumstances exist. United States v. Tobin, 923 F.2d 1506, 1510 (11th Cir. 1991).

“Probable cause exists when under the totality-of-the-circumstances . . . there is a

fair probability that contraband or evidence of a crime will be found in a particular

place. In other words . . . where the facts lead a reasonably cautious person to

believe that the search will uncover evidence of a crime.” Id. (citation and

quotations omitted). Exigent circumstances may exist where there is a danger that

evidence will be destroyed or removed. Id. However, “the presence of contraband

without more does not give rise to exigent circumstances,” but such circumstances

may arise where there is a danger that the contraband will be destroyed. Id.



                                          11
(quotation omitted). “This Court has held that the need to invoke the exigent

circumstances exception to the warrant requirement is particularly compelling in

narcotics cases because narcotics can be so quickly destroyed.” Id. (quotation

omitted). In determining whether exigent circumstances existed, we employ the

following objective test: “whether the facts, as they appeared at the moment of

entry, would lead a reasonable, experienced agent to believe that evidence might be

destroyed before a warrant could be secured.” United States v. Young, 909 F.2d

442, 446 (11th Cir. 1990).

      Here, Floyd’s assertion that the officers violated his Fourth Amendment

rights by inducing McCray to open the front door without consent is meritless. It

is noteworthy that Floyd is not arguing that the officers gained non-consensual

entry into his home, but rather that they induced a non-consensual opening of his

front door. However, it is not unconstitutional for an officer to approach an

individual’s home and knock on the door when the officer has an arrest warrant for

that individual. See, e.g., United States v. Bervaldi, 226 F.3d 1256, 1263, 1267

(11th Cir. 2000) (holding that police officers did not violate a person’s Fourth

Amendment rights by entering the person’s home where the officers had an arrest

warrant for a suspect, went to the address that they believed was the suspect’s

home, believed the suspect was inside the home, knocked on the door, and later



                                          12
entered the house); see also Payton v. New York, 445 U.S. 573, 602-03, 100 S.Ct.

1371, 1388, 63 L.Ed.2d 639 (1980) (holding that, once an arrest warrant has been

issued, it is constitutionally reasonable to require the suspect to open the doors of

his home to police officers because “for Fourth Amendment purposes, an arrest

warrant founded on probable cause implicitly carries with it the limited authority to

enter a dwelling in which the suspect lives when there is reason to believe the

suspect is within”). Moreover, there is nothing in the record to support the

contention that McCray’s decision to open the door was non-consensual. The

officers did not have their weapons drawn, yell at McCray, or pound on the door.

See Ramirez-Chilel, 289 F.3d at 751 (concluding that officers did not gain entry

into a suspect’s home by a show of force where the officers did not draw their

weapons or surround the house, and where the suspect did not exhibit intimidated

behavior when he opened the door).

      With regard to the officers’ eventual entry into Floyd’s home, Floyd

maintains that the smell of burning marijuana alone did not provide the

necessary probable cause or exigent circumstances. Floyd’s argument is

without merit. The officers approached Floyd’s house armed with an arrest

warrant that they believed was valid and information that Floyd was a drug

dealer. The officers knocked on the door, inquired as to Floyd’s

                                           13
whereabouts, and arrested Floyd when he stepped outside of his house.

However, when McCray opened the door, the officers smelled burning

marijuana emanating from the house. At that point, the officers had probable

cause because their knowledge of Floyd’s drug-dealing habits and the smell

of burning marijuana reasonably could have led them to believe that a search

would reveal evidence of a crime. See Tobin, 923 F.2d at 1510. The facts as

they existed at the time that the officers smelled the burning marijuana also

established that exigent circumstances existed because those facts would

have led a reasonable officer to believe that McCray or someone else inside

the house would attempt to destroy the drugs before they could secure a

warrant. See Young, 909 F.2d at 446; see also Tobin, 923 F.2d at 1510

(explaining that “the need to invoke the exigent circumstances exception to

the warrant requirement is particularly compelling in narcotics cases because

narcotics can be so quickly destroyed”) (quotation omitted). Given the

information the officers had regarding Floyd’s drug-dealing history, coupled

with the smell of burning marijuana and the fact that there were other

occupants in Floyd’s home, this is not a case where the only information the

officers had was the existence of drugs alone.


                                      14
      Floyd lastly argues that, because the officers’ entry into his home was

unconstitutional, the search warrant that they subsequently obtained was

invalid because it was based upon information that the officers obtained from

their illegal entry. See United States v. Terzado-Madruga, 897 F.2d 1099, 1112

(11th Cir. 1990) (explaining that the exclusionary rule also applies to evidence

obtained from illegal conduct or “fruit of the poisonous tree”).   However, in light

of the above discussion of the legality of the officers’ initial entry into Floyd’s

home, his argument that the subsequent search warrant was based upon fruit

of a poisonous tree is meritless.

                                  III. Conclusion

      In sum, the officers relied in good faith upon the invalid VCO arrest

warrant in initially approaching Floyd’s home. Moreover, the officers did

not unconstitutionally knock on Floyd’s door or enter his house based upon

the smell of burning marijuana emanating from the house. Accordingly, we

conclude that the district court did not err in denying Floyd’s motion to

suppress. Thus, Floyd’s convictions are

      AFFIRMED.




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