             Case: 16-16444     Date Filed: 09/20/2017   Page: 1 of 11


                                                                         [PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                 No. 16-16444
                             Non-Argument Calendar
                           ________________________

                  D.C. Docket No. 2:15-cr-00283-LSC-HGD-15


UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                       versus

ANTHONY DEJUAN WILLIAMS,

                                                              Defendant-Appellant.

                           ________________________

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

                               (September 20, 2017)

Before TJOFLAT, HULL and WILLIAM PRYOR, Circuit Judges.

PER CURIAM:

      After a jury trial, Anthony DeJuan Williams appeals his convictions for

conspiracy to distribute cocaine, possession with intent to distribute 500 or more
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grams of cocaine, multiple counts of using a telephone in furtherance of drug

trafficking, and possession of a firearm by a convicted felon. 1

       On appeal, Williams challenges the district court’s denial of his motion to

suppress evidence agents found in an outbuilding adjacent to Williams’s main

residence while they were executing a warrant for Williams’s arrest. The district

court concluded that the search of the adjacent outbuilding was a reasonable entry

pursuant to the arrest warrant, and alternatively, was a valid protective sweep.

Williams argues that it was unreasonable for the agents to believe anyone, much

less Williams, lived in or was present inside the outbuilding. For the first time on

appeal, Williams argues that the district court also erred in denying the motion to

suppress because the evidence established that the agents executed the underlying

arrest warrant at “approximately” 6:00 a.m., which rendered the arrest warrant

invalid. After review, we affirm. 2

                                I. BACKGROUND FACTS

       According to the evidence presented at the suppression hearing, Federal

Bureau of Investigation (“FBI”) agents began surveilling a large-scale drug

trafficking operation led by Patrick DeWayne Hall. During surveillance, agents

       1
        Defendant Williams’s offenses were charged in two separate indictments, but the two
criminal cases were later consolidated by the district court.
       2
         “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. Bervaldi, 226 F.3d 1256, 1262 (11th Cir. 2000). In so doing,
we construe the facts in the light most favorable to the prevailing party. Id.
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learned of a new participant, later identified as defendant Williams. The agents

intercepted telephone calls between Hall and defendant Williams discussing a

kilogram of cocaine.

      The agents tracked Hall to defendant Williams’s residence at 344 Sun Valley

Road, where the agents also found a car registered to Williams parked in the

driveway. The agents heard from the street what sounded to them like a metal

drug compressor, which is used to repress and repackage cocaine with a diluting

agent. The agents could not tell whether the activity was occurring in the main

residence or the outbuilding. Approximately twenty minutes later, the agents

observed both Hall and defendant Williams walk into the carport and leave in

Williams’s car.

      Williams’s residence consisted of a single-family, ranch-style house, with a

carport and metal shed abutting the house, and an outbuilding approximately

twenty feet away in the backyard. Photographs of the outbuilding show a structure

with a front and a back door, several windows, and a garage door. The district

court found, and we do not disagree, that the outbuilding “looks like a mother-in-

law suite or guest house.” In addition to surveillance, the agents performed a

public records search, which listed 344 Sun Valley Road as defendant Williams’s

probable address.




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      After a grand jury indicted defendant Williams, Hall and 24 other

individuals with, among other things, conspiracy to distribute controlled

substances, a warrant was issued for defendant Williams’s arrest. On October 21,

2015, FBI agents prepared to perform coordinated arrests of multiple members of

the charged conspiracy, including defendant Williams, at 6:00 a.m. During a pre-

arrest operational meeting, Special Agent Michael Greene, the leader for the team

assigned to arrest defendant Williams at the 344 Sun Valley Road address, was

given information about Williams, including a photograph of Williams and a

description of his car. At that meeting, particular note was made of the outbuilding

because it looked like it could be a living space, and the agents did not know

whether defendant Williams lived in the main house or the outbuilding. As a

consequence, Agent Greene planned to make simultaneous entries of both

buildings.

      The team of agents met first at a staging area, and Agent Greene performed a

drive-by of 344 Sun Valley Road. At that time, Agent Greene observed Williams’s

car and two other vehicles parked at the residence. Based on these observations,

Agent Greene believed defendant Williams was possibly inside the residence with

multiple other subjects.

      The FBI agents arrived at 344 Sun Valley Road at approximately 6:00 a.m.

to execute the arrest warrant. Agent Greene split his team into two groups, one at


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the main residence and one at the outbuilding. Each team moved on its own

command. After a knock and announce, Agent Greene was with the first group as

it breached the main residence door. Agent Greene then moved around to the

outbuilding, which was about to be breached, and was the fourth person to enter

the outbuilding. According to Agent Greene, the entry of the main residence and

the outbuilding happened within about a minute of each other. Inside the

outbuilding, agents found a white powdery residue and some razor blades on a

table and a drug press sitting in a corner of the room, but did not find any people.

As the agents “cleared” the outbuilding, Agent Greene called back on his radio and

learned that the other group in the main residence had defendant Williams in

custody. Once defendant Williams was in custody and the property was cleared,

the search stopped.

      Based on what the agents observed in plain view in the outbuilding and the

main residence, agents obtained a search warrant for the property. During the

search pursuant to the search warrant, agents found cocaine, heroin, diluting agent,

blenders, two large mechanical drug presses, wrappers, and weapons. Agents also

found evidence connecting defendant Williams to the residence, including a deed

indicating Williams had purchased the property.




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                     II. SEARCH INCIDENT TO ARREST

      “‘[F]or 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.’” United

States v. Bervaldi, 226 F.3d 1256, 1263 (11th Cir. 2000) (quoting Payton v. New

York, 445 U.S. 573, 603, 100 S. Ct. 1371, 1388 (1980)). To enter a residence to

execute an arrest warrant, a law enforcement officer must have a reasonable belief:

(1) “that the location to be searched is the suspect’s dwelling,” and (2) “that the

suspect is within the residence at the time of entry.” United States v. Magluta, 44

F.3d 1530, 1535 (11th Cir. 1995); see also Bervaldi, 226 F.3d at 1263.

      In undertaking this two-part inquiry, we consider the totality of the

circumstances known to the officer at the time the warrant is executed and are

guided by “common sense factors.” Bervaldi, 226 F.3d at 1263; Magluta, 44 F.3d

at 1535. Officers may make reasonable inferences and presumptions based on the

time of day or observations at the scene, and these presumptions can be rebutted

only by evidence to the contrary. Magluta, 44 F.3d at 1535-36. Thus, it is

reasonable, for example, to infer that a person is at home asleep at 7:30 a.m. or that

a person is at home when his vehicle is parked outside or when he has a visitor. Id.

at 1535, 1538.




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      If officers have made such presumptions and have a reasonable belief that a

suspect is present somewhere on the premises, they may search the entire premises

of a residence, until the suspect is found. Maryland v. Buie, 494 U.S. 325, 332-33,

110 S. Ct. 1093, 1097 (1990). Moreover, if the initial entry into the suspect’s

residence is lawful, the officers are permitted to seize any contraband in plain view

within the residence. United States v. Smith, 459 F.3d 1276, 1290 (11th Cir.

2006).

      To protect their safety while making, and after, an arrest, law enforcement

officers may also perform a “protective sweep” of the residence. Buie, 494 U.S. at

327, 334, 110 S. Ct. at 1094, 1098. A protective sweep is an exception to the

general requirement that officers need exigent circumstances and probable cause,

or a search warrant, to conduct a search of a person’s home. Id. at 333-34, 110 S.

Ct. at 1098. A protective sweep involves only a “cursory inspection of those

spaces where a person may be found” and ends when the reasonable suspicion of

danger is dispelled. Id. at 335-36, 110 S. Ct. at 1099. In conducting a protective

sweep, officers are permitted to look in “closets and other spaces immediately

adjoining the place of arrest”—with or without probable cause or reasonable

suspicion—because the threat of danger is greatest there. Id. at 334, 110 S. Ct. at

1098. To search more removed areas of the residence, however, officers must

have at least a reasonable suspicion of the presence of dangerous individuals. Id.


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That is, “there must be articulable facts which, taken together with the rational

inferences from those facts, would warrant a reasonably prudent officer in

believing that the area to be swept harbors an individual posing a danger to those

on the arrest scene.” Id.

                            III. WILLIAMS’S CLAIMS

A.    Justifications for the Search

      Here, the district court did not err in concluding that the search of the

adjacent outbuilding was reasonable for two independent reasons: (1) the search

was a reasonable entry pursuant to the arrest warrant; and alternatively (2) the

search qualified as a valid protective sweep.

      First, the district court properly concluded that the agents’ simultaneous

entry of both the main residence and the adjacent outbuilding, pursuant to an arrest

warrant for defendant Williams, was a reasonable search. The totality of the facts

and circumstances within the agents’ knowledge supported a reasonable belief that

Williams lived on the property—either in the main residence or in the

outbuilding—and also that Williams was present in one of those two buildings at

the time the arrest warrant was executed. A public records database listed 344 Sun

Valley Road as defendant Williams’s address. Both structures on the property at

that address were possible living spaces. Surveillance showed that Williams

frequented the property, allowing the agents to believe Williams may be living or


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present in either structure. It was further reasonable for agents to presume

Williams was there based on common sense factors, such as the fact that the arrest

took place early in the morning and that Williams’s car was in the driveway.

      Second, the district court correctly concluded that the search of the

outbuilding while defendant Williams was being arrested in the main residence

qualified as a valid protective sweep. The outbuilding was a separate structure

twenty feet from the main residence in which Williams was arrested. Thus, the

arresting agents needed reasonable suspicion that dangerous individuals were

present in the outbuilding for its search to be a valid protective sweep. See Buie,

494 U.S. at 334, 110 S. Ct. at 1098. The layout of the property, the close

proximity of the outbuilding to the main residence, the noise indicating drug

distribution activities might be occurring on the property, and the fact that three

cars were parked in the driveway all suggested that there may be more people

present on the premises, besides defendant Williams, who could pose a threat to

the arresting agents’ safety. Moreover, once the agents had a valid justification for

entering the outbuilding, any evidence found in plain view was properly seized and

could be used to obtain a search warrant. See United States v. Smith, 459 F.3d

1276, 1290 (11th Cir. 2006).




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B.     Execution of the Arrest Warrant

       Finally, there is no merit to defendant William’s newly raised argument that

the evidence found in the outbuilding should have been suppressed because the

arrest warrant executed at “approximately” 6:00 a.m. was invalid.3 The Fourth

Amendment does not contain any time limitations on reasonable searches and

seizures. See U.S. Const. amend. IV; United States v. Gerber, 994 F.2d 1556,

1559 (11th Cir. 1993). Federal Rule of Criminal Procedure 41 provides that

warrants are to be executed “during the daytime,” unless the issuing judge for good

cause shown expressly authorizes another time. Fed. R. Crim. P. 41(e)(2)(A)(ii).

Daytime is defined as “the hours between 6:00 a.m. and 10:00 p.m.” local time.

Fed. R. Crim. P. 41(a)(2)(B). “Unless a clear constitutional violation occurs,

noncompliance with Rule 41 requires suppression of evidence only where (1) there

was ‘prejudice’ in the sense that the search might not have occurred or would not

have been so abrasive if the rule had been followed, or (2) there is evidence of

intentional and deliberate disregard of a provision in the Rule.” Gerber, 994 F.2d

at 1560 (internal quotation marks and alterations omitted) (involving a search

conducted one day after a search warrant expired under Rule 41).

       Agent Greene testified that his team left the staging area after 5:55 a.m. and

that the arrest warrant was executed at approximately 6:00 a.m. When pressed,

       3
         We review grounds for evidentiary error that were not raised in the district court only for
plain error. See United States v. Turner, 474 F.3d 1265, 1275 (11th Cir. 2007).
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Agent Green was adamant that he did not think it was possible the warrant was

executed before 6:00 a.m., explaining that Williams’s arrest was part of a

coordinated execution of arrests of multiple charged conspirators in the area.

However, even assuming arguendo that the team began the knock-and-announce

procedure one or two minutes before 6:00 a.m., there was no evidence that the

agents did so deliberately or that Williams’s arrest at the residence would not have

otherwise occurred. Indeed, defendant Williams does not dispute that the arrest

warrant was supported by probable cause. Under Gerber, any technical

noncompliance with Rule 41(e)(2)(A)(ii) would not require suppression of the

evidence. And Defendant Williams cites no precedent establishing a constitutional

violation under these circumstances. Accordingly, defendant Williams has not

shown error, much less plain error.

                               IV. CONCLUSION

      For all these reasons, we affirm the district court’s denial of defendant

Williams’s motion to suppress.

      AFFIRMED.




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