                                                        [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________                  FILED
                                                      U.S. COURT OF APPEALS
                                                        ELEVENTH CIRCUIT
                            No. 09-12654
                                                            JUNE 10, 2010
                        Non-Argument Calendar
                                                             JOHN LEY
                      ________________________                CLERK

                D. C. Docket No. 09-00051-CR-01-JEC-1


UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                 versus

CARLOS HURTADO O'CAMPO,

                                                        Defendant-Appellant.


                      ________________________

               Appeal from the United States District Court
                  for the Northern District of Georgia
                    _________________________

                             (June 10, 2010)

Before TJOFLAT, EDMONDSON and WILSON, Circuit Judges.
PER CURIAM:



      Carlos Hurtado O’Campo appeals the denial of a motion to suppress in his

drug conspiracy conviction, 21 U.S.C. §§ 841(b)(1)(B)(vii), 846. No reversible

error has been shown; we affirm.

      In reviewing the denial of a motion to suppress, we review “the findings of

fact for clear error and the application of law to those facts de novo.” United States

v. Mercer, 541 F.3d 1070, 1073-74 (11th Cir. 2008), cert. denied, 129 S.Ct. 954

(2009). And we construe all facts in the light most favorable to the prevailing

party. Id. at 1074.

      O’Campo first argues that the plain language of the search warrant

authorized the seizure of no items from his residence because the search revealed

no illegal drugs; and the items seized as indicative of marijuana manufacturing

were not, by themselves, subject to seizure. A search warrant must “particularly

describ[e] the place to be searched, and the persons or things to be seized.” United

States v. Khanani, 502 F.3d 1281, 1289 (11th Cir. 2007).

      Here, the warrant authorized seizure of (1) marijuana; (2) raw materials,

products, and equipment which could have been used or were intended for use in

the manufacturing of marijuana and were “themselves subject to seizure;” and (3)



                                           2
moneys and other things of value found in close proximity to controlled

substances. While the search of O’Campo’s residence revealed no illegal drugs, a

search of the basement revealed many items associated with marijuana growing

operations -- including a ballast, an amp, a molded case, a track adapter, and digital

timers -- which officers seized.

      Based on the plain language of the warrant, officers properly were

authorized to seize the items which were to be used in the construction of a

marijuana grow house. The presence of illegal drugs was not required to make

these items subject to seizure. Although these items could be used for legitimate

purposes, as O’Campo suggests, here the seized items were incriminating on their

face because, before entering the house, executing officers had probable cause to

believe that the house contained a marijuana growing operation. Therefore, the

items seized were evidence of the marijuana manufacturing offense and were

“themselves subject to seizure.”

      The district court here did conclude that certain seized items -- including a

treadmill, a child’s four-wheeler, several electronics items, and documents -- were

beyond the scope of the search warrant and ordered that these items be suppressed.

O’Campo argues that the district court should have granted total suppression

because the executing officers acted in flagrant disregard for the terms of the



                                          3
search warrant: seizing anything of value from his home.

      A search does not become invalid merely because some items not covered

by a warrant are seized. United States v. Schandl, 947 F.2d 462, 465 (11th Cir.

1991) (explaining that “[t]his is especially true where the extra-warrant items were

not received into evidence against the defendant”). Total suppression of all items

seized, including properly seized items, “may be appropriate if the executing

officers’ conduct exceeds any reasonable interpretation of the warrant’s

provisions.” United States v. Wuagneux, 683 F.2d 1343, 1354 (11th Cir. 1982)

(citations omitted). But “absent a ‘flagrant disregard’ of the terms of the warrant,

the seizure of items outside the scope of a warrant will not affect the admissibility

of items properly seized.” Id.

       Although some improper seizures occurred here, we conclude that the

executing officers did not flagrantly disregard the terms of the search warrant. The

executing officer, Slade McCullogh, testified that he seized these items, in part,

because they were items of value and could indicate ill-gotten gains or living above

one’s means; but the warrant authorized seizure of things of value only if those

things were in close proximity to controlled substances. That the executing officer

may not have fully understood what the warrant covered is insufficient to support a

conclusion of flagrant disregard. McCullough attempted to stay within the



                                           4
boundaries of the warrant by contacting the District Attorney’s Office to inquire

about what items could be seized. The DA’s office advised McCullough that he

was authorized to seize electronic equipment and other things of value. Thus,

McCullough exercised some discretion in executing the warrant and did not simply

seize all things of value.1 We cannot say that McCullough’s misunderstanding of

the warrant or lack of judgment demonstrated flagrant disregard warranting total

suppression.2

       O’Campo finally challenges the district court’s conclusion that the seizure of

certain sales receipts was proper under the plain view doctrine, contending that the

record does not support the court’s assumption that the incriminating nature of the

receipts immediately was apparent to McCullough. “The ‘plain view’ doctrine

permits a warrantless seizure where (1) an officer is lawfully located in the place

from which the seized object could be plainly viewed and must have a lawful right

of access to the object itself; and (2) the incriminating character of the items is

immediately apparent.” United States v. Smith, 459 F.3d 1276, 1290 (11th Cir.


       1
         We reject O’Campo’s argument that the police department had a policy of seizing all
things of value during searches to enhance the budget of the Sheriff’s office. McCullough’s
testimony indicated that the amount he seized depended on the amount of drugs found and that
seized items could enhance the office’s budget.
       2
         Contrary to O’Campo’s argument, the court did realize that it had the discretion to
suppress all seized evidence as it noted that total suppression “may” be appropriate in certain
cases; the district court simply chose not to exercise this discretion. That the court admonished
McCullough for some of his practices did not amount to a conclusion of flagrant disregard.

                                                 5
2006). For an item’s incriminating character to be “immediately apparent,” an

officer merely needs probable cause to believe the item is contraband. Texas v.

Brown, 103 S.Ct. 1535, 1543 (1983). The government bears the burden of proving

an exception to the warrant requirement. United States v. McGough, 412 F.3d

1232, 1237 n.4 (11th Cir. 2005).

       Here, McCullough found a plastic bag hidden in the insulation of the attic,

which contained sales receipts of transactions from local building supply stores.

Construing all facts in favor of the government, we see no error in the district

court’s conclusion that the incriminating character of the receipts immediately was

apparent. McCullough testified that the receipts were inside the bag. Therefore,

the district court made an obvious inference that McCullough looked inside the

bag. See United States v. Van Horn, 789 F.2d 1492, 1499 (11th Cir. 1986) (district

court permitted to draw “obvious inference” that federal agents knew that

defendant was target of a state investigation because agents knew that the state had

wiretapped defendant’s phone).3

       And McCullough had probable cause to believe that the receipts were

contraband given his testimony at the suppression hearing that (1) he observed the



       3
        That McCullough lawfully was in the attic where the bag was seized is not in dispute.
Whether McCullough looked into the bag while still in the attic or later does not matter because
he was authorized to look in the bag for drugs.

                                                6
basement being converted into a marijuana grow house; (2) before the search, he

had received information that a codefendant purchased equipment from a Lowe’s

or Home Depot store; (3) the receipts matched this information; and (4) he

previously had found contraband in the insulation of attics. See Brown, 103 S.Ct.

at 154 (probable cause “merely requires that the facts available to the officer would

warrant a man of reasonable caution in the belief . . . that certain items may be

contraband”). Therefore, the district court concluded permissibly that the

incriminating character of the receipts, which bore the logos of home improvement

stores, immediately was apparent to McCullough and admitted the receipts under

the plain view doctrine.

      AFFIRMED.




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