              Case: 18-11331    Date Filed: 11/27/2018   Page: 1 of 7


                                                             [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 18-11331
                            Non-Argument Calendar
                          ________________________

                   D.C. Docket No. 8:16-cr-00531-JSM-CPT-1

UNITED STATES OF AMERICA,

                                                               Plaintiff - Appellee,

                                       versus

KIRBY GANT,

                                                            Defendant - Appellant.

                          ________________________

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

                               (November 27, 2018)

Before MARCUS, WILSON and HULL, Circuit Judges.

PER CURIAM:

      Kirby Gant appeals his convictions for possession with intent to distribute

cocaine base, possession of a firearm in furtherance of a drug-related crime, and

being a felon in possession of a firearm. He argues that the district court erred in
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denying his motion to suppress the evidence found in his automobile because neither

the automobile nor plain view exception to the warrant requirement applies, and

because the improper inventory procedure invalidated the inevitable discovery

doctrine. After thorough review, we affirm.

      We review a district court’s denial of a motion to suppress under a mixed

standard, reviewing the district court’s findings of fact for clear error and its

application of the law to the facts de novo. United States v. Jones, 377 F.3d 1313,

1314 (11th Cir. 2004) (per curiam). A district court’s determination of probable

cause is reviewed de novo. United States v. Lebowitz, 676 F.3d 1000, 1010 (11th

Cir. 2012) (per curiam). “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).

      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. In most circumstances,

unless there is consent, police officers must obtain a warrant supported by probable

cause to justify a search under the Fourth Amendment. United States v. Magluta,

418 F.3d 1166, 1182 (11th Cir. 2005). Indeed, “the basic rule [is] that ‘searches

conducted outside the judicial process, without prior approval by judge or

magistrate, are per se unreasonable under the Fourth Amendment -- subject only to


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a few specifically established and well-delineated exceptions.’” Arizona v. Gant,

556 U.S. 332, 338 (2009) (quoting Katz v. United States, 389 U.S. 347, 357 (1967)).

      One exception to the warrant requirement is the automobile exception. United

States v. Lindsey, 482 F.3d 1285, 1293 (11th Cir. 2007). “The automobile exception

allows the police to conduct a search of a vehicle if (1) the vehicle is readily mobile;

and (2) the police have probable cause for the search.” Id. The requirement of

mobility is satisfied if the automobile is “operational” or “reasonably appear[s] to be

capable of functioning.” Id.; United States v. Watts, 329 F.3d 1282, 1286 (11th Cir.

2003) (quotation omitted).      “[T]he ability of a vehicle to become mobile is

sufficient,” and “[t]he vehicle does not have to be moving at the moment when the

police obtain probable cause to search.” United States v. Alexander, 835 F.2d 1406,

1409 (11th Cir. 1988). 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 the vehicle,” Lindsey, 482 F.3d at 1293 (quotation omitted), including,

for example, where contraband is in plain view in the vehicle. See United States v.

Spoerke, 568 F.3d 1236, 1249 (11th Cir. 2009) (finding probable cause for a

warrantless search when the officer observed a pipe bomb in plain view in the

vehicle).

      The plain view doctrine permits the warrantless seizure of an object when an

officer is lawfully located in a place from which the object can be plainly viewed,


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the officer has a lawful right to access the object, and the object’s incriminating

character is immediately apparent. United States v. Smith, 459 F.3d 1276, 1290

(11th Cir. 2006). For an item’s incriminating character to be immediately apparent,

police must have probable cause to believe the object in plain view is contraband or

evidence of a crime. Id. at 1290-91. Probable cause does not require “an officer to

know with absolutely certainty that all elements of a putative crime have been

completed when he seizes an article which reasonably appears to be incriminating

evidence.” United States v. Slocum, 708 F.2d 587, 605 (11th Cir. 1983) (quotation

omitted). Further, we analyze probable cause “with a common sense view to the

realities of normal life.” United States v. Herzbrun, 723 F.2d 773, 775 (11th Cir.

1984). “[A] police officer may draw inferences based on his own experience in

deciding whether probable cause exists,” and “[a]n appeals court should give due

weight to a trial court’s finding that the officer was credible and the inference was

reasonable.” Ornelas v. United States, 517 U.S. 690, 700 (1996). So, “[a]lthough

we must decide the legal issue of whether probable cause exists,” we do so giving

“weight to the inferences that law enforcement agents draw from the facts.” Smith,

459 F.3d at 1291 (quotation omitted).

      Here, the district court did not err in denying Gant’s motion to suppress

because the seizure of the firearm and crack cocaine found in his vehicle was

authorized under the automobile and plain view exceptions to the warrant


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requirement. As for the first prong of the automobile exception, the record reveals

more than sufficient evidence to prove that the car Gant was sitting in was readily

mobile. Indeed, Gant makes no argument that the district court’s finding that the

vehicle was parked in a parking lot and that “the driver’s door was open and the

interior lights to the vehicle were on” was incorrect or unfounded by the record, and

we can ascertain no clear error in the court’s finding that the lights of the vehicle

were on.       Further, in light of this finding, we agree with the district court’s

conclusion that the vehicle was “operational.” As the officers testified, Gant was in

the driver’s seat, the overhead lights were on, and the radio was playing -- all of

which indicate that the automobile, though not moving at the time, appeared capable

of moving. Alexander, 835 F.2d at 1409. To the extent Gant takes issue with the

sufficiency of the district court’s findings -- even though, through its adoption of the

magistrate judge’s report and recommendation (“R&R”), the district court found that

the interior lights were on through the officers’ testimony, properly recognized that

the vehicle must be readily mobile to satisfy the first prong of the automobile

exception, and then concluded that the automobile exception applied -- Gant

provides no binding precedent requiring the district court to make an explicit finding

of mobility.

      As for the second prong of the test, the district court did not err in concluding

that probable cause existed to search the vehicle. Gant argues that probably cause


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was lacking because he was arrested only for assault on an officer. However, the

subsequent search of his person found 9.6 grams of marijuana, 15 hydrocodone pills,

and $1,192 dollars in cash. Not only did the officers find drugs and cash on him, but

one of the officers could plainly view in the vehicle a clear bag of what looked like

crack cocaine.    Viewing the totality of the circumstances, it was objectively

reasonable to believe that it was fairly probable that more drugs could be found in

the area where Gant had just previously occupied. Lindsey, 482 F.3d at 1293;

Spoerke, 568 F.3d at 1249. As for Gant’s argument that the officers failed to conduct

a field test on the items found, and thus could not know for sure that they were drugs,

it lacks merit. As we’ve said, officers are not required to know with certainty that

certain items are illegal contraband. Slocum, 708 F.2d at 605. Thus, because the

vehicle was readily mobile and probable cause existed, the district court properly

applied the automobile exception to the warrant requirement in this case.

      We also find no error in the district court’s conclusion that the seizure of the

contraband was justified under the plain view exception. The first prong of the test

was satisfied because the officers were lawfully on patrol in a public area and, from

their standing position next to the car with its interior lights on, they could see into

the front seat’s cup holder, which held a firearm. The second prong is satisfied

because, as we’ve already held, the automobile exception applies, which means that

the officers had a lawful right of access to the object. As for the third prong, the


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totality of the circumstances demonstrated the requisite incriminating character of

the items viewed. Again, we do not require that the officer “know with absolutely

certainty” that the substance in the clear bag was crack cocaine and allow for the

“common sense view to the realities of normal life” to justify probable cause. Id.;

Herzbrun, 723 F.2d at 775.      Thus, the plain view exception to the warrant

requirement applied and the firearm and crack cocaine were properly seized.

      Because the automobile and plain view exceptions applied, we need not

decide whether the inevitable discovery doctrine and the inventory search exception

also would have applied to the search. Accordingly, we affirm.

      AFFIRMED.




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