                                                              [DO NOT PUBLISH]


                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT           FILED
                          ________________________ U.S. COURT OF APPEALS
                                                             ELEVENTH CIRCUIT
                                                                DEC 28, 2010
                                 No. 10-12737
                                                                 JOHN LEY
                             Non-Argument Calendar
                                                                   CLERK
                           ________________________

                  D. C. Docket No. 4:09-cr-00024-HLM-WEJ-1

UNITED STATES OF AMERICA,

                                                                 Plaintiff-Appellee,

                                       versus

JUAN LUIS VAZQUEZ,

                                                              Defendant-Appellant.

                           ________________________

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

                               (December 28, 2010)

Before DUBINA, Chief Judge, HULL and FAY, Circuit Judges.

PER CURIAM:

      Appellant Juan Luis Vazquez appeals his convictions and 120-month total

sentence for possessing with intent to distribute cocaine, in violation of 21 U.S.C.
§ 841(a)(1) and (b)(1)(B)(ii), and possessing a firearm in furtherance of a

drug-trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)(i). On appeal,

Vazquez asserts that (1) he was entitled to a hearing, pursuant to Franks v.

Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978), because he

impliedly challenged the arrest warrant in his Motion to Suppress Evidence;

(2) law enforcement officers had neither a valid warrant nor probable cause to

arrest him; (3) the district court erred in denying his Motion to Suppress Evidence;

and (4) his sentence was above the guideline range that he should have received,

because the district court improperly considered the drugs and firearm that officers

seized from his residence.

                                          I.

      A district court’s denial of a motion as untimely is reviewed for abuse of

discretion. United States v. Ramirez, 324 F.3d 1225, 1226 (11th Cir. 2003). The

Constitution prohibits an officer from making perjurious or recklessly false

statements in support of a warrant. Franks, 438 U.S. at 164-65, 98 S. Ct. at 2681.

To be entitled to a Franks hearing, a defendant must allege that the affidavit

supporting the warrant contained a “deliberate falsehood” or “reckless disregard

for the truth” from the affiant, which, when set aside, leaves insufficient “content

in the warrant affidavit to support a finding of probable cause.” Id. at 171-72, 98

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S. Ct. at 2684. The requirement of a substantial preliminary showing “is not

lightly met.” United States v. Arbolaez, 450 F.3d 1283, 1294 (11th Cir. 2006).

The false statements must have been made knowingly and intentionally, as

allegations of negligence or innocent mistake are insufficient. Franks, 438 U.S. at

171, 98 S. Ct. at 2684. “Affidavits supporting arrest warrants are presumptively

valid.” United States v. Kapordelis, 569 F.3d 1291, 1309 (11th Cir. 2009)

(citation omitted), cert. denied, 130 S. Ct. 1315 (2010). The defendant bears the

burden of establishing that, absent misrepresentations or omissions, the warrant

lacks probable cause. See United States v. Novaton, 271 F.3d 968, 986-87 (11th

Cir. 2001).

      Because the record demonstrates that Vazquez did not specifically challenge

the affidavit underlying the arrest warrant until his post-suppression-hearing brief,

and because he did not present any evidence that the alleged false statements were

made knowingly, intelligently, or with reckless disregard for the truth, we

conclude that Vazquez failed to make the “substantial preliminary showing”

necessary for a Franks hearing. Accordingly, we hold that the district court

properly determined that Vazquez waived a Franks challenge.




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                                          II.

      Officers may arrest an individual without a warrant if they have reasonable

cause to believe that the individual has engaged in a felony. Parker v. Allen, 565

F.3d 1258, 1289 (11th Cir. 2009), cert. denied, 130 S. Ct. 1073 (2010). Probable

cause exists if an arrest is objectively reasonable based on the totality of the

circumstances. Lee v. Ferraro, 284 F.3d 1188, 1195 (11th Cir. 2002). “This

standard is met when the facts and circumstances within the officer’s knowledge,

of which he or she has reasonably trustworthy information, would cause a prudent

person to believe, under the circumstances shown, that the suspect has committed,

is committing, or is about to commit an offense.” Id. (internal quotation marks

omitted).

      We conclude from the record that law enforcement officers had reasonably

trustworthy information that would cause a prudent person to believe that Vazquez

was committing a felony, based on information from a confidential informant, who

had obtained cocaine previously from Vazquez and who personally observed

cocaine in the floorboard of Vazquez’s vehicle shortly before the arrest.

Accordingly, we hold that probable cause supported Vazquez’s arrest.

                                          III.




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         The denial of a motion to suppress evidence presents a mixed question of

law and fact. United States v. Holloway, 290 F.3d 1331, 1334 (11th Cir. 2002).

We review the district court’s factual findings for clear error, and its application of

the law to the facts de novo. Id. We construe the facts in the light most favorable

to the prevailing party. Id.

         A warrantless search pursuant to valid consent is an exception to the Fourth

Amendment’s warrant requirement. Schneckloth v. Bustamonte, 412 U.S. 218,

222, 93 S. Ct. 2041, 2045, 36 L. Ed. 2d 854 (1973). We determine whether

consent was voluntarily given based on the totality of the circumstances. United

States v. Acosta, 363 F.3d 1141, 1151 (11th Cir. 2004). A person may impliedly

give consent to a search through body language. See United States v.

Ramirez-Chilel, 289 F.3d 744, 750, 752 (11th Cir. 2002) (holding that the

defendant had consented to the officers’ entry by yielding the right-of-way at his

door).

         Evidence gathered from a search following an illegal arrest must be

suppressed as the tainted fruit of the illegal arrest unless the defendant’s consent to

the search was both (1) voluntary and (2) not the product of the illegal detention.

United States v. Santa, 236 F.3d 662, 676 (11th Cir. 2000). Relevant factors

include (1) the temporal proximity of the arrest and the consent to the search,

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(2) intervening circumstances, and (3) the purpose and flagrancy of the official

misconduct. Id. at 677. Pre-consent warnings under Miranda v. Arizona, 384 U.S.

436, 86 S. Ct. 1602, 16 L.Ed.2d 694 (1966), are not required to validate consent to

searches. United States v. Garcia, 496 F.2d 670, 674 (5th Cir. 1974).

      Before custodial interrogation, a suspect must be given specific warnings of

his Fifth Amendment rights. Miranda, 384 U.S. at 444, 86 S. Ct. at 1612. “[T]he

Miranda safeguards come into play whenever a person in custody is subjected to

either express questioning or its functional equivalent.” Rhode Island v. Innis,

446 U.S. 291, 300-01, 100 S. Ct. 1682, 1689, 64 L. Ed. 2d 297 (1980).

“Interrogation” under Miranda refers to express questioning and to any words or

actions on the part of the police, other than those normally attendant to an arrest,

“that the police should know are reasonably likely to elicit an incriminating

response from the suspect.” Id. at 301, 100 S. Ct. at 1689-90.

      A defendant may waive his Miranda rights “provided the waiver is made

voluntarily, knowingly, and intelligently.” Miranda, 384 U.S. at 444, 86 S. Ct.

at 1612. The waiver inquiry is two-pronged: “First, the relinquishment of the right

must have been voluntary in the sense that it was the product of a free and

deliberate choice rather than intimidation, coercion, or deception. Second, the

waiver must have been made with a full awareness of both the nature of the right

                                          6
being abandoned and the consequences of the decision to abandon it.” Moran v.

Burbine, 475 U.S. 412, 421, 106 S. Ct. 1135, 1141, 89 L. Ed. 2d 410 (1986). An

express oral statement waiving the right to remain silent is “usually strong proof of

the validity of that waiver, but is not inevitably either necessary or sufficient to

establish waiver.” North Carolina v. Butler, 441 U.S. 369, 373, 99 S. Ct. 1755,

1757, 60 L. Ed. 2d 286 (1979).

      In a plurality opinion, the Supreme Court has held that a conscious decision

to use the “question-first” technique, where officers interrogate a suspect without

warning of the right to remain silent until that interrogation produces a confession,

then give the suspect Miranda warnings, and “lead[] the suspect to cover the same

ground a second time” violates the Fifth Amendment. Missouri v. Seibert, 542

U.S. 600, 604, 617, 124 S. Ct. 2601, 2605, 2613, 159 L. Ed. 2d 643 (2004).

      “A ‘protective sweep’ is a quick and limited search of premises, incident to

an arrest and conducted to protect the safety of police officers and others.”

Maryland v. Buie, 494 U.S. 325, 327, 110 S. Ct. 1093, 1094, 108 L. Ed. 2d 276

(1990). Police officers do not need a warrant or probable cause to conduct a

protective sweep of a home, but must have “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

                                           7
to those on the arrest scene.” Id. at 334, 110 S. Ct. at 1098. A protective sweep is

limited to a cursory inspection of the spaces where a person may be found, and

must last no longer than necessary to dispel the reasonable suspicion of danger.

Id. at 335-36, 110 S. Ct. at 1099. We have previously upheld protective sweeps of

residences that stemmed from arrests made outside those residences. See United

States v. Tobin, 923 F.2d 1506, 1513 (11th Cir. 1991) (en banc) (involving a

protective sweep of a residence after an arrest in the garage), United States v.

Burgos, 720 F.2d 1520, 1526 (11th Cir. 1983) (involving a protective sweep after

an arrest on a porch).

      Because we conclude from the record that Vazquez’s initial arrest was not

illegal, his subsequent statements and consent to the searches of his vehicle and

residence were not tainted by illegal police activity. Vazquez impliedly and

expressly consented to the search of his truck. His pre-Miranda statements were

not made in response to any interrogation by officers, and his post-Miranda

statements and consent to the search of his home were made after a knowing,

voluntary, and intelligent waiver of his Miranda rights. There was no evidence

that Vazquez’s consent was coerced. Additionally, because officers were aware

that (1) the confidential informant previously had observed individuals other than

Vazquez inside Vazquez’s residence, (2) there were guns inside the residence, and

                                          8
(3) individuals had gone in and out of the residence while it was under

surveillance, the protective sweep of Vazquez’s residence was not improper.

Accordingly, we conclude that the district court properly denied Vazquez’s

Motion to Suppress Evidence.

                                        IV.

      In order for an appeal waiver to be enforceable, the district court must have

discussed the appeal waiver provision with the defendant during the guilty plea

colloquy, or it must be manifestly clear from the record that the defendant

understood the full significance of the appeal waiver. United States v. Bushert,

997 F.2d 1343, 1351 (11th Cir. 1993). The appeal waiver must also have been

knowing and voluntary. See United States v. Segarra, 582 F.3d 1269, 1273 (11th

Cir. 2009), cert. denied, ___ S. Ct. ___ (U.S. Nov. 29, 2010).

      Vazquez’s sentence was within his advisory guideline range based on the

properly-admitted drugs and firearm from his vehicle and residence. Because the

record reflects that the district court discussed the appeal waiver in Vazquez’s plea

agreement during the Rule 11 colloquy, and because the waiver was knowing and

voluntary, the waiver is enforceable and bars Vazquez from appealing the sentence

that he received. Vazquez’s sentence does not fall within the exception for an




                                          9
upward departure or variance from the “guideline range as calculated by the

district court.”

       For the aforementioned reasons, we affirm Vazquez’s convictions and 120-

month total sentence.

       AFFIRMED.




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