                                                                                         PUBLISH

                       IN THE UNITED STATES COURT OF APPEALS

                                FOR THE ELEVENTH CIRCUIT

                                  ________________________
                                                                              FILED
                                                                      U.S. COURT OF APPEALS
                                         No. 97-5864                    ELEVENTH CIRCUIT
                                  ________________________                   03/09/99
                                                                         THOMAS K. KAHN
                                D. C. Docket No. 96-1013-CR-SH                CLERK



UNITED STATES OF AMERICA,
                                                                                Plaintiff-Appellee,

                                               versus


FRANK CHAVES and RAFAEL GARCIA,
                                                                           Defendants-Appellants.

                                  ________________________

                          Appeals from the United States District Court
                              for the Southern District of Florida
                                _________________________
                                       (March 9, 1999)

Before HATCHETT, Chief Judge, BARKETT, Circuit Judge, and RONEY, Senior Circuit
Judge.

BARKETT, Circuit Judge:

       Frank Chaves and Rafael Garcia appeal their convictions for conspiring to possess

cocaine with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1) and 846, and for

possessing cocaine with the intent to distribute in violation of 21 U.S.C. § 841(a)(1). Garcia also

appeals from his conviction for knowingly carrying a firearm in relation to a drug trafficking

offense in violation of 18 U.S.C. §§ 924(c).

                                        BACKGROUND
       On December 12, 1996, agents of the Drug Enforcement Administration (“DEA”)

received information from a confidential informant relating to drug trafficking in Miami, Florida.

Based on the information provided, the DEA developed a plan to seize approximately 240

kilograms of cocaine using the informant’s van. The informant was to provide the keys to the

van to a third person, who would then pick up the drugs and return with the van. Although DEA

agents surveilled the food court at the shopping mall where the hand-off of the keys was to take

place, they did not see the person to whom the informant gave the keys. DEA agents, however,

did see Frank Chaves drive off in the informant’s van. Using both car and helicopter, the DEA

surveilled the van. Chaves, driving the informant’s van, stopped at a warehouse in Hialeah

Gardens, and departed a short time thereafter. Chaves then drove the van to a Miami Subs

restaurant and entered. While Chaves was in the restaurant, a DEA agent approached the van

and saw several boxes in an area that was previously empty. DEA agents then proceeded to

arrest Chaves and search the van, seizing ten boxes containing 240 kilograms of cocaine, some

money, and keys belonging to Chaves.1

       Shortly after arresting Chaves, DEA agents, who were still surveiling the warehouse,

arrested Rafael Garcia and John Torres as they exited the warehouse. Both men were carrying

firearms at the time of their arrest. The door of the warehouse was locked and none of the keys

taken from Garcia and Torres could open the warehouse. The agents at the warehouse then

waited approximately forty-five minutes outside the warehouse with Garcia and Torres in

custody. At this time, the agents at the warehouse, who had been joined by those arresting

Chaves, conducted a warrantless entry of the warehouse, which was opened by “jimmying” the


       1
           These keys, it turned out, were to the warehouse.

                                                  2
door using a knife blade. During the sweep of the warehouse, which lasted approximately five to

ten minutes, the agents saw boxes similar to those found in the van.

       At this point, a search warrant affidavit was drafted, relying on information obtained both

before and as a result of the warrantless entry. Late in the evening of December 12, a search

warrant was obtained for the warehouse and executed. As a result of the execution of the

warrant, DEA agents found approximately 400 kilograms of cocaine, as well as packaging

material, boxes, gloves and items belonging to Chaves.

       Chaves, Garcia, and Torres were subsequently indicted. After the district court denied

motions by all the defendants to suppress evidence obtained by the DEA agents, Torres pled

guilty. Chaves and Garcia went to trial and they were convicted as charged.2 This appeal

followed.



                                          DISCUSSION

       On appeal, both Chaves and Garcia argue that the search of the van and the warrantless

entry at the warehouse violated their Fourth Amendment rights and, therefore, their motions to

suppress the cocaine seized from the van and at the warehouse should have been granted.

Chaves claims that the district court erred in ruling that he did not have standing to challenge the

entry of the warehouse, while Garcia argues that the district court erred in ruling that he did not

have standing to challenge the search of the van. Both defendants also argue that the district

court erred in denying their motions to disclose the identity of the confidential informant.



       2
        The district court granted a motion for judgment of acquittal in favor of Chaves on the
charge of carrying a firearm in relation to a drug trafficking offense.

                                                 3
Finally, Garcia argues that because the district court took over the suppression hearing from the

magistrate judge after the magistrate judge had taken the testimony of one witness, he is entitled

to a new suppression hearing.

       Initially, we find no abuse of discretion in the trial court’s denial of the motion to

disclose the confidential informant. Likewise, we find no reversible error in Garcia's claim that

the district court should not have completed the suppression hearing after the magistrate judge

had already heard from one witness. Although we agree with Garcia that 28 U.S.C. § 636, which

authorizes magistrate judges to hold hearings on motions to suppress, does not allow a district

court and a magistrate judge to hear a motion to suppress together, cutting off the ability to

object to the magistrate judge’s credibility findings, we do not find that, under the specific

circumstances here, reversal is warranted.

       With reference to the Fourth Amendment issues raised, we turn first to the question

whether Chaves’ and Garcia’s respective Fourth Amendment rights were implicated by the

searches conducted by the police officers in this case. Although the parties label this inquiry as a

question of standing, as did the district court, the Supreme Court recently reminded us that the

question “‘is more properly placed within the purview of substantive Fourth Amendment law

than within that of standing.’” Minnesota v. Carter, 119 S. Ct. 469, 472 (1998) (quoting Rakas

v. Illinois, 439 U.S. 128, 140 (1978)). As Carter teaches, “in order to claim the protection of the

Fourth Amendment, a defendant must demonstrate that he personally has an expectation of

privacy in the place searched, and that his expectation is reasonable . . . .” Id.; see also United

States v. Cooper, 133 F.3d 1394, 1398 (11th Cir. 1998).




                                                  4
       Taking Garcia's claim first, we find no error in the district court's determination that

Garcia lacked a reasonable expectation of privacy in the van. Garcia advances no facts to

support any claim of an expectation of privacy in the van other than a claim that the contraband

in the van belonged to him. This, however, cannot establish that Garcia's Fourth Amendment

rights were implicated by the search of the van. Garcia must show that he had a reasonable

expectation of privacy in the place searched and he has failed to do so. “A person who is

aggrieved by an illegal search and seizure only through the introduction of damaging evidence

secured by a search of a third person’s premises or property has not had any of his Fourth

Amendment rights infringed.” Rakas, 439 U.S. at 134.

       Chaves, on the other hand, did have a reasonable expectation of privacy in the

warehouse, and the district court erred in its finding to the contrary. As the government

recognizes, lack of ownership is not dispositive. See United States v. Garcia, 741 F.2d 363, 365-

66 (11th Cir. 1984) (“[L]egal ownership is not a prerequisite for a legitimate expectation of

privacy.”). As the Supreme Court has recognized, in a variety of contexts, even where a

defendant does not own the property searched, he or she may nonetheless have a reasonable

expectation of privacy in that place by virtue of his or her relationship with that place. See

Carter, 119 S. Ct. at 474 (holding that defendants lacked a legitimate expectation of privacy

because they did not have a relationship with the home owner, but rather were “simply permitted

on the premises”); id. at 478-79 (Kennedy, J., concurring) (recognizing that “almost all social

guests have a legitimate expectation of privacy, and hence protection against unreasonable

searches, in their host’s home,” but finding no such expectation here because defendants only

had a “fleeting and insubstantial connection with Thompson’s home”); Minnesota v. Olson, 495


                                                 5
U.S. 91, 96-100 (1990) (holding that an overnight guest had a legitimate expectation of privacy

in his host's home); O’Connor v. Ortega, 480 U.S. 709, 714-19 (1987) (recognizing that, in some

circumstances, an employee has a reasonable expectation of privacy in his or her workplace).

       Although Chaves did not own or formally rent the warehouse, we believe that his

connection to the warehouse was sufficient to establish a reasonable expectation of privacy in the

warehouse. See United States v. Baron-Mantilla, 743 F.2d 868, 870 (11th Cir. 1984) (finding

that defendant, who did not own or rent premises searched, “could have established a legitimate

expectation of privacy by demonstrating ‘an unrestricted right of occupancy or custody and

control of the premises as distinguished from occasional presence on the premises as a mere

guest or invitee.’”) (quoting United States v. Bachner, 706 F.2d 1121, 1126 n.6 (11th Cir.

1983)). The circumstances here lead us to conclude that Chaves was no “mere guest or invitee,”

but instead was much closer to that of one who maintained both “custody and control” of the

warehouse. Chaves had the only key to the warehouse, giving him a measure of control and

ability to exclude others. While possession of a key, without more, might not be sufficient to

establish a reasonable expectation of privacy, see Baron-Mantilla, 743 F.2d at 870, Chaves

seems to have had the only key and, what is more, he also kept personal and business papers at

the warehouse. In these circumstances, the Fourth Amendment protects Chaves’ privacy

interests in the warehouse. See Rakas, 439 U.S. at 149 (recognizing that defendant in Jones v.

United States, 362 U.S. 257 (1960) “could legitimately expect privacy” where he obtained a key

to friend's apartment, giving him “complete dominion and control over the apartment,” and he

kept possessions there). The government makes much of the fact that Chaves maintained his

principal place of business in another warehouse. Under the Fourth Amendment, however, an


                                                6
individual is not limited to one place of business; the Fourth Amendment protects the reasonable

expectation of privacy he or she has in multiple places. See Olsen, 495 U.S. at 96 n.5 (noting

that the Fourth Amendment “provides sanctuary for citizens wherever they have a legitimate

expectation of privacy”).

       We recognize that “[p]roperty used for commercial purposes is treated differently for

Fourth Amendment purposes than residential property.” Carter, 119 S. Ct. at 474. The Supreme

Court has recognized that an “expectation of privacy in commercial premises . . . is different

from, and indeed less than, a similar expectation in an individual's home.” New York v. Burger,

482 U.S. 691, 700 (1987). Certainly, the government’s ability to conduct searches of a

warehouse is far broader than its ability to search a residence. The fact that Chaves has a lesser

expectation of privacy in the warehouse vis-a-vis a residence, however, does not mean that he

has no legitimate expectation of privacy in the warehouse. Accordingly, we find, in the

particular circumstances presented here, that the district court erred in concluding that Chaves

lacked a reasonable expectation of privacy in the warehouse searched by the police.

       We now turn to consider appellants’ arguments that the searches in this case violated the

Fourth Amendment. Chaves argues that cocaine seized from his van should be suppressed

because he was arrested without probable cause, making the search of the van incident to arrest

impermissible. In the circumstances of this case, however, we find that the district court did not

err in concluding that the police had probable cause to arrest Chaves. As noted above, the

confidential informant told the police that the van, which Chaves was driving, was to be loaded

with cocaine, the van was observed stopping briefly at a warehouse, and, immediately

afterwards, boxes were observed in a previously empty area of the van. These facts, we


                                                 7
conclude, were sufficient to establish probable cause to arrest Chaves and search the van and

seize its contents incident to that arrest. See United States v. Diaz-Lizaraza, 981 F.2d 1216,

1222 (11th Cir. 1993).        We hold, however, that the initial warrantless entry of the

warehouse under the auspices of conducting a “protective sweep” did not comport with the

Fourth Amendment. In Maryland v. Buie, 494 U.S. 325 (1990), the Supreme Court held that a

properly limited protective sweep, conducted incident to an arrest, is permitted under the Fourth

Amendment only “when the searching officer possesses a reasonable belief based on specific and

articulable facts that the area to be swept harbors an individual posing a danger to those on the

arrest scene.” Id. at 337. The Court in Buie permitted police officers to undertake protective

sweeps in these instances because of the compelling “interest of the officers in taking steps to

assure themselves that the house in which a suspect is being, or has just been, arrested is not

harboring other persons who are dangerous and who could unexpectedly launch an attack,”

emphasizing that the intrusion was limited to “no more than necessary to protect the officer from

harm.” Id. at 333.

       Here, the government’s own action undermines any claim that the entry had a protective

purpose. It is undisputed that the sweep in this case did not immediately follow the arrest of

Garcia and Torres outside the locked warehouse, but occurred a substantial time after the agents

arrested Garcia and Torres. During the interim period, approximately forty-five minutes, the

officers simply sat in their cars outside the warehouse. The agents, thus, saw no immediate need

to enter the warehouse to protect themselves or other persons in the area. Buie requires officers

to have “a reasonable basis for believing that their search will reduce the danger of harm to




                                                 8
themselves or of violent interference with their mission,” id. at 337 (Stevens, J., concurring) and

the facts show no such basis here.

        Moreover, the government has failed to point to any “specific and articulable” facts that

would lead a reasonably prudent officer to believe that, at the time of the sweep, a sweep was

necessary for protective purposes. Much of the government’s argument why a sweep was

needed for protective purposes is not based on any specific facts in the government’s possession,

but rather is based on the lack of information in the government’s possession. The testimony at

the suppression hearing indicates that the officers had no information regarding the inside of the

warehouse. However, in the absence of specific and articulable facts showing that another

individual, who posed a danger to the officers or others, was inside the warehouse, the officers’

lack of information cannot justify the warrantless sweep in this case. See United States v.

Colbert, 76 F.3d 773, 778 (6th Cir. 1996) (“Lack of information cannot provide an articulable

basis upon which to justify a protective sweep.”); see also Sharrar v. Felsing, 128 F.3d 810, 825

(3d Cir. 1997) (“agree[ing] with . . . Colbert that ‘[n]o information cannot be an articulable basis

for a sweep that requires information to justify it in the first place’”).

        The government also points to the fact that Garcia and Torres were arrested with

weapons in their possession. However, this information “implies nothing regarding the possible

presence of anyone being in [the warehouse] – the touchstone of the protective sweep analysis.”

Sharrar, 128 F.3d at 825; see also Colbert, 76 F.3d at 777 (“The facts on which officers may

justify a Buie protective sweep are those facts giving rise to a suspicion of danger from an attack

by a third party during the arrest, not the dangerousness of the arrested individual.”). Finally, the

government notes that one of the agents believed that there was a large shipment of cocaine in


                                                   9
the warehouse, making it unlikely that the cocaine would be left unguarded. However, none of

the agents were able to see inside the warehouse and none of the agents offered any concrete

factual basis for believing that there was either additional cocaine or individuals inside the

warehouse. This is exactly the kind of “mere ‘inchoate and unparticularized suspicion or

hunch’” that Buie indicates is insufficient to support a warrantless sweep. Buie, 494 U.S, at 332

(quoting Terry v. Ohio, 392 U.S. 1, 27 (1968)).3

       Having found that the warrantless entry violated the Fourth Amendment, we must

consider whether the results of the subsequent search, conducted after the warrant was finally

obtained, should have been suppressed. Under this Circuit's precedents, where, as here, the

search warrant affidavit is based on information acquired as a result of an illegal entry, we must

look to whether the other information provided in the affidavit is sufficient to support a probable

cause finding. United States v. Glinton, 154 F.3d 1245, 1254-55 (11th Cir. 1998). If so,

suppression is not required because “the exclusionary rule has no application where the

government learned of the evidence from an independent source,” id. at 1255, provided, of

course, that “the agents’ decision to seek the warrant was [not] prompted by what they had seen

during the initial entry . . . .” Murray v. United States, 487 U.S. 533, 542 (1987). Accord United

States v. Markling, 7 F.3d 1309, 1314-18 (7th Cir. 1993); United States v. Restrepo, 966 F.2d

964, 968-72 (5th Cir. 1992); United States v. Herrold, 962 F.2d 1131, 1139-44 (3d Cir. 1992);

United States v. Gillenwaters, 890 F.2d 679, 681-82 (4th Cir. 1989); United States v. Salas, 879

F.2d 530, 536-39 (9th Cir. 1989); United States v. Veillette, 778 F.2d 899, 903-04 (1st Cir.


       3
        The government also notes that there was a cafeteria and a school in the vicinity of the
warehouse. However, the testimony showed that there were no civilians near the warehouse at
any time leading up to the warrantless entry.

                                                 10
1985). Even discounting that portion of the affidavit describing information uncovered during

the unconstitutional warrantless entry, the balance of the affidavit supports a finding of probable

cause. Further, there is nothing in the record to suggest that the police officers sought the

warrant because of what they saw during the illegal entry into the warehouse. In light of the

information from the confidential informant, the fact that the previously-empty van was seized

with cocaine just after a short stop at the warehouse, and the seizure of Garcia and Torres, all of

which supported the search warrant, we cannot say that the officers were prompted to seek a

warrant based on what they had seen during the unconstitutional warrantless entry. Under

Glinton, therefore, the district court did not err in admitting as evidence the cocaine and other

items seized at the warehouse.

       Accordingly, the judgment of the district court is AFFIRMED.




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