                                                                                 [PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT                          FILED
                                                                     U.S. COURT OF APPEALS
                              ________________________                 ELEVENTH CIRCUIT
                                                                       SEPTEMBER 14, 2000
                                                                        THOMAS K. KAHN
                                Nos. 98-5419 & 98-5547                       CLERK
                              ________________________

                           D. C. Docket No. 98-183-CR-DLG

UNITED STATES OF AMERICA,
                                                                         Plaintiff-Appellant,

                                            versus

JASON R. BERVALDI,
                                                                       Defendant-Appellee.

                              ________________________

                     Appeals from the United States District Court
                         for the Southern District of Florida
                           _________________________
                                (September 14, 2000)

Before ANDERSON, Chief Judge, CARNES and OAKES*, Circuit Judges.

ANDERSON, Chief Judge:

____________________
* Honorable James L. Oakes, U.S. Circuit Judge for the Second Circuit, sitting by designation
        In this interlocutory appeal, the United States challenges the district court’s

suppression of statements made by Jason Bervaldi and of physical evidence seized

from his residence. This appeal presents two questions: whether the law enforcement

agents who arrested Bervaldi and seized the evidence had a reasonable belief at the

time of entering his residence that it was the dwelling of the subject of an arrest

warrant they were attempting to execute; and whether they had a reasonable belief that

this subject would be present there. For the reasons stated below, we conclude that

they did have such reasonable beliefs and, accordingly, reverse and remand.

                                I.   BACKGROUND

        At approximately 6:00 am on March 10, 1998, Officers Wilfredo Abascal and

Rafael Masferrer and several other officers approached the house at 3621 S.W. 129th

Avenue (“129th Avenue”), in Miami, Florida, to execute an arrest warrant for Bennett

Deridder. The officers observed two trucks and a boat trailer parked in the driveway.

The officers were wearing raid jackets featuring the word “police” on the front and

back. The sky was dark and a single exterior light shone about two feet from the front

door.

        Officer Abascal knocked hard on the front door for about ten minutes without

response. As the officers were turning away to check the license tags on the parked

vehicles, the front door opened about one foot. Officer Abascal observed the left side


                                           2
of a barefoot, bare-chested man standing at the door wearing shorts, but could not,

given the lighting, clearly see the man’s features. Officer Abascal observed, however,

that the man had the same height, stocky build, and complexion as Deridder,1 and that

the hair on the man’s head was shaved while Deridder had last been observed with a

full head of hair. Officer Abascal also observed that the man’s left hand was behind

his back and thought that he might be armed.

       Officer Abascal announced that they were police. The man slammed the door

shut. The officers kicked the door down, entered the house, and caught the man

within ten to twenty feet of the entrance. A cocked, but unloaded 9 millimeter pistol

was found resting on a gym bag ten feet to the right of the door. Officers Abascal and

Masferrer quickly realized that the man that they held was not Deridder. The officers

performed a protective sweep of the house believing that Deridder or others might be

in the house. During this sweep, the officers noticed a very strong smell of marijuana

coming from the kitchen.

       The officers discovered that the apprehended man was Jason Bervaldi. After

Bervaldi was advised of his Miranda rights and indicated he understood, the officers

asked him whether marijuana was in the house. Bervaldi showed the officers



   1
    Abascal had seen Deridder the previous June, when he and another officer had a brief
conversation with him at a food stop. See infra.

                                              3
marijuana stored in the kitchen cupboard. Bervaldi orally consented to a search, but

would not sign a written consent form. The officers did not immediately search

beyond the initial protective sweep. Instead, some officers went to get a search

warrant. When they returned with a search warrant around 5:00 p.m., a search was

conducted that resulted in the discovery and seizure of 60 pounds of marijuana stored

in kitchen cupboards, 17 sealed baggies of marijuana, 1 kilogram of cocaine, 3 bags

of cocaine cutting agent, 1 Ohaus digital scale, 1 Nexus scale, 1 cellular phone ESN

reader, various cellular phones and accessories, 1 Cobray MAC-119 mm

semiautomatic pistol, 1 Browning rifle with ammunition, $53,483 in U.S. currency,

1 1998 Ford pickup truck, 1 1997 Contender boat, 1 jet ski, 1 motorcycle, 1 Rolex

watch, 1 large machine press, and 1 wooden mold. Although Bervaldi was kept in

custody throughout the day at his residence, he was not formally arrested until later

that evening.

      On March 20, 1998, a federal grand jury sitting in Miami, Florida, returned a

three-count indictment charging Bervaldi with knowingly possessing cocaine with

intent to distribute, in violation of 21 U.S.C. § 841(a)(1), knowingly possessing

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

knowingly and intentionally possessing and receiving a firearm which had the

importer and manufacturer’s serial number removed, obliterated, and altered, in


                                         4
violation of 18 U.S.C. § 922(k). On May 1, 1998, Bervaldi filed motions to suppress

his statements and the physical evidence seized on March 10, 1998, on Fourth

Amendment grounds.

      On July 2 and 15, a magistrate judge conducted an evidentiary hearing on the

motions. At this hearing, Daniel Mahoney, a special agent with the Drug Enforcement

Administration (“DEA”), testified that Bennett Deridder was identified in June 1997

as a person involved in a drug operation based on telephone calls intercepted by

lawful wire taps. Mahoney indicated that Officers Abascal and Masferrer assisted in

identifying Deridder’s residence. In particular, these officers identified a vehicle that

Deridder was driving based on a traffic citation and determined that that vehicle, a red

Chevy truck, was registered to 3621 S.W. 129th Avenue in the name of Betty Spatten.

Mahoney further explained that on June 27, 1997, these two officers observed the

vehicle leaving this residence, followed the vehicle, and then spoke with the driver,

Deridder.

      Abascal testified that on June 27, 1997, he and Masferrer attempted to get a

voice identification on Deridder to link the wiretap evidence to Deridder. Consistent

with Mahoney’s explanation, Abascal explained that they sought Deridder at the 129th

Avenue address after checking Metro-Dade computer records for traffic tickets which

revealed that on June 4, 1997, Deridder had received a traffic citation while driving


                                           5
a red pickup Chevy truck with tag number VAW56Y. Although the traffic citation

record listed 4406 S.W. 132nd Place (“132nd Place”) as Deridder’s address, they

discovered that this truck was registered in Betty Spatten’s name to the 129th Avenue

address. On June 27, 1998, they observed Deridder come out of 3621 S.W. 129th

Avenue residence, get in the same red pickup truck, and drive to a “food stop.” When

Deridder stopped at the food stop, Abascal and Masferrer approached him, identified

themselves, and had a brief conversation with him. Abascal asked Deridder where he

lived. Deridder provided the 129th Avenue address and what he identified as his

parents’ address, the 132nd Place address. Abascal explained that Deridder provided

two addresses, “one for his parents, and one for his residence.”

       Masferrer’s testimony was consistent with Abascal’s testimony. Masferrer also

reported that Deridder gave the 129th Avenue address as his residence and the 132nd

Place address as his parents’ address.2

   2
     To make the distinction clear, on redirect examination of Abascal, the Government elicited
the following:
        Q. Did he give you the address for his parents’ house before or after you asked to see
        his driver’s license?
        A. He confirmed that his parents lived at the address that was on the face of his
        driver’s license, and that he lived at 3621 129th Avenue address.
        Q. Now, in your mind was he making a distinction between what was on his driver’s
        license and where he was telling you he lived?
        A. Absolutely.
        Q. And in your mind, where was he telling you that he lived, referring to Bennett
        Deridder?
        A. 3621 Southwest 129th Avenue.
On direct examination of Masferrer concerning the June 27th interview with Deridder, the

                                               6
        At the hearing, the Government also adduced evidence concerning queries of

computer systems. Mahony testified that he used Autotrac, a compilation of several

databases, ranging from highway safety to corporations and real estate, to acquire

information on Deridder. On June 26, 1997, Mahoney ran the first Autotrac query on

Bennett Deridder. The printout of this query, which was admitted into evidence,

included the following:

       Known Subject Addresses
       --------------------------------
       DEC-85/MAR-97 - 4406 SW 132 PL, MIAMI FL 33175



Government elicited the following:
        Q. What kind of identification did you get from Deridder?
        A. I got his driver’s license, and I asked him where he lives. He gave me the address.
        That address 129th and the address of his father and mother 132nd Avenue.
        Q. Which address is shown on his driver license?
        A. The one on 132nd Avenue.
        Q. You said he gave you the address, 129th Avenue address, what did he say about that
        address?
        A. That he lived there. That was his house. He lived there and his license, the address
        on his license was his mom’s, his parent’s house.
        Q. Did he give you anymore [sic] information at that time about where he was living?
        A. He was living on 129th Avenue.
Mahoney also testified that Deridder gave two addresses during the June 27th stop: the 132nd
Place address and the 129th Avenue address. He did not explain if or how Deridder
distinguished between them. However, he was not present at the stop. Only Abascal and
Masferrer provided first-hand testimony about what Deridder told them about these addresses.
As explained above, both unequivocally indicated that Deridder stated that he resided at the
129th Avenue address but that his parents resided at the 132nd Place address, which was on his
license. The magistrate judge’s report and recommendation indicates that Deridder told the
officers that he lived at both addresses. The report and recommendation, however, does not
distinguish between them as the officers did when they testified. To the extent the district court,
by adopting this report and recommendation, failed to thus distinguish between these addresses,
we find clear error. This error may explain the magistrate judge’s apparent overemphasis on the
132nd Place address.

                                                7
Mahoney explained that this indicated that some type of information found in one of

the databases contained in Autotrac linked Deridder to that address from December

1985 to March 1997. Mahoney also explained that the printout listed Phillip Deridder,

Bennett Deridder’s father, as a possible relative and listed 4406 SW 132 Place, Miami,

as the father’s address. The printout listed a 1991 WBON trailer, with a tag which

expired in September 1992, as registered to 132nd Place in Bennett Deridder’s name.

The printout also listed Betty Spatten as a possible associated person. Her address

was also listed as 132nd Place for various periods ending in September 1996.

However, as noted above, the check of the vehicle in which Bennett Deridder was

observed revealed that it was registered to Betty Spatten at the 129th Avenue address.

      Mahoney also testified about a computer check of Flight Equipment, Inc.,

conducted on August 20, 1997. The printout of this check, which was admitted in

evidence, included:

      Historical Principles
      -------------------------
      ....
      Registered Agent - Status: Active
              RIDDER BENNETT D
              3621 S.W. 129th AVENUE (REAR)
              MIAMI FL 33175 Country: US

                   RIDDER, BENNETT D

                   MAY- 95/MAY-95 - 4406 SW 132ND PL MIAMI FL 33175
                                  3621 SW 129TH AVE MIAMI FL 33175

                                          8
                                        832 E 21ST ST HIALEAH FL 33013

      Director
            DE RIDDER BENNETT
            3621 S.W. 129th AVENUE (REAR)
            MIAMI FL 33175

                   DERIDDER, BENNETT                           DOB: 9/11/70
                   SS#: [omitted] Was issued in Florida in 1986

                   DEC-85/APR-96 - 4406 SW 132 PL, MIAMI FL 33175

The printout also indicates that the previous address of Flight Equipment, Inc., was

“3621 SW 129 AVE REAR MIAMI FL 33175.”

      Mahoney also testified about a second Autotrac check of Deridder conducted

on February 4, 1998. The printout of this check, which was admitted into evidence,

included:

      Addresses Linked To Subject
      ------------------------------------
      JUN-97/JUN-97 - 3621 S.W. 129TH AVE (REAR), MIAMI FL 33175
      JUN-97/JUN-97 - 832 EAST 21ST STREET, HIALEAH FL 33013
      DEC-85/JUN-97 - 4406 SW 132 PL, MIAMI FL 33175

This printout also indicated that a 1995 homemade trailer, with a tag which expired

in September 1998, was registered to the 132nd Place address in Bennett Deridder’s

name. There was no information on this printout after June of 1997 showing any

other address for Bennett Deridder.

      Mahoney also described an Information America printout, a credit report, that


                                         9
was dated February 9, 1998. For Deridder, it listed the 132nd Place address as well

as some other addresses. Likewise, driver’s license records and arrest records that

Mahoney checked listed the 132nd Place as Deridder’s address.

      Mahoney testified that he gave the arresting officers the 129th Avenue address

and the 132nd Place address for Deridder. He explained that he gave them the 129th

Avenue address because it was “obvious” to the investigators that Deridder was only

using his parents’ address, 132nd Place, as a “straw address” for records and was

actually residing elsewhere. The parents’ address was provided because, if Deridder

needed to be tracked down, speaking to his parents to seek his whereabouts would be

part of the process.

      Mahoney explained that the arrest warrant listed 132nd Place as Deridder’s last

known address because that is the permanent residence of his family, who would be

contacted if Deridder needed to be located. He explained that 129th Avenue would

be the first place to check for Deridder because it is where he resided.

      Mahoney also testified that he observed a red Chevy pickup with tag VAW56Y

at the 3621 S.W. 129th Avenue address on August 20, 1997. A check revealed that

it was registered to Betty Spatten at that address.

      Bervaldi adduced several pieces of evidence to show that Deridder did not

reside at 129th Avenue on March 10, 1998. Brian McGuinness, a private investigator,


                                          10
testified about Autotrac. He explained that Autotrac is a “compilation of public record

data that comes from a variety of sources” and that it is not always accurate. He also

testified that Agent Mahoney could have run a “Dossier” search, which would have

been more expansive than the searches Mahoney ran, but that there was “not very

much” difference between these two types of searches. Bervaldi introduced into

evidence a Dossier search of the 129th Avenue address, which indicated that Bervaldi

registered a vehicle there in January 1998. Mahoney testified that he did not run a

Dossier search because it generally does not have investigative value but instead just

lists trails of information about every possible individual who lived at a residence.

      Second, McGuinness testified about several records he acquired which

indicated that Deridder moved from the 129th Avenue residence around the beginning

of 1998. First, a warranty deed, dated February 17, 1998, which indicated that

Marcella and Phillip Deridder sold the property to Jason Bervaldi, was recorded in the

public records on March 5, 1998. Florida Power & Light records, acquired by

subpoena, indicated that Beatriz Ramos was a customer at the 129th Avenue address

beginning on December 30, 1997, and Felipe Deridder was a customer from May 14,

1996, to December 30, 1997. Miami-Dade Water & Sewer records, also acquired by

subpoena, indicated that service for the 129th Avenue address was in the name of

Marcella Deridder from May 3, 1996, to January 5, 1998, and in the name of Beatriz


                                          11
Ramos starting on December 30, 1997. Likewise, BellSouth Telecommunication

records, again acquired by subpoena, indicated that service to the 129th Avenue

address was established by Ramos on January 5, 1998.3

         Bervaldi also introduced the affidavit of Donald Brooks, a part-time carpenter,

which indicated Brooks did some repair work on the 129th Avenue residence in the

last part of January and early February of 1998 and that, to the best of Brooks’

recollection, there was no for sale sign on the property at that time. Pedro Molina, a

landscaper who provided service to the 129th Avenue address, testified that he

observed a for sale sign in the summer and fall of 1997, but when he went to the

address on December 22, he did not see the sign. Abascal testified that he saw a for

sale sign in front of the house on June 27, 1997, and on the morning of March 10,

1998. Masferrer testified that he recalled seeing a for sale sign prior to March 10,

1998, but could not recall if he saw one that morning. Pictures taken of the house on

March 10, 1998, do not show a for sale sign.4

         On July 23, 1998, the magistrate issued a report and recommendation. In

particular, the magistrate judge concluded that the officers could not have reasonably

   3
       Ramos is Bervaldi’s long-time live-in girlfriend.
   4
     We note that though the parties stipulated that Deridder did not actually reside at 129th
Avenue on March 10, 1998, it ultimately became clear that he did not actually reside at 132nd
Place either. In fact, Bervaldi led the officers to a Calusa Club Drive residence on March 10,
1998, where officers spoke with Deridder’s girlfriend, who stated that he lived there with her.

                                                 12
believed that Deridder resided at the 129th Avenue house on March 10, 1998, but that,

had they reasonably believed that this was his residence, then they could have

reasonably believed that Deridder was at the house when they entered it. The

magistrate judge recommended that the motions to suppress be granted. On August

18, 1998, the district court adopted the magistrate judge’s report and recommendation

and granted the motions. The United States appeals.

                                  II.   DISCUSSION

      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. See United States v. Magluta, 44 F.3d 1530, 1536

(11th Cir. 1995). Further, when considering a ruling on a motion to suppress, all facts

are construed in the light most favorable to the prevailing party below. See id. The

magistrate judge's conclusion that the police officers did not have reason to believe

that the house was Deridder's residence, adopted in full by the district court, is a legal

determination subject to de novo review. See id. at 1537 (“We therefore hold that the

magistrate judge's conclusion that the marshals did not have reason to believe that

Magluta was at home, was a legal determination and not a factual finding.”).

      Although searches and seizures inside a home without a search warrant are

presumptively unreasonable, in Payton v. New York, 445 U.S. 573, 603, 100 S.Ct.


                                           13
1371, 1388 (1980), the Supreme Court held that “for 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.” We have since held that Payton requires a two-part inquiry to

determine if entry pursuant to an arrest warrant complies with the Fourth

Amendment’s proscription of unreasonable searches. See Magluta, 44 F.3d at 1533.

In particular, we have held that "first, there must be a reasonable belief that the

location to be searched is the suspect’s dwelling, and second, the police must have

‘reason to believe’ that the suspect is within the dwelling.” Id. Elaborating on this

inquiry, we have explained that “for law enforcement officials to enter a residence to

execute an arrest warrant for a resident of the premises, the facts and circumstances

within the knowledge of the law enforcement agents, when viewed in the totality,

must warrant a reasonable belief that the location to be searched is the suspect’s

dwelling, and that the suspect is within the residence at the time of entry.” Id. at 1535.

Furthermore, “in evaluating this on the spot determination, as to the second Payton

prong, courts must be sensitive to common sense factors indicating a resident’s

presence.” Id. We believe such “common sense factors” must also guide courts in

evaluating the first Payton prong.

      We examine first whether the officers had “a reasonable belief” that 129th


                                           14
Avenue was Deridder’s dwelling when they entered on the morning of March 10,

1998. Despite the Autotrac reports and driver’s license records indicating that

Deridder’s address was 132nd Place, there was strong evidence indicating that

Deridder in reality resided at 129th Avenue. Both Officers Abascal and Masferrer

observed Deridder leave the 129th Avenue residence and enter a red Chevy pickup

truck on June 27, 1997. In addition, both officers unequivocally testified that when

they interviewed Deridder on that day he indicated that he resided at 129th Avenue

but that the address on his license, 132nd Place, was his parents’ address. See supra

n. 1. It is not unusual for persons of Deridder’s age–the Autotrac report and driver’s

license records indicate he was twenty-seven at the time of the entry–to use their

parents’ address for records, such as driver’s licenses, official mailing address, et

cetera, because in a sense it may be a more permanent or fixed address than the

address of their own residence. For example, oftentimes university students or law

clerks in their twenties use their parents’ address while studying or clerking. The

officers and the courts are entitled to consider such a common sense factor. See

Magluta, 44 F.3d at 1535. Moreover, even if the 132nd Place address was his

“permanent residence” in some sense, that is not inconsistent with Deridder’s

residence at the 129th Avenue address. See United States v. Risse, 83 F.3d 212, 217

(8th Cir. 1996) (“[W]e reject Risse's contention that, because the officers knew, or


                                         15
should have known, that Rhoads maintained a permanent residence on Knoll Street,

they could not have reasonably believed that Rhoads resided on Huntington Road.”).

Nor is it significant that the arrest warrant listed the 132nd Place address. See United

States v. Lauter, 57 F.3d 212, 214 (2d Cir. 1995) (rejecting argument that when police

believe that the target of an arrest lives at an address other than the one listed on the

warrant, they must apply for a new warrant before arresting the suspect at the new

residence). The officers knew that Deridder used his parents’ address as a “permanent

address” although he actually resided elsewhere. In light of the officers’ observation

of Deridder at the 129th Avenue residence and his statements to them that he resided

there and that the 132nd Place address was his parents’ address, we readily conclude

that the officers had a reasonable belief that Deridder resided at 129th Avenue on June

27, 1997.

      However, this conclusion does not end the first inquiry required by Payton. The

officers must have had a reasonable belief that 129th Avenue was Deridder’s

residence at the time of entry–the morning of March 10, 1998. The question becomes,

then, whether or not the passage of time and the acquisition of additional information

so eroded the reasonable belief that 129th Avenue was Deridder’s residence on June

27, 1997, that believing this was his residence on March 10, 1998, was not reasonable.

In other words, unless the belief that Deridder resided at 129th Avenue was still a


                                           16
reasonable belief on March 10, 1998, the entry was unconstitutional.

       Agent Mahoney testified that on August 20, 1997, he observed at the 129th

Avenue address the red Chevy pickup truck, in which Deridder received a ticket on

June 4, 1997, and in which Abascal and Masferrer observed Deridder leave the 129th

Avenue address on June 27, 1997. The magistrate judge did not mention this fact in

its report and recommendation, nor did the district court note it.5 Nonetheless, we find

this fact important. It extends the basis for believing that Deridder was dwelling at the

129th Avenue residence to August 20, 1997, by showing that the vehicle Deridder was

known to drive was there on that date.6

       Furthermore, the August 20, 1997, Autotrac report on Flight Equipment, Inc.,

listed Deridder as an historical principle, in particular a former registered agent and

director, with an address of 129th Avenue. This report also indicated that the previous


   5
     There is no indication that the magistrate judge found Mahoney or any of the officers’
testimony noncredible; to the contrary, at the conclusion of the hearing, the magistrate judge
remarked, “I think the officers did a very nice job in being very candid,” and in his report and
recommendation, he noted conflicts in the evidence were not resolved on the basis of the
credibility of witnesses.
   6
      Bervaldi argues that the district court, by stating “No information obtained after June 1997
ever established or confirmed that DeRidder was still living at the 129th Avenue location, even
part-time, or as one of two residences on March 10, 1998,” and “No vehicles owned or operated
by DeRidder were traceable to that location between June 1997 and March 1998,” made an
implicit finding that the August 20, 1997, observation, which the district court failed to mention,
was not evidence linking Deridder to that location. To the extent the district court made a factual
finding that no evidence linked Deridder to the 129th Avenue residence after June 27, 1997, we
find it clearly erroneous in light of the August 20, 1997, observation of the Deridder vehicle at
that address.

                                                17
address of Flight Equipment, Inc., was 129th Avenue. Although the report provided

a new address for the company–832 East 21st Street, the address also given for its

current registered agent, Jaime Oubuna, this does not suggest that Deridder’s address

was no longer 129th Avenue. In fact, it suggests just the contrary–i.e., while Deridder

was the registered agent, the company’s address was Deridder’s address, 129th

Avenue, but that when Deridder became an “Historical” principle the company’s

address changed to that of its current registered agent, Oubuna.

      In light of the August 20th observation of the Deridder vehicle at the address,

we conclude that the officers reasonably believed that Deridder resided at 129th

Avenue on August 20, 1997. However, the question remains whether this information

and Deridder’s statements to the officers became stale in the 6 months and 21 days

between August 20, 1997, and the March 10, 1998, entry.

      We have developed a staleness doctrine in the context of probable cause which

requires that the information supporting the government’s application for a warrant

must show that probable cause exists at the time the warrant issues. See United States

v. Harris, 20 F.3d 445, 450 (11th Cir. 1994) (“For probable cause to exist, however,

the information supporting of the government’s application for a search warrant must

be timely, for probable cause must exist when the magistrate judge issues the search

warrant.”); United States v. Domme, 753 F.2d 950, 953 (11th Cir. 1985) (“As with


                                          18
other types of search warrants, the probable cause needed to obtain a wiretap must

exist at the time surveillance is authorized”); see also Sgro v. United States, 287 U.S.

206, 210, 53 S.Ct. 138, 140 (1932) (“[I]t is manifest that the proof must be of facts so

closely related to the time of the issue of the warrant as to justify a finding of probable

cause at that time.”). Although reasonable belief is different than probable cause,

see Magluta, 44 F.3d at 1534-35, we find this staleness doctrine instructive here.

There is no particular rule or time limit for when information becomes stale. See

Harris, 20 F.3d at 450 (“When reviewing staleness challenges we do not apply some

talismanic rule which establishes arbitrary time limitations.”); United States v.

Bascaro, 742 F.2d 1335, 1345 (11th Cir. 1984) (“No mechanical test exists for

determining when information becomes fatally stale.”). Rather, “‘staleness is an issue

which must be decided on the peculiar facts of each case.’” Bascaro, 742 F.2d at 1345

(quoting United States v. Hyde, 574 F.2d 856, 865 (5th Cir. 1978)); see Domme, 753

F.2d at 953 (“[S]taleness is an issue that courts must decide by evaluating the facts of

a particular case.”).

      The courts are not without guidance, however. In addition to the length of time,

courts should consider the “nature of the suspected crime (discrete crimes or ongoing

conspiracy), habits of the accused, character of the items sought, and nature and

function of the premises to be searched.” Harris, 20 F.3d at 450; see also United


                                            19
States v. Haimowitz, 706 F.2d 1549, 1555 (11th Cir. 1983) (“In general, the basic

criterion as to the duration of probable cause is the inherent nature of the crime.”)

(internal quotation marks and citation omitted). For example, the former Fifth Circuit

held that four-month-old reports of projectiles in the walls and floors of a dwelling as

a result of the test-firing of the murder weapon were not stale because the “floors and

walls of a house are relatively permanent fixtures and would not likely be subject to

removal over the period of four months.” United States v. Deicidue, 603 F.2d 535,

560 (5th Cir. 1979).7 In considering the nature of the crime, we have distinguished

between criminal activity which is protracted and continuous and that which is

isolated:

       “The circuits hold that where an affidavit recites a mere isolated
       violation then it is not unreasonable to believe that probable cause
       quickly dwindles with the passage of time. On the other hand, if an
       affidavit recites activity indicating protracted or continuous conduct,
       time is of less significance.”

Bascaro, 742 F.2d at 1345-46 (quoting Bastida v. Henderson, 487 F.2d 860, 864 (5th

Cir. 1973)); see also Harris, 20 F.3d at 451 (“Although most of the information

contained in the affidavit referred to events which took place over two years before

Geer applied for the warrant, the affidavit nonetheless alleged a longstanding and


   7
      Decisions of the former Fifth Circuit rendered prior to October 1, 1981, are circuit
precedent in the Eleventh Circuit. See Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th
Cir. 1981) (en banc).

                                              20
protracted conspiracy . . . . Because the affidavit alleged ongoing activity and a

continuing relationship between the coconspirators, the information is not fatally

stale.”); Domme, 753 F.2d at 953 (“When criminal activity is protracted and

continuous, it is more likely that the passage of time will not dissipate probable

cause.”).

       Residency in a house, like protracted and continuous criminal activity or

projectiles embedded in the house’s walls and floors, generally is not transitory or

ephemeral, but instead endures for some length of time. Although Deridder’s

statement in June of 1997 and the observations of Deridder in June of 1997 and of his

vehicle in June and August of 1997 are isolated pieces of evidence, they support, as

we concluded above, a reasonable belief that Deridder resided at 129th Avenue. It

was reasonable for the officers to believe that, because Deridder resided at 129th

Avenue, he would reside there for some period of time. How long the officers could

reasonably believe this period would extend is difficult to say. As in the probable

cause context, we hesitate to set an arbitrary length of time. However, on the facts of

this case, we believe that it was reasonable for the officers to believe that the residency

extended for at least 6 months and 21 days. As explained below, the officers’ efforts

in this case to refresh the information did not indicate that Deridder had changed

residence. In the probable cause context, we have found that information can remain


                                            21
fresh for longer than the period of time at issue here. For example, in United States

v. Hooshmand, 931 F.2d 725, 735-36 (11th Cir. 1991), we found that an eleven-

month-old report from an informant of his employer’s fraudulent activities was not

stale where the activities were protracted and ongoing and that it was sufficient to

support probable cause for a warrant. Thus, we conclude that the passage of time

alone did not erode the reasonable belief that Deridder resided at 129th Avenue.

       We turn then to the information acquired during this passage of time to

determine if it eroded the reasonable belief. On February 4, 1998, Agent Mahoney

conducted another Autotrac search on Deridder. Although this Autotrac report linked

Deridder to both the 129th Avenue address and the 132nd Place address, the report

indicated that its information was as of June, 1997. As of that time, the officers knew

that Deridder was living at the 129th Avenue address, and that the 132nd Place

address was merely his parents’ address. We readily conclude that the mention here,

and elsewhere, of the 132nd Place address does little to undermine the officers’

reasonable belief that Deridder actually resided at the 129th Avenue address, and that

he merely used his parents’ address for various documents, such as his driver’s

license. 8

   8
      The district court found that the Autotrac report “showed no current information at all on
addresses linked to DeRidder after June, 1997.” We agree. Despite the agent’s efforts to refresh
the information acquired in June, the Autotrac report revealed nothing more recent about
Deridder’s residence.

                                               22
       Because unobserved, extended surveillance of 129th Avenue was impractical

given the neighborhood’s layout, the officers conducted occasional drive-bys of the

129th Avenue residence. On none of these drive-bys after Mahoney’s August 20,

1997, observation did the officers observe either Deridder or the red Chevy truck that

Deridder was known to use. The officers, however, did notice a for sale sign. The

district court found that the for sale sign was not present on the day of the entry.

Bervaldi argues that this should have put the officers on notice that Deridder no longer

resided at 129th Avenue. The court, however, did not find that the officers noticed

that the sign was not present. Given that the officers approached the house in predawn

darkness,9 it is understandable that they did not notice its absence. Determinations of

reasonable belief are based on “the facts and circumstances within the knowledge of

the law enforcement agents.” Magluta, 44 F.3d at 1535. Therefore, so long as the

officers did not notice the sign, it is not significant that photographs taken later in the

day do not depict the sign, that Brooks and Molina, occasional workers at the

residence, do not recall the sign being there in the winter of 1997-98, or that the sign




   9
      According to the charts calculated by the United States Naval Observatory, the sun rose in
Miami on March 10, 1998, at 6:35 a.m. See Astronomical Applications Department, U.S. Naval
Observatory, Sun or Moon Rise/Set Table for One Year, (accessed Aug. 7, 2000)
<http://aa.usno.navy.mil/AA/data/docs/RS_ONEYEAR.html>. We take judicial notice of this
fact. See Fed. R. Evid. 201.

                                               23
was not present that day.10

        Bervaldi argues that the officers could have discovered that Deridder was not

residing at 129th Avenue if they had gone beyond the occasional drive-bys and

Autotrac reports after the summer of 1997. First, Bervaldi argues that a “Dossier”

search, another more expansive type of search on the Autotrac system, would have

shown that Bervaldi registered a vehicle to the 129th Avenue address in January of

1998. Agent Mahoney indicated that he did not run this type of search because in his

experience it was not generally useful. Second, Bervaldi argues that the officers

should have at least checked the county property records and that if they had done so

they would have discovered that Marcella and Phillip Deridder had sold the house in

February. We note that the transfer was not recorded until March 5, 1998, five days

before the challenged entry. In light of the other information supporting the officers’

reasonable belief that this was Derrider’s residence, we do not believe that the

Constitution required that they also check property records. Likewise, though a check

of the utility records prior to the entry would have revealed that the customer was

changed from either Marcella Deridder or Phillip Deridder to Beatriz Ramos around

the beginning of the year, we do not believe that the officers, in light of the


   10
        In any event, the absence of the sign permits several possible inferences including that the
owners abandoned their attempts to sell the house and that they sold the house but that Deridder
still resided there as a tenant, as well as that the house was sold causing Deridder to move.

                                                 24
information they already had, were constitutionally obligated to check these records.

At oral argument, conceding as much, defense counsel agreed that the law does not

currently impose a requirement to check utility records or property records. Although

the officers could have checked into these matters, we do not believe that their failure

to do so is inconsistent with a reasonable belief that Deridder resided at 129th Avenue.

We conclude that the officers had a reasonable belief that 129th Avenue was

Deridder’s dwelling on March 10, 1998.

      Having concluded that the officers reasonably believed that 129th Avenue was

Deridder's dwelling, we turn to the second part of the inquiry: did the officers have

“reason to believe” that Deridder was within the dwelling when they entered on the

morning of March 10, 1998. The officers approached the house around 6:00 in the

morning. They noticed several vehicles parked at the residence. When they knocked

on the front door, someone answered the door. We have noted that “officers may

presume that a person is at home at certain times of the day–a presumption which can

be rebutted by contrary evidence regarding the suspect’s known schedule.” Magluta

44 F.3d at 1533. It was reasonable to believe, in the absence of contrary evidence,

that Deridder would be at his residence at 6:00 in the morning. Even defense counsel

conceded at oral argument that if the officers reasonably believed that Deridder

resided at 129th Avenue, then they had reason to believe he was on the premises at


                                          25
that time. The fact that vehicles were parked at the residence only buttresses the belief

that persons were at the house, including presumably Deridder. Although Deridder

did not answer the door, it was not immediately clear that the person who answered

the door was not Deridder. Indeed the court below concluded that the officers had

reason to believe that the person they saw who answered the door was Deridder. In

any event, the fact that someone other than Deridder answered the door would not

eviscerate the reasonable belief that Deridder was in the dwelling at the time the

officers approached and entered the dwelling. We conclude that the officers had

reason to believe that Deridder was in the dwelling, which the officers reasonably

believed was his residence, at the time that they entered it. Thus, the officers were

permitted to enter the dwelling to attempt to execute the arrest warrant and did not

violate the Fourth Amendment. See Payton, 445 U.S. at 603, 100 S.Ct. at 1388.11

        Because the entry was permitted under Payton,12 we see no reason Bervaldi's

   11
       We note that Bervaldi’s reliance on Steagald v. United States, 451 U.S. 204, 101 S.Ct.
1642 (1981), is misplaced. In Steagald, the Supreme Court held that a search warrant was
required to enter one person’s residence to execute an arrest warrant on another person believed
to be in that residence. See id. at 213-16, 101 S.Ct. at 1648-49. However, the Court recognized
that under Payton, an arrest warrant for a suspect permitted officers to enter what they
reasonably believed was that suspect’s residence when they reasonably believed the suspect was
there. See id. at 214 n. 7, 101 S.Ct. at 1648 n. 7. As explained above, the officers had a
reasonable belief that the 129th Avenue residence was Deridder’s residence, not some third
party’s residence as in Steagald, and that he was there at the time; thus, Payton, not Steagald,
applies.
   12
     Bervaldi does not argue that the mode of entry was unreasonable under the circumstances.
Although the officers kicked the door down and entered, Bervaldi’s failure to rely on this is

                                               26
statements or the evidence seized should have been suppressed. In Maryland v. Buie,

494 U.S. 325, 334, 110 S.Ct. 1093, 1098 (1990), the Supreme Court held that “as an

incident to the arrest the officers could, as a precautionary matter and without

probable cause or reasonable suspicion, look in closets and other spaces immediately

adjoining the place of arrest from which an attack could be immediately launched.”

In addition, the Court explained that the officers may go beyond that to sweep an area

that a reasonably prudent officer believes, based on articulable facts, harbors an

individual posing a danger to those on the arrest scene. See id. The officers

conducted a protective sweep of the entire 129th Avenue residence. To the extent

this sweep may have exceeded the area “immediately adjoining the place of arrest,”

we conclude that a reasonably prudent officer could believe, based on the cocked 9

millimeter pistol observed in the dwelling13 and the reasonable belief that Deridder


understandable in light of the following facts: the officers had knocked on the door for ten
minutes; a man whom the officer thought was Deridder finally answered the door and seemed to
be concealing something, which the officers thought was a gun behind his back; and when the
officers, with jackets featuring the word “police,” announced themselves as police, the man
promptly slammed the door in their faces. In light of the foregoing facts and the finding of the
court below that the officers believed it was Deridder, it is understandable that Bervaldi argues
on appeal only the two prongs of the Magluta inquiry–whether there was a reasonable belief that
it was Deridder’s residence, and whether there was a reasonable belief that Deridder was there at
the time–and it is understandable that Bervaldi’s primary focus is on the former prong.
   13
      We note that ordinarily a firearm found on an arrestee does not imply the possible presence
of another armed individual. See United States v. Chaves, 169 F.3d 687, 692 (11th Cir.), cert.
denied, 120 S.Ct. 585 (1999). However, here a pistol was found on a gym bag on the floor
approximately ten feet from the door. Although the pistol may have been abandoned by
Bervaldi after he slammed the door and attempted to flee, it could also have been believed to be

                                               27
was in the dwelling, that the house harbored an individual posing a danger sufficient

to permit a sweep of its entirety. See United States v. Tobin, 923 F.2d 1506, 1513

(11th Cir. 1991) (en banc) (holding that a reasonable belief that someone else could

be inside the house permits a protective sweep). There is nothing in the record to

indicate that the sweep exceeded its proper scope, i.e., it was limited to “a cursory

inspection of those spaces where a person may be found.” Id. at 335, 110 S.Ct. at

1099.14 In the course of this sweep, the officers detected the smell of marijuana. They

only questioned Bervaldi after he was told his Miranda rights and indicated that he

understood them. Bervaldi showed them the marijuana in the kitchen cupboards. No

evidence was seized until a search warrant was acquired. This search warrant was

supported by probable cause, i.e., the officers’ observation of the marijuana that

Bervaldi showed them. Thus, we conclude that the district court erred in suppressing

the statements and evidence in this case.




that of a third party whom the officers had not yet observed and who abandoned it either to flee
or, upon recalling that it was unloaded, to retrieve a more potent weapon. The presence of the
pistol and the reasonable belief that Deridder was in the dwelling amply support the protective
sweep of the entire house.
   14
      In his brief on appeal, Bervaldi claims that “the agents opened closets, kitchen cabinets
and bedroom drawers.” There is no support in the record for this claim. Rather, the testimony of
Officers Abascal and Masferrer indicates that the search was properly limited in scope. We also
note that during a protective sweep, officers are permitted to open closets, assuming they could
harbor a person.

                                               28
                             III.   CONCLUSION

      Accordingly, we reverse the district court's grant of Bervaldi's motions to

suppress and remand for further proceedings.

      REVERSED AND REMANDED.




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