                Case: 11-10555       Date Filed: 09/07/2012       Page: 1 of 18

                                                                                   [PUBLISH]


                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                     No. 11-10555
                               ________________________

                       D.C. Docket No. 2:07-cr-00058-JES-DNF-1


UNITED STATES OF AMERICA,

                                                                            Plaintiff-Appellee,


                                            versus

RICHARD M. FRANKLIN,

                                                                        Defendant-Appellant.


                               ________________________

                      Appeal from the United States District Court
                          for the Middle District of Florida
                           _________________________
                                 (September 7, 2012)

Before DUBINA, Chief Judge, JORDAN and ALARCÓN,* Circuit Judges.




       *
        Honorable Arthur L. Alarcón, United States Circuit Judge for the Ninth Circuit, sitting
by designation.
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ALARCÓN, Circuit Judge:

      Richard Franklin has appealed from the district court’s order denying his

motion to suppress firearms seized from within his residence following his arrest

outside the house pursuant to a warrant for absconding from his conditional release

on parole. He was indicted on three counts that charged him with two counts of

being a felon in possession of firearms in violation of 18 U.S.C. §§ 922(g)(1) and

924(e), on separate dates, and one count of possessing a firearm not registered to

him in violation of 26 U.S.C. §§ 5861(d) and 5871.

      Franklin contends that the district court erred in concluding that the

warrantless entry of his residence did not violate the Fourth Amendment because

the evidence showed that probable cause existed that illegally possessed firearms

were in the residence and that exigent circumstances justified an entry without

obtaining a search warrant.

      We agree with the district court that the officer’s conduct did not violate the

Fourth Amendment and affirm.

                                          I

                                          A

      The following evidence was presented at a hearing conducted by the

magistrate judge regarding the validity of the warrantless search of Franklin’s



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residence. After serving a term of imprisonment in a Florida state prison,

following his conviction for burglary and grand theft, Franklin was granted

conditional release of the remainder of his sentence on April 29, 2006. The length

of his conditional release was set to expire on July 16, 2006. Probation Specialist

William Lally (“Officer Lally”) began supervising Franklin on May 2, 2006.

Franklin was informed of the conditions of his release by Officer Lally on that

date. Franklin was instructed that, as a condition of his release, he was required to

allow Officer Lally to search his person, property, and premises.

      On June 23, 2006, Franklin telephoned Office Lally. Franklin stated that the

officer could look for him but he would not find him. He also admitted that he had

not followed Officer Lally’s instruction to report for a drug test because he had

used and was in possession of marijuana. Franklin stated further that “if he had a

gun he would stick it in his mouth and end it all.”

      Officer Lally submitted a report to the Florida Parole Commission on the

same date setting forth several violations of the terms of Franklin’s conditional

release. The Parole Commission issued a warrant for Franklin’s arrest that day.

      Officer Lally attempted to locate Franklin several times without success. He

received information in August 2006 that Franklin was residing at his fiancée’s

home in Fort Myers, Florida. Officer Lally went to this location several times but



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did not see any vehicles there.

      On August 24, 2006, Officer Lally observed two vehicles in the driveway at

approximately 10:30 at night. He drove around the block and on his return he saw

a third car there. The lights were on in the front room of the house.

      Officer Lally called the Lee County Sheriff’s Office and requested backup

assistance. Deputy Sheriff Jamie Thorpe, Deputy Michael Haigis and two other

officers responded to Officer Lally’s request. After they arrived, Officer Lally

knocked on the door loudly several times. He received no response. Officer Lally

showed Deputy Haigis a photograph of Franklin and asked him to go to the back of

the house. There, Deputy Haigis observed Franklin through a rear window. He

also saw several firearms in plain view. Deputy Haigis reported his observations to

Officer Lally. Officer Lally then knocked on the door for approximately ten or

fifteen minutes.

      Officer Lally also telephoned Franklin several times using his cell phone

number. At first, someone answered the telephone and then immediately hung it

up. After a number of attempts, Franklin responded to the telephone call. Officer

Lally recognized his voice. Officer Lally told Franklin that the officers were not

going to leave and that a SWAT team was on the way because this was being

treated as a barricaded gunman situation. Officer Lally told Franklin the only safe



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way to resolve this situation was to come out the door in boxer shorts, with his

hands raised. After several minutes, Franklin came out the front door with his

hands raised. He was taken into custody and placed in a police car.

      Officer Lally testified that, after Franklin was arrested, he entered the house

out of a concern for the safety of the officers since Franklin was a convicted felon

and there were other persons and firearms in the house. Two adults and a child

were in the house when he entered. Upon entering the residence, he seized five

weapons: three rifles, and two sawed off shotguns.

      Officer Lally testified that his entry into the residence was “a combination of

my position as the offender’s parole officer and officer’s safety, securing those

weapons.” Officer Lally submitted a report to the Parole Commission based on the

fact that Franklin was found in a house that contained illegal weapons, including

sawed off shotguns.

                                          B

      On May 9, 2007, a grand jury returned an indictment in the United States

District Court for the Middle District of Florida in which it charged Franklin with

three counts of illegally possessing firearms. On March 1, 2010, Franklin filed a

motion to suppress the firearms seized by Officer Lally after entering Franklin’s

residence following his arrest outside the house. He argued that the firearms and



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his statements to the officers following his arrest were inadmissible because they

were obtained in violation of the Fourth Amendment without a search warrant or

his consent, and in the absence of facts demonstrating probable cause to enter the

residence based on exigent circumstances.

       The Government filed a response to the motion to suppress in which it

asserted that the challenged evidence was admissible on discrete grounds. It

asserted that the evidence was admissible because Franklin had consented to

warrantless searches of his residence in signing his Certificate of Conditional

Release and Terms and Conditions of Supervision. The Government also

contended that the entry of the residence was lawful because the officers had

reasonable suspicion to search Franklin’s residence when they saw firearms in the

dining room through a window. The Government argued that “[t]he officers also

had a right to enter the residence for officer safety . . . .”

       After considering the testimony presented at the evidentiary hearing, the

magistrate judge recommended that the motion to suppress be granted. The

magistrate judge concluded that Franklin was no longer on conditional release on

August 24, 2006, because the termination date was July 16, 2006. Accordingly,

the magistrate judge determined that the condition that Franklin was required to

submit to a search of his property was no longer in effect on that date. He also



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rejected the Government’s argument that the expiration of the term of conditional

release was tolled by the issuance of the arrest warrant on June 23, 2006 because of

Franklin’s violations of the conditions of his release. The magistrate judge held

that Florida’s parole laws do not provide for the tolling of a conditional release

date.

        The magistrate judge rejected the Government’s contention that the good

faith exception to the exclusionary rule, set forth in United States v. Leon, 468 U.S.

897 (1984), and Herring v. United States, 555 U.S. 135 (2009), was applicable. He

reasoned that Officer Lally was not misled in his belief that he was authorized to

conduct a warrantless search since “the termination date [of his conditional release]

was clear on the face of the Conditions of Supervision.” The magistrate judge

expressly found that his belief “was not grounded in good faith.”

        The magistrate judge rejected the Government’s contention that Officer

Lally had the authority to enter the residence to seize the firearms to assure his own

safety and that of the other officers who were present. The magistrate judge

expressly found that Officer Lally’s safety motivation testimony was not credible.

                                          II

                                          A

        After reviewing the findings and recommendation of the magistrate judge,



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the district court denied Franklin’s motion to suppress on June 22, 2010. The

district court agreed with the magistrate judge’s finding that Officer Lally lacked

credibility in testifying that he entered the residence because he believed that the

persons remaining in the residence posed a danger to the officers. The district

court stated that while it “accepts and adopts the Recommended Decision on

Motion to Suppress as to the issues it addresses, the Court finds there was

sufficient probable cause and exigent circumstances to justify the entry of the

residence and seizure of the firearms . . . .” United States v. Franklin, 721 F. Supp.

2d 1229, 1231 (M.D. Fla. 2010) (emphasis added).

      The district court acknowledged that the Government did not argue in its

response to the motion to suppress or in its argument to the magistrate judge that

exigent circumstances authorized the entry into the residence to seize the firearms,

but nonetheless exercised its discretion to consider the issue. It concluded that the

evidence was sufficient to demonstrate that Officer Lally had probable cause to

believe that illegally possessed firearms were in the residence before he entered,

based on Deputy Haigis’s observation of them through a window. The district

court also found that exigent circumstances compelling entry without securing a

search warrant existed because, “considering there were other people at the

residence, and at least two cars in the driveway, under the totality of the



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circumstances, a reasonable, experienced officer would believe that the evidence

might be destroyed or removed before a warrant could have been secured.” Id. at

1236. Based on this reasoning the district court held that “[Officer] Lally’s entry

into the residence and seizure of the firearms was proper.” Id.

                                               B

       Pursuant to a plea agreement, Franklin entered a plea of guilty to Count 2 of

the indictment which charged him with being a convicted felon in possession of

five firearms in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). Pursuant to Fed.

R. Crim. P. 11(a)(2), he reserved his right to appeal the denial of his motion to

suppress.1

       Franklin filed a timely notice of appeal. We have jurisdiction over this

appeal pursuant to 28 U.S.C. § 1291.

                                              III

                                               A

       Franklin contends that the district court erred in determining that the

warrantless search of his residence was reasonable under the Fourth Amendment

based on the probable cause and exigent circumstances exception to the

       1
         In his opening brief, Franklin also claimed that the district court erred by sentencing
him to consecutive terms of imprisonment. This Court subsequently issued an order granting the
Government’s motion to dismiss this claim because Franklin had waived all appeals of his
sentence, except in limited circumstances that do not apply here, as a condition of his plea
bargain. The order limited the appeal to his challenge to the denial of his motion to suppress.

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exclusionary rule because the Government failed to assert this argument before the

magistrate judge.

       “We review for abuse of discretion the treatment by a district court of a

report and recommendation of a magistrate judge.” Stephens v. Tolbert, 471 F.3d

1173, 1175 (11th Cir. 2006). A district court does not abuse its discretion by

accepting an argument not raised before the magistrate judge. Id. at 1176-77. In

Tolbert, this Court held that “[w]e reject the notion that, in its review of the report

and recommendation, the district court performed an appellate function and was

barred, outside of exceptional circumstances, from considering an argument not

raised before the magistrate judge.” Id. The district court did not abuse its

discretion in allowing the Government to argue in its objection to the magistrate

judge’s report and recommendation that the entry and seizure of the firearms did

not violate the Fourth Amendment because the record demonstrated that probable

cause and exigent circumstances justified the officer’s conduct.2


       2
          Even though the district court rested its denial of Franklin’s motion to dismiss on a
different legal basis from those considered by the magistrate judge, it was not required to
conduct an evidentiary hearing because it adopted the magistrate judge’s factual findings and
credibility determination in full. See United States v. Raddatz, 447 U.S. 667, 673-74 (1980)
(holding that district court may adopt the credibility findings of a magistrate judge without
rehearing the testimony on which a magistrate judge based his or her findings and
recommendations); cf. Amlong & Amlong, P.A. v. Denny’s Inc., 500 F.3d 1230, 1250 (11th Cir.
2007) (holding that a district court must hold a new hearing in order to reject a magistrate
judge’s credibility findings unless “there is an articulable basis for rejecting the magistrate’s
original resolution of credibility.” (internal quotation marks omitted) (quoting United States v.
Marshall, 609 F.2d 152, 155 (5th Cir. 1980)). While the legal issue of whether there were

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                                                 B

        Franklin also asserts that the district court erred in concluding that Officer

Lally did not have a reasonable opportunity to try to obtain a search warrant after

Franklin’s arrest outside the residence “while maintaining safety and [also]

preserving the evidence.” Appellant’s Opening Brief at ii. He contends that “[t]he

physical nature of the evidence, rifles, alone, negates any consideration that [such]

evidence could not be preserved while trying to obtain any warrant(s), and safety

was never an issue throughout the event in this case.” Appellant’s Opening Brief

at 6.

        “It is a ‘basic principle of Fourth Amendment law’ that searches and seizures

inside a home without a warrant are presumptively unreasonable.” Payton v. New

York, 445 U.S. 573, 586 (1980). “A warrantless search is allowed, however, where

both probable cause and exigent circumstances exist.” United States v. Tobin, 923

F.2d 1506, 1510 (11th Cir. 1991) (en banc). “The district court’s denial of the

motion to suppress is reviewed as a mixed question of law and fact.” United States

v. Bradley, 644 F.3d 1213, 1261 (11th Cir. 2011). “We accept the facts the district

exigent circumstances based on a reasonable belief that evidence may be destroyed or removed
was not presented before the magistrate judge, the facts were sufficiently developed to support
the legal conclusions of the district court and therefore hearing further testimony was
unnecessary. Cf. Gullatte v. Potts, 654 F.2d 1007, 1011-12 (5th Cir. 1981) (remanding for the
district court to conduct an evidentiary hearing where the magistrate applied an improper legal
test and his factual findings were legally insufficient to allow the district court to conduct the
proper legal analysis).

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court found in resolving the exigent circumstance issue unless the findings are

clearly erroneous. We determine de novo whether the court erred in applying the

law to those facts.” Id. (citation omitted). Further, this Court construes all facts in

the light most favorable to the prevailing party below. United States v. Jordan,

635 F.3d 1181, 1185 (11th Cir. 2011). In this matter, the Government prevailed on

the question of whether the evidence was sufficient to demonstrate that there was

probable cause to enter the residence to prevent the destruction or removal of the

firearms before a search warrant could be obtained because other persons were

present inside.

         “The question of what amounts to probable cause is purely a question of law

and hence is subject to plenary review by this court. 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 a particular place.” Tobin, 923

F.2d at 1510 (alteration in original) (citations and internal quotation marks

omitted). As the district court found, there is no factual dispute that the officers

had probable cause. Franklin was known to be a felon and was observed in plain

view in the presence of weapons which he had no right to possess as a convicted

felon.

         “[T]he ‘presence of contraband without more does not give rise to exigent


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circumstances.’” Id. (quoting United States v. Torres, 705 F.2d 1287, 1297 (11th

Cir.), vacated and remanded on other grounds, 718 F.2d 998 (11th Cir. 1983)).

“[A]n exigency exists when officers can articulate a reason, grounded in the facts

of the specific case, to fear that evidence may be destroyed or lost . . . .” Bradley,

644 F.3d at 1262. “An objective test applies to the exigency determination. An

exigency exists if ‘the facts . . . would lead a reasonable, experienced agent to

believe that evidence might be destroyed before a warrant could be secured.’” Id.

(emphasis and alteration in original) (quoting Tobin, 923 F.2d at 1510). While the

question of whether officers on the scene could reasonably have believed that

evidence would be destroyed, removed, or hidden before a warrant could be

obtained is fact specific, there is an analogous case in this Circuit, which is

dispositive of this case.

      In United States v. Rodgers, 924 F.2d 219, 223 (11th Cir. 1991), this Court

concluded that exigent circumstances were present when “police knew there was at

least one person other than Rodgers in the trailer; the handguns could easily be

hidden or removed; and the people in the trailer were aware of the arrest of

Rodgers.” In this matter, it is undisputed that there was at least one other person

inside the residence. The record supports the district court’s finding “that this

person was aware of defendant’s arrest and had cooperated with defendant by not


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responding to the officers’ knocking and yelling at the door.” Franklin, 721 F.

Supp. 2d at 1236.

      In his reply brief, Franklin argues that Rodgers is not dispositive because

rifles and shotguns are more difficult to remove than handguns, and therefore there

was ample opportunity to obtain a warrant before Officer Lally searched the

residence. We disagree. The fact that firearms including a shortened rifle and

sawed off shotguns may be more difficult to remove or hidden is not dispositive.

Both types of weapons can be removed by an adult. “[T]he appropriate inquiry is

whether the facts . . . would lead a reasonable, experienced agent to believe that

evidence might be destroyed [or removed] before a warrant could be secured.”

Rodgers, 924 F.2d at 222 (alterations in original) (quoting United States v. Rivera,

825 F.2d 152, 156 (7th Cir. 1987)).

      The evidence presented at the evidentiary hearing before the magistrate

judge demonstrates that Officer Lally acted reasonably under the circumstances.

Under the totality of the facts of which he was aware, he could have reasonably

believed that the firearms would be removed before a warrant could be obtained.

There were at least two cars in the driveway and at least one other person in the

residence who had already shown the willingness to help Franklin avoid arrest by

not answering the door. This case is a stark contrast from cases where this Court


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has found an officer’s determination of exigent circumstances to be unreasonable.

See United States v. Lynch, 934 F.2d 1226, 1232 (11th Cir. 1991) (finding no

exigent circumstance when the arrest was made away from the suspect’s home);

United States v. Satterfield, 743 F.2d 827, 844-45 (11th Cir. 1984) (finding no

exigent circumstance after all of the occupants were taken into custody). The

district court did not err in concluding that Officer Lally had probable cause to

believe that the residence contained evidence that might be hidden or removed

before he could obtain a search warrant.

                                           IV

      Franklin has submitted a “motion to both file supplemental argument and

legal authority.” We grant his motion, but do not find his arguments persuasive.

In his motion, Franklin contends that his trial counsel was ineffective. This issue

was not presented to the district court. He also attempts to distinguish Rodgers, for

the first time, on the ground that Officer Lally’s search was pretextual.

      Regarding his ineffective assistance of counsel claim, “[i]t is settled law in

this circuit that a claim of ineffective assistance of counsel cannot be considered on

direct appeal if the claims were not first raised before the district court and if there

has been no opportunity to develop a record of evidence relevant to the merits of

the claim.” United States v. Perez-Tosta, 36 F.3d 1552, 1563 (11th Cir. 1994);


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accord United States v. Veltrop, 161 F. App’x 914, 915 (11th Cir. 2006).

      Regarding his attempt to distinguish Rodgers on the grounds that Officer

Lally’s search was pretextual, this court generally does not review issues not raised

in an opening brief. United States v. Nealy, 232 F.3d 825, 830 (11th Cir. 2000).

However, in exceptional circumstances, we have “exercise[d] our discretion to

recognize plain error.” United States v. Gari, 572 F.3d 1352, 1360 (11th Cir.

2009) (citing Silber v. United States, 370 U.S. 717, 718 (1962)). For a finding of

plain error, “[t]here must be an ‘error’ that is ‘plain’ and that ‘affect[s] substantial

rights.” United States v. Olano, 507 U.S. 725, 732 (1993) (second alteration in

original). “Of course, there can be no plain error if there was no error at all.”

United States v. Pielago, 135 F.3d 703, 709 (11th Cir. 1998).

      Contrary to Franklin’s contention, Rodgers cannot be distinguished on the

grounds of pretext. In Rodgers, 924 F.2d at 221, the officer did not need a pretext

to go to the door of the trailer because he had every right to be there. Similarly in

this case, Deputy Haigis also had every right to be behind the residence, and did

not act under any pretext. Franklin also contends that Officer Lally’s search was

pretextual based on the finding made by the magistrate judge, and adopted by the

district court, that Officer Lally’s stated intent in entering the residence for officer

safety concerns was not credible. Officer Lally’s subjective intent is inapposite,


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however, because the tests for analyzing probable cause and exigent circumstances

are objective. Bradley, 644 F.3d at 1262 (“An objective test applies to the

exigency determination. An exigency exists if ‘the facts . . . would lead a

reasonable, experienced agent to believe that evidence might be destroyed before a

warrant could be secured.’”) (emphasis and alteration in original) (quoting Tobin,

923 F.2d at 1510)); Craig v. Singletary, 127 F.3d 1030, 1042 (11th Cir. 1997)

(“Probable cause issues are to be decided on an objective basis by courts without

regard to the subjective beliefs of law enforcement officers, whatever those beliefs

may have been.”). Because there was no error at all, we decline to exercise our

discretion to find plain error.

                                           V

      We are persuaded that a reasonable, experienced officer would have

concluded under the totality of the circumstances that the firearms might be

removed or concealed before a warrant could be obtained to enter the residence. In

light of this conclusion, we decline to reach the Government’s alternate contention

that Officer Lally was entitled to enter Franklin’s residence based on his consent to

be search as a condition of his supervised release, because the expiration date of

his conditional release had been tolled when Franklin absconded from supervision.

      We grant his motion to file supplemental argument and legal authority.


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AFFIRMED.




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