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United States v. Ross

United States District Court, N.D. Florida, Pensacola Division

November 7, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
WALI EBBIN RASHEE ROSS also known as WALI IBN ROSS also known as WAL EBBIN RASHEE ROSS, Defendant.

          ORDER

          M. CASEY RODGERS CHIEF UNITED STATES DISTRICT JUDGE

         Defendant Wali Ebbin Rashee Ross was charged by Superseding Indictment with being a felon in possession of a firearm and ammunition, [1] 18 U.S.C. §§ 922(g), 924(a); knowingly possessing with intent to distribute a controlled substance, namely, heroin, 21 U.S.C. §§ 841(a), 841(b)(1)(C); and two counts of forfeiture, one pertaining to firearms, 18 U.S.C. § 924(d), and one pertaining to the proceeds and property obtained by a controlled substance violation, 18 U.S.C. § 21 U.C. § 853. Pending is Defendant's Motion to Suppress Evidence, seeking to exclude all items seized from a hotel room after Defendant fled from law enforcement officers. ECF No. 24. The Court held an evidentiary hearing on the matter on October 30, 2017. Having fully considered the arguments, the law, and the record, the Court finds that the motion is due to be denied.

         Background

         On July 21, 2017, a United States Marshal Service (“USMS”) regional fugitive task force headed by Deputy Nichole Dugan, USMS, attempted to arrest Ross on three outstanding warrants for state law crimes, namely, trafficking hydrocodone, failure to appear on a charge of battery with prior convictions, and failure to appear on a charge of possession of controlled substances, each of which is a felony. The task force gathered at the Baymont Inn and Suites in Pensacola, Florida, on information that Ross was staying at the hotel. At the evidentiary hearing, Special Agent Jeremy England, Naval Criminal Investigative Service, testified that he participated in the USMS task force, along with five to ten other task force officers. Special Agent England testified that on arriving at the hotel, the officers learned that Ross was not a registered guest, and consequently, the task force set up surveillance of the hotel from various positions, not knowing what room Ross might be in. England parked in the lot of an adjacent hotel and observed the north face of the Baymont Inn and Suites from a tree line along the western border of the hotel parking lot. See Gov't Ex. 3 (layout of the hotel and surrounding area). England said that at the time, he understood Ross was a fugitive felon with a history of violence and drug crimes.[2] He therefore felt Ross presented a danger.

         At around 9:00 or 9:30 a.m., Special Agent England observed an individual matching Ross's description exit a room on the first floor of the hotel, later determined to be Room 113. He was seen walking toward a truck located in the parking lot to the west of the hotel, in the direction where England was positioned for surveillance, before returning briefly to the room.[3] Ross came out again within seconds and resumed walking toward the truck, but he ran when he recognized a law enforcement vehicle. Ross jumped a chain link fence and ran north toward Interstate 10, making it difficult for officers to pursue him. England said he tried to chase Ross on foot, but he was too far behind and unable to climb the fence because he was wearing heavy body armor. England saw Ross run onto the first of two eastbound lanes of Interstate 10 traffic, north of the hotel. At that point, the task force officers all pursued Ross in vehicles, trying to reach the other side of the Interstate to intercept him. On reaching the opposite side, some officers began searching again on foot, but they had lost sight of Ross.

         Special Agent England and his partner, Task Force Officer William Wheeler, made a radio call to other officers to determine whether anyone had stayed behind to monitor the hotel room. Because no officers had stayed behind, and Ross was out of sight, England believed there was a chance that he had doubled back to the hotel after the officers gave chase, so they returned to the hotel within ten minutes of when they left. The truck was still in the parking lot, and the door to Room 113 was closed. England monitored the room while Wheeler obtained a key from the hotel staff at the front desk, along with a copy of the registration for Room 113, which was for one night and registered under a different name. England testified that he and Wheeler entered the room using the key and without knocking, believing that Ross or someone else could be inside and could be a threat to them, stating, “we didn't know who we would encounter on the inside.” England said that it is protocol for the task force to make a tactical entry to confirm that no one dangerous is hiding when executing an arrest warrant for a suspect with a history of violent crime. England and Wheeler quickly established that neither Ross nor anyone else was in the room, however, on leaving the room, England noticed a white but transparent plastic grocery-type bag with the outline of a firearm clearly visible. See Gov't. Ex. 4, 5 (photographs of the room and plastic bag). England reached into the plastic bag and retrieved the firearm, knowing it was contraband because Ross was a felon. The officers touched nothing else in the room at that time. USMS Deputy Dugan then called the Special Agents of the Bureau of Alcohol, Fireams, Tobacco, and Explosives (“ATF”) to investigate, and England and Wheeler maintained surveillance of the room until the ATF agents arrived.

         ATF Special Agent Kimberly Suhi arrived shortly before 11:00 a.m., and Special Agent England turned the firearm over to her. No search of the room was conducted until after the hotel's 11:00 a.m. checkout time had passed. At that time, Special Agent Suhi obtained consent to search the room from the hotel manager, Karen Nelson. Special Agent Suhi photographed the room and conducted a search with a special agent trainee. ATF seized items of contraband they discovered in the room and returned the personal items (including a gaming system) to hotel management.[4]

         Karen Nelson, the manager at the Baymont Inn and Suites, testified that on July 21, 2017, she arrived at work at approximately 9:00 or 9:30 a.m., and two officers were already present outside Room 113, guarding the entry with the door open. She inquired as to what was happening and learned that Ross had fled from the hotel. Nelson stayed around the area and did not see anyone enter the room until after checkout time. Nelson testified that at 11:00 a.m., when it was clear that no guest in the room had requested a late checkout time, she consented to the officers searching the room. According to Nelson, if it appeared that guests were still in the room at 11:00, the front desk attendant might sometimes give them a courtesy call to ask whether a late checkout was requested before entering the room. Otherwise, if no late checkout had been requested, it was assumed that all guests had left prior to the agreed checkout time, and hotel staff would enter the room after 11:00 a.m. to clean. Nelson testified that hotel policy required staff to inventory and store any personal items left in a room after checkout time and required management to call law enforcement if staff discovered a firearm or drugs in a room. According to Nelson, someone had called later in the day on July 21, 2017, inquiring about property that had been left in the room.

         Defendant argues that all evidence seized by law enforcement from Room 113 of the Baymont Inn and Suites on July 21, 2017, should be suppressed because the initial entry by England and Wheeler was an invalid protective sweep, and thus the firearm was illegally seized, and the subsequent ATF search by consent was tainted as “fruit of the poisonous tree” by the prior unlawful sweep.

         Discussion

         The Fourth Amendment protects persons “against unreasonable searches and seizures.” U.S. Const. amend. IV. A search without a warrant is “presumptively unreasonable, ” unless it meets one of the “carefully drawn exceptions.” United States v. Yeary, 740 F.3d 569, 579 (11th Cir. 2014) (internal quotations omitted).

         Fourth Amendment principles generally authorize police to enter a suspect's home for the limited purpose of executing a valid arrest warrant, as long as police have a reasonable belief that the suspect will be found there.[5] Payton v. New York, 445 U.S. 573, 603 (1980) (“[F]or 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.”); Steagald v. United States, 451 U.S. 204, 214-15, n.7 (1981) (same); United States v. Williams, 871 F.3d 1197, 1201 (11th Cir. 2017) (entry into a residence to execute an arrest warrant requires a reasonable belief that (1) the location is the suspect's dwelling, and (2) that the suspect is within at the time of entry). A suspect cannot thwart an otherwise proper arrest by the act of retreating into her house.[6] See United States v. Santana, 427 U.S. 38, 41-43 (1976) (stating a suspect may not defeat arrest which has been set in motion in a public place “by the expedient of escaping to a private place”); see also Warden v. Hayden, 387 U.S. 294 (1967) (police in hot pursuit of fleeing suspect may make a warrantless entry to arrest and seize weapons). It is well-settled that a hotel room can be “the object of Fourth Amendment protection as much as a home or an office.” Hoffa v. United States, 385 U.S. 293, 301 (1966). To determine whether entry to execute an arrest warrant was reasonable, courts consider the totality of the circumstances known to the officers at the time together with “common sense factors, ” including the reasonable inferences and presumptions drawn by the officers. Williams, 871 F.3d at 1201.

         Once lawfully inside, either to execute an arrest warrant or by virtue of exigent circumstances, which include the “hot pursuit” of a suspect, see Santana, 427 U.S. at 42-43 (stating officers may enter a premises even without a warrant when they are in hot pursuit of a fleeing suspect), the officers may conduct a protective sweep for their safety and the safety of others. See Williams, 871 F.3d at 1201; see also Maryland v. Buie, 494 U.S. 325, 332-33 (1990) (concluding a protective sweep is permitted incident to an arrest). Also, if the initial entry is lawful, the officers may seize any contraband that is found in plain view.[7] Williams, 871 F.3d at 1201.

         As the Eleventh Circuit has acknowledged, determining whether a protective sweep is lawful is a “difficult question, ” which requires a court to balance “two deeply important interests--the lives of law enforcement officers and the constitutional right of the people to be secure in their homes under the Fourth Amendment.” United States v. Noriega, 676 F.3d 1252, 1260 (11th Cir. 2012) (quoting United States v. Delancy, 502 F.3d 1297, 1307 (11th Cir. 2007)). A protective sweep must be justified by “articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer's belief in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene.” Yeary, 740 F.3d at 580 (quoting Buie, 494 U.S. at 334). Also, a protective sweep is limited in scope, involving “only a ...


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