Appeals from the United States District Court for the
Southern District of Florida D.C. Docket No.
MARTIN, JORDAN, and WALKER, [*] Circuit Judges.
MARTIN, CIRCUIT JUDGE:
Maxi and Markentz Blanc appeal their convictions, after a
jury trial, on charges relating to their participation in an
extensive drug distribution network. Mr. Maxi challenges the
admission of evidence he says was the product of an illegal
search. Mr. Blanc challenges the admission of evidence from
wiretaps as well as an instruction given to the jury about
flight. After careful review, and with the benefit of oral
argument, we affirm.
9, 2012, the Miami-Dade Police Department received a tip from
a confidential informant that a person known as "Papa
D" engaged in drug activity and kept firearms
at one unit of a duplex located at 132 NE 64th Street in
Miami. Detective Scott Ogden and another officer met with the
informant and drove him to the duplex. The informant
identified the back unit as the one where guns and drugs
would be found.
then began surveilling the property. One officer set up to
watch the house and others were positioned nearby.
"[M]aybe ten or [fifteen] minutes or less" after
setting up, officers saw two men leave the duplex and get
into a truck. Officers stopped the truck about a quarter mile
from the duplex and asked the men for identification. Mr.
Blanc was the driver and Mr. Pierre was the passenger. After
a search revealed no contraband, the officers let the men
leave. The truck then turned immediately back toward the
was told the truck was returning to the duplex, Detective
Ogden ordered all the officers in the area to go there as
well. Detective Ogden testified: "We decided-or I
decided that we should approach the residence with them there
because I had a feeling that maybe they would alert the
persons inside." At least five police cars, holding
approximately ten police officers, pulled up to the duplex.
Seeing the police approach, Mr. Blanc "took off running
and was apprehended shortly after." Mr. Blanc and Mr.
Pierre were both detained. They were eventually released
again without being charged.
five police officers ran to the door of the back unit while
the remaining officers covered other strategic positions
surrounding the duplex. The back unit's door was not
visible from the street. To get to it, the officers passed
through a gate in a chain-link fence that surrounded the
yard. At least one officer who approached the door had his
gun drawn and held in a "low, ready position." It
was dark out.
door itself had an exterior metal security gate, with a
wooden interior door behind it. The metal security gate had
bars that were five to six inches apart- wide enough that
Detective Ogden reached through the bars and knocked on the
wooden door. Detective Ogden testified he was "pretty
sure" no one announced "police" when he
Maxi opened the wooden interior door very soon after
Detective Ogden knocked. Detective Ogden testified that
"[d]irectly behind Mr. Maxi, [he] could see a clear
mixing bowl as well as a white plate, with the plate having
naked crack rocks, and the clear mixing bowl having packaged
crack cocaine and a razor blade on the plate and a scrap
piece of paper." Detective Ogden said these objects were
approximately five to ten feet away from his position at the
saw the officers, Mr. Maxi "attempted to fade off"
out of view, but Detective Ogden told him to stay where he
was. Upon questioning, Mr. Maxi said he didn't live at
the duplex and didn't know who did. Detective Ogden asked
Mr. Maxi to step outside, but Mr. Maxi said he couldn't
because the metal security gate was locked and he didn't
have a key. Detective Ogden asked Mr. Maxi if he was
burglarizing the residence, and Mr. Maxi responded, "oh,
I will go for burglary." At some point, Detective Ogden
told Mr. Maxi he was under arrest.
officers decided to force the security gate open. Detective
Ogden testified he was concerned that Mr. Maxi would destroy
evidence. Once the gate was pried open, Detective Ogden
pulled Mr. Maxi out of the building, and handcuffed him.
Approximately five officers then conducted a protective sweep
of the unit, which Detective Ogden said took about two
minutes. Detective Ogden testified that during the sweep, he
saw more packaged crack cocaine, a semiautomatic handgun,
four rifles, and a stack of money. After the sweep, the
officers left the unit and applied for a search warrant.
the warrant was issued but after the protective sweep,
Lieutenant Luis Almaguer and another officer did a
walk-through of the unit. Lieutenant Almaguer said he wanted
to "verify what they are writing [in the search
warrant application] is what they saw." He testified
that the search warrant application did not rely on any of
his observations from the walk-through. After the search
warrant was issued, starting at around 2:00 AM, officers went
back inside the unit and collected crack cocaine, guns, and
Mr. Maxi's driver's license and other papers. The
search concluded at 4:45 AM.
the search was over, Mr. Maxi was advised of his
Miranda rights in the back of a police car. An
officer also told Mr. Maxi the police had seen guns and drugs
in the house. Several hours later, Mr. Maxi signed a formal
waiver of his Miranda rights and was interviewed. He
told police he worked as a "cut man" for "Papa
D." He said he cut up and bagged crack cocaine, provided
security, and resupplied other locations with crack cocaine.
surveillance and search of the 64th Street property was only
the beginning of the investigation into the drug organization
in which Mr. Blanc, Mr. Pierre, and Mr. Maxi were involved.
Law enforcement worked with confidential informants to make
controlled purchases of crack cocaine from suspected members
of the organization. The FBI then used a pen register and tap
and trace device on Mr. Pierre's phone, and later
received authorization to use a wiretap on Mr. Pierre's
phone. The wiretap on Mr. Pierre's phone was in place for
about a month during the summer of 2013.
October 28, 2013, an FBI agent filed an application for a
wiretap on Mr. Blanc's cell phone. The application
described a wiretap as necessary to accomplish the goals of
the investigation into the drug organization and listed a
number of other investigative techniques that had been used
or considered. The wiretap application was approved, and Mr.
Blanc's phone was tapped from October 28 to November 26,
November 21, 2013, more than a year after the search that led
to Mr. Maxi's arrest, law enforcement executed a search
warrant at 262 N.W. 52nd Street in Miami. A police officer
saw Mr. Blanc outside the property and yelled, "Police,
stop." Mr. Blanc turned and ran into the house, where he
was detained. Drugs, guns, ammunition, and other evidence
were also collected from this house.
February 20, 2014, Mr. Blanc and Mr. Maxi, along with six
codefendants not part of this appeal, were indicted for
crimes relating to a drug conspiracy. Both were charged with
conspiracy to possess with intent to distribute a controlled
substance; possession with intent to distribute a controlled
substance; possession of a firearm in furtherance of a drug
trafficking crime; and possession of a firearm by a convicted
felon. Mr. Blanc was also charged with conspiracy to commit
wire fraud, aggravated identity theft, and possession of
unauthorized access devices with the intent to defraud.
Maxi and Mr. Blanc both filed motions to suppress evidence
based on the government's alleged violations of law. Mr.
Maxi filed a motion to suppress physical evidence and his
statements related to the search at the 64th Street duplex.
At the suppression hearing, Mr. Maxi's attorney argued
that the police approach to the duplex exceeded the scope of
a permissible "knock and talk." He said Mr. Maxi
did not voluntarily open the duplex door, and that each of
the police's actions that followed-breaking down the
door, the protective sweep, the pre-warrant walkthrough, the
arrest-was illegal. He also argued that Mr. Maxi's
statements should be suppressed as fruit of the poisonous
tree. The government opposed, arguing that Mr. Maxi did not
have standing to challenge the search; the police approach to
the door was permissible; and Mr. Maxi's opening of the
door was voluntary. Also, the government argued that even if
the officers' actions after approaching the door were
impermissible, there was still sufficient information to
support the search warrant because they could see crack
cocaine in plain view from the door.
Magistrate Judge issued a Report and Recommendation
("R&R") recommending that Mr. Maxi's motion
be denied. The Magistrate Judge found that Mr. Maxi opened
the door voluntarily and that the officers' protective
sweep of the duplex was justified. The Magistrate Judge found
that the pre-warrant walkthrough violated the Fourth
Amendment, but the crack cocaine observed by the officers in
plain view once the door opened provided an independent
source of probable cause to support the search warrant. The
District Court adopted the R&R and denied Mr. Maxi's
motion to suppress.
Blanc filed a motion to suppress the intercepted wire
communications. He argued that the government had not shown
"necessity to obtain or apply for interceptions in this
case, and omitted material information from the
Affidavit." In particular, he argued that the
government's investigation had already been
"exceedingly successful" before they applied for
the wiretap and that the wiretap affidavit downplayed the
role of the government's confidential informant.
Magistrate Judge recommended that Mr. Blanc's motion be
denied. The Magistrate Judge agreed with the statements in
the affidavit that further physical surveillance, tracking
devices, and use of confidential sources would not have
satisfied the goals of the investigation. The Magistrate
Judge also found that the "affiants did not
intentionally or recklessly make material false statements or
omit material facts in demonstrating the ...