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United States v. Rashee Ross

United States Court of Appeals, Eleventh Circuit

October 29, 2019

UNITED STATES OF AMERICA, Plaintiff - Appellee,
WALI EBBIN RASHEE ROSS, a.k.a. Wali Ibn Ross, a.k.a. Wal Ebbin Rashee Ross, Defendant-Appellant.

          Appeal from the United States District Court for the Northern District of Florida D.C. Docket No. 3:17-cr-00086-MCR-1

          Before WILSON and NEWSOM, Circuit Judges, and PROCTOR, [*] District Judge.


         This appeal arises out of the denial of a defendant's motion to suppress evidence found in two separate, warrantless searches of his motel room-the first turned up a gun; the second, drugs and associated paraphernalia. On appeal, the defendant, Wali Ross, challenges the constitutionality of both searches. The government responds by defending the searches on the merits and, as a threshold matter, by disputing Ross's Fourth Amendment "standing" to contest them. (For the uninitiated, Fourth Amendment "standing" really has nothing to do with true-blue standing; rather, it constitutes a threshold element of a defendant's constitutional challenge on the merits. More on that later.) With respect to the standing issue, the government first argues that Ross "abandoned" his room, and any privacy interest therein, when, after seeing police officers staked out in the parking lot, he fled the motel on foot. Accordingly, the government says, Ross lacks Fourth Amendment standing to challenge either of the two subsequent searches. Moreover, and in any event, the government contends that any reasonable expectation of privacy that Ross might have had in the room expired at the motel's standard 11:00 a.m. checkout time, and that he therefore lacks standing, at the very least, to challenge the second of the two searches.

         We hold as follows: In the circumstances of this case, Ross did not abandon his room when he ran, and he therefore has Fourth Amendment standing to challenge the officers' initial entry and the ensuing protective sweep, which they conducted within about 10 minutes of his flight. We further hold, however, that Ross's constitutional challenge to the officers' entry and sweep fails on the merits. As to the second search, which officers carried out with the consent of hotel management shortly after 11:00 a.m., we hold that Ross lost any reasonable expectation of privacy in his room at checkout time-and with it, his Fourth Amendment standing to contest the search.



         The following took place between [approximately] 8:00 a.m. and 12:00 p.m. on July 21, 2017.

         Early that morning, a joint state-federal task force gathered outside a Pensacola motel to arrest Wali Ross on three outstanding felony warrants-for trafficking hydrocodone, failure to appear on a battery charge, and failure to appear on a controlled-substances charge. Although the officers had information that Ross was staying at the motel, he wasn't a registered guest, so they set up surveillance around the building and waited for him to make an appearance. The officers knew that Ross was a fugitive who had a history of violence and drug crimes.

         Sometime between 9:00 and 9:30 a.m., Special Agent Jeremy England saw Ross leave Room 113, head for a truck, return to his room briefly, and then approach the truck again. When Ross spotted the officers, he made a break for it, scaling a chain-link fence and running toward the adjacent Interstate 10. The officers went after Ross, but when they reached the opposite side of the interstate to intercept him, he wasn't there. In the meantime, it dawned on Agent England that none of the officers had stayed behind at the motel, and he feared that Ross might have doubled back to the room unnoticed. So, about ten minutes after the chase began, Agent England and Detective William Wheeler returned to the motel to see if Ross had snuck back into his room. The door to Room 113 was closed, and Ross's truck remained in the parking lot.

         Detective Wheeler obtained a room key and a copy of the room's registration from the front desk-the latter showed that the room was rented for one night to a woman named Donicia Wilson. (Although the name meant nothing to the officers at the time, they later learned that Ross was "a friend of a friend" of Wilson's husband; she had rented the room after she and her husband refused Ross's request to spend the night at their home because they had children and didn't know him very well.) Using the key, Agent England and Detective Wheeler entered Room 113 to execute the warrants and arrest Ross; they entered without knocking, as they believed that someone inside-Ross, a third party, or both- might pose a threat to them. Agent England testified that because Ross had a history of violence it was "just protocol" to operate on the premise that there would "possibly [be] someone [in the motel room] to hurt" them-in light of that risk, he said, the officers "made a tactical entry into the room." Once inside, they conducted a quick protective sweep, and on their way out Agent England saw in plain view a grocery bag in which the outline of a firearm was clearly visible. Agent England seized the gun, touched nothing else, and left.

         Deputy U.S. Marshal Nicole Dugan notified ATF about the gun while Agent England and Detective Wheeler continued to surveil the motel. ATF Special Agent Kimberly Suhi arrived at the motel around 10:45 a.m. to retrieve the firearm. The motel's manager, Karen Nelson, told Agent Suhi that she could search Room 113 after the motel's standard 11:00 a.m. checkout time; up until that point, Suhi testified, Nelson "st[ood] in the doorway of the room" to "mak[e] sure no one was entering."[1] Nelson explained that if it looked like a guest was still using his room at checkout time, she might place a courtesy call to ask if he wanted to stay longer; otherwise, she said, motel management assumed that every guest had departed by 11:00 a.m., at which point housekeepers would enter the room to clean it. Nelson also explained that it was the motel's policy to inventory and store any items that guests left in their rooms and to notify law enforcement if they found any weapons or contraband.

         At 11:00 a.m., Agent Suhi again sought and received Nelson's permission to search Room 113. When ATF agents entered the room, they found a cell phone and a Crown Royal bag filled with packets of different controlled substances- including around 12 grams of a heroin-laced mixture-cigars, and a digital scale.


         Ross was charged with one count of being a felon in possession of a firearm and ammunition, one count of knowingly possessing heroin with intent to distribute, one count of firearms-related forfeiture, and one count of forfeiture related to the property and proceeds obtained by a controlled-substances violation. He moved to suppress the evidence found in both searches of his motel room. In his motion, Ross argued that the officers' initial entry-and the ensuing protective sweep, which turned up the gun-violated the Fourth Amendment "because there were no grounds for them to believe that a dangerous individual (or anyone) was inside the room." He asserted that "it would have been unrealistic for the officers to believe that [he] had returned to the room and was inside at that time (after fleeing from them)." Accordingly, he said, the officers didn't have the requisite reasonable belief either to enter the room or to conduct the sweep. Ross also argued that the second search-which was conducted with Nelson's permission just after 11:00 a.m., and in which the drugs were discovered-violated the Fourth Amendment "regardless of the alleged consent of the hotel management because it would not have occurred absent the illegal first search." According to Ross, "[t]he illegal seizure of the firearm . . . directly [led] to the agents' desire to conduct the second search and their discussion with management to try to get its consent."

         With respect to the initial entry and the protective sweep, the government responded (1) that because the officers couldn't find Ross near the interstate, they had reason to believe that he had returned to his motel room; (2) that Ross's multiple drug- and violence-related felony arrest warrants led the officers to conclude that he could be armed and dangerous; and (3) in addition, that exigent circumstances justified the entry, as "there was a definite likelihood that further delay could cause the escape of the defendant" and "jeopardize the safety of the officers and the public." With respect to the second search, the government argued that Ross didn't have Fourth Amendment "standing" to challenge it, as he had no reasonable expectation of privacy in Room 113 after the 11:00 a.m. checkout time and that, in any event, the search was valid because the officers reasonably believed that Nelson had the authority to consent to the search. Finally, the government contended that even if the second search was tainted, motel staff would inevitably have entered the room after checkout time and alerted police when they found the gun in plain view.

         The district court denied Ross's motion to suppress. With respect to the initial entry and sweep, the court found that "[t]he arrest warrant granted officers a limited ability to enter to effectuate the arrest on [their] reasonable belief that Ross was in the room." Moreover, the court observed, the fact that Room 113 was not registered in Ross's name gave the officers "reason to be concerned that someone else might be in the room as well." Finally, the court held that "the chase and the fact that the officers lost sight of Ross presented exigent circumstances" that further justified the sweep-because the officers were in hot pursuit of a suspect with a history of violent activity for whom they had an arrest warrant, and who reasonably could have returned to the room, the first search was lawful.

         With respect to the second search, the district court concluded that after checkout time, Ross-who hadn't requested a late checkout or paid for an additional day-had no protectible privacy interest in the room. The court separately held that even if the initial entry and sweep were unlawful, Nelson's consent provided ample authority for the officers' post-checkout search. Finally, the court found that the inevitable-discovery and independent-source doctrines applied-either motel employees would have found the incriminating evidence when cleaning Room 113 after checkout time, or the task-force officers would have eventually searched the room.

         Ross pleaded guilty to possession of a firearm and ammunition by a convicted felon and possession with intent to distribute heroin, reserving the right to appeal the denial of his motion to suppress.[2]


         The Fourth Amendment guarantees "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV. As already explained, this case involves two separate searches of Ross's motel room. We will consider them in turn.


         Ross first challenges the officers' initial entry and the ensuing protective sweep, which they conducted roughly 10 minutes after Ross fled the motel on foot and shortly after they lost sight of him during the chase. The government not only defends the entry and sweep on the merits but also contends that Ross "abandoned" his motel room when he ran and, therefore, that he lacks Fourth Amendment "standing" to complain. Because standing presents a threshold question, we will address it first and then turn-if and as necessary-to the merits.


         The Fourth Amendment's protections extend to any thing or place with respect to which a person has a "reasonable expectation of privacy," California v. Ciraolo, 476 U.S. 207, 211 (1986) (quotation omitted)-including a hotel room, see, e.g., Stoner v. California, 376 U.S. 483, 490 (1964). By contrast, an individual's Fourth Amendment rights are not infringed-or even implicated-by a search of a thing or place in which he has no reasonable expectation of privacy. See, e.g., United States v. Brazel, 102 F.3d 1120, 1147 (11th Cir. 1997). This threshold issue-whether an individual has a reasonable expectation of privacy in the object of the challenged search-has come to be known as ...

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