Federal 11th Circuit Criminal Case Law Update (October 24, 2022 – October 28, 2022)

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The “Cite” of the Crime Podcast
CASE SUMMARIES

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Federal 11th Circuit Criminal Case Law Update
(October 24, 2022 – October 28, 2022)

Listen to this week’s The “Cite” of the Crime Podcast episode here.

OVERVIEW

• 7 cases
• 1 published decisions
• 6 unpublished decisions

Case #1 – USA v. Malone, No. 20-12744 (11th Cir. Pub. Dec.)(October 26, 2022)

• Malone is a breach of plea agreement by the government case. 
• Mr. Malone seeks to have his 71 month sentence vacated arguing that the government violated the terms of the plea agreement by advocating for a longer sentence than it promised to advocate for in the plea agreement. 
• Because Mr. Malone did not object at the trial court level, plain error review applies and the issue can be determined by the 11th Circuit on direct appeal, as held by the Court in Puckett v. United States. 
• Interestingly enough, this would have been an unpublished decision, however, Judge Tjoflat wrote a very long and detailed dissent and asked the Court to publish the decision. 
• Judge Tjoflat believes that Mr. Malone’s claim should not have been brought on direct appeal, but rather through a collateral attack.  
• Both the majority, Judges Rosenbaum and Moody and the dissent, Judge Tjoflat lay out a long analysis outlining their conflicting opinions in this 80 page decision. 
• Mr. Malone was charged with wire fraud, interstate transportation of a stolen motor vehicle and sale of a motor vehicle. 
• He was released on bond and apparently kept engaging in the same conduct that got him indicted in the first place. 
• A violation report was filed, Mr. Malone was arrested and his bond was revoked. That same day, he filed a notice of his intent to plead guilty. 
• Five days later, Mr. Malone and the Government entered a plea agreement where the government reserved the right to oppose a two level reduction for acceptance of responsibility if it received information that Mr. Malone acted inconsistently with the acceptance of responsibility between the date of the plea hearing and the date of the sentencing hearing. 
• The government also agreed to move for a one level reduction for acceptance of responsibility provided the defendant otherwise qualifies, and that the defendant does not, before the date of the sentencing hearing, either personally or through the actions of the defense attorney on behalf of the defendant, take any action inconsistent with the acceptance of responsibility. 
• The government also agreed to recommend a sentence within the advisory Guidelines range as calculated by the Court at the sentencing hearing. 
• The PSR recommended against any reduction for acceptance of responsibility and set the guideline range at 57-71 months.  
• Mr. Malone filed a sentencing memorandum objecting to the PSR’s denial for acceptance and noted that his guideline range with the three levels for acceptance would be 41-51 months. 
• The government filed a sentencing memorandum asking for 66 months.  
• At the sentencing hearing, Mr. Malone requested the three level reduction for acceptance of responsibility and the prosecutor argued against any reduction. 
• The prosecutor argued that Mr. Malone’s criminal offense while he was on bond was similar to his indicted offense and therefore showed a lack of acceptance of responsibility.  
• The prosecutor called an investigator to testify to the facts of that offense and urged the court to deny the reduction. 
• The district court denied Mr. Malone’s objection and set his guidelines at 57-71 months. 
• Mr. Malone requested a downward variance and the government argued against that as well. 
• But not to leave it at that, the prosecutor then went on to state that when he thought of Mr. Malone, sociopath came to mind, that Mr. Malone was a con artist and simple thief and that although the prosecutor recommended a 66 month sentence, he didn’t think it was enough and that if he had his way, it would probably be double or triple that. 
• The district court then sentenced Mr. Malone to 71 months. 
• Mr. Malone appealed, arguing for the first time, that the government breached the plea agreement in two ways. First, by opposing an acceptance of responsibility reduction and second, by paying mere lip service to the recommended guideline sentence. 
• A material promise by the government, which induces a defendant to plead guilty, binds the government to that promise. 
• The government breaches a plea agreement when it fails to perform the promises on which the plea was based. 
• In the event of a breach, the appellate court may remand the case for resentencing before a different judge so that the defendant may be sentenced under the agreement. 
• The 11th Circuit analyzed the case in three parts. 
• The first part of the Court’s analysis was whether Mr. Malone established the three prongs of plain error; error, that is plain, and affected Mr. Malone’s substantial rights on his claim that the government failed to recommend a reduction for acceptance of responsibility. 
  • The government opposed the reduction of acceptance of responsibility based solely on Mr. Malone’s pre-plea criminal conduct. 
  • The Court held that a reasonable person would understand the government’s promise to prohibit it from objecting to an acceptance reduction based solely on pre-plea conduct. 
  • The government knew of Mr. Malone’s criminal conduct while on bond because they received a copy of the petition seeking arrest, would have been present at his initial appearance after that arrest, and received electronic notice of the petition. 
  • Because the government expressly stated that it objected to the reduction solely because of his pre-plea conduct, the government breached the agreement. 
  • On appeal, the government argued that Mr. Malone made untruthful statements to the probation officer and that was intertwined with the pre plea arrest conduct, but the prosecutor explicitly denied relying on these statements stating that he wasn’t present when Mr. Malone made those statements. 
  • The breach also affected Mr. Malone’s substantial rights and the government conceded that the provision was material. 
  • Because the district court stated that it relied at least in part on the prosecutor’s argument, there is a reasonable probability that the breach affected the district court’s decision. 
• The second part of the analysis was whether Mr. Malone established the three prongs of plain error on his claim that the government effectively recommended a sentence outside the guideline range. 
  • The prosecutor said it was recommending a 66 month sentence, but then backhandedly said it’s not enough and should be double or triple that. 
  • In United States v. Taylor, the 11th Circuit held that the government breached a plea agreement where it paid mere lip service to the plea agreement when it recommended a 10 years sentence but advocated for a longer sentence. 
  • Similarly, that is what the prosecutor did here and it was error and it was plain, according to the 11th. 
  • However, the plain error standard wasn’t met on this second issue because the court found that Mr. Malone could not establish prejudice because the district court sentenced Mr. Malone within the guidelines. 
  • However, the 11th Circuit did have terse words for the prosecutor. “Nevertheless as we have explained, there is no question that the government breached the agreement, and that is not acceptable.  The government must do better.” The Court then quoted the U.S. Supreme Court in Berger v. United States, “While the prosecutor may strike hard blows, he is not at liberty to strike foul.ones. “
• The third part of the analysis is whether any error seriously affected the fairness of the judicial proceedings. 
  • In considering the fairness of the judicial proceedings, the Court looks at whether the error seriously affected the integrity, fairness, or public reputation of the proceedings. 
  • Here, the Court found that the prosecutor’s argument against a reduction for acceptance may have resulted in guidelines two or three levels higher and argument for a sentence two or three times the guidelines may have ensured the highest possible guidelines sentence. 
  • Therefore, the Court exercised its discretion to remand for resentencing before a different judge. 
• The Court next turned to disagreement with the dissent on whether the issue should have been brought on direct appeal, or whether it should have been brought through collateral attack
  • The two majority judges hold that the Supreme Court’s prior precedent in Puckett forecloses the dissent’s argument. 
  • The dissent argues that Puckett does not apply unless one of the parties affirmatively alerts the sentencing judge that the plea agreement covers the alleged breach. 
  • The majority opinion responds that there is no legal authority supporting the position that Puckett applies only when the district court is alerted to the plea agreement provision that is alleged to have been breached and sister circuit courts have applied Puckett as the majority does.
  • The dissent also argued that the Puckett standard as applied by the Court here would be premised on the idea that the prosecutor could withhold evidence from sentencing judges in order to honor their promises made in the plea agreement. 
  • But the majority responded that nothing in the plea agreement required, or even permitted the government to lie to the court. 
  • Rather, the government would be obligated to explain that it knew of the conduct and that it agreed it would not object to a reduction based on that conduct and it stood by its agreement.
  • And nothing obligated the government to enter the terms of the agreement as it did. 
• Case Vacated and remanded. 

Case #2 – USA v. Berry, No. 21-13352 (11th Cir. Unpub. Dec.)(October 24, 2022)

• Berry is a case about venue, sufficiency of the evidence, hearsay and safety valve. 
• Mr. Berry was convicted and sentenced to 210 months for conspiracy to distribute 50 grams or more of methamphetamine and unlawful use of a communication facility. 
• He was indicted with 25 co-conspirators. 
• At trial, some of Mr. Berry’s; co-conspirators testified. 
• A wiretap recording involving two of the testifying co-conspirators was played for the jury where one of them arranged to pay $5,000 to the other in exchange for a pound of meth. 
• The dealer co-conspirator testified that he also sold meth to Mr. Berry a bunch of times. 
• The government also admitted recorded calls between this dealer and Mr. Berry discussing drug transactions.
• Law enforcement conducted surveillance during one of the drug transactions and observed Mr. Berry pick up the drugs from an old house. 
• Mr. Berry was convicted at trial and the PSI recommended a guideline range of 188-235.  
• Mr. Berry requested safety valve relief under §3553(f), which was opposed by the government. 
• The government argued that Mr. Berry omitted information about his criminal activity during his proffers to the government and he denied being a dealer. 
• The trial court stated at sentencing that there was overwhelming evidence that Mr. Berry was a drug dealer. 
• The district court adopted the 188-235 guideline range and sentenced Mr. Berry to 210 months, in the middle of the guidelines. 
• On appeal, Mr. Berry first argued that venue was improper in the Northern District of Alabama because he lived in Tennessee and the alleged drug transactions he participated in all occurred in Tennessee. 
  • A defendant has a Sixth Amendment right to be tried in the district in which the crime was committed. 
  • However, under United States v. Greer,  a defendant waives an objection to venue by failing to raise it before trial, subject to the exception that objecting at the close of evidence is soon enough if the indictment alleges an incorrect venue and the defendant was not aware of that defect until the government presented its case. 
  • Mr. Berry failed to object to venue at the trial stage and therefore waived it. 
  • But even if he had preserved the issue, the 11th Circuit found that venue in the Northern District of Alabama was proper.  
  • Under 18 USC §3237(a), when an offense is committed in more than one district, the offense can be prosecuted in any district in which such offense was begun, continued, or completed. 
  • In a conspiracy case, venue is proper in any district where an overt act was committed in furtherance of the conspiracy. 
  • Here, the conspiracy occurred in both the Northern District of Alabama and in parts of Tennessee because one of the co-conspirators stored the drugs in Alabama and then transported them to Tennessee. 
  • Therefore, venue was proper in either district. 
• Mr. Berry next argued that the evidence in his case was insufficient to support a conspiracy conviction.
  • He argued that he purchased drugs for his personal use and there was no evidence that he agreed to distribute them. 
  • Unfortunately, Mr. Berry did not move for judgment of acquittal at the trial level and therefore the issue was not preserved and the 11th Circuit will only reverse to prevent a manifest miscarriage of justice. A lofty standard indeed. 
  • Although a simple buyer-seller drug transaction does not, by itself form a conspiracy, a conspiracy is formed if the evidence allows an inference that the buyer and seller knew the drugs were for distribution instead of merely understanding their transactions only supported the buyer’s personal drug habit.
  • Repeated drug buys or large amounts of drugs can also support an inference of a conspiracy to distribute drugs. 
  • So, if it appears that the amounts purchased are more than one person could personally use, the evidence may be sufficient to support a conspiracy to distribute charge. 
  • Here, the Court found that the evidence was more than sufficient. 
  • There were repeated drug transactions where Mr. Berry purchased large amounts of drugs along with recorded calls where Mr. Berry referred to his customers and competitors. 
• Mr. Berry next argued that the trial court erroneously admitted hearsay testimony.
  • During the trial, an officer testified that when Mr. Berry went to pick up the drugs, he observed Berry pull up to a man in a truck.  
  • That man happened to be a police informer that was unrelated to this case. 
  • The testifying officer testified that the police informer called him and said, “That wasn’t what it looked like,” presumably saying that it was not a drug transaction. 
  • Defense counsel objected arguing that the statement was inadmissible hearsay. 
  • The trial court overruled the objection ruling that it was admissible under the state of mind exception. 
  • Hearsay, as we know, is an out of court statement offered to prove the truth of the matter asserted. 
  • The state of mind exception to the hearsay rule, under Federal Rule of Evidence 803(3) states that a statement of the Declarant’ s then-existing state of mind is admissible. 
  • However, to be admissible under the state of mind exception, the Declarant’ s state of mind must be relevant to an issue in the case. 
  • Here, the 11th Circuit found that even if there was error, it was harmless based on the plethora of other evidence of guilt and therefore the admitted statement did not affect the jury’s verdict. 
• Mr. Berry next argued that the district court erred by denying his safety valve relief request. 
  • The safety valve provision provides that, for an offense under 21 USC 841 (the drug statute), the court shall impose a sentence pursuant to the Guidelines without regard to any statutory minimum sentence, if the court finds at sentencing that the defendant satisfies five criteria. 
    • The relevant one here, called the “tell all” provision,  is that not later than the time of the sentencing hearing, the defendant has truthfully provided to the Government all information and evidence the defendant has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan. 
  • So, the defendant has the burden by a preponderance of the evidence to establish that he truthfully disclosed all information and evidence that he has about the offense and all relevant conduct. 
  • Here, the government alleged that Mr. Berry did not truthfully provide all information. 
  • The 11th Circuit found that, although Mr. Berry disputed the allegation, he did not provide any information that met his burden by a preponderance of the evidence. 
• Case Affirmed. 

Case #3 – USA v. Carridice, No. 22-10070 (11th Cir. Unpub. Dec.)(October 24, 2022)

• Carridice is a procedural and substantive reasonableness case. 
• Mr. Carridice, a citizen of Jamaica pled guilty to illegal reentry after an aggravated felony. 
• Mr. Carridice had 12 criminal history points and a criminal history category of 5 with an offense level of 15 for a guideline range of 37-46 months. 
• Mr. Carridice didn’t object to the guideline range and requested a downward variance. 
• The government requested a sentence of 46 months and the district court sentenced him to 42 months.  
• The district court noted that Mr. Carridice spent a little more than half of his adult life in prison and determined that neither an upward, nor a downward variance was appropriate. 
• Mr. Carridice argued that his sentence was procedurally unreasonable because the district court did not reasonably apply the 3553(a) factors because he behaved in prison, his criminal history score was inflated according to him and he came from a rough background that necessitated his flight from Jamaica and because the trial court shouldn’t have considered his long history of violence which was beyond the record. 
• The district court is not required to use any specific language or to mention each 3553(a) factor when rendering a sentence as long as the record as a whole reflects the district court’s consideration of those factors.
• So, a general statement that the court considered the factors, along with the statements in the PSI will be sufficient. 
• Here, beyond that, the district court stated it considered Mr. Carridice’s arguments, the government’s arguments, Mr. Carridice’s rehabilitation, violence in Jamaica and there was no plain error on behalf of the district court. 
• Likewise, the Court found that the sentence was substantively reasonable. 
• His sentence was within the guideline range and far below the 240 month maximum, so it was substantively reasonable. 
• Case Affirmed. 

Case #4 – USA v. Lawson, No. 21-13272 (11th Cir. Unpub. Dec.)(October 27, 2022)

• Lawson is an interesting suppression of evidence and abandonment of property case in the standing context. 
• Mr. Lawson borrowed his girlfriend’s rental car with her permission.  
• He drove to a private residence driveway, parked the car, walked to a neighboring vacant lot and started playing cards with some friends. 
• Officers were called out to the area because of a shooting.  The area was a high crime area known for drugs, gang related activity and other criminal activity. 
• The officer came across the men playing cards, recognized some of them, who had criminal records and were on probation, saw a cellophane wrapper on the table that the officer believed contained drugs and did in fact contain cocaine, saw a clear bag with narcotic residue and believed the men were gambling because they were playing cards.  
• The officer also saw Mr. Lawson’s keys on the table.  
• The officer asked who the keys belonged to and Mr. Lawson denied ownership of them and denied knowing who they belonged to. 
• The officer searched Mr. Lawson with his consent, looked in his cell phone with his consent and then let him leave, which Mr. Lawson did. 
• Mr. Lawson walked away without the car keys. 
• The officer pressed the key and the car alerted, so the officer went to the residence where the car was parked.  
• The owner said the car belonged to “G” which the officer knew was a nickname Mr. Lawson went by. 
• Based on the discovery of cocaine, the location of the key on the table, and that no one claimed ownership of the key, the officer summoned a k9 who alerted on the car. 
• Officers searched the car and found a firearm in the Nissan’s glovebox. 
• Mr. Lawson was arrested for possession of a firearm by a convicted felon. 
• He filed a motion to suppress the evidence arguing that he was unlawfully detained, but the district court denied the motion.   
• Mr. Lawson pled guilty, reserving his right to appeal.
• On appeal, Mr. Lawson argued that he was unlawfully detained based on a hunch, rather than reasonable suspicion.
• The government argued that the officers did have reasonable suspicion that criminal activity did or was going to occur. 
• Under Brendlin v. California, a Fourth Amendment seizure occurs when an officer, by means of physical force or show of authority, terminates or restrains a person’s freedom of movement through means intentionally applied. 
• Law enforcement officers may seize a suspect for a brief, investigatory stop where the officers have a  reasonable suspicion that the suspect was involved in, or is about to be involved in, criminal activity, and the stop is reasonably related in scope to the circumstances which justify the interference in the first place. 
• Reasonable suspicion must be more than an inchoate and unparticularized suspicion or hunch. 
• Reasonable suspicion need not involve the observation of illegal conduct. It depends on probabilities, not hard certainties. 
• In this case, the 11th Circuit found that reasonable suspicion existed that illegal activity was occurring because there were drugs discovered at the scene, it was a high crime area, the officers were aware of the individuals’ criminal histories, and the men were playing cards, which apparently, in and of itself, suggests gambling.  
• The Court further found that Mr. Lawson abandoned any expectation of privacy that he had in the contents of the vehicle and therefore lacked standing to contest the search of the car. 
  • The Fourth Amendment’s protections extend to any thing or place with respect to which a person has a reasonable expectation of privacy.
  • A Fourth Amendment claim will not lie if a defendant abandons the searched property. 
  • When a person abandons property, they abandon any reasonable expectation of privacy as related to that property. 
  • The Court takes a common sense objective approach and asks whether the prior possessor voluntarily discarded, left behind or otherwise relinquished his interest in the property in question in light of his statements, acts and other facts. 
  • Denial of ownership or relinquishment of possession or control over the property is evidence of abandonment. 
  • If an individual abandons or denies ownership of property, he may not contest the constitutionality of its subsequent acquisition by police. 
  • Here, Mr. Lawson abandoned the property and thus any expectation of privacy when he denied ownership of the key to the car and got up and walked away from both the car and the key. 
  • Lawson argued that abandonment requires an affirmative act, but the 11th Circuit didn’t agree. 
    • The Court noted that neither the 11th Circuit, nor the Supreme Court have ever required an affirmative act to find abandonment. 
    • And even if an affirmative act was required, the Court found that denial of ownership and affirmatively walking away from the property were affirmative acts. 
  • Case Affirmed. 

Case #5 – USA v. Plotka, No. 22-12131 (11th Cir. Unpub. Dec.)(October 24, 2022)

• Plotka is a motion to withdraw plea and appeal waiver case. 
• Dr. Plotka pled guilty to making available a premises for the purpose of unlawfully manufacturing, storing, distributing, or using a controlled substance. 
• Dr. Plotka’ s written plea agreement had an appeal waiver that waived his right to appeal with three exceptions:
  • 1) a sentence in excess of the statutory maximum sentence,
  • 2) a sentence above the guidelines as determined by the Court, and 
  • 3) ineffective assistance of counsel. 
• Dr. Plotka filed a motion to withdraw his guilty plea based on a cancer diagnosis and ongoing medical treatment, which was denied by the district court. 
• Dr. Plotka subsequently appealed the denial of the motion. 
• A district court considers four factors in deciding whether to allow a defendant to withdraw a plea. 
  • 1) whether the defendant had close assistance of counsel
  • 2) whether the plea was knowing and voluntary
  • 3) whether judicial resources would be wasted, and 
  • 4) whether the government would be prejudiced. 
• The 11th Circuit has held that an appeal waiver will not bar a claim that a plea was entered into unknowingly or involuntarily, nor a claim that there was some deficiency in the Rule 11 colloquy, such as a claim that the district court failed to inform the defendant of the nature of the charge or secure a sufficient factual basis to support the plea. 
• An appeal waiver will also not bar a claim that the government breached the plea agreement. 
• However, an appeal of a denial of a motion to withdraw a guilty plea is an attempt to contest a conviction on appeal. 
• Because Dr. Plotka waived his right to appeal his conviction, his appeal is barred by the appeal waiver. 
• Appeal dismissed. 

Case #6 – USA v. Robinson, No. 21-12595 (11th Cir. Unpub. Dec.)(October 28, 2022)

• Robinson is a reasonableness of the sentence case when the defendant makes untruthful statements to investigators in violation of a plea agreement. 
• Mr. Robinson was a gang leader who distributed drugs. 
• He pled guilty, pursuant to a plea agreement, where he agreed to cooperate with investigators and all kinds of bad things would happen if he was untruthful. 
• Mr. Robinson was not truthful about some of the violent acts that the gang had committed, so the prosecutor, pursuant to the plea agreement used his proffered testimony to increase the drug weight attributed to him from 1.89 kilos all the way up to 20.9 kilos.
• The district court, at the government’s urging, also denied acceptance of responsibility and upward varied from his 188-235 plus 60 consecutive months guidelines, giving him a sentence of 336 months. Brutal. 
• Mr. Robinson appealed arguing first that the district court erred by not giving him an acceptance of responsibility reduction, but because the district court said that it would have sentenced him to the same sentence even if he had awarded the guideline reduction, the 11th Circuit found this to be harmless error, even if there was error, so the the Court didn’t address whether there was any error. 
• The Court determined it was harmless error because even if Mr. Robinson was awarded harmless error and his guidelines were 140-175 months plus 60 months consecutive, the Court still found 336 months to be a reasonable sentence. 
• Mr. Robinson next argued that his sentence was procedurally and substantively unreasonable. 
• Mr. Robinson argued that his sentence was procedurally unreasonable because the district court credited him with cooperating with law enforcement and accepting responsibility for his drug offenses, which was inconsistent with denial of acceptance of responsibility reduction in his guidelines, but the Court found that these two things were not inconsistent. 
• He did not meet the technical requirements for a 3E1.1 reduction, but the judge nonetheless gave him some credit for the cooperation and acceptance he did show, despite his untruthful statements that resulted in the violation of the plea agreement and denial of this acceptance reduction. 
• Finally, Mr. Robinson argued that his sentence was substantively unreasonable because there was an unwarranted sentence disparity with his co-defendants, the judge overemphasized his criminal activity and the judge focused single-mindedly on the violent actions of the gang. 
• Under §3553(a)(6) the district court must consider the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct. 
• The Court can only consider the sentences of co-defendants who were sentenced before the defendant and here, only one of Mr. Robinson’s co-defendants was sentenced before him. 
• That co-defendant received a 10 month sentence, but the 11th Circuit found that this was not an unwarranted sentence disparity because the co-defendant had a guideline range of 10–16 months, was not a gang member, was previously successful on probation, had minimal criminal history, accepted responsibility and displayed remorse. 
•  So, Mr. Robinsons did not meet his burden of showing that his co-defendant had a similar record and was found guilty of similar conduct. 
• And the district court has great discretion in deciding on the weight it gives to different factors, so the 11th also determined that the district court did not improperly overemphasize Mr. Robinson’s criminal history or the violent actions of the gang that he led. 
• Case Affirmed. 

Case #7 – USA v. Shelton, No. 21-14362 (11th Cir. Unpub. Dec.)(October 28, 2022)

• Shelton is a search warrant exclusionary rule good faith exception case. 
• Law enforcement officers obtained a warrant from a state county court judge for a K9 to sniff Mr. Shelton’s porch.  
• The search warrant affidavit referenced multiple confidential sources frequently buying drugs from Mr. Shelton at the house, one informant’s statement that he recently bought narcotics from Mr. Shelton, Mr. Shelton’s prior criminal history for drug possession and surveillance by law enforcement in the last 10 days of people who would come to Mr. Shelton’s house for short periods of time, which was consistent with narcotics distribution, according to the affidavit. 
• The officers executed the search warrant and the dog alerted to the house, so the officers obtained a new warrant alleging the same facts as in the first warrant and including the dog alert and they obtained a new warrant to search the house. 
• Upon execution of the warrant, officers located, in the words of the 11th Circuit, ”a lot of drugs,” and a firearm.  
• Mr. Shelton was indicted in federal court, filed a motion to suppress all of the evidence, which was denied, so he pled guilty reserving his right to appeal. 
• On appeal, Mr. Shelton argued that there was no probable cause in the search warrant affidavit and the good faith exception should not apply. 
• The exclusionary rule prohibits the use of evidence seized during, or as a result of, an unlawful search. 
• However, the U.S. Supreme Court recognized an almost all encompassing good faith exception in United States v. Leon. 
• The good faith exception applies when officers reasonably rely on a search warrant that was issued by a judge, but that warrant is ultimately found to lack probable cause. 
• Leon identified four situations where the good faith exception does not apply and the one relevant to Mr. Shelton’s case is when an affidavit supporting a warrant is so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable. 
• But, suppression in this situation is extremely rare and limited to cases where officers were dishonest or reckless in preparing the affidavit or could not have harbored an objectively reasonable belief in the existence of probable cause. 
• So, if a reasonably well trained officer would not have relied on the warrant, the evidence will be suppressed. 
• Mr. Shelton argued that the good faith exception should not apply.
• The 11th Circuit addressed four reasons why the exception does apply.
• First, Mr. Shelton argued that the affidavit included his prior criminal arrests, not convictions and that only convictions can support probable cause. 
  • The 11th Circuit rejected this argument noting that Mr. Shelton provided no precedent to support his argument and the Court went further by specifically concluding that officers may consider recent charges, as opposed to convictions to develop probable cause. 
• Second, Mr. Shelton argued that the warrant affidavit lacked specificity about the surveillance officers conducted. 
  • Here, the 11th circuit noted that the relevant inquiry is not whether there were enough facts in the affidavit, but whether the lack of facts would have been entirely unreasonable for an officer to believe there was probable cause.
  • And here, the Court found that it would not be entirely unreasonable for an officer to rely on the facts in an affidavit to believe there was probable cause. 
• Third, Mr. Shelton argued that the affidavit relied on confidential informant information and under Martin, if an informant is mentioned in the affidavit, the affidavit must also demonstrate the informant’s veracity and basis of knowledge. 
  • However, the 11th Circuit chastised Mr. Shelton’s counsel by failing to address the next sentence in Martin, which states, “However, when there is sufficient independent corroboration of an informant’s information, there is no need to establish the veracity of the informant.”
  • And here, the affidavit relied on multiple informants, personal observations of law enforcement, and Mr. Shelton’s prior criminal history, so no veracity or basis of knowledge was needed. 
• The final issue of analysis for the Court was that multiple officers all determined that there was probable cause. 
  • Because the court looks at the totality of the circumstances, the fact that several officers believed that there was probable cause and they swore an oath is relevant to that analysis. 
• Searches conducted pursuant to warrants will rarely require suppression. 
• Even negligent officers conduct without more does not justify exclusion. 
• The Good Faith Exception strikes again. 
• Case Affirmed. 

Compassionate Release Cases:

USA v. Santos Mero, No. 22-10730 (11th Cir. Unpub. Dec.)(October 28, 2022)