Eleventh Circuit Remands Marijuana Case for Reconsideration of Evidence Suppression – U.S. v. Noriega

May 2, 2012 by David S. Seltzer

As a south Florida drug possession defense lawyer, I very frequently run across disputes over the legality of search warrants. Because possession alone is enough to create a conviction on drug charges, the case is generally unsustainable without evidence from a search. And if the search was illegal, the evidence from that search should be thrown out, thanks to long-standing civil rights laws. In United States v. Noriega, the Eleventh U.S. Circuit Court of Appeals said the trial court should have considered whether evidence from a potentially illegal search would have been uncovered anyway with a legal search warrant. Jose Noriega of Alabama was convicted of possession of marijuana with intent to distribute, as well as conspiracy, after a search of his home and two associates’ homes turned up evidence of a growing operation. The appeals court sent the case back for more consideration before deciding whether to throw out the evidence.

An anonymous phone call to a drug task force in Mobile, Alabama, said there were growing operations on three properties in a community called 8 Mile. Officers got a search warrant for a property on Jib road and found a growing operation along with a surveillance system and a rifle. On the second property on Chutney Drive, they found Juan Sabino, whose car had been parked at the first property, along with Jose Noriega and Omar Huezo. Determining that the two properties were connected, and concerned that there might be someone armed inside who wished the police ill, officers swept the inside of the Chutney Drive house and found no threat or growing operation, although they found some growing equipment. They also smelled marijuana outside an outbuilding and called a judge to request an oral search warrant for the outbuilding. That building also had a growing operation, as did the third property.

Noriega and six others were charged with conspiracy to possess marijuana and possession with intent to distribute. Noriega moved to suppress the search of the Chutney Drive property, but the district court denied this, saying the search was lawful because “articulable facts” led the officers to fear for their safety. He was convicted and sentenced to 60 months plus the forfeiture of the property.

Noriega contended that the searches of both the home and the outbuilding should be thrown out as violating the Fourth Amendment, which would require courts to throw out the resulting evidence as tainted. The Eleventh Circuit ultimately decided it needed more information before it could decide whether the search was legal. While the Fourth Amendment does prohibit warrantless searches, the court said, it does permit “protective sweeps” like the one officers performed at Noriega’s home and outbuilding. And even if the protective sweep was not legal, the court said, the evidence may still be admitted if prosecutors can show that the evidence was discovered independent of the initial entry. In this case, the court said, the first step is to determine whether there was still probable cause to search Noreiga’s house and outbuilding. Considering the affidavit police submitted in support of their warrant, the appeals court found the controlling issue was whether the officers would have sought a search warrant even without sweeping the house. This is a fact that the district court should find, the Eleventh said, so it remanded the case for that determination before deciding Noriega’s appeal.

These Fourth Amendment questions are an important part of my work as a Miami-Dade narcotics defense attorney. Police are given wide leeway to search defendants’ homes and other areas if they feel threatened, but as the Eleventh noted, this has to be balanced against the defendant’s Fourth Amendment rights. Because police officers are often given more status than criminal defendants, courts don’t always make the right decision. That’s why it’s important for drug defendants to retain an experienced Fort Lauderdale criminal defense lawyer as early as possible in their cases. By challenging illegally obtained evidence, an experienced attorney may be able to stop prosecutions early, or at least preserve issues for appeal.

If you’re facing criminal charges in south Florida and you’d like to talk about your options with an experienced former prosecutor, don’t hesitate to call Seltzer Law, P.A. You can reach us through our website or call toll-free, 24 hours a day and seven days a week, at 1-888-THE-DEFENSE (1-888-843-3333).

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