USA v. Johny Dabrezil

Filing

Opinion issued by court as to Appellant Johny Dabrezil. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam.

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Date Filed: 02/20/2015

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 14-11474
Non-Argument Calendar
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D.C. Docket No. 1:13-cr-20765-DLG-1

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOHNY DABREZIL,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(February 20, 2015)
Before WILSON, MARTIN, and BLACK, Circuit Judges.
PER CURIAM:

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Johny Dabrezil appeals his convictions for one count of possession of 15 or
more unauthorized access devices, in violation of 18 U.S.C. §§ 1029(a)(3) and 2,
and three counts of aggravated identity theft, in violation of 18 U.S.C.
§§ 1028A(a)(1) and 2.
Briefly stated, law enforcement officers received a report of a domestic
assault with injuries at an apartment in North Miami Beach, Florida. Officers from
the North Miami Beach Police Department responded to the scene. Officer Darren
Fagan arrived on the scene first, and, within a minute of his arrival, Officers Juan
Dolcine and Samuel Simon arrived. As Officer Fagan approached the apartment,
he could hear an ongoing argument between a male and a female. After a brief
series of authoritative knocks, Debrezil’s visibly agitated live-in girlfriend opened
the door. When he entered the apartment, Officer Fagan immediately detected the
smell of marijuana coming from inside the apartment. To determine what had
taken place, Officer Simon spoke with Dabrezil while Officer Fagan spoke with
Dabrezil’s live-in girlfriend. Meanwhile, Officer Dolcine entered the apartment
and within seconds, also detected the smell of marijuana. Officer Dolcine
conducted a limited inspection of the living room area, but did not extend his
inspection to any other rooms in the apartment. His inspection revealed a small
amount of marijuana along with some credit cards, both of which were located on
the coffee table. After this discovery, Dabrezil was read his Miranda rights.
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Shortly thereafter, Officer Craig Catlin arrived at Officer Dolcine’s request.
Approximately one minute later, Officers Fagan and Simon cleared the scene; their
shifts had ended. Officer Catlin asked Officer Dolcine whether the other officers
had checked the entire apartment to determine if anyone else was present, to which
he responded they had not. Officer Catlin’s subsequent inspection of the
apartment’s rooms revealed, among other things, a notebook and a ledger on top of
the notebook with names, dates of birth, and social security numbers, all found
lying on the bed in plain view.
On appeal, Dabrezil contends: 1) the officers violated his Fourth
Amendment rights by entering and searching his apartment without a warrant,
consent, or exigent circumstances; 2) the seizure of the Walmart visa card was
improper under the plain view doctrine; and 3) the security sweep of the
apartment’s bedrooms, conducted by the officers 7 to 25 minutes after their arrival,
violated the Fourth Amendment because no exigency existed at the time of the
security sweep, and, as a result, the handwritten ledger found on top of the
notebook on the bed in plain view during that sweep were seized unlawfully.
Upon review of the record and after careful consideration of the parties’
briefs, we affirm.

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I.
We review a district court’s denial of a motion to suppress as a mixed
question of law and fact. United States v. Franklin, 694 F.3d 1, 7 (11th Cir. 2012).
Unless clearly erroneous, we accept the district court’s factual findings in resolving
an exigent circumstance issue. Id. All facts are construed in the light most
favorable to the prevailing party below. Id. We determine de novo whether the
court erred in applying the law to those facts. Id. The denial of a motion to
suppress may be affirmed on any ground supported by the record. United States v.
Caraballo, 595 F.3d 1214, 1222 (11th Cir. 2010).
II.
We begin by confronting Dabrezil’s argument that the officers violated his
Fourth Amendment rights by entering and searching his apartment. The Fourth
Amendment protects persons and their “houses, papers, and effects” from
“unreasonable searches and seizures.” U.S. Const. amend. IV. Under the Fourth
Amendment, searches and seizures inside a home without a warrant are
presumptively unreasonable. Franklin, 694 F.3d at 7. However, a warrantless
search of a home may be justified “where both probable cause and exigent
circumstances exist.” Id. (internal quotation marks omitted). The exigent
circumstances doctrine applies when “there is compelling need for official action
and no time to secure a warrant.” United States v. Holloway, 290 F.3d 1331, 1334
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(11th Cir. 2002) (internal quotation marks omitted). The exigent circumstances
doctrine extends to situations involving “danger of flight or escape, loss or
destruction of evidence, risk of harm to the public or the police, mobility of a
vehicle, and hot pursuit.” Id. The government bears the burden of demonstrating
that such an exception applies. Id. at 1337.
“One of the most compelling” of these exigency exceptions is “the need to
protect or preserve life” in an emergency situation, id. at 1335, and is known as the
“emergency aid” exception, Kentucky v. King, 563 U.S. __, __, 131 S. Ct. 1849,
1856 (2011). Under this exception, “officers may enter a home without a warrant
to render emergency assistance to an injured occupant or to protect an occupant
from imminent injury.” Id. (internal quotation marks omitted). For the
emergency-aid exception to apply, officers must have an objectively reasonable
belief that someone inside is seriously injured, under threat of injury, or needs
serious aid. Brigham City, Utah v. Stuart, 547 U.S. 398, 403–04, 126 S. Ct. 1943,
1947 (2006). “The officer’s subjective motivation is irrelevant.” Id. at 404, 126 S.
Ct. at 1948; see also Kentucky, 563 U.S. at __, 131 S. Ct. at 1859.
The officers that entered Dabrezil’s home and searched it did so lawfully
because exigent circumstances existed. The initial call made to the North Miami
Beach Police Department was made by Dabrezil’s frantic and screaming live-in
girlfriend who reported injuries and requested rescue. The computer-aided
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dispatch report indicated a severity level of 3; which is associated with situations
involving domestic violence or assault. Based on this information, the officers had
probable cause and were authorized to enter the apartment upon their arrival
because it was objectively reasonable for the officers to believe that someone
inside the apartment was either in danger or in need of immediate medical
attention. Therefore, this perceived exigency legalized the officers’ presence
within Dabrezil’s apartment.
III.
Next, we address Dabrezil’s contention that the seizure of the Walmart visa
card was improper under the plain view doctrine. “The plain view doctrine permits
a warrantless seizure where (1) an officer is lawfully located in the place from
which the seized object can be plainly viewed and [has] a lawful right of access to
the object itself; and (2) the incriminating character of the item is immediately
apparent.” United States v. Smith, 459 F.3d 1276, 1290 (11th Cir. 2006) (internal
quotation marks omitted). If the initial entry into the suspect’s residence is lawful,
the officers are permitted to seize any contraband that is in plain view within the
residence. The officers must have probable cause to believe that the object in plain
view is contraband. Id. “In dealing with probable cause we deal with
probabilities. . . . The substance of all the definitions of probable cause is a
reasonable ground for belief of guilt.” Id. at 1291 (internal quotation marks
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omitted).
Officer Dolcine lawfully entered Dabrezil’s apartment because, as discussed
above, exigent circumstances existed—he was responding to a 911 call that
reported a domestic assault with injuries. Once lawfully in the apartment, Officer
Dolcine saw the Walmart visa card among pieces of paper containing account
numbers, and he immediately developed probable cause, or “reasonable
ground[s],” to believe that the Walmart visa card was being used for criminal
purposes. See id. at 1291. At the moment he saw the Walmart visa card on the
table with what he believed to be account numbers, his training and experience
exposed the incriminating character of the card and the account numbers, which
lead him to believe that Dabrezil was committing tax fraud. Officer Dolcine
confirmed his suspicion after asking Debrezil’s live-in girlfriend for Dabrezil’s
name, a name that did not match the name on the Walmart visa card. Therefore,
we conclude that the district court did not err in denying suppression of the
Walmart visa card.
IV.
Finally, we dispose of Dabrezil’s argument that the security sweep of his
apartment’s bedrooms, conducted by the officers 7 to 25 minutes after their arrival,
violated the Fourth Amendment because no exigency existed at the time of the
security sweep, and, as a result, the handwritten ledger and notebook found in plain
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view in the bedroom during that sweep were seized unlawfully. Once lawfully
inside a residence, officers may conduct a limited visual inspection, or protective
sweep, to ensure no threats to officer safety are present. United States v. Timmann,
741 F.3d 1170, 1181 (11th Cir. 2013). A protective sweep may be undertaken
“without an arrest warrant, so long as the officers are lawfully within the premises
due to, for example, the existence of exigent circumstances.” Id. A properly
limited protective sweep may include “closets and other spaces immediately
adjoining the place of arrest from which an attack could be immediately launched.”
Maryland v. Buie, 494 U.S. 325, 334, 110 S. Ct. 1093, 1098 (1990). Such a sweep
of adjoining spaces may be undertaken “without probable cause or reasonable
suspicion.” Id. The scope of a protective sweep is restricted to only areas large
enough to harbor a person and therefore does not encompass closed drawers or
containers. United States v. Hromada, 49 F.3d 685, 690 (11th Cir. 1995).
Whether or not a Fourth Amendment violation has occurred depends upon
objective reasonableness in light of the facts and circumstances, and an officer’s
actual intent or motivation is irrelevant. See id. at 690–91 (stating that an arresting
officer’s desire to search for evidence of illegal activity in executing protective
sweep of defendant’s residence pursuant to in-home arrest was irrelevant to the
legality of the search as protective sweep).

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As discussed above, like Officer Dolcine, Officer Catlin was lawfully within
the residence because exigent circumstances existed; he too was responding to a
911 call that reported a domestic assault with injuries and it was objectively
reasonable to believe that someone inside was in danger. Brigham City, 547 U.S.
at 403–04, 126 S. Ct. at 1947. It was also objectively reasonable for Officer
Catlin to conduct the protective sweep of the areas adjoining the living room for
officer safety immediately upon his arrival because none of the other officers had
done so in the 7 to 25 minutes prior to his arrival and none of the other officers
knew for sure whether someone else was in the apartment. See Maryland, 494
U.S. at 334, 110 S. Ct. at 1098; Hromada, 49 F.3d at 691. This protective sweep
was objectively reasonable even if Officer Catlin secondarily hoped to find
evidence of fraud. See Hromada, 49 F.3d at 691. During the sweep, Officer Catlin
found lying on the bed a notebook and a ledger on top of the notebook with names,
dates of birth, and social security numbers. Based on the information in the ledger
found on top of the notebook and the ledger’s close proximity to the notebook
itself, officers had probable cause to believe that the ledger was contraband and
that the contents of the notebook beneath it contained similar incriminating
information. Therefore, the ledger and notebook that were in plain view during the
protective sweep were properly seized.
AFFIRMED.
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