454 F.

3d 1259

UNITED STATES of America, Plaintiff-Appellee,

v.
Jesus TAMARI, Defendant-Appellant.
No. 05-10618.

United States Court of Appeals, Eleventh Circuit.

July 6, 2006.

John M. Weinberg (Court-Appointed), John M. Weinberg, P.A., Miami,

FL, for Tamari.
Jonathan D. Colan, Anne R. Schultz and Harriett R. Galvin, Asst. U.S.
Attys., Miami, FL, for U.S.
Appeal from the United States District Court for the Southern District of
Florida.
Before BLACK, BARKETT and COX, Circuit Judges.
BLACK, Circuit Judge:

Appellant Jesus Tamari appeals his conviction for conspiracy to possess with
the intent to distribute a controlled substance in violation of 21 U.S.C.
841(a)(1) and 846. Tamari argues the district court erred in denying his motion
to suppress evidence and statements obtained during two unlawful searches of
his vehicle. For the reasons set forth more fully below, we affirm.

I. BACKGROUND
2

In early 2003, federal, state, and local law enforcement agents began
conducting an investigation into a large-scale conspiracy in south Florida to
harvest and distribute controlled substances. The agents had reason to believe
the organization was run by an individual named Humberto Febles, who owned
a yellow Hummer that he used in the conspiracy. During the course of the
investigation, a confidential informant alerted authorities to several properties
the organization used to cultivate and house various controlled substances.

Pursuant to this information, agents obtained a warrant to search a parcel of

rural, isolated property located at 17540 Southwest 254th Street in Miami,
Florida. The warrant authorized agents to search the property, including "
[v]ehicles or vessels or trailers registered to or owned by the occupants of the
place to be searched, or under the care, custody or control or on the property on
which the place to be searched is situated."
3

Between 7:30 a.m. and 8:00 a.m. on September 1, 2004, agents arrived at
17540 Southwest 254th Street, whereupon they served the search warrant and
proceeded to execute the warrant by conducting the search. Upon entering the
residence on the property, they arrested three individuals: Roberto Cano, Marta
Gonzalez, and Rudolfo Aguilera. The agents then searched the residence and
seized cocaine, drug paraphernalia, cash, and a number of loaded weapons.
Soon thereafter, agents searched a Freightliner truck parked on the property,
finding slightly less than 13 kilograms of cocaine and stacks of cash totaling
$536,421.

Approximately 30 minutes to one hour after combing the Freightliner truck,

while the search was still in progress, Tamari drove onto the property in a
yellow Hummer. He approached Special Agent Debra Crane, who was standing
in the driveway, and began to speak in Spanish. Agent Crane, not fluent in
Spanish, called for assistance from Detective Jorge Rodriguez, who asked for
Tamari's name, identification, and his purpose for being on the property.
Exiting the Hummer, Tamari responded with a name, but was unable to
produce any identification or vehicle registration. Tamari then told agents the
vehicle belonged to a family member, but later claimed it belonged to an
individual named Humberto, who loaned him the vehicle in exchange for
Tamari's Honda Accord. He also said he was on the premises to see a man
about some animals, but it appeared there were no animals on the property.

Agent Crane then searched the car, looking for its registration or any indicia of
ownership. After searching the glove compartment, center console, and pockets
in the driver and passenger doors, Agent Crane briefly scanned the rear cargo
area. She neither found nor seized any evidence during this search. Shortly
thereafter, agents ran a narcotics detection dog, Ho Jo, around the perimeter of
the Hummer. Ho Jo gave a positive alert to a wheel well compartment in the
rear cargo area, in which agents found around $45,000 in cash. Agents then
searched the Hummer again, finding and seizing documents concerning
Roberto Cano, photographs of Roberto Cano, a key to the Freightliner truck,
calling cards, and gold jewelry.

Tamari was subsequently arrested and charged with (1) conspiring to possess

with the intent to distribute a controlled substance in violation of 21 U.S.C.

841(a)(1) and 846; and (2) possessing with the intent to distribute a controlled
substance in violation of 21 U.S.C. 841(a)(1).
7

Before trial, Tamari moved the district court to suppress physical evidence
obtained during the searches of the Hummer. Tamari also moved to suppress
statements he made during those searches, arguing they were the product of
unlawful searches and thus inadmissible "fruit of the poisonous tree" under
Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).
The district court held a preliminary hearing and denied the motion, concluding
the vehicle was subject to search under the warrant's authorization to search "
[v]ehicles . . . on the property on which the place to be searched is situated."
Alternatively, the district court found that even if the search warrant did not
justify the searches, sufficient probable cause existed to permit warrantless
searches of the Hummer.

The jury convicted Tamari of conspiring to possess with the intent to distribute
a controlled substance. He was acquitted on the remaining count. Tamari now
appeals his conviction, arguing the district court erred by denying his motion to
suppress evidence and statements obtained during the September 1, 2004,
vehicle searches.1

II. STANDARD OF REVIEW

9

"We apply a mixed standard of review to the denial of a defendant's motion to

suppress, reviewing the district court's findings of fact for clear error and its
application of law to those facts de novo." United States v. Lyons, 403 F.3d
1248, 1250 (11th Cir.2005).

III. DISCUSSION
10

The Fourth Amendment protects the "right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and
seizures." U.S. Const. amend. IV. This fundamental right is generally preserved
by a requirement that searches be conducted pursuant to a warrant issued by an
independent judicial officer upon a showing of probable cause. See Maryland v.
Dyson, 527 U.S. 465, 466, 119 S.Ct. 2013, 2014, 144 L.Ed.2d 442 (1999).
There are, of course, exceptions to the general rule that a warrant must be
secured before a search is undertaken, one of which is the automobile
exception. Under the automobile exception, agents may conduct a warrantless
search of a vehicle if (1) the vehicle is readily mobile (i.e., operational); and (2)
agents have probable cause to believe the vehicle contains contraband or

evidence of a crime. See Dyson, 527 U.S. at 466-67, 119 S.Ct. at 2014; United
States v. Watts, 329 F.3d 1282, 1285 (11th Cir.2003).
11

Accordingly, a vehicle search will not violate the Fourth Amendment if it is

authorized by the terms of a valid search warrant or, where agents conduct a
warrantless search, if the vehicle is operational and "under the totality of the
circumstances, `there is a fair probability that contraband or evidence of a crime
will be found'" in the vehicle. United States v. Goddard, 312 F.3d 1360, 1363
(11th Cir. 2002) (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317,
2332, 76 L.Ed.2d 527 (1983)).

12

On appeal, Tamari first argues the vehicle searches in this case were unlawful
because they fell outside the scope of the search warrant. Relying primarily on
United States v. Gentry, 839 F.2d 1065 (5th Cir.1988), Tamari asserts the
search warrant did not authorize agents to search vehicles arriving on the
subject property during the course of the agents' search. Second, Tamari argues
the vehicle searches were unconstitutional under Ybarra v. Illinois, 444 U.S. 85,
100 S.Ct. 338, 62 L.Ed.2d 238 (1979), because the Hummer's mere presence on
the subject property did not give agents sufficient probable cause to search the
vehicle without a warrant. Third, Tamari argues the search warrant did not
encompass the vehicle searches because under United States v. Patterson, 278
F.3d 315, 318-19 (4th Cir.2002), the warrant's authorization to search vehicles
on the property extended only to those vehicles "owned by or under the
dominion and control of the premises' owner." Because he did not own the
subject property, Tamari asserts the search warrant did not authorize the search
of his vehicle. Tamari concludes, therefore, the vehicle searches in this case
were unlawful, and the district court should have suppressed the evidence
seized and statements made during those searches.2
A. Search Warrant

13

Tamari does not dispute that the Hummer could have been searched under the
terms of the search warrant had it been located on the subject property at the
time the warrant was served. See United States v. Cole, 628 F.2d 897, 899-900
(5th Cir.1980). Rather, relying primarily on United States v. Gentry, 839 F.2d
1065 (5th Cir.1988), Tamari asserts the search warrant did not authorize agents
to search vehicles arriving on the subject property later, after the search had
already begun. We lack published authority in this Circuit as to whether a valid
search warrant3 authorizing the search of vehicles on the subject property
encompasses the search of a vehicle arriving on that property during the course
of the search.4 We are not, however, without guidance on this issue. In United
States v. Alva, 885 F.2d 250 (5th Cir.1989), the Fifth Circuit passed on the

precise question presented here.

14

In Alva, a search warrant authorized officers to search the house, structures, and
"any and all motor vehicles found parked" on the subject property. Id. at 251.
While the search was being conducted, Alva drove onto the property in a
pickup truck. Id. Officers searched the vehicle, seizing the semiautomatic pistol
that would eventually form the basis for Alva's felon-in-possession conviction
under 18 U.S.C. 922(g)(1). Id. The district court denied Alva's motion to
suppress the pistol, finding as a "motor vehicle[ ] found parked" on the
property, Alva's pickup truck was subject to search under the terms of the
warrant. Id.

15

Like Tamari, Alva argued on appeal that the search warrant did not authorize
the search of his vehicle. He reasoned that "the warrant language requiring
search of `any and all vehicles found on the premises. . .' did not encompass
vehicles, such as his, that arrived at the premises after the police had begun
searching." Id. Because "the police had no probable cause to search his vehicle
independent from the warrant," Alva asserted "the search was illegal," and the
resulting evidence should have been suppressed. Id. at 252.

16

The Fifth Circuit disagreed. The Alva court emphasized that the "approach of
exercising reasonableness in warrant construction [applies] to timing aspects of
warrant execution." Id. The court then held, in relevant part:

17

The search of Alva's pickup truck pursuant to warrant language authorizing the
search of "any and all motor vehicles found parked on the premises . . ." was
within the scope of the warrant. Alva's reading of the language, that it prohibits
police from searching vehicles arriving after the search begins, unnaturally
cramps the warrant's temporal authority. Searches do not take place in an
instant; they occur over a period of time, sometimes many hours. Thus vehicles
arriving during the course of a search are vehicles "found parked" on the
premises if they reasonably could contain the items for which law enforcement
officials are searching. Alva's pickup truck was such a vehicle.

18

Id.

19

We agree with the Fifth Circuit. A valid search warrant authorizing the search
of vehicles on the subject property permits the search of vehicles arriving on
that property during the course of the search, so long as those vehicles could
reasonably contain items the officers are searching for. In this case, like Alva, a
valid search warrant allowed agents to search "[v]ehicles . . . on the property on

which the place to be searched is situated." After agents served and proceeded
to execute the search warrant, Tamari drove a Hummer onto the subject
property. The Hummer, moreover, reasonably could have contained items
agents sought in the search warrant, including documents, account books,
currency, jewelry, firearms, and drug paraphernalia. As a result, the vehicle
searches in this case, conducted pursuant to warrant language authorizing the
search of vehicles "on the property on which the place to be searched is
situated," were within the scope of the search warrant.
20

To support his argument to the contrary, Tamari relies primarily on the Fifth
Circuit's decision in United States v. Gentry, 839 F.2d 1065 (5th Cir.1988). His
reliance is misplaced, however, because Gentry's holding is irrelevant to this
case. In Gentry, the court limited its analysis to defining the physical
boundaries of the search warrant in question. See id. at 1068-69. The physical
scope of the warrant's authority is not at issue in this case, however, because it
is beyond dispute that the Hummer was on the subject property, and thus within
the warrant's physical boundaries, at the time of the searches. The question
presented here is the warrant's temporal authority and, more specifically,
whether agents may search vehicles arriving on the subject property during the
course of a search conducted pursuant to a valid search warrant. The Gentry
court expressly withheld judgment on that issue. See id. at 1069. Indeed, the
Fifth Circuit answered the question in the affirmative the next year in Alva,
which we follow here.

21

We hold, therefore, that the September 1, 2004, vehicle searches were

authorized by the terms of the search warrant. Consequently, the searches were
lawful under the Fourth Amendment, and the district court did not err in
denying Tamari's motion to suppress the resulting evidence and statements.5
B. Automobile Exception

22

Tamari next argues the vehicle searches were unconstitutional under Ybarra v.
Illinois, 444 U.S. 85, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979), because the
Hummer's mere presence on the subject property did not give agents sufficient
probable cause to search the vehicle without a warrant. We disagree and hold
that even if the vehicle searches did not fall within the scope of the search
warrant, the warrantless searches of the Hummer were nonetheless lawful
under the automobile exception to the Fourth Amendment's warrant
requirement.

23

Again, the automobile exception permits warrantless vehicle searches if the

vehicle is operational and agents have probable cause to believe the vehicle
contains evidence of a crime. See Dyson, 527 U.S. at 466-67, 119 S.Ct. at 2014;
United States v. Magluta, 418 F.3d 1166, 1182 (11th Cir. 2005). Probable
cause, in turn, exists when under the totality of the circumstances, "there is a
fair probability that contraband or evidence of a crime will be found" in the
vehicle. Goddard, 312 F.3d at 1363 (quotation omitted). Because there is no
dispute that the Hummer was operational, our inquiry is limited to determining
whether sufficient probable cause existed to allow warrantless searches of the
vehicle.
24

First, we hold Agent Crane had probable cause to conduct the initial search of
the Hummer. Agents were searching a parcel of rural, isolated property they
had probable cause to believe was part of a large-scale drug conspiracy. After
they seized cocaine, cash, and firearms on the premises, a yellow Hummer
drove onto the property, the same type of vehicle agents suspected was driven
by Humberto Febles, the head of the drug conspiracy. In fact, when Tamari
changed his story regarding the vehicle's owner, he claimed a man named
Humberto loaned him the Hummer. Upon request, Tamari was unable to
produce any identification or vehicle registration. Further, when asked about
his purpose on the property, Tamari proffered the untenable explanation that he
was there to see a man about some animals. Given the totality of these
circumstances, a reasonable agent could deduce with fair probability that the
Hummer contained contraband or evidence of a crime. See, e.g., Chambers v.
Maroney, 399 U.S. 42, 47-48, 52, 90 S.Ct. 1975, 1979, 1981, 26 L.Ed.2d 419
(1970) (noting "obviously [there was] probable cause to search the car" when
officers had a description of the suspects and the vehicle they drove). Agent
Crane, therefore, had sufficient probable cause to search the Hummer.

25

Second, agents had probable cause to search the Hummer once more after Ho
Jo, the narcotics detection dog, circled the vehicle. Along with the facts
establishing probable cause for Agent Crane's initial search, Ho Jo sniffed the
Hummer and alerted agents to the presence of narcotics in the rear of the
vehicle.6 We have long recognized that "probable cause arises when a drugtrained canine alerts to drugs." United States v. Banks, 3 F.3d 399, 402 (11th
Cir.1993); see also United States v. Dunkley, 911 F.2d 522, 527 (11th
Cir.1990); United States v. Puglisi, 723 F.2d 779, 783 (11th Cir.1984).
Notwithstanding the facts validating the initial search, Ho Jo's positive alert
was itself sufficient to give agents probable cause to search the Hummer a
second time.

26

Thus, even if the search warrant had not justified the vehicle searches in this
case, we find the agents were entitled to search the Hummer under the

automobile exception to the warrant requirement. The district court, therefore,

did not err in denying Tamari's motion to suppress the resulting evidence and
statements.7
IV. CONCLUSION
27

In sum, we hold the Hummer was subject to search under the terms of the
search warrant. In the alternative, agents were entitled to search the Hummer
without a warrant under the automobile exception to the warrant requirement.
The district court, therefore, did not err in admitting evidence and statements
obtained during the September 1, 2004, vehicle searches. We accordingly
affirm Tamari's conviction.

28

AFFIRMED.

Notes:
1

After carefully considering the other arguments raised on appeal, we conclude

they are without merit and do not discuss them. Moreover, because the parties
do not dispute the lawfulness of any traffic stop in this case, we confine our
discussion to the propriety of the September 1, 2004, searches of the Hummer

We will not discuss Tamari's third argument because inUnited States v. Cole,
628 F.2d 897, 899 (5th Cir.1980) the former Fifth Circuit held that a search
warrant authorized the search of a third party's truck on the property covered by
the search warrant. See also Bonner v. City of Prichard, Alabama, 661 F.2d
1206, 1209 (11th Cir.1981) (en banc) (adopting as binding precedent all
decisions of the former Fifth Circuit handed down prior to October 1, 1981).

Tamari does not challenge the validity of the search warrant in this case. Thus,
we need only address whether the search warrant authorized agents to search
the Hummer

We answered this question in the affirmative inUnited States v. Sears, 139

Fed.Appx. 162, 166 (11th Cir.2005). As an unpublished opinion, however,
Sears lacks precedential authority and does not bind this Court. See 11th Cir. R.
36-2; Summers v. Dillard's, Inc., 351 F.3d 1100, 1101 n. 1 (11th Cir.2003).

Because the vehicle searches were lawful, we need not address Tamari's
argument that statements he made during those searches should have been
suppressed as fruit of the poisonous tree underWong Sun v. United States.

We need not address whether agents had cause to walk Ho Jo around the
perimeter of the vehicle because a drug sniff performed during a lawful traffic
stop is not a search implicating Fourth Amendment concernsSee Illinois v.
Caballes, 543 U.S. 405, 410, 125 S.Ct. 834, 838, 160 L.Ed.2d 842 (2005).

See supra note 5.