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United States v. Morales

United States Court of Appeals, Eleventh Circuit

June 29, 2018

JOSE LUIS MORALES, Defendant-Appellant.

          Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 1:15-cr-20241-JLK-1

          Before ED CARNES, Chief Judge, MARCUS, Circuit Judge, and ROSS, [*] District Judge.

          ED CARNES, Chief Judge

         Congress has decided that a gun in the hands of a convicted felon is not just bad, but bad enough to be a crime. That legislative decision, coupled with his own bad conduct, proved to have bad consequences for Jose Luis Morales in the form of more than 15 years imprisonment. In this appeal he makes a number of arguments against his conviction and sentence, none of which are good, at least not good enough to prevail.

         I. BACKGROUND

         A. Facts

         One day in December 2014, police received an anonymous tip that a white Hispanic male was selling drugs out of a certain house in Miami Gardens. Over the next few months, police detective Phillip Torres - a twenty-four year law enforcement veteran - was able to link Jose Morales to the man described in the tip.

         The neighborhood around the house was experiencing a rash of gun and drug crime. So much so that a gang task force was targeting that area. And it just so happened that Torres was a member of that task force. One night in March of 2015, an officer in an unmarked car was driving through the neighborhood around the house as part of the task force's operations. She saw a Ford Mustang with several people standing around it that was improperly parked outside the same house that Torres had been investigating. Around ten to twenty members of the task force were called out to the area, including Torres.

         When Torres arrived at the house he saw some of the other officers speaking with the men who had been standing by the car. He recognized one of those men as Morales. As Torres approached the house, a woman appeared at the front door. She peeked out to see what was going on and went back inside. Torres spoke with Morales, who told him that the woman was his girlfriend's mother, Berta Lang, and that she lived at the house with him, his girlfriend, and their young children.

         Torres went to the front door of the house and knocked, calling out: "Police!" According to him, no one answered. According to Lang, however, she heard the knocking but refused to open the door unless the officers had a warrant.

         Torres stopped knocking and talked to his supervisor, who sent him back to the door with another officer who spoke Spanish. That officer was Sergeant Jorge Rodriguez. The two went back to the front door and knocked. After thirty seconds or so, Lang answered the door. Rodriguez spoke to her in Spanish. He told her that they were police officers, that there had been a complaint at the house, and that they would like to talk with her about it. Rodriguez then asked her if they could come inside, which Lang said was okay.

         She brought them into the living room just inside the door. Once inside, Rodriguez told Lang that they were "conducting a criminal investigation," and that they were there to get her consent to search the house. He asked her if she lived at the house, and she responded that she did. She told him that she was the leaseholder and that her daughter, Morales, and their two small children (Lang's grandchildren) lived there too. Rodriguez then asked if she had access to the entire house, including her daughter's and Morales' room, and Lang responded that she did. She told him that she goes in there to clean the room and take care of the kids. Rodriguez asked if they could search the house. Lang said that "she d[id]n't know about anybody else" who lived in the house, but that she had "nothing to hide." Rodriguez explained to her that she had the right to refuse to consent - then or at any point later on - and it was okay if she wanted them to get a search warrant first. But Lang "insisted" that they could search and repeated that she had nothing to hide.

         After Lang gave the officers her verbal consent to search, Rodriguez went outside and told his supervisor, who said they needed her signed written consent before sending the K-9 unit inside. So Rodriguez took a "consent to search" form inside to Lang. The form was in English, but Rodriguez translated it into Spanish for her, line by line. He explained to her (in Spanish) that the form concerned her consent and told her that she had a right to refuse consent and insist on a search warrant.[1] Lang said it was okay for them to search the house and signed the form.

         Lang wasn't handcuffed or otherwise restrained during that conversation or thereafter, and the officers didn't have their guns drawn. Neither did they yell, threaten, or put any other pressure on Lang to sign the form. According to the officers, Lang was very "calm" and "professional" when they spoke. And according to Lang, the officers never threatened her.

         Once the consent form had been signed, a dog named "Bond" came in with his handler to search the house. Bond alerted to the bottom left side of the closet in the Morales' bedroom. Officers found a red and black striped bag in the closet with a pair of men's boxers and two firearms: a Rossi .38 caliber revolver (also known as a .38 special) and a .22 caliber pistol. There were also four .38 caliber bullets loose in the bag that matched the .38 special. The officers searched the rest of the bedroom and found in the nightstand a letter to Morales with the address of the house on it. They then arrested Morales.

         The officers took Morales to the station for questioning. Torres and Rodriguez read him his Miranda rights and interviewed him.[2] Morales acknowledged that he understood his rights; he signed a Miranda waiver and gave a DNA sample. The interview, all of which was recorded, lasted about thirty minutes, and during it Morales confessed.

         Morales confirmed that he had been living in the house for two years and stayed in the room where the guns were found. He admitted that "the two guns are mine" and that everything else that was found in the bag belonged to him. He said that he had found the .38 special by a canal while fishing and had found the .22 caliber pistol in an abandoned house. He brought both of the firearms home without anyone else knowing about it.

         When the officers asked him where he had put the firearms when he brought them home, Morales responded that he had put them in the closet inside the red and black bag the officers had found there earlier. He said that both guns were his, that he kept them for protection, and that his family didn't know they were in the house. He admitted that he knew that as a convicted felon he shouldn't have had the firearms, lamenting that "I put myself in this mess."

         Morales confirmed to the officers that he was telling the truth, that no one coerced him, and that he had understood all of their questions. He was, he said, "guilty" and "[t]hat's the honest truth."

          B. Procedural History

         A grand jury indicted Morales on one count of possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). He moved the district court to suppress the evidence discovered by the officers during the search of the house, as well as the confession he gave at the station after the search. His grounds were that Lang did not voluntarily consent to the officer's entry or search of the house, and that the officers were required to also ask him for his consent. Morales contended that as a result, the firearms and his confession should be excluded as the result of an illegal search.

         After an evidentiary hearing on the motion to suppress, a magistrate judge issued a report recommending that the motion be denied. It found that Lang had refused to open the door when Torres first approached the house, and it was only when he returned with Rodriguez and announced their presence as police officers that Lang opened the door. It also recognized, however, that Lang was entitled to "stand on her constitutional right[ ]" not to answer the door without a warrant, and that the second attempt to talk with her amounted to an indirect command to open the door. The report recommended that the court rule that Lang had not voluntarily consented to let the officers into the house but instead had acquiesced to their "aura of officialdom," and that the district court find that the officers' entry into the house was a Fourth Amendment violation. But it also recommended that the court conclude that Lang's consent to search the house was voluntary and served as an intervening event that purged the taint from the illegal entry. And because Lang had authority to consent to a search on her own, the report recommended that the district court rule the search valid, even though the officers did not attempt to seek consent from Morales. Over Morales' objections, the district court adopted the magistrate judge's report and recommendation and on the basis of it denied the motion to suppress.

         A two-day jury trial followed. Morales stipulated at trial that he was a convicted felon; that his rights to possess a firearm had not been restored; and that the two guns had traveled in interstate commerce. The only issue at trial was whether Morales possessed the guns. At the end of the government's case, Morales moved for a judgment of acquittal, but the district court denied the motion. The court determined that there was sufficient evidence in the record for a jury to convict Morales. And that is what the jury did. Following the trial, Morales again moved for a judgment of acquittal, and the district court again denied that motion.

         Because Morales had at least three prior convictions for serious drug offenses he qualified as an armed career criminal under the Armed Career Criminal Act, 18 U.S.C. § 924(e).[3] The presentence investigation report concluded that Morales qualified for an enhanced sentence under United States Sentencing Guideline § 4B1.4. The result was a total offense level of 33 and an elevated criminal history category of IV, which produced a guidelines range of 188 to 235 months. U.S.S.G. § 4B1.4. Under ...

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