FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

 JUNE 22, 2009

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 08-15967

Non-Argument Calendar

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D. C. Docket No. 08-00082-CR-T-26TGW

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

HECTOR JOSUE VASQUEZ-PADILLA,

Defendant-Appellant.

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Appeal from the United States District Court

for the Middle District of Florida

_________________________

(June 22, 2009)

Before BIRCH, BLACK and BARKETT, Circuit Judges.

PER CURIAM:

Hector Josue Vasquez-Padilla appeals his convictions for manufacturing and
possessing with intent to distribute marijuana, in violation of 21 U.S.C. § 841(a)(1)

(Count 1); possession of a firearm in furtherance of a drug trafficking crime, in

violation of 18 U.S.C. § 924(c) (Count 2); and possession of a firearm by a

convicted felon, in violation of 18 U.S.C. § 922(g)(1) (Count 3). Vasquez-Padilla

argues first that the district court erred in denying his motion to suppress evidence

obtained both as a result of law enforcement officers’ warrantless entry into the

residence from which the contraband was seized and during a subsequent search of

the residence pursuant to a court-authorized search warrant. Vasquez-Padilla

asserts additionally that his conviction under 18 U.S.C. § 924(c) should be vacated

because the evidence was insufficient to establish the requisite nexus between the

firearms and his drug-trafficking crimes. After review of the record and

consideration of the parties’ briefs, we AFFIRM.

I. BACKGROUND

The following facts were adduced at the hearing on Vasquez-Padilla’s

motion to suppress. On 14 January 2008, Sam Bailey, a deputy with the

Hillsborough County Sheriff’s Office, was dispatched to 17820 Jamestown Way,

Apartment D, in Lutz, Florida, to assist Deputy Thomas Chavez in locating a

missing juvenile, Karla Rivera, who was on probation. Chavez believed that

Rivera was at the apartment with Vasquez-Padilla, whom he knew to be a gang

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member with a violent history. When Bailey arrived at the scene, Chavez indicated

that he and the other officers had seen movement in the blinds, indicating that

someone was inside the apartment. Identifying themselves as law enforcement, the

officers banged on the door and yelled for Rivera to come out. Although they

called for her numerous times, no one answered. Chavez indicated that he had

been at the apartment for approximately two hours before Bailey arrived and,

during that entire time, had been trying to coax Rivera out of the apartment.

The officers eventually obtained a key to the apartment from the complex

manager, which Chavez used to unlock the door. Chavez was only able to open

the door about four inches because there was a chain lock on the inside of the door.

The officers continued to call through the open door for Rivera to exit the

apartment. Approximately ten minutes after Chavez opened the door, VasquezPadilla released the interior chain lock and exited the apartment. Bailey observed

that Vasquez-Padilla was “very sweaty,” even though it was mid-January and the

weather was cool, and that there was loose insulation in his hair and on his

shoulders. His hands were shaking and he appeared “very nervous.” After

Vasquez-Padilla told the officers that Rivera was inside, Bailey made the decision

to enter the apartment in order to ascertain her physical well-being. As Bailey

walked into the apartment and around the corner to the middle of the living room,

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he observed a couch, on top of which was a speaker box containing marijuana. At

this point, Rivera appeared from the back hallway and Chavez took her into

custody. Bailey testified that the marijuana was in plain view as he entered the

apartment and that as soon as he stepped inside the doorway, he detected a strong

odor of marijuana. Bailey did not search the apartment at all while he was there.

After exiting the apartment, Bailey asked Vasquez-Padilla for permission to

search the apartment. Vasquez-Padilla told Bailey that he could not give consent

because the lease was in his mother’s name, he did not live at the apartment, and

was “just visiting” to play video games. Vasquez-Padilla’s mother later came to

the apartment and also refused to consent to a search, stating that she could not

consent because she did not live there. She told the officers that her son, VasquezPadilla, and daughter lived at the apartment.

Bailey thereafter appeared before a Hillsborough County Circuit Court judge

with a search warrant affidavit. Bailey stated in the affidavit that on 14 January

2008: (1) he responded to an apartment to locate a missing juvenile; (2) he entered

the apartment to locate the juvenile after Vasquez-Padilla told him she was inside;

(3) upon entering the residence he “detected a strong odor of marijuana” and saw

“green marijuana within plain view on a speaker that was sitting on a couch”;

(4) after the missing juvenile appeared, he asked Vasquez-Padilla for consent to

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search the residence, which Vasquez-Padilla denied; (5) Vasquez-Padilla

previously had been arrested and convicted for possession of marijuana. Based on

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the foregoing, Bailey stated that he had reason to believe that the residence was

“being used to store and distribute marijuana and other illegal substances.”

The judge issued a search warrant for 17820 Jamestown Way, Apt. D, in

Lutz, Florida, authorizing the officers to search the premises, including “all lands,

grounds, and outbuildings or vehicles parked on, in close proximity to, owned, or

under the control of the occupants or the aforementioned residence,” for

“marijuana, proceeds of illegal drug trafficking, telephone numbers or photographs

related to illegal drug trafficking, illegal drug paraphernalia used to compound

harvest, manufacture, store, package, smuggle, transport, distribute, or use/ingest

illegal controlled substances.”

Pursuant to the warrant, Bailey searched the entire apartment as well as the

attic, the entrance to which was located in the ceiling outside the two bedrooms.

Bailey observed on the floor below the attic opening the same kind of loose

insulation Vasquez-Padilla had on his shoulders and in his hair when he exited the

residence. A search of the attic uncovered numerous firearms, most of which were

According to the government’s proffer at the stipulated bench trial, Vasquez-Padilla had 1

previously been convicted of felony possession of cocaine and marijuana in the state of Florida. 

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fully loaded, that had been wrapped in plastic and buried in insulation. The

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officers also found a large supply of ammunition throughout the apartment. The

officers further uncovered a .40 caliber pistol inside a laundry basket in the laundry

room, near the grow operation. The gun, which had an extended clip, was fully

loaded with twenty-nine to thirty rounds of ammunition when the officers entered

the apartment.

In the kitchen, the officers found marijuana and numerous plastic baggies for

packaging marijuana on top of the kitchen cabinets, a bong on the kitchen counter

top, a water cooler containing loose marijuana, and a black backpack containing

several firearms, including a Colt .357 Python pistol and a Loerin .25 caliber pistol,

inside the kitchen cabinets. In the sink of the bathroom located off the hallway the

officers found loose marijuana and in the bathroom cabinet they found a book on

law enforcement tactics. The officers observed loose marijuana drying on a picture

frame in one of the bedrooms, and a “grow operation” with growing marijuana

plants in the walk-in closet of the other bedroom. They also found a box

 The weapons seized from the attic included a: (1) Llama .45 caliber pistol; (2) Raven 2

Arms .25 caliber pistol; (3) Colt .45 pistol; (4) .635 caliber automatic pistol; (5) Smith & Wesson

.38 caliber revolver; (6) Harrington & Richards .32 caliber revolver; (7) Mossburg .12 gauge

shotgun; (8) Romarm AK-47 7.62 caliber assault rifle; (9) Remington .12 gauge shotgun; (10)

New England Firearms .410 caliber rifle; (11) Remington Arms 30.06 rifle and scope; (12)

Savage .20 caliber rifle; (13) an illegal Winchester .12 gauge short-barreled shotgun; (14)

Mossburg .12 gauge shotgun; and (15) Glock .40 caliber revolver. Id. at 19. 

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containing several large bags of marijuana, scales, numerous books and periodicals

on growing marijuana, several bottles of liquid fertilizer used to grow marijuana,

and a large set of pots and containers in which to grow marijuana. In total, the

officers seized approximately 3.6 pounds of marijuana from the apartment.

In his motion to suppress, Vasquez-Padilla argued that there were no exigent

circumstances justifying the officers’ warrantless entry into the apartment and that

the resultant search of the apartment was unlawful. With respect to the latter, he

contended first that the search warrant affidavit, by relying solely on a general

smell of marijuana and the presence of an amount of marijuana suitable for

personal use only, did not provide the magistrate with a substantial basis for

determining whether there was probable cause to believe that he was engaged in a

pattern of illegal drug activity. He argued additionally that the search warrant was

overly broad because it authorized a search of “all lands, grounds and

outbuildings” and encompassed all aspects of a drug trafficking operation even

though the affidavit did not specifically allege drug trafficking, describe a pattern

of criminal activity, or show probable cause for believing that the entire apartment

contained evidence of drug trafficking. Finally, Vasquez-Padilla argued that the

officers did not act in good faith in relying on the warrant and that Bailey

intentionally omitted material facts from the search warrant affidavit.

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The district judge denied Vasquez-Padilla’s motion to suppress, finding as

an initial matter that he lacked standing to challenge the search because he

abandoned any claim to privacy by telling the officers that he did not live at the

apartment and was just a visitor, and, alternatively, found that exigent

circumstances justified the officers’ warrantless entry and that the search warrant,

though broad, was valid.

Vasquez-Padilla waived his right to a jury trial and, following a stipulated

bench trial, was found guilty by the district court on all three counts of the

indictment. With respect to Count 2, the court concluded that given the “veritable

arsenal [of firearms] . . . in conjunction with a drug trafficking or a marijuana grow

house operation,” there was “no question that he possessed these firearms in

furtherance of” a drug trafficking crime. The district court sentenced VasquezPadilla to concurrent terms of sixty and eighty-four months’ imprisonment for

Counts 1 and 3, respectively, and to a consecutive term of sixty months’

imprisonment as to Count 2. This appeal followed.

II. DISCUSSION

A. Motion to Suppress

The Fourth Amendment prohibits “unreasonable searches and seizures.”

U.S. Const. amend. IV. It well-established, however, that only individuals who

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have a legitimate expectation of privacy in the area invaded have standing to

invoke the protections of the Fourth Amendment. Smith v. Maryland, 442 U.S.

735, 740, 99 S. Ct. 2577, 2580 (1979); see also United States v. Cooper, 203 F.3d

1279, 1284 (11th Cir. 2000) (noting that because “Fourth Amendment

rights . . . are personal, . . . only individuals who actually enjoy the reasonable

expectation of privacy have standing to challenge the validity of a government

search”). An individual has a legitimate expectation of privacy protected by the

Fourth Amendment if he (1) “exhibit[s] an actual expectation of privacy,” and (2)

“the privacy expectation [is] one that society is prepared to recognize as

reasonable.” United States v. Segura-Baltazar, 448 F.3d 1281, 1286 (11th Cir.

2006) (quotation marks and citation omitted). In order to establish standing to

challenge the validity of a government search, the individual must therefore

demonstrate both a subjective and an objective expectation of privacy. Id. We

review the district court’s findings as to the first element, which involves a factual

determination, for clear error, and its findings as to the second element, which

involves a question of law, de novo. United States v. McKennon, 814 F.2d 1539,

1543 (11th Cir. 1987) (per curiam); see also United States v. Hastamorir, 881 F.2d

1551, 1560 (11th Cir. 1989) (noting that whether a defendant has abandoned his

privacy interest is a factual issue subject to review for clear error only). In

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determining whether the defendant has demonstrated a legitimate expectation of

privacy in the object of the challenged search, we view the evidence in the light

most favorable to the prevailing party below. United States v. Bennett, 555 F.3d

962, 964 (11th Cir. 2009) (per curiam).

We have held that where a defendant explicitly denies having any

relationship, other than access, to the premises searched, he cannot carry his

burden of establishing the subjective expectation of privacy required to assert

standing. United States v. Sweeting, 933 F.2d 962, 964 (11th Cir. 1991)

(defendants’ temporary access to the premises and fact that they kept some

personal effects on premises was, “when coupled with their explicit disclaimer of

ownership or interest,” insufficient to establish subjective expectation of privacy).

According to Deputy Bailey’s sworn testimony at the suppression hearing,

Vasquez-Padilla expressly disclaimed any subjective expectation of privacy in the

apartment by telling the officers that he did not live there, was just visiting, and

could not consent to a search. The district court’s finding that Vasquez-Padilla

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 In his testimony at the suppression hearing, Vasquez-Padilla denied telling the officers 3

that he did not live at the apartment and was just visiting. The district court chose to credit

Deputy Bailey’s contradictory testimony, however, and nothing in the record suggests that the

court’s decision to discredit Vasquez-Padilla’s testimony was “contrary to the laws of nature.”

United States v. Ramirez-Chilel, 289 F.3d 744, 749 (11th Cir. 2002) (holding that this court will

accept the trial court’s credibility determination “unless it is contrary to the laws of nature, or is

so inconsistent or improbable on its face that no reasonable factfinder could accept it”)

(quotation marks and citation omitted). 

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lacked a subjective expectation of privacy in the apartment was therefore not

clearly erroneous. Because we conclude that Vasquez-Padilla failed to establish

standing to challenge the officers’ initial entry into the apartment and the resultant

search, we need not address whether exigent circumstances existed to justify the

officers’ entry into the apartment or the validity of the search warrant.

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B. Possession of a Firearm in Furtherance of a Drug-Trafficking Crime

Although we ordinarily review de novo whether the evidence was sufficient

to support a conviction, where, as here, “a defendant does not move the district

court for a judgment of acquittal at the close of the evidence, we may reverse the

conviction only to prevent a manifest miscarriage of justice.” United States v.

Bender, 290 F.3d 1279, 1283-84 (11th Cir. 2002) (citation omitted). Under this

 Although Vasquez-Padilla clearly abandoned any claim to privacy with respect to the 4

officers’ initial entry into the apartment, even assuming, arguendo, that he had standing to

challenge the resultant search based on his mother’s statement to officers that he lived at the

apartment, Vasquez-Padilla’s assertion that the search warrant was invalid is without merit

because: (1) the allegations in Bailey’s affidavit that he smelled a strong odor of marijuana and

saw marijuana in plain view in an apartment occupied by an individual who previously had been

convicted for possession of marijuana provided the magistrate with a substantial basis for

determining that “contraband or evidence of a crime” would be found in the apartment, see

Illinois v. Gates, 462 U.S. 213, 238-39, 103 S. Ct. 2317, 2332 (1983); (2) the warrant stated with

particularity the items to be seized and the place to be searched, see United States v. Wuagneux,

683 F.2d 1343, 1348 (11th Cir. 1982); and (3) even assuming the warrant was overly broad, the

officers acted in good faith in relying on the warrant because it was not “so overly broad on its

face that the executing officers could not reasonably have presumed it to be valid.” United

States v. Travers, 233 F.3d 1327, 1330 (11th Cir. 2000) (good faith exception to exclusionary

rule as articulated in United States v. Leon, 468 U.S. 897, 918, 104 S. Ct. 3405, 3418 (1984),

may be applied to a search pursuant to an overly broad warrant). 

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standard, we must find that “the evidence on a key element of the offense is so

tenuous that a conviction would be shocking.” Id.

To obtain a conviction under 18 U.S.C. § 924(c)(1)(A), the government must

prove that the defendant “(1) knowingly (2) possessed a firearm (3) in furtherance

of any drug trafficking crime for which he could be prosecuted in a court of the

United States.” United States v. Woodard, 531 F.3d 1352, 1362 (11th Cir. 2008).

“The ‘in furtherance’ element requires proof that the firearm helped, furthered,

promoted, or advanced the drug trafficking.” Id. (quotation marks and citation

omitted). Accordingly, the government must demonstrate some nexus between the

firearms and the defendant’s drug-trafficking operation – the mere “presence of a

firearm within the defendant’s dominion and control during a drug trafficking

offense is not sufficient by itself to sustain a § 924(c) conviction.” United States v.

Timmons, 283 F.3d 1246, 1253 (11th Cir. 2002). In determining whether the

requisite nexus has been established, we consider several factors, including the

type of drug activity being conducted; the type and accessibility of the firearm;

whether the weapon is stolen; the status of the possession (legitimate or illegal);

whether the firearm is loaded; the proximity of the firearm to the drugs or drugmoney; and the circumstances under which the firearm is found. Woodard, 531

F.3d at 1362. Though not exclusive, these factors “distinguish possession in

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furtherance of a crime from innocent possession of a wall-mounted antique or an

unloaded hunting rifle locked in a cupboard.” Timmons, 283 F.3d at 1253; see also

United States v. Ceballos-Torres, 218 F.3d 409, 415 (5th Cir. 2000) (noting that “a

drug trafficker who engages in target shooting or in hunting game likely [will not]

violate the law by keeping a pistol for that purpose that is otherwise locked and

inaccessible”).

In this case, the officers found marijuana, paraphernalia, and items used for

packaging marijuana in the kitchen in close proximity to a bag containing two

pistols and ammunition; a large amount of harvested and growing marijuana in the

hall bathroom and in both bedrooms; and a .40 caliber pistol with a fully loaded

extended clip holding thirty rounds of ammunition in the nearby laundry room.

The officers also uncovered fourteen firearms, including four pistols, two

revolvers, an AK-47 assault rifle, three shotguns, three rifles, and an illegal shortbarrel shotgun, most of which were fully loaded, from the attic, which was located

between the two bedrooms and had been accessed by Vasquez-Padilla shortly

before he exited the apartment, as well as numerous books about growing

marijuana, fertilizer, pots for growing marijuana plants, and scales, throughout the

apartment.

This evidence was clearly sufficient for the district court to have concluded

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that Vasquez-Padilla possessed the firearms, which were loaded and in close

proximity to the marijuana, in order to defend his drugs and drug-trafficking

operation. See Woodard, 531 F.3d at 1362; Timmons, 283 F.3d at 1253. The

district court therefore did not err in finding that Vasquez-Padilla possessed the

firearms “in furtherance of” drug-trafficking under § 924(c)(2).

III. CONCLUSION

Vasquez-Padilla appeals his convictions for manufacturing and possessing

with intent to distribute marijuana, possession of a firearm in furtherance of a drug

trafficking crime, and possession of a firearm by a convicted felon, arguing that the

district court erred in denying his motion to suppress evidence and that the

evidence was insufficient to sustain a conviction under 18 U.S.C. § 924(c).

Because Vasquez-Padilla lacked standing to challenge either the officers’ entry

into the apartment or the resultant search, we affirm the district court’s denial of

his motion to suppress. Further, the evidence that Vasquez-Padilla kept loaded

firearms in the kitchen and laundry room, in close proximity to where marijuana

was being packaged, stored, and grown, was more than sufficient for the district

court to find Vasquez-Padilla guilty of possessing the firearms “in furtherance” of

drug-trafficking crimes. Accordingly, the judgment of the district court is

AFFIRMED.

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