### FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT MAY 08, 2003 THOMAS K. KAHN CLERK [PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH

CIRCUIT

________________________ No. 02-16835 Non-Argument Calendar

________________________ D.C. Docket No. 02-00095-C R-3-LAC UNITED STATES OF AMERICA, Plaintiff-Appel lant,

versus STEVEN WATTS, Defendant-Appellee.

__________________________ Appeal from t

he United States D

istrict Court for t

he Northern Distric

t of Florida

_________________________ (May 8, 2003) Before TJOFL

AT, BIRCH a

nd HULL, Cir

cuit Judges. PER CURIAM:1 Watts was charged with conspiring with others to distribute, and possession with intent to dis tribute, in e xcess of five kilog rams of cocaine

and in excess of fif

ty grams of

cocaine base, i

n violation of 21 U.S.C. §§ 846 and 841(b)(1)(A)(ii) - (iii). 2 After the distric

t court granted Defendant Steven W atts’ motion t

o suppress the drugs found in his automobile, 1 the government brought this interlocutory appeal challenging th

e district court’ s ruling . After review, we vacate the district court’s order granting Watts’ motion to suppress and remand this case for further proceedings. I. BACKGROUND As part of an invest

igation into Defenda

nt Watts’ drug t

rafficking activi

ties, DEA agents inter

cepted telephone con

versations betwee

n Watts and others , in which Watts discussed selling drugs. Furthermore, agents observed Watts conduct several drug deals t

hat were consiste

nt with the interce

pted telephone conversations. The day prior to Watts’ arrest, law enforcem ent authorities intercepted several telephone calls, during which W atts discussed purcha

sing cocaine, and indicated that he wo uld be traveling to Pensacola, Florida, in a Ford Mustang. On the day of the ins

tant arrest, off

icers in Loxley

, Alabama,

conducted a traff

ic stop of Watts’ vehi

cle. The officers conducted a cur sory search of

the vehicle, but3

found nothing of evidenti ary value. T

he officers issued Watts a ticket f or failing to stop at a stop sign and p ermitted him to leave the scene o f the traffic stop

. DEA agents then pl

aced Watts under

surveillance and fo

llowed him to 8154 Stonebrook Drive, a to wnhouse. Agents subsequently obtained a search w

arrant for the residence, but not the automobile. DEA agents executed the war rant at 4:00 a.m. the followi ng morning. Although no cont raband was found in t he townhouse where Watts was staying, a drug dog gave a positive

response to Watts ’ Mustang. Base d on the positive drug alert , authorities sear

ched Watts’ car. No drugs, how ever, were disc

overed. Agents remained in the townhouse searching for the cocaine authorities believed Watts had transported in the Mustang. Authorities, however, were unable to locate any

contraband. At approximate

ly 6:00 a.m ., another drug dog was deployed ar ound the exterior and inter

ior of the Mustang. The second drug dog ga ve a positive response at the center console area of the car. Authorities removed the center console, took it apart, and discovered a quarter kilogram of cocaine. In granting Watts ’ motion to suppr ess, the district court concluded that the car was not parke

d within the curtila

ge of the townhouse,

and, thus, could not be searched based on the

warrant authoriz

ing a search of the t

ownhouse where W

atts2 The government does not appeal this issue.

3 The grant

of a motion to suppre

ss presents a mixed q

uestion of law and

fact. United States v. Reid , 69 F.3d 1109, 1113 (11th Cir. 1995)

. 4 was staying. 2 The district court then considered the s earch under the aut omobile exception to the war

rant requirem

ent. The district

court determi

ned that although probable cause existed to search the Mustang, that under Coolidge v. New Hampshire , 403 U.S. 443 (19 71), there were insufficient exigen

t circumstanc es to justify a warrantless search

. Specifically

, the district cour

t concluded that, unde

r the facts of the i

nstant case, there we

re no exigent circum

stances necessitat

ing the search beca

use agents had ample opportunity to obtain a search warrant for the Mustang. The court based its conclusion on t

he fact that there

was no evidence tha

t others would have moved the Mustang

before authoritie s could have returne d with a warrant. II. DISCUSSION On appeal, the government asserts that with regard to the search of an automobile, ex

igency is crea

ted by the inhere

nt mobility of

an automobile.The government fur

ther argues that the

inherent mobilit

y of Watts’ Mustang and the fact that law enforcement had probable cause to search Watts’ Mustang are sufficient to justify a warrantless search in this case. 3 A. Fourth Amendment5

The Fourth Amendment provides that: “[t]he r ight of the people to be secure in their persons, hou

ses, papers, and e

ffects, against u

nreasonable searc

hes and seizures, shall not be violated . . . .” U.S. Const. amend. IV. While it is true that the Fourth Ame

ndment general

ly requires law

enforcement

officials to obtain a warrant before

conducting a search

, there is what ha

s become known a

s the automobile exce

ption to the warrant

requirement. B. The Automobi

le Exception The automobile

exception to the war

rant requirem

ent was based initia

lly on a car’s ready mobility and the exigent circumstances created by that mobil ity. See Carroll v. United States , 267 U.S. 132, 153 (1925). In Carroll , the Supreme Court recognized that the

automobile pres ented unique issues to la w enforceme

nt because officers

might not have the

opportunity to obta

in a warrant wit

hout losing sight of the car and b ecause the car might escape i f not stopped immediately. Id. Indeed, language in early Supreme Court cases appeared to require such an exigency in addition to probable cause fo r a warrantless search of au tomobile. See Coolidge , 403 U.S. at 478 (noting that, even w

here there is proba

ble cause to search an autom

obile, if “poli

ce knew of the pre sence of the autom obile and planned all along to seize it” when they arrested defendant in his home, then “there was no

‘exigent circum

stance’ to justi

fy their failu

re to obtain a warr

ant”6

and fruits of searc

h must be suppress ed); Chambers v. Maroney , 399 U.S. 42, 5 0- 52 (1970) (holding that,

based on automobil

e’s ready m

obility and “fleeting” opportunity to sea

rch, where off

icers have probable

cause to search a car when it is initially stoppe

d on the road it ma

y also be searc

hed without a warr

ant after it has been taken to the police station). In California v. Carney , 471 U.S. 386, 391-92 (1985), howe ver, the Supreme Court

articulated an addi

tional justificati

on for warrantle ss car searches, namely that a car’s occupants enjoy a reduced expectation of privacy in their car compared to their home due to the extensive regulation of automobiles. Since Carney the necessity of

a special exigency

has waned and is now

satisfied by the mobility of the car itself. C. The Test: Mobil

ity of the Autom

obile and Probab

le Cause In United States v. R

oss , 456 U.S. 798, 809 (1982), the Supreme Court stated that if there was probable cause to search a vehicle, a warrantless search would not be deem

ed in contravention of

the Fourth Ame

ndment if the fa

cts of the case would have j ustified a warra nt, “even though a warrant has not a ctually been obtained.” In Pennsylvania v.Labron , 518 U.S. 938, 940 (1996) (per curi am), the Supreme Court

repeated this rule

and stated: “If

a car is readily

mobile and probable cause exis ts to believe it con tains contraband, t he Fourth Amendment . . .7

permits police

to search the vehic

le without more .” Finally, in Maryland v. Dyson , 527 U.S. 465, 467 (1999) (per curiam), the Supreme Court made it clear again that no special

exigency is req

uired beyond a show

ing of the mobilit

y of the automobile. In Maryland, local law enfor cement rece

ived a tip from a reliable confidential inform

ant that the defenda

nt had gone to New Y

ork to buy drugs, a

nd would be returning to Maryland in a r ented red Toyot

a later that day

with a large quantity of cocaine. Id. at 465. A deputy sheriff investigat

ed the tip and found that the license num

ber given to him by

the informant b elonged to a red Toy ota Corolla that had bee n rented to the defen dant, who was a known dru g dealer. Id. at 465-66. When the defendant returned in the rented car at 1 a.m., local law enforcement stopped and searched the vehicle, findi

ng 23 grams of cr

ack cocaine in a duffel bag in the trunk. Id. at 466. Although the trial co

urt denied the defen

dant’s motion t

o suppress, the Maryland Court

of Special Appea

ls stated that in orde

r for the autom

obile exception to the war

rant requirem

ent to apply, the

re must not only

be probable cause to believe tha

t evidence of a cri

me is contained in the automobile , but also a separate finding of

exigency precluding t he police from obtainin g a warrant. Id. Applying this rule

to the facts of the case, the Mary land Court of Specia

l Appeals8

concluded that although there was “abundant probable cause,” the search violated the Fourth Amendment because there was no exigency that prevented or even made it significantly diffi cult for the police t o obtain a search warrant

. Id. In Maryland , the U nited State s Supr eme Cou rt see med to e xpres s some frustration in having

to repeat the autom

obile exception for t

he third time,

stating “[a]s we recognized nearly 75 years ago . .

. there is an exce

ption to [the warra

nt] requirement f

or searches of vehi

cles. And under our

established preced

ent, the ‘automobile exception’ has no separate exigency requireme nt.” Id. The Su preme Court went on to state

that it “ma

de this clear in [

Ross ], when we said that in cases where there wa

s probable cause to se

arch a vehicle ‘ a search is not unreasonable if based on facts that wo uld justify the issuan ce of a warrant, even though a warrant has not been actually obtained .’ In [ Labron ], we repeat ed that the autom

obile exception does not have a separate exigency requirement.” Id. at 467 (emphasis in original). The S

upreme Court w

ent on to conclude that in light of the fact t hat the defendant was driv

ing his automobile

at the time of h

is arrest, a find

ing of probable cause “

alone satisfies the automobile exce ption to the Fourth Amendment’s warrant requirem ent.” Id. This Co urt als o has re cogniz ed the l imited s howing necess ary to jus tify a warrantless sea

rch in United States v. N

ixon , 918 F.2d 895, 903 (1 1th Cir. 1990).9

In Nixon , law enforcem

ent had obtained wir

etap informat

ion indicating that one of the defendants would be driving from Ft. Lauderdale to Jacksonville the next week in a rented car with a pack age containing coc aine. Id. at 902. On the day of the scheduled trip, another intercepted phone call identified the estimated times that the defendant would be leaving Ft. Lauderda le and arriving in J acksonville. Id. When the defenda

nt was seen in a ren

ted car traveling 8 1 m.p.h. on the route authorities thought he w

ould be taking, he wa

s stopped and a searc

h of the trunk led to the seizure of t wo kilograms of powder cocai ne. Id. In Nixon , 918 F.2d at 903, this Court spec ifically rejec ted the defendant’s contention that “law enforcement agents can justify a wa rrantless search of an automobile only

through some show

ing of exigent circum

stances beyond

the exigency inherent in th e ready mobility of the vehicle.” (Emphasi s in original). Rather, this Court

made it “c

lear that the requi

rement of exig

ent circumsta

nces is satisfied by the ‘ready mobil ity’ inherent in all automobiles that reasonably appear to be capable of functioning.” Id. (Emphasis in original). It is clear from

the above caselaw

that there are only

two questions that m

ust be answered in the affirmative before authorities may conduct a warrantless search of an automobile . The first is w hether the autom

obile is readily

mobile. All t

hat is10

necessary to satisfy this el ement is that the automobil e is operational. Nixon , 918 F.2d at 903. In this

case, there is no dispute that Watts ’ Mustang was oper ational. The second prong of t

he test, probable cause, is determ ined under the facts of each case. I

n this case, there

is no dispute that the dr

ug dogs’ multiple

positive responses consti tuted probable cau se. See United States v. B anks , 3 F.3d 399, 402 (11th Cir. 1993). Because both elements of the automobile exception were satisfied, law enforcement was authorized to conduct a warrantle ss search of Watts’ car. Consequently, t

he district court er

red in granting Wa

tts’ motion to s

uppress. III. CONCLUSION For all the above re

asons, we vacate

the district court’ s December 1 0, 2002, order granting Watts’ motion to suppress and remand this case back to the district court for further

proceedings. VACATED and REMANDED