FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

NOV 19, 2007

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 07-12109

Non-Argument Calendar

________________________

D. C. Docket No. 06-00001-CR-6

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

WILLIE FREE, 

Defendant-Appellant. 

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Appeal from the United States District Court

for the Southern District of Georgia

_________________________

(November 19, 2007)

Before BIRCH, DUBINA and CARNES, Circuit Judges.

PER CURIAM:

Willie Free appeals his conviction for possession with intent to distribute
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cocaine base and cocaine, in violation of 21 U.S.C. § 841(a)(1). In October 2005,

Free picked up his roommate, Omar Mims, and the two went to a nightclub in

Statesboro, Georgia. While they were there, officers from the Statesboro Police

Department arrested Mims for passing counterfeit money to the nightclub. During

a search incident to Mims’ arrest, the officers discovered two small bags of

marijuana on his person. One of the officers, Detective Robert Bryan, then asked

Free for permission to search his vehicle; Free consented. After no contraband was

found in Free’s car, Detective Bryan informed Free that he could leave, and Free

stated that he would be returning to his home in Screven County, a rural county

northwest of Statesboro.

While he was wrapping up his investigation at the nightclub, Detective

Bryan received a call from another officer who had interviewed Mims. According

to the officer, Mims said that Free had given him both the counterfeit money and

the marijuana, and that Free would be returning to their apartment in Statesboro to

destroy the remaining counterfeit money and drugs. After receiving this

information, Detective Bryan drove to the apartment complex specified by Mims,

where he arrived at the same time as Free. When asked what he was doing at the

complex, Free said he was looking for his cousin, Big Camp, and he denied

knowing who lived in the apartment near where he parked his car. 
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At that time, just after midnight, Corporal Kevin Weatherly arrived, and

Detective Bryan asked Weatherly to knock on the door of the apartment. When a

woman answered, Detective Bryan asked Corporal Weatherly to wait with Free

and went to speak with her. He determined that the woman’s name was Blair

Rhodes. Rhodes confirmed that Free lived at the apartment and was the father of

her child, and she gave consent for the officers and Free to enter the apartment. 

Detective Bryan had Corporal Weatherly bring Free into the apartment with them. 

Because the two bedrooms were dark and the bathroom door was closed, Detective

Bryan then instructed Corporal Weatherly to conduct a protective sweep of the

entire apartment, which revealed a small amount of marijuana in plain view. 

Rhodes then declined consent for the officers to conduct a search of the

apartment. After Rhodes denied consent to search, Detective Bryan left the

apartment in order to submit an affidavit for a search warrant based primarily on: 

(1) Mims’ statements about the counterfeit money and marijuana; and (2) the

marijuana found during the protective sweep. After obtaining a warrant, the

officers searched the apartment, and they found cocaine, cocaine base, marijuana, a

counterfeit $20 bill, and a semi-automatic rifle. 

In his subsequent prosecution for possession of cocaine base and cocaine,

Free moved to suppress the evidence from the later search, arguing that: (1)
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Corporal Weatherly’s warrantless protective sweep of the apartment violated his

Fourth Amendment right against unreasonable searches and seizures because it was

not conducted incident to an arrest; and (2) the evidence found in the later search

should be excluded as fruit of the poisonous tree because the search warrant was

based on evidence discovered during the unlawful protective sweep. The district

court denied Free’s motion to suppress, finding that the protective sweep was valid

because, according to the court, protective sweeps may be conducted in situations

not incident to an arrest. Free then conditionally pleaded guilty to possession with

intent to distribute cocaine base and cocaine, in violation of 21 U.S.C. § 841(a)(1),

reserving his right to appeal on the suppression issue. Free argues on appeal that

the district court erred by: (1) concluding that a valid protective sweep can occur

when it is not incident to an arrest; and (2) failing to suppress all of the evidence

that was discovered during the search of the apartment. 

We review the district court’s denial of a defendant’s motion to suppress

under a mixed standard of review, reviewing the district court’s findings of fact for

clear error and its application of law to those facts de novo. United States v.

Ramirez, 476 F.3d 1231, 1235–36 (11th Cir.), cert. denied, 127 S. Ct. 2924 (2007).

Free argues that the district court erred by concluding that the protective

sweep was valid because, according to Free, a protective sweep can only be valid
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when it is incident to an arrest, not when it occurs after the owner consents to

entry. The Fourth Amendment provides:

The right of the people to be secure in their persons, houses, papers,

and effects, against unreasonable searches and seizures, shall not be

violated, and no Warrants shall issue, but upon probable cause,

supported by Oath or affirmation, and particularly describing the place

to be searched, and the persons or things to be seized. 

U.S. Const. amend. IV. “The Fourth Amendment demonstrates a strong preference

for searches conducted pursuant to a warrant.” Ornelas v. United States, 517 U.S.

690, 699, 116 S. Ct. 1657, 1663 (1996) (quotation omitted). Searches inside a

residence without a warrant are presumptively unreasonable, absent probable cause

and exigent circumstances. United States v. Santa, 236 F.3d 662, 668 (11th Cir.

2000). 

In Maryland v. Buie, 494 U.S. 325, 110 S. Ct. 1093 (1990), where the police

discovered evidence while conducting a protective sweep of a basement after fully

executing an arrest warrant, the Supreme Court stated:

We also hold that as an incident to the arrest the officers could, as a

precautionary matter and without probable cause or reasonable

suspicion, look in closets and other spaces immediately adjoining the

place of arrest from which an attack could be immediately launched. 

Beyond that, however, we hold that there must be articulable facts

which, taken together with the rational inferences from those facts,

would warrant a reasonably prudent officer in believing that the area

to be swept harbors an individual posing a danger to those on the

arrest scene. 
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Buie, 494 U.S. at 334, 110 S. Ct. at 1098. The Court in Buie permitted police

officers to undertake protective sweeps incident to arrest because of the compelling

“interest of the officers in taking steps to assure themselves that the house in which

a suspect is being, or has just been, arrested is not harboring other persons who are

dangerous and who could unexpectedly launch an attack,” emphasizing that the

intrusion must be “no more than necessary to protect the officer from harm.” Id. at

333, 110 S. Ct. at 1098. 

We have not decided whether the police may conduct a protective sweep

only incident to a lawful arrest, and we need not do so here. Even assuming

without deciding that Corporal Weatherly’s protective sweep violated Free’s

Fourth Amendment rights, the warrant for the subsequent search was still valid

because probable cause for the search was established by the affidavit independent

of its reference to the small amount of marijuana discovered during the protective

sweep. The government made this argument before the district court, but the court,

having concluded that the protective sweep was valid, did not address it. 

Nonetheless, we may “affirm the district court, even if it is on a ground other than

that upon which it based its decision.” United States v. Simmons, 368 F.3d 1335,

1342 (11th Cir. 2004). 

We review de novo whether an affidavit for a warrant established probable
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cause, but “we must ‘take care both to review findings of historical fact only for

clear error and to give due weight to inferences drawn from those facts by resident

judges and local law enforcement officers.’” United States v. Jiminez, 224 F.3d

1243, 1248 (11th Cir. 2000) (quotation omitted). 

When some of the evidence in an affidavit is found to have violated the

Fourth Amendment, “if sufficient untainted evidence was present in the affidavit to

establish probable cause, the warrant was valid.” United States v. Whaley, 779

F.2d 585, 589 n.7 (11th Cir. 1985) (citing United States v. Karo, 468 U.S. 705,

719, 104 S. Ct. 3296, 3305 (1985)). “Probable cause to support a search warrant

exists when the totality of the circumstances allow a conclusion that there is a fair

probability of finding contraband or evidence at a particular location.” United

States v. Brundidge, 170 F.3d 1350, 1352 (11th Cir. 1999). “Specifically, the

affidavit should establish a connection between the defendant and the residence to

be searched and a link between the residence and any criminal activity.” United

States v. Martin, 297 F.3d 1308, 1314 (11th Cir. 2002). 

Excluding the reference in the affidavit to the small amount of marijuana

found during the protective sweep, the affidavit contained the following

information: (1) Free had admitted he had picked up Mims and brought him to the

nightclub where Mims was arrested; (2) after Mims was arrested he told one of the
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officers that he had gotten the counterfeit money and marijuana from Free and that

Free would be going back to their apartment to destroy the remaining money and

drugs; (3) Mims also told the officers that the remaining money and drugs could be

found in Free’s bedroom and that he knew that people were paying $50.00 of real

money for $500.00 of the counterfeit money; (4) because of Mims’ statements,

Detective Bryan responded to the apartment Mims specified; (5) Detective Bryan

arrived at the apartment at the same time as Free, and Free said he did not live in

the apartment and did not know who lived in the apartment; (6) Rhodes was living

in the apartment and told Detective Bryan that she was pregnant with Free’s child

and that Free had been in the apartment earlier that day; and (7) Rhodes permitted

Detective Bryan to bring Free into the apartment to discuss the events of that

evening.

We conclude that this information established probable cause for the

subsequent search of the apartment, and therefore that the search warrant was

valid. See Whaley, 779 F.2d at 589 n.7. Mims had provided Detective Bryan with

the address of the apartment that he claimed he and Free shared, which Bryan

corroborated as soon as he saw Free arrive at the apartment. This information was

further corroborated when, in spite of Free’s claim that he did not know who lived

in the apartment, Rhodes said that Free was the father of her child and had been in
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the apartment earlier that day. Mims’ additional statement detailing the specific

location of the remaining counterfeit money and marijuana suggested that Mims

was speaking from his own personal knowledge and that he was also not likely to

lie because after “the warrant issued, lies would likely be discovered in short order

and favors falsely curried would dissipate rapidly.” See Brundidge, 170 F.3d at

1353 (quotation omitted). Conversely, Free had continually lied to Detective

Bryan about where he was going after leaving the nightclub, as well as about his

connection to the apartment.

Through the statements of Mims and Rhodes, as corroborated through

Detective Bryan’s own observations, the affidavit provided sufficient information

to connect Free to the apartment (in spite of Free’s efforts to conceal his ties to it)

and to link the apartment to the counterfeiting and drug activities. Therefore, the

affidavit provided facts “sufficient to justify a conclusion that evidence or

contraband [would] probably be found at the premises to be searched.” See

Martin, 297 F.3d at 1314. Although the district court did not base its decision

denying the suppression motion on the sufficiency of the affidavit without the

statement about the marijuana found during the protective sweep, we nonetheless

affirm the district court on that basis. See Simmons, 368 F.3d at 1342. 

AFFIRMED