[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 15-10822

Non-Argument Calendar

________________________

D.C. Docket No. 4:14-cr-00051-RH-CAS-1

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee,

versus

GABRIEL SCOTT HAMDA, 

 Defendant - Appellant.

________________________

Appeal from the United States District Court

for the Northern District of Florida

________________________

(April 13, 2016)

Before JULIE CARNES, JILL PRYOR and FAY, Circuit Judges.

PER CURIAM: 

Case: 15-10822 Date Filed: 04/13/2016 Page: 1 of 14 
2

After entering a conditional guilty plea, Gabriel Hamda appeals his 

convictions for possession with intent to distribute a controlled substance and 

possession of a firearm and ammunition transported in interstate commerce by a 

convicted felon. Specifically, Hamda argues on appeal that the district court erred 

in denying his motions to suppress. After careful review, and for the reasons set 

forth below, we affirm.

I.

A grand jury indicted Hamda in 2014 for knowingly and intentionally 

possessing with intent to distribute controlled substances, in violation of 21 U.S.C. 

§ 841(a)(1), (b)(1)(C), (b)(1)(D), and (b)(2) (Count 1); and, as a convicted felon, 

knowingly possessing a firearm and ammunition that had traveled in interstate 

commerce, in violation of 18 U.S.C. §§ 922(g)(1) ad 924(a)(2) (Count 2). Hamda 

filed a motion to suppress the drugs, firearms, and ammunition (which formed the 

basis of his charges), as well as clothing and money that police found in his home 

during a search pursuant to a warrant. The district court denied that motion, and 

Hamda thereafter filed a supplemental motion to suppress, arguing that two 

additional unwarranted entries and searches of his home (prior to the search 

pursuant to a warrant) violated the Fourth Amendment. 

Tallahassee Police Department Officer Rob Newberry obtained the search 

warrant at issue in this case. In his affidavit in support of the warrant, Newberry 

Case: 15-10822 Date Filed: 04/13/2016 Page: 2 of 14 
3

testified to the following facts. On December 8, 2013 at 1:51 a.m., a police officer 

responded to a report of shots fired at the Recess Nightclub in Tallahassee. The 

club’s manager, Patrick Bilyk, stated that a disturbance occurred involving “a 

black male in his mid-20s, shaved head, 6’2, 200 lbs., wearing jeans and a blue and 

white plaid shirt.” Doc. 18-1 at 2. The suspect apparently retreated into the 

nightclub’s bathroom, and Bilyk and two security guards followed the suspect into 

the bathroom and attempted to escort him out of the club. As the four men walked 

towards the door, the suspect threw a drink on a patron and pushed one of the 

guards, Michael Lewis. Lewis put the suspect in a headlock, and, while the two 

were engaged, the suspect pulled out a handgun (that Bilyk believed to be a small 

caliber handgun) and shot two rounds into the air. The suspect fled and Bilyk saw 

him pull off his plaid shirt, revealing a white tank top underneath. The suspect got 

into a car with an unknown female and fled. Newberry showed Bilyk a lineup two 

days after the incident and he identified Hamda as the suspect “with 100% 

certainty.” Id. at 3. 

Officer Newberry also testified to Lewis’s account of the events, which 

corroborated Bilyk’s account. Lewis described the suspect similarly, recalling him 

as “a black male, mid 20’s, short hair, 6’0, 180 [lbs], wearing a blue and white 

plaid shirt, and jeans.” Id. When shown a police lineup, Lewis opined that one of 

Case: 15-10822 Date Filed: 04/13/2016 Page: 3 of 14 
4

two individuals in the lineup might be the suspect he saw at the nightclub; Hamda 

was one of these two. 

Newberry’s affidavit included the account of a third witness, Joshua 

Samman. Samman told Newberry that he had attended high school with Hamda 

and was “certain the suspect was Hamda.” Id. at 2. He saw the security guards 

walking Hamda out of the bathroom and, although he briefly lost sight of the men, 

he heard gunshots and then “saw Hamda tear off his green/white plaid shirt 

exposing a white tank underneath.” Id.

The affidavit further detailed Hamda’s criminal history, including 

“numerous drug and weapon charges.” Id. at 3. Newberry identified a residence 

believed to be Hamda’s based on current utilities for the property and Hamda’s 

provision of that address to a law enforcement officer in August 2013. The 

affidavit then stated that, based on Newberry’s experience in law enforcement, 

“[t]here is probable cause to believe Hamda maintains the firearm, clothing, and 

ammunition used in these crimes at his known residence and or the vehicles 

registered to him.” Id. A judge found probable cause and issued the warrant. 

The district court denied Hamda’s first motion to suppress based on the 

inadequacy of the search warrant, concluding that the evidence police sought—

firearms, ammunition, and clothing—was the type a suspect reasonably would 

keep in his home. Alternatively, the court concluded that the motion was due to be 

Case: 15-10822 Date Filed: 04/13/2016 Page: 4 of 14 
5

denied because the police officers who executed the search acted in reasonable 

reliance on the warrant.

Hamda then filed a supplemental motion to suppress, arguing that two initial 

unwarranted entries and searches of his home violated the Fourth Amendment and 

required suppression of the evidence police found. The district court heard a 

hearing on this motion, and the following facts were elicited.

Newberry began investigating the nightclub shooting the day after the 

incident, December 9. He obtained an arrest warrant on December 11 and 

supervisory approval to seek a search warrant the following day. He completed an 

affidavit in support of the search warrant on December 12 but did not obtain a 

signed search warrant that day because, based on Hamda’s criminal history, such a 

search warrant executed simultaneously with an arrest warrant would have been “a 

tactical search warrant.” Doc. 58 at 8.1

 A tactical search warrant required more 

police personnel than an ordinary case. Newberry preferred instead to turn the 

arrest warrant over to U.S. Marshals who could arrest Hamda at his residence and

secure the location, after which Newberry could obtain and execute a signed search 

warrant following the department’s ordinary procedures. 

Newberry and a team of U.S. Marshals and Tallahassee police arrested 

Hamda at his residence on December 13. Before the arrest, Newberry and a small 

 1 “Doc.” refers to the docket entry in the district court in this case.

Case: 15-10822 Date Filed: 04/13/2016 Page: 5 of 14 
6

team of officers secured the exterior of the home and set up a perimeter in case 

Hamda fled. A team of U.S. Marshals and police then announced their presence at 

the front door. Hamda voluntarily came to the door and was arrested without 

incident outside his home. Hamda’s girlfriend, Brittany DeGagne, also was in the 

house. She testified that she stood outside for 10 or 15 minutes after Hamda was 

arrested. She did not know where Hamda was during that period. 

Although Newberry testified that he had no knowledge of a protective 

sweep, defense counsel introduced evidence that, immediately after Hamda’s 

arrest, officers entered the house to ensure that it was “clear.” Tallahassee Police 

Department Officer Jeff Mahoney, a member of the Career Criminal Unit tactical 

team, testified that he participated in the protective sweep. He believed the sweep 

was warranted because, before he and his teammates arrested Hamda, he heard 

footsteps on the stairs. He testified that it could have been Hamda, but it could 

have been someone else. Moreover, considering that there were “guns involved,” a 

protective sweep was appropriate. Id. at 68. In effecting the sweep, Mahoney

stood at the foot of the stairs of the residence while officers swept the first and 

second floors. He testified, “this didn’t take more than a few minutes to do. Once 

it was swept, we exited, and we held the residence.” Id. at 56. Then, after 

Mahoney and his team exited the residence, they “gave the scene to” investigators 

(without specialized tactical training) and “went on [their] way.” Id. 

Case: 15-10822 Date Filed: 04/13/2016 Page: 6 of 14 
7

Newberry apparently joined the arresting team at the front door just after the 

officers completed a protective sweep. No one had a gun drawn at that point. A 

marshal informed Newberry that Hamda had requested a lawyer, and Newberry 

confirmed with Hamda that he did not want to speak with the officers. Then, 

Newberry testified, he “immediately left the scene, went to the county courthouse 

looking for a judge to sign off on the affidavit that [he] already printed the previous 

day.” Id. at 10. Newberry did not add anything to his affidavit that he learned 

once he reached the residence. Newberry located a judge, who signed the warrant. 

Newberry then “notified [his] supervisor . . . that [he] had a warrant in hand and 

was returning.” Id.

According to DeGagne’s testimony, at some point after Newberry departed 

but before he returned with a warrant, and while DeGagne remained outside, 

officers entered the home again. DeGagne testified that an officer questioned her 

about several firearms found in the house, including two in a suitcase with 

women’s clothing in it. She testified that an officer told her at this point that 

someone was “leaving to go get” a search warrant. Id. at 107. After the officer

questioned her, DeGagne returned inside the house. Hamda was already inside, 

sitting in a chair. Other officers were inside as well. DeGagne testified that, when 

Newberry returned with a warrant, she was taken back outside and Hamda was 

placed in a patrol car, which departed within a few minutes.

Case: 15-10822 Date Filed: 04/13/2016 Page: 7 of 14 
8

Newberry testified that, when he returned to Hamda’s residence, Hamda was 

sitting inside. (Another investigator, Gregory Wilder, testified that Hamda was 

still outside when Newberry arrived, but that the two went inside while discussing 

the warrant.) Newberry testified that he was unaware at the time that there had 

been another sweep of the residence in the period between his departure and return; 

he thought officers had brought Hamda directly inside for “comfort.” Id. at 46. 

Shortly after Newberry returned, a forensics officer entered the home and 

videotaped the scene. After the officer completed the videotaping, investigators 

searched the residence. Their search revealed several firearms, narcotics, drug 

paraphernalia, cash, and clothing matching the description of the suspect in 

Newberry’s affidavit.

After the hearing, the district court denied the supplemental motion to 

suppress. The court assumed that the protective sweep was unconstitutional and 

concluded that the subsequent warrantless search was unconstitutional, but denied 

the motion to suppress based on the independent source doctrine, reasoning that 

“[t]he investigating officer would have applied for and obtained the search warrant, 

and the search that led to seizure of the evidence would have occurred just as it did, 

even if the two earlier searches had not occurred.” Doc. 34 at 1.

Hamda then entered into a negotiated conditional guilty plea for both counts 

alleged in the indictment in which he reserved his right to appeal from the denial of 

Case: 15-10822 Date Filed: 04/13/2016 Page: 8 of 14 
9

the motions to suppress. The district court accepted the plea and sentenced Hamda 

to 70 months’ imprisonment. This is Hamda’s appeal.

II.

In reviewing a district court’s denial of a motion to suppress, we examine 

the district court’s findings of fact for clear error and its application of the law to 

those facts de novo. United States v. Ramirez, 476 F.3d 1231, 1235 (11th Cir. 

2007). Further, when considering a motion to suppress, we construe the district 

court’s factual determinations in the light most favorable to the prevailing party, 

here, the government. See United States v. Newsome, 475 F.3d 1221, 1223-24 

(11th Cir. 2007).

We review de novo whether a search warrant affidavit established probable 

cause. United States v. Mathis, 767 F.3d 1264, 1274-75 (11th Cir. 2014). 

“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). “We give great deference to a [district] court 

judge’s determination of probable cause.” Id. (alteration and internal quotation 

marks omitted).

Case: 15-10822 Date Filed: 04/13/2016 Page: 9 of 14 
10

III.

As a preliminary matter, we note that the government does not challenge the 

district court’s assumption that the first and conclusion that the second entry into 

and search of Hamda’s home was unconstitutional. The focus, then, is on whether 

the district court correctly applied the independent source doctrine in denying the 

motion to suppress. Our analysis of the independent source doctrine encompasses 

Hamda’s challenge to the sufficiency of the search warrant. 

“The independent source doctrine involves a two-step process.” United 

States v. Bush, 727 F.3d 1308, 1316 (11th Cir. 2013). “First, we excise from the 

search warrant affidavit any information gained during the arguably illegal initial 

search and determine whether the remaining information is enough to support a 

probable cause finding.” Id. (alteration adopted and internal quotation marks 

omitted). “Second, if the remaining information establishes probable cause, we 

determine whether the officer’s decision to seek the warrant was prompted by what

he had seen during the arguably illegal search.” Id. (alteration adopted and internal 

quotation marks omitted). “If the officer would have sought the warrant even 

without the preceding illegal search, the evidence seized under the warrant is 

admissible.” Id.

As to the first step, it is undisputed that Newberry’s affidavit contained no 

information gained during either of the first two entries into Hamda’s residence. In 

Case: 15-10822 Date Filed: 04/13/2016 Page: 10 of 14 
11

fact, Newberry completed his affidavit the day before he and his term arrested 

Hamda. Thus, we need not excise anything from the search warrant affidavit in 

assessing whether the information in it established probable cause. The district 

court concluded that the affidavit contained sufficient information. We agree. 

“Where a warrant to search a residence is sought, the affidavit must supply 

the authorizing magistrate with a reasonable basis for concluding that Defendant 

might keep evidence of his crimes at his home, i.e., a safe yet accessible place.” 

United States v. Kapordelis, 569 F.3d 1291, 1310 (11th Cir. 2009). “There need 

not be an allegation that the illegal activity occurred at the location to be searched, 

for example the home, but 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.” Id. (internal quotation marks omitted). Where a warrant 

affidavit contains evidence that the suspect possessed contraband of a type 

normally expected to be hidden in a residence (for example, firearms) or where the 

suspect’s contraband is capable of being hidden in a residence (for example, cash 

from a theft), the warrant usually is valid. Id. An affiant’s experience with the 

type of criminal activity at issue also supports a finding of probable cause. See 

United States v. Jenkins, 901 F.2d 1075, 1081 (11th Cir. 1990). 

Conversely, the link between the residence to be searched and the alleged 

criminal activity may be diminished where the criminal activity occurred a great 

Case: 15-10822 Date Filed: 04/13/2016 Page: 11 of 14 
12

distance from the residence. See Kapordelis, 569 F.3d at 1310 (citing United 

States v. Green, 634 F.2d 222, 226 (5th Cir. Unit B Jan. 1981)). And stale 

information does not provide probable cause to support a valid search warrant. See 

United States v. Harris, 20 F.3d 445, 450 (11th Cir. 1994).

Taken together, and viewing these facts in the light most favorable to the 

government, we conclude that a sufficient nexus existed between Hamda’s 

suspected involvement in the nightclub shooting and his residence.2 The affidavit 

described several pieces of evidence linking Hamda to the nightclub shooting that 

likely would be found in the residence, including a plaid shirt, white tank top, a 

firearm, and ammunition. Guns, ammunition, and clothing are the types of items 

we would expect a suspect may hide within his residence. See Kapordelis, 569 

F.3d at 1310. And Newberry is the kind of officer who would have the experience 

to predict that evidence of the crime would be found in Hamda’s residence. As he 

stated in his affidavit, Newberry “has over 11.5 years of experience as a sworn law 

enforcement officer and is currently assigned to the Violent Crimes-Robbery 

Unit.” Doc. 18-1 at 3. Moreover, the affidavit sufficiently established that the 

residence to be searched belonged to Hamda: utilities for the home were in his 

name, and he previously had provided that address to police. Finally, because 

 2 Although we come to this conclusion in the context of our independent source doctrine 

analysis, it also applies to Hamda’s discreet challenge to the sufficiency of the search warrant. 

Moreover, because we conclude the district court did not err in determining that the warrant was 

supported by probable cause, we need not address the government’s alternative contention that 

the challenged evidence nonetheless should be admitted under the good faith exception.

Case: 15-10822 Date Filed: 04/13/2016 Page: 12 of 14 
13

Newberry drafted the affidavit three days after the crime and executed it the 

following day, none of the information he provided was stale. Combined, this 

information was sufficient to tie evidence police hoped to obtain of Hamda’s 

alleged involvement in the nightclub shooting to Hamda’s residence.

Because the information in Newberry’s affidavit supported a finding of 

probable cause, we next ask whether Newberry’s decision to seek the warrant was 

prompted by what he saw during the arguably illegal searches. Bush, 727 F.3d at 

1316. We conclude that ample evidence supported the district court’s conclusion 

that, “before any search occurred, Mr. Newberry had a firm plan to apply for a 

warrant.” Doc. 34 at 9. Newberry began investigating the nightclub shooting 

immediately, speaking to several eyewitnesses and showing them lineups to 

identify Hamda as the suspect. He testified that on December 12, once he had the 

information he needed, he sought and obtained authority to secure the warrant from 

his supervisor. That same day, he drafted the affidavit that would support the 

warrant. What’s more, Newberry was absent for the two arguably illegal searches 

of Hamda’s residence. 

Nothing in the record indicates that Newberry had changed his mind about 

securing a warrant. He simply chose to wait until after the arrest was made to 

complete the process. It is of no moment whether Newberry was wise to wait until 

after the arrest to secure the warrant; he clearly had developed a firm plan to obtain

Case: 15-10822 Date Filed: 04/13/2016 Page: 13 of 14 
14

a signed warrant before the two warrantless entries and searches occurred. 

Because Newberry was going to get the warrant regardless (and indeed testified 

that he was unaware of both arguably illegal searches), and because probable cause 

supported the search warrant, the district court was correct to deem the evidence 

recovered admissible under the independent source doctrine. The motion to 

suppress properly was denied.

AFFIRMED.

Case: 15-10822 Date Filed: 04/13/2016 Page: 14 of 14