FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

JUL 06, 2006

THOMAS K. KAHN

CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 05-10618

________________________

D. C. Docket No. 04-20716-CR-PCH

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

JESUS TAMARI, 

Defendant-Appellant. 

________________________

Appeal from the United States District Court

for the Southern District of Florida

_________________________

(July 6, 2006)

Before BLACK, BARKETT and COX, Circuit Judges.

BLACK, Circuit Judge:
2

Appellant Jesus Tamari appeals his conviction for conspiracy to possess

with the intent to distribute a controlled substance in violation of 21 U.S.C.

§§ 841(a)(1) and 846. Tamari argues the district court erred in denying his motion

to suppress evidence and statements obtained during two unlawful searches of his

vehicle. For the reasons set forth more fully below, we affirm.

I. BACKGROUND

In early 2003, federal, state, and local law enforcement agents began

conducting an investigation into a large-scale conspiracy in south Florida to

harvest and distribute controlled substances. The agents had reason to believe the

organization was run by an individual named Humberto Febles, who owned a

yellow Hummer that he used in the conspiracy. During the course of the

investigation, a confidential informant alerted authorities to several properties the

organization used to cultivate and house various controlled substances. Pursuant to

this information, agents obtained a warrant to search a parcel of rural, isolated

property located at 17540 Southwest 254th Street in Miami, Florida. The warrant

authorized agents to search the property, including “[v]ehicles or vessels or trailers

registered to or owned by the occupants of the place to be searched, or under the

care, custody or control or on the property on which the place to be searched is

situated.” 
3

Between 7:30 a.m. and 8:00 a.m. on September 1, 2004, agents arrived at

17540 Southwest 254th Street, whereupon they served the search warrant and

proceeded to execute the warrant by conducting the search. Upon entering the

residence on the property, they arrested three individuals: Roberto Cano, Marta

Gonzalez, and Rudolfo Aguilera. The agents then searched the residence and

seized cocaine, drug paraphernalia, cash, and a number of loaded weapons. Soon

thereafter, agents searched a Freightliner truck parked on the property, finding

slightly less than 13 kilograms of cocaine and stacks of cash totaling $536,421. 

Approximately 30 minutes to one hour after combing the Freightliner truck,

while the search was still in progress, Tamari drove onto the property in a yellow

Hummer. He approached Special Agent Debra Crane, who was standing in the

driveway, and began to speak in Spanish. Agent Crane, not fluent in Spanish,

called for assistance from Detective Jorge Rodriguez, who asked for Tamari’s

name, identification, and his purpose for being on the property. Exiting the

Hummer, Tamari responded with a name, but was unable to produce any

identification or vehicle registration. Tamari then told agents the vehicle belonged

to a family member, but later claimed it belonged to an individual named

Humberto, who loaned him the vehicle in exchange for Tamari’s Honda Accord. 

He also said he was on the premises to see a man about some animals, but it

appeared there were no animals on the property.
4

Agent Crane then searched the car, looking for its registration or any indicia

of ownership. After searching the glove compartment, center console, and pockets

in the driver and passenger doors, Agent Crane briefly scanned the rear cargo area. 

She neither found nor seized any evidence during this search. Shortly thereafter,

agents ran a narcotics detection dog, Ho Jo, around the perimeter of the Hummer. 

Ho Jo gave a positive alert to a wheel well compartment in the rear cargo area, in

which agents found around $45,000 in cash. Agents then searched the Hummer

again, finding and seizing documents concerning Roberto Cano, photographs of

Roberto Cano, a key to the Freightliner truck, calling cards, and gold jewelry. 

Tamari was subsequently arrested and charged with (1) conspiring to

possess with the intent to distribute a controlled substance in violation of 21 U.S.C.

§§ 841(a)(1) and 846; and (2) possessing with the intent to distribute a controlled

substance in violation of 21 U.S.C. § 841(a)(1). 

Before trial, Tamari moved the district court to suppress physical evidence

obtained during the searches of the Hummer. Tamari also moved to suppress

statements he made during those searches, arguing they were the product of

unlawful searches and thus inadmissible “fruit of the poisonous tree” under Wong

Sun v. United States, 371 U.S. 471, 83 S. Ct. 407 (1963). The district court held a

preliminary hearing and denied the motion, concluding the vehicle was subject to

search under the warrant’s authorization to search “[v]ehicles . . . on the property
 After carefully considering the other arguments raised on appeal, we conclude they are 1

without merit and do not discuss them. Moreover, because the parties do not dispute the

lawfulness of any traffic stop in this case, we confine our discussion to the propriety of the

September 1, 2004, searches of the Hummer.

5

on which the place to be searched is situated.” Alternatively, the district court

found that even if the search warrant did not justify the searches, sufficient

probable cause existed to permit warrantless searches of the Hummer. 

The jury convicted Tamari of conspiring to possess with the intent to

distribute a controlled substance. He was acquitted on the remaining count.

Tamari now appeals his conviction, arguing the district court erred by denying his

motion to suppress evidence and statements obtained during the September 1,

2004, vehicle searches.1

II. STANDARD OF REVIEW

“We apply a mixed standard of review to the denial of a defendant’s motion

to suppress, reviewing the district court’s findings of fact for clear error and its

application of law to those facts de novo.” United States v. Lyons, 403 F.3d 1248,

1250 (11th Cir. 2005).

III. DISCUSSION

The Fourth Amendment protects the “right of the people to be secure in their

persons, houses, papers, and effects, against unreasonable searches and seizures.” 
6

U.S. Const. amend. IV. This fundamental right is generally preserved by a

requirement that searches be conducted pursuant to a warrant issued by an

independent judicial officer upon a showing of probable cause. See Maryland v.

Dyson, 527 U.S. 465, 466, 119 S. Ct. 2013, 2014 (1999). There are, of course,

exceptions to the general rule that a warrant must be secured before a search is

undertaken, one of which is the automobile exception. Under the automobile

exception, agents may conduct a warrantless search of a vehicle if (1) the vehicle is

readily mobile (i.e., operational); and (2) agents have probable cause to believe the

vehicle contains contraband or evidence of a crime. See Dyson, 527 U.S. at 466-

67, 119 S. Ct. at 2014; United States v. Watts, 329 F.3d 1282, 1285 (11th Cir.

2003). 

Accordingly, a vehicle search will not violate the Fourth Amendment if it is

authorized by the terms of a valid search warrant or, where agents conduct a

warrantless search, if the vehicle is operational and “under the totality of the

circumstances, ‘there is a fair probability that contraband or evidence of a crime

will be found’” in the vehicle. United States v. Goddard, 312 F.3d 1360, 1363

(11th Cir. 2002) (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317,

2332 (1983)).

On appeal, Tamari first argues the vehicle searches in this case were

unlawful because they fell outside the scope of the search warrant. Relying
 We will not discuss Tamari’s third argument because in United States v. Cole, 628 F.2d 2

897, 899 (5th Cir. 1980) the former Fifth Circuit held that a search warrant authorized the search

of a third party’s truck on the property covered by the search warrant. See also Bonner v. City of

Pritchard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc) (adopting as binding precedent all

decisions of the former Fifth Circuit handed down prior to October 1, 1981).

7

primarily on United States v. Gentry, 839 F.2d 1065 (5th Cir. 1988), Tamari asserts

the search warrant did not authorize agents to search vehicles arriving on the

subject property during the course of the agents’ search. Second, Tamari argues

the vehicle searches were unconstitutional under Ybarra v. Illinois, 444 U.S. 85,

100 S. Ct. 338 (1979), because the Hummer’s mere presence on the subject

property did not give agents sufficient probable cause to search the vehicle without

a warrant. Third, Tamari argues the search warrant did not encompass the vehicle

searches because under United States v. Patterson, 278 F.3d 315, 318-19 (4th Cir.

2002), the warrant’s authorization to search vehicles on the property extended only

to those vehicles “owned by or under the dominion and control of the premises’

owner.” Because he did not own the subject property, Tamari asserts the search

warrant did not authorize the search of his vehicle. Tamari concludes, therefore,

the vehicle searches in this case were unlawful, and the district court should have

suppressed the evidence seized and statements made during those searches.2

A. Search Warrant
 Tamari does not challenge the validity of the search warrant in this case. Thus, we need 3

only address whether the search warrant authorized agents to search the Hummer. 

 We answered this question in the affirmative in United States v. Sears, 139 Fed. Appx. 4

162, 166 (11th Cir. 2005). As an unpublished opinion, however, Sears lacks precedential

authority and does not bind this Court. See 11th Cir. R. 36-2; Summers v. Dillard’s, Inc., 351

F.3d 1100, 1101 n. 1 (11th Cir. 2003).

8

Tamari does not dispute that the Hummer could have been searched under

the terms of the search warrant had it been located on the subject property at the

time the warrant was served. See United States v. Cole, 628 F.2d 897, 899-900

(5th Cir. 1980). Rather, relying primarily on United States v. Gentry, 839 F.2d

1065 (5th Cir. 1988), Tamari asserts the search warrant did not authorize agents to

search vehicles arriving on the subject property later, after the search had already

begun. We lack published authority in this Circuit as to whether a valid search

warrant authorizing the search of vehicles on the subject property encompasses the 3

search of a vehicle arriving on that property during the course of the search. We

4

are not, however, without guidance on this issue. In United States v. Alva, 885

F.2d 250 (5th Cir. 1989), the Fifth Circuit passed on the precise question presented

here.

In Alva, a search warrant authorized officers to search the house, structures,

and “any and all motor vehicles found parked” on the subject property. Id. at 251. 

While the search was being conducted, Alva drove onto the property in a pickup

truck. Id. Officers searched the vehicle, seizing the semiautomatic pistol that
9

would eventually form the basis for Alva’s felon-in-possession conviction under

18 U.S.C. § 922(g)(1). Id. The district court denied Alva’s motion to suppress the

pistol, finding as a “motor vehicle[] found parked” on the property, Alva’s pickup

truck was subject to search under the terms of the warrant. Id. 

Like Tamari, Alva argued on appeal that the search warrant did not authorize

the search of his vehicle. He reasoned that “the warrant language requiring search

of ‘any and all vehicles found on the premises . . .’ did not encompass vehicles,

such as his, that arrived at the premises after the police had begun searching.” Id.

Because “the police had no probable cause to search his vehicle independent from

the warrant,” Alva asserted “the search was illegal,” and the resulting evidence

should have been suppressed. Id. at 252. 

The Fifth Circuit disagreed. The Alva court emphasized that the “approach

of exercising reasonableness in warrant construction [applies] to timing aspects of

warrant execution.” Id. The court then held, in relevant part:

The search of Alva’s pickup truck pursuant to warrant language

authorizing the search of “any and all motor vehicles found parked on

the premises . . .” was within the scope of the warrant. Alva’s reading

of the language, that it prohibits police from searching vehicles

arriving after the search begins, unnaturally cramps the warrant’s

temporal authority. Searches do not take place in an instant; they

occur over a period of time, sometimes many hours. Thus vehicles

arriving during the course of a search are vehicles “found parked” on

the premises if they reasonably could contain the items for which law

enforcement officials are searching. Alva’s pickup truck was such a

vehicle. 
10

Id. 

We agree with the Fifth Circuit. A valid search warrant authorizing the

search of vehicles on the subject property permits the search of vehicles arriving on

that property during the course of the search, so long as those vehicles could

reasonably contain items the officers are searching for. In this case, like Alva, a

valid search warrant allowed agents to search “[v]ehicles . . . on the property on

which the place to be searched is situated.” After agents served and proceeded to

execute the search warrant, Tamari drove a Hummer onto the subject property. 

The Hummer, moreover, reasonably could have contained items agents sought in

the search warrant, including documents, account books, currency, jewelry,

firearms, and drug paraphernalia. As a result, the vehicle searches in this case,

conducted pursuant to warrant language authorizing the search of vehicles “on the

property on which the place to be searched is situated,” were within the scope of

the search warrant. 

To support his argument to the contrary, Tamari relies primarily on the Fifth

Circuit’s decision in United States v. Gentry, 839 F.2d 1065 (5th Cir. 1988). His

reliance is misplaced, however, because Gentry’s holding is irrelevant to this case. 

In Gentry, the court limited its analysis to defining the physical boundaries of the

search warrant in question. See id. at 1068-69. The physical scope of the

warrant’s authority is not at issue in this case, however, because it is beyond
 Because the vehicle searches were lawful, we need not address Tamari’s argument that 5

statements he made during those searches should have been suppressed as fruit of the poisonous

tree under Wong Sun v. United States.

11

dispute that the Hummer was on the subject property, and thus within the warrant’s

physical boundaries, at the time of the searches. The question presented here is the

warrant’s temporal authority and, more specifically, whether agents may search

vehicles arriving on the subject property during the course of a search conducted

pursuant to a valid search warrant. The Gentry court expressly withheld judgment

on that issue. See id. at 1069. Indeed, the Fifth Circuit answered the question in

the affirmative the next year in Alva, which we follow here. 

We hold, therefore, that the September 1, 2004, vehicle searches were

authorized by the terms of the search warrant. Consequently, the searches were

lawful under the Fourth Amendment, and the district court did not err in denying

Tamari’s motion to suppress the resulting evidence and statements.5

B. Automobile Exception

Tamari next argues the vehicle searches were unconstitutional under Ybarra

v. Illinois, 444 U.S. 85, 100 S. Ct. 338 (1979), because the Hummer’s mere

presence on the subject property did not give agents sufficient probable cause to

search the vehicle without a warrant. We disagree and hold that even if the vehicle

searches did not fall within the scope of the search warrant, the warrantless
12

searches of the Hummer were nonetheless lawful under the automobile exception

to the Fourth Amendment’s warrant requirement. 

Again, the automobile exception permits warrantless vehicle searches if the

vehicle is operational and agents have probable cause to believe the vehicle

contains evidence of a crime. See Dyson, 527 U.S. at 466-67, 119 S. Ct. at 2014;

United States v. Magluta, 418 F.3d 1166, 1182 (11th Cir. 2005). Probable cause,

in turn, exists when under the totality of the circumstances, “there is a fair

probability that contraband or evidence of a crime will be found” in the vehicle.

Goddard, 312 F.3d at 1363 (quotation omitted). Because there is no dispute that

the Hummer was operational, our inquiry is limited to determining whether

sufficient probable cause existed to allow warrantless searches of the vehicle. 

First, we hold Agent Crane had probable cause to conduct the initial search

of the Hummer. Agents were searching a parcel of rural, isolated property they

had probable cause to believe was part of a large-scale drug conspiracy. After they

seized cocaine, cash, and firearms on the premises, a yellow Hummer drove onto

the property, the same type of vehicle agents suspected was driven by Humberto

Febles, the head of the drug conspiracy. In fact, when Tamari changed his story

regarding the vehicle’s owner, he claimed a man named Humberto loaned him the

Hummer. Upon request, Tamari was unable to produce any identification or

vehicle registration. Further, when asked about his purpose on the property,
 We need not address whether agents had cause to walk Ho Jo around the perimeter of 6

the vehicle because a drug sniff performed during a lawful traffic stop is not a search implicating

Fourth Amendment concerns. See Illinois v. Caballes, 543 U.S. 405, 410, 125 S. Ct. 834, 838

(2005).

13

Tamari proffered the untenable explanation that he was there to see a man about

some animals. Given the totality of these circumstances, a reasonable agent could

deduce with fair probability that the Hummer contained contraband or evidence of

a crime. See, e.g., Chambers v. Maroney, 399 U.S. 42, 47-48, 52, 90 S. Ct. 1975,

1979, 1981 (1970) (noting “obviously [there was] probable cause to search the car”

when officers had a description of the suspects and the vehicle they drove). Agent

Crane, therefore, had sufficient probable cause to search the Hummer. 

Second, agents had probable cause to search the Hummer once more after

Ho Jo, the narcotics detection dog, circled the vehicle. Along with the facts

establishing probable cause for Agent Crane’s initial search, Ho Jo sniffed the

Hummer and alerted agents to the presence of narcotics in the rear of the vehicle.6

We have long recognized that “probable cause arises when a drug-trained canine

alerts to drugs.” United States v. Banks, 3 F.3d 399, 402 (11th Cir. 1993); see also

United States v. Dunkley, 911 F.2d 522, 527 (11th Cir. 1990); United States v.

Puglisi, 723 F.2d 779, 783 (11th Cir. 1984). Notwithstanding the facts validating

the initial search, Ho Jo’s positive alert was itself sufficient to give agents probable

cause to search the Hummer a second time. 
See supra note 5. 7

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Thus, even if the search warrant had not justified the vehicle searches in this

case, we find the agents were entitled to search the Hummer under the automobile

exception to the warrant requirement. The district court, therefore, did not err in

denying Tamari’s motion to suppress the resulting evidence and statements.7

IV. CONCLUSION

In sum, we hold the Hummer was subject to search under the terms of the

search warrant. In the alternative, agents were entitled to search the Hummer

without a warrant under the automobile exception to the warrant requirement. The

district court, therefore, did not err in admitting evidence and statements obtained

during the September 1, 2004, vehicle searches. We accordingly affirm Tamari’s

conviction.

AFFIRMED.