[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 14-14332

Non-Argument Calendar

________________________

D.C. Docket No. 4:13-cr-00109-MW-CAS-1

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee,

versus

BERNAL EMILE,

NELINO EMILE 

 Defendants - Appellants.

________________________

Appeals from the United States District Court

for the Northern District of Florida

________________________

(June 29, 2015)

Case: 14-14332 Date Filed: 06/29/2015 Page: 1 of 10 
2

Before MARCUS, JULIE CARNES, and EDMONDSON, Circuit Judges.

PER CURIAM: 

Bernal and Nelino Emile (“Defendants”) appeal their convictions for 

possession and distribution of marijuana. No reversible error has been shown; we 

affirm.

In June 2013, a manager at the United Parcel Services (“UPS”) store 

contacted police about two suspicious packages that had been dropped off for 

overnight delivery to a California address. On the package invoices, the sender 

used Bernal’s name and address and described the package contents as stereo 

equipment. The UPS manager reported to police that the packages’ seams were 

heavily taped, the packages had a chemical odor, and the sender had declined to 

consolidate the two packages to save money on shipping. 

When Officer Randolph arrived at the UPS store, he told the UPS manager 

not to open the packages on behalf of the police. Officer Randolph also told the 

UPS manager that common carriers had the right to inspect packages 

administratively if they suspected that a package contained a hazardous substance. 

At some point, Officer Randolph also said that he detected a faint odor of burnt 

marijuana on the packages. 

Case: 14-14332 Date Filed: 06/29/2015 Page: 2 of 10 
3

The UPS manager decided to open the packages, each of which consisted of 

an outer and inner box with heavily-taped seams, several layers of bubble wrap, 

carbon paper, and a vacuum-sealed bag. Inside each box was a large sum of cash, 

totaling $28,300. The packages contained no stereo equipment. 

Officer Randolph watched as the UPS manager opened the packages, but the 

police did not participate physically in the search. Officer Randolph then seized 

the money based on his suspicion that the money was connected to drug sales. A 

police dog later alerted to the presence of narcotic odors on the money.

Two days later, Officers Morris and Gereg visited the address listed on the 

UPS package invoices. Bernal answered the door, stepped outside, and closed the 

door behind him. The officers detected a “strong odor” of marijuana coming from 

the apartment and noticed that, stuck to Bernal’s sock, was a strip of plastic from a 

vacuum-sealed bag. Bernal told the officers that he had shipped the two UPS 

packages in question and that the packages contained stereo equipment. The 

officers then detained and handcuffed Bernal so they could obtain a search warrant 

for the apartment. 

Meanwhile, Bernal told the officers that his brother, Nelino, was inside the 

apartment. Officer Morris opened the apartment door, called out “Police,” and 

instructed anyone inside to come out. Nelino came outside and was handcuffed 

immediately. Officer Morris then conducted a “protective sweep” of the apartment 

Case: 14-14332 Date Filed: 06/29/2015 Page: 3 of 10 
4

to be sure no one else was inside. During the sweep, Officer Morris saw evidence 

of marijuana, but seized nothing. Officer Gereg then went to obtain a search 

warrant. 

While Defendants and officers waited outside the apartment, a local news 

crew arrived. At the officers’ suggestion, Defendants agreed to wait just inside the 

front door of the apartment to avoid the media. 

After the search warrant arrived, a search of Defendants’ apartment revealed 

evidence of marijuana, guns, various packing materials, and UPS receipts. 

In the district court, Defendants moved to suppress evidence found during 

the searches of the UPS packages and of Defendants’ apartment. After a hearing, 

the district court granted the motions in part. In pertinent part, the district court 

found and concluded that (1) the opening of the UPS packages by the UPS 

manager was a private search that constituted no “joint venture” between the UPS 

manager and Officer Randolph; (2) no articulable reason existed to justify Officer 

Morris’s warrantless “protective sweep” of Defendants’ apartment, which 

encompassed both the opening of Defendants’ apartment door and the sweep inside 

the apartment; (3) after redacting the information obtained during the improper 

protective sweep, the search warrant affidavit still contained sufficient information 

to establish probable cause to search Defendants’ apartment; (4) Defendants 

Case: 14-14332 Date Filed: 06/29/2015 Page: 4 of 10 
5

consented to enter the apartment while waiting for the search warrant; and (5) no 

search of Defendants’ apartment occurred before the search warrant arrived. 

I. UPS Packages

In reviewing a district court’s ruling on a motion to suppress, we review 

findings of fact for clear error and review de novo the application of law to those 

facts. United States v. Zapata, 180 F.3d 1237, 1240 (11th Cir. 1999). We construe 

all facts in the light most favorable to the prevailing party and afford substantial 

deference to the factfinder’s explicit and implicit credibility determinations. 

United States v. Lewis, 674 F.3d 1298, 1303 (11th Cir. 2012). We accept the 

district 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.” United States v. Ramirez-Chilel, 289 F.3d 744, 749 (11th Cir. 2002). 

We also defer to the district court’s factual determinations unless the district 

court’s understanding of the facts is “unbelievable.” Id. 

“A search by a private person does not implicate the Fourth Amendment 

unless he acts as an instrument or agent of the government.” United States v. 

Steiger, 318 F.3d 1039, 1045 (11th Cir. 2003). In determining whether a private 

citizen acted as a government agent, we consider “(1) whether the government 

Case: 14-14332 Date Filed: 06/29/2015 Page: 5 of 10 
6

knew of and acquiesced in the intrusive conduct, and (2) whether the private 

actor’s purpose was to assist law enforcement efforts rather than to further his own 

ends.” Id. As part of our inquiry, we also consider whether the government 

“openly encouraged or cooperated in the search.” See United States v. Ford, 765 

F.2d 1088, 1090 (11th Cir. 1985) (affirming denial of a motion to suppress in part 

because nothing evidenced that the government openly encouraged or cooperated 

in the private citizen’s search); see also United States v. Smythe, 84 F.3d 1240, 

1243 (10th Cir. 1996) (noting that the “knowledge and acquiescence” criteria 

“encompass the requirement that the government agent must also affirmatively 

encourage, initiate or instigate the private action.”). 

Considering the totality of the circumstances, the district court committed no 

error in determining that the UPS manager acted as a private citizen -- and not as 

an agent of the government -- when he opened the two UPS packages. The record 

shows that the UPS manager became suspicious about the packages and, thus, 

contacted the police, because (1) the packages’ seams were heavily taped, (2) the 

packages had a chemical odor, and (3) the sender refused to consolidate the two 

packages to reduce shipping charges. 

We accept the district court’s factual findings that (1) Officer Randolph did 

nothing significant to encourage the UPS manager to open the packages, even 

though Officer Randolph mentioned that the packages smelled of marijuana; and 

Case: 14-14332 Date Filed: 06/29/2015 Page: 6 of 10 
7

(2) Officer Randolph never participated physically in the search. The district judge 

rejected expressly some kind of wink-and-nod conduct on the part of the police for 

the search. Officer Randolph told the UPS manager expressly not to open the 

packages for the benefit of the police. Instead, the UPS manager decided -- based 

on his own suspicions and as a matter of UPS company policy -- to open the 

packages himself. Viewing the evidence in the light most favorable to the 

government, the UPS manager’s search of the two packages constituted a search by 

a private citizen, triggering no Fourth Amendment protection. 

Because the UPS packages were searched lawfully, we reject Defendants’ 

assertion that evidence seized during the later search of Defendants’ apartment 

must be excluded under the “fruit of the poisonous tree” doctrine. For background, 

see United States v. Terzado-Madruga, 897 F.2d 1099, 1112-13 (11th Cir. 1990). 

II. Probable Cause for Arrest

Bernal argues that the police lacked reasonable suspicion or probable cause 

to detain him before searching his apartment. Because Bernal failed to raise this 

argument in the district court, we review only for plain error. See United States v. 

Clark, 274 F.3d 1325, 1326 (11th Cir. 2001). 

Case: 14-14332 Date Filed: 06/29/2015 Page: 7 of 10 
8

Even if we assume -- without deciding -- that Bernal’s detainment 

constituted an arrest, the arrest was supported by probable cause. “For probable 

cause to exist, . . . an arrest must be objectively reasonable based on the totality of 

the circumstances.” Lee v. Ferraro, 284 F.3d 1188, 1195 (11th Cir. 2002). The 

probable cause standard is satisfied when “the facts and circumstances within the 

officer’s knowledge, of which he or she has reasonably trustworthy information, 

would cause a prudent person to believe, under the circumstances shown, that the 

suspect has committed, is committing, or is about to commit an offense.” Id. 

Before arriving at Bernal’s apartment, the officers knew that (1) someone 

using Bernal’s name and address tried to ship two heavily-taped packages, 

containing a total of $28,300 in cash; (2) the sending of cash by a common carrier 

is a violation of Florida’s money-laundering statute; (3) the packages’ sender lied 

to UPS about the packages’ contents; (4) the sender refused UPS’s offer to 

consolidate the packages; and (5) a drug-sniffing dog alerted to the presence of 

drugs on the cash. Upon arriving at Bernal’s apartment, the officers also observed 

(1) a “strong” odor of marijuana emanating from the apartment; and (2) a strip of 

plastic from a vacuum-sealed bag stuck to Bernal’s sock. Bernal also told the 

officers that he in fact sent the two UPS packages and lied to the officers about the 

contents of the packages.

Case: 14-14332 Date Filed: 06/29/2015 Page: 8 of 10 
9

Based on the totality of the circumstances within the officers’ knowledge, a 

prudent person would believe that Bernal was involved in a drug-related offense. 

Probable cause existed to arrest Bernal; the district court committed no plain error. 

III. Searches of Defendants’ Apartment

When a search warrant affidavit is based, at least in part, on information 

acquired illegally, we look to whether other information contained in the affidavit 

supports sufficiently a probable cause finding. United States v. Chaves, 169 F.3d 

687, 692 (11th Cir. 1999). If it does, suppression of evidence is not required 

because the exclusionary rule does not apply “where the government learned of the 

evidence from an independent source.” Id. at 692-93.

When we redact the information obtained during the improper “protective 

sweep” of Defendants’ apartment, the search warrant affidavit still contained 

sufficient information -- including evidence obtained during the search of the UPS 

packages and the officers’ initial encounter with Bernal -- to support a probable 

cause finding. And nothing evidences that the officers were prompted to seek a 

warrant only after conducting the protective sweep. Because probable cause 

existed to support the issuance of a search warrant for Defendants’ apartment, the 

Case: 14-14332 Date Filed: 06/29/2015 Page: 9 of 10 
10

evidence obtained during the illegal protective sweep was admissible under the 

independent source doctrine. See id. 

Given the record and the district court’s determinations, we reject 

Defendants’ contention that officers conducted an illegal search when they and 

Defendants moved inside Defendants’ apartment to avoid local news media. 

Although Defendants contend they agreed to enter the apartment only “at the 

suggestion of law enforcement,” we accept that their consent was voluntary. 

Moreover, we accept that no officers engaged in a physical search of the apartment 

before the search warrant arrived. 

AFFIRMED.

Case: 14-14332 Date Filed: 06/29/2015 Page: 10 of 10