United States V. Robert Joseph Valerio, No. 12–12235
(June 20, 2013)
Appeal from the United States District Court for the Southern District of
Florida
Panel: Barkett and Marcus, Circuit Judges, and Conway, District Judge
Barkett, Circuit Judge: Reversed, Vacated, and Remanded
Appellant Robert Joseph Valerio appealed the district court’s denial of his
motion to suppress evidence that led to his arrest for growing marijuana.
The central issue presented in the appeal was whether Terry v. Ohio
authorized law enforcement officers to effectuate an investigative seizure
of Mr. Valerio nearly one week after last observing him do anything
suspicious. The Eleventh Circuit held that because the constitutional
authority to make a Terry stop is dependent upon the exigencies associated
with on-the-spot observations of the officer on the beat, the officers’
seizure here was not authorized by the Fourth Amendment.
Mr. Valerio became the target of an investigation of the Drug Enforcement
Administration (DEA) on July 27, 2011, after he visited Green Touch
Hydroponics, a retail store selling hydroponic gardening equipment. Special
Agent David Lee Hibbs of the DEA was conducting surveillance at Green Touch
under the view that people who purchased hydroponic equipment were likely
to be involved in growing marijuana. While conducting surveillance, Agent
Hibbs saw a black Chevrolet truck enter the parking lot in the back of the
store. He noticed that the truck had no license plate and that it backed
into a parking space, which he surmised was an attempt to conceal the
truck’s missing license plate. Agent Hibbs watched the driver, later
confirmed to be Mr. Valerio, walk into the store and return about fifteen
to twenty minutes later with a white plastic shopping bag.
Agent Hibbs followed Mr. Valerio as he drove out of the parking lot and
noted that Mr. Valerio kept looking at his rearview mirror, which Agent
Hibbs interpreted as nervousness at the prospect of being followed by law
enforcement. Eventually, Mr. Valerio pulled over to the side of the road
and walked towards the rear of the vehicle holding what appeared to Agent
Hibbs to be a license plate. As Agent Hibbs was traveling past Mr.
Valerio’s truck, he could not see what Mr. Valerio did with the object in
his hands.
Agent Hibbs next encountered Mr. Valerio approximately two weeks later on
August 17, when he was again conducting surveillance at Green Touch. He
observed Mr. Valerio drive the same black truck into the parking lot
without a license plate, back into a spot, and enter the store. Mr. Valerio
left the store after about twenty minutes and drove away but shortly
thereafter stopped at a 7–11 parking lot. Another investigating agent
observed that the truck had a license plate affixed to it when it left the
7–11 parking lot. The DEA agents followed Mr. Valerio to a warehouse in
Deerfield Beach, which the agents thought was suitable for a marijuana grow
operation. Once there, the agents saw Mr. Valerio park near bay 15 of the
warehouse and walk toward the warehouse building but did not see where he
went or witness anything else of note.
The next night, August 18, DEA agents conducted surveillance of the area
around bay 15 of the warehouse and observed lights emanating from a door in
the area of bay 15, though they could not be sure which specific door.
Nearly a week later on August 24, the Broward County Sheriff’s Office
brought a K–9 to the warehouse to sniff for drugs. The K–9 sniffed all of
the doors on the side of the warehouse where bay 15 was located but only
alerted to bay 14. Based on this information, investigating agents obtained
a search warrant for bay 14, which they served that same day. Rather than
corroborating their previous suspicions of Mr. Valerio, their search failed
to uncover any new evidence that Mr. Valerio was running a marijuana grow
operation out of one of the bays. They discovered that both bay 14 and the
adjoining bay 13 were owned by Jeremy Staska, who operated a recording
studio there. Mr. Staska told the investigating officers that bands
regularly recorded in the studio until late at night, which explained the
lights coming from underneath the bay door on the night of August 18. He
also estimated that a third of the bands that used his studio smoked
marijuana while recording. When shown a picture of Mr. Valerio, Mr. Staska
told the officers that Mr. Valerio was friends with a mechanic who worked
at the warehouse and that it was possible that he rented a bay on the other
side of the warehouse.
After failing to find any evidence that Mr. Valerio was involved in a
marijuana grow operation from the search of bays 13 and 14 and the K–9’s
failure to alert to the presence of drugs in bay 15, Broward County
Sherriff’s Office Detective Scott Ambrose directed DEA Special Agent Joseph
Ahearn and Detective Joseph Lopez to go to Mr. Valerio’s home to attempt a
voluntary citizen encounter, in hopes of obtaining useful evidence based on
Mr. Valerio’s cooperation. The agents drove to Mr. Valerio’s home but did
not knock on his door and ask to speak with him, as instructed. Instead,
they waited across the street until he emerged from his house and entered
his truck, which was parked in his driveway. At that point, the officers
blocked his exit from the driveway with their vehicle and Agent Ahearn got
out of his vehicle and approached Mr. Valerio, with his gun drawn and
pointed in the direction of Mr. Valerio, ordering him in a loud voice to
get out of his truck. Agent Ahearn was dressed in street clothes but had on
a bulletproof vest, with a black placard reading Police over his clothes.
When Mr. Valerio stepped out of his truck, Agent Ahearn holstered his gun
and immediately conducted a full-body pat-down search of Mr. Valerio’s
person and escorted him to the front of his truck. Detective Lopez then
asked Mr. Valerio if he operated any warehouses in the area. Mr. Valerio
initially stated that he did not. But following further questioning, Mr.
Valerio admitted to growing marijuana inside bays 15 and 16 at the
Deerfield Beach warehouse.
On appeal, the Eleventh Circuit noted that the government had conceded that
this was not a voluntary encounter and that the parties had agreed that, at
minimum, the officers’ encounter with Mr. Valerio in his driveway
constituted a seizure subject to Fourth Amendment scrutiny. The question,
then, was whether the officers’ stop-and-frisk of Mr. Valerio, one week
after they had last observed him engage in any suspicious activity, was
constitutional under the Fourth Amendment principles articulated in Terry.
The Court stated that the investigative stop contemplated by Terry – a
brief, investigatory stop when the officer has a reasonable, articulable
suspicion that criminal activity is afoot– is not a policing tool that can
be constitutionally deployed in any context in which law enforcement has
reasonable suspicion that an individual is involved in criminal activity.
Rather, it may be used only within the rubric of police conduct addressed
in Terry, for which the timing and circumstances surrounding the
investigative stop matter. Terry stops, the Court held, are thus limited to
situations where officers are required to take swift action predicated upon
the on-the-spot observations of the officer on the beat.
The Court found that the timing of and circumstances surrounding the
officers’ seizure of Mr. Valerio in this case placed it well outside of the
Terry exception to the probable cause requirement. The stop here was not
responsive to the development of suspicion within a dynamic or urgent law
enforcement environment., the Court found. Rather, the officers went to
Mr. Valerio’s home nearly a week after they had last observed him do
anything. Given this delay and the complete absence of any contemporaneous
observations of Mr. Valerio that would necessitate swift law enforcement
action, the Court stated that the underlying purposes behind Terry ‘s
exception to the probable cause requirement were in no way present when the
officers seized Mr. Valerio. The Court wrote that the opportunity to Terry
stop a suspect, a law enforcement power justified by and limited to the
exigent circumstances of the moment, cannot be put in the bank and saved
for use on a rainy day, long after any claimed exigency has expired. Thus,
the seizure of Mr. Valerio did not qualify for the Terry exception to the
Fourth Amendment’s probable cause rule. Instead, the passage of time
between Mr. Valerio’s suspicious activity and the officers’ seizure of him
made it entirely practicable for law enforcement officers to proceed with
their investigation in a manner consistent with the default requirements of
the Fourth Amendment, which only allow for a seizure upon a warrant or
probable cause accompanied by well-defined exigent circumstances.
Moreover, no exigency emerged from the simple observation that Mr. Valerio
had exited his house and entered his truck. The Court concluded that as the
government did not contend that its officers had probable cause that Mr.
Valerio was involved in criminal activity at the time they seized him, the
seizure of Mr. Valerio was unconstitutional under the circumstances
discussed above.
The Court also noted that by failing to make the argument below that the
evidence was obtained through voluntary consent and that the taint of the
Fourth Amendment violation has been sufficiently purged, the government had
waived any such argument before the court of appeals.