                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-30-2004

USA v. Clark
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-3066




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                                                     NOT PRECEDENTIAL

           UNITED STATES COURT OF APPEALS
                FOR THE THIRD CIRCUIT


                          No. 03-3066


               UNITED STATES OF AMERICA

                               v.

                       TRACY CLARK,

                                    Appellant


                          No. 03-3073


               UNITED STATES OF AMERICA

                               v.

                     ANTHONY MILLER,

                                    Appellant


           Appeal from the United States District Court
             for the Eastern District of Pennsylvania
          (D.C. Criminal Action Nos. 01-cr-00428-2/1)
            District Judge: Honorable Robert F. Kelly


           Submitted Under Third Circuit LAR 34.1(a)
                      September 14, 2004

Before: SCIRICA, Chief Judge, ALITO and AM BRO, Circuit Judges

               (Opinion filed September 30, 2004)
                                        OPINION


AM BRO, Circuit Judge

       Appellant Anthony Miller was convicted of possession with intent to distribute in

excess of 50 grams of crack cocaine, in violation of 21 U.S.C. § 841(a), and sentenced to

360 months imprisonment. Appellant Tracy Clark was convicted of unlawful possession

of a firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e), and

sentenced to 293 months imprisonment. Both convictions were based on evidence that

was recovered during the execution of a search warrant at Miller’s apartment in

Philadelphia on December 8, 1999. Miller and Clark appeal the District Court’s denial of

their motions to suppress evidence obtained during the search of the apartment. They

contend that the warrant authorizing the search was not supported by probable cause and,

in the alternative, that the officers executing the search waited an unreasonably short time

before forcing entry, violating the “knock-and-announce” principle implicit in the Fourth

Amendment.

       Miller separately raises two additional issues in his appeal. He asserts that there

may have been impeachment material in a confidential personnel file of one of the

officers involved in his investigation. By motion of Miller’s counsel, the trial judge

reviewed the file in camera before ruling that he would not compel its discovery because

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the file’s contents were immaterial and could not be entered into evidence. Miller now

asks us to review independently the file and make our own ruling regarding its relevance.

Finally, Miller charges that the prosecutor of his case made improper and prejudicial

statements to the jury in a rebuttal argument, warranting a mistrial.

       Because the judge issuing the warrant had a substantial basis for concluding that

probable cause existed, and because the manner in which the search was executed was not

unreasonable under the circumstances, we affirm the District Court’s denial of the

motions to suppress the evidence. We decline Miller’s invitation to review the materials

excluded by the District Court because even if they were to contain the very evidence

Miller suspects they might, this would not be enough to cast into doubt the sufficiency of

the evidence upon which the jury relied to convict him. Likewise, the prosecutor’s

comments to which Miller takes exception, even if we were to consider them improper,

were too insignificant and too quickly cured to render their inclusion harmful.

Accordingly, we affirm the convictions.

I.     Facts and Procedural History

       A.     Facts

       On October 28, 1999, agents of the Pennsylvania Attorney General’s Office,

Bureau of Narcotics Investigation and Drug Control (“BNI”), received information from

a confidential informant (“CI”) regarding drug trafficking activity on the 600 block of

Creighton Street in Philadelphia. The CI reported that crack cocaine was being sold at



                                              3
this location on a 24-hour-a-day basis. The CI stated that sellers on the corner paged

Miller when crack supplies began to run low, and that he would generally arrive within a

half hour to resupply them. The CI indicated that Miller drove a cream-colored Lexus

and that the drugs he sold were packaged and stored in a residence at the Parkside Village

Apartments at Bryn Mawr Avenue and Parkside Avenue.

        As a result of this information, BNI agents performed surveillance on the 600

block of Creighton Street on November 8, November 19, and December 1, 1999. On

those days, agents observed numerous drug transactions conducted in a nearby alley.

They also twice observed Miller resupply the sellers after leaving Apartment 72 of

Parkside Village. Subsequent to these observations, the BNI agents applied for a search

warrant from a judge of the Court of Common Pleas of Philadelphia, requesting

authorization to search Miller’s residence for evidence of drug trafficking. An agent

submitted an affidavit summarizing the CI’s information and the observations made

during the surveillance, which, he submitted, established probable cause for the search.

The judge agreed that probable cause existed and issued the warrant on December 7,

1999.

        On December 8, 1999, at about 5:00 p.m., six BNI agents prepared to execute the

search warrant. When the agents, who wore raid gear that was clearly marked “Police,”

gathered outside the buildings, one of the agents observed someone looking out of the

window of Apartment 72. The agents proceeded upstairs, where they knocked on the



                                             4
door and announced “police search warrant.” No one responded to this announcement,

although agents heard footsteps inside the apartment suggesting that someone was

running around and not traveling in the direction of the door. The agents believed that

there was a strong possibility that evidence, particularly cocaine, was being destroyed.

After waiting approximately 10 seconds, the agents forcibly knocked down the door and

entered the apartment.

       Miller was inside the apartment together with Clark. Clark attempted to pull a .45

caliber semiautomatic handgun out of his waistband, but was apprehended along with

Miller. In Miller’s jacket were found 135 packets of crack cocaine. In addition, a wide

variety of packaging material and other paraphernalia were recovered throughout the

apartment, including amber-colored vials containing crack, many empty packets and vials,

and a heat sealer, strainer, and other tools used in packaging narcotics. Other items

included a glass bowl in the microwave oven containing white powdery residue, digital

scales, blue-tinted ziplock packets of crack, and a coffee grinder containing white powder

residue. The total amount of crack recovered was approximately 59.9 grams.

       B.     The M otions to Suppress

       Prior to trial, Miller and Clark separately moved to suppress evidence obtained in

the search of the apartment on two grounds: 1) that the BNI failed to establish probable

cause when applying for the search warrant, and 2) that the officers waited an

unreasonably short period before forcing entry into the apartment. The District Court



                                             5
held a hearing on these issues, during which Miller’s counsel argued that the probable

cause determination had been based entirely on uncorroborated information by a non-

credible CI and that the knock-and-announce principle was violated. The District Court

denied the motions, ruling that the affidavit submitted with the the application for the

warrant supported a finding of probable cause to believe that the narcotics operation on

Creighton Street was being supplied from drugs stored in Apartment 72 of Parkside

Village. The District Court also ruled that the knock-and-announce principle was not

violated, because the manner of the forced entry was not unreasonable under the

circumstances. The exigent circumstances that, in the District Court’s opinion, rendered

the short wait reasonable included: 1) the agents noticing someone look out the window

of the apartment, leading them to conclude that the individuals inside the apartment were

aware of their presence, and 2) the agents hearing hurried footsteps inside the apartment

that were not moving in the direction of the door, leading them to believe that crack,

which is easily destroyed, was possibly being destroyed or disposed.

       C.     The Personnel File

       During trial, Miller’s counsel requested that the Government produce the

personnel file of BNI Agent Kenneth Bellis, who testified against Miller. The file

contained an internal BNI report on an investigation into alleged misuse of Government

property by Agent Bellis. Because the Government represented that the contents of the

confidential report were irrelevant to this case, it objected to their discovery by the



                                               6
defense. At the suggestion of Miller’s counsel, both sides agreed that the trial judge

would review the report in camera to determine whether it was relevant to the defense,

and in particular whether it contained anything that would tend to undermine the

credibility of Agent Bellis’s testimony. The Court reviewed the report in camera and

ruled that nothing in the file could constitute impeachment material or matter that would

assist in cross-examination to attack the credibility of Agent Bellis. Accordingly, it

declined to compel discovery of the confidential report.

       D.        Prosecutor’s Remarks

       At the close of Miller’s trial, the prosecutor made a rebuttal statement summarizing

the evidence presented and asking the jury to return a guilty verdict. On two occasions

the defense objected to remarks made by the prosecutor to the jury. 1 In the first objection,



       1
           The first remark by the prosecutor to which the defense took exception was:

                 MR. DOUGLAS: The defense says, well, why didn’t they fingerprint him?
                 And the Government would contend, they had the person, you heard the []
                 testimony that we were focusing on the one person we knew who lived at
                 this address or had access to this address, this defendant. And when they
                 went to that location, what did they find? They found these items. Was
                 there anybody else there? No. Was there testimony that anybody else lived
                 there? No.
                 (Emphasis added.)

The second remark was:

                 MR. DOUGLAS: And when you stop to think and apply your common
                 sense and your life experience to that, you will come up with one
                 conclusion and one conclusion only and that is the same conclusion that the
                 Government is asking you to do and that is tell Anthony Miller that on

                                               7
Miller’s counsel claimed that the prosecutor was improperly shifting onto the defense the

burden of proof on the issue of whose residence was Apartment 72. This, he argued, was

an element that formed part of the prosecution’s burden. Following a sidebar, the trial

judge overruled this objection. In the second objection, moments later, Miller’s counsel

moved for a mistrial on the ground that the prosecutor had asked the jury to “send a

message” by convicting Miller. The trial judge summarily overruled this objection, but

also immediately clarified to the jury that “we aren’t sending messages. There is one

thing you have to do here and decide whether or not the Government has proven over this

couple days, that the defendant was guilty of the crime charged in Count 1 of the

indictment beyond a reasonable doubt.”

II.    Analysis

       A.     Probable Cause

       Because the District Court’s decision that the search warrant was supported by

probable cause was based on the facts contained in the search warrant affidavit—the

veracity of which Miller and Clark do not challenge—we afford plenary review to their

claims of error. United States v. Burton, 288 F.3d 91, 97 (3d Cir. 2002). Miller’s claim

that the affidavit improperly relied on the uncorroborated information of a first-time CI to

establish the required nexus between the property to be searched and contraband sought




              December 8, 1999, that having all of this was absolutely wrong.
              (Emphasis added.)

                                             8
leaves us scratching our heads. Even a cursory review of the affidavit and the facts

surrounding the BNI investigation reveals that, to the contrary, before applying for the

warrant the agents actively sought to corroborate the CI’s information and to link the drug

transactions on Creighton Street to Apartment 72 of Parkside Village. Probable cause is a

“practical, common-sense decision” and may be found whenever “there is a fair

probability that contraband or evidence of a crime will be found in a particular place.”

Illinois v. Gates, 462 U.S. 213, 238 (1983). Because the information in the affidavit

could reasonably be read to show that there was more than a fair probability that drugs

would be found in the apartment, we affirm the District Court’s conclusion that the

issuing judge’s probable cause determination should be upheld. Accordingly, the District

Court’s refusal to suppress evidence obtained during execution of the search warrant was

entirely proper.

       B.     Knock-and-Announce

       Our inquiry into whether the manner in which the agents executed the warrant was

consistent with the Fourth Amendment’s protection from unreasonable searches is guided

by the Supreme Court’s recent decision in United States v. Banks, 540 U.S. 31, 124 S. Ct.

521 (2003). There the Court reiterated its holdings from previous cases that

constitutionality of the manner in which a search is performed is subject to a “totality of

circumstances” analysis. Banks, 124 S. Ct. at 525. This analysis focuses on

reasonableness, a sensible standard when one considers that the Amendment itself relies



                                              9
on the same language. U.S. Const. amend. IV (“The right of the people to be secure . . .

against unreasonable searches and seizures, shall not be violated . . . .”). The

reasonableness of a warrant’s execution turns in significant measure on the significance

of the exigency revealed by the circumstances as they are perceived by the officers. In

Banks, the Supreme Court affirmed the constitutionality of a search remarkably similar to

ours. The officers arrived at the home of a suspected cocaine dealer on a weekday

afternoon, rapped hard on the door, and called out “police search warrant.” Hearing

nothing, and waiting for 15 to 20 seconds with no answer, the officers broke open the

front door with a battering ram and entered the premises. The Supreme Court emphasized

that “what matters is the opportunity to get rid of cocaine, which a prudent dealer will

keep near a commode or kitchen sink. The significant [exigent] circumstances include

the arrival of the police during the day, when anyone inside would probably have been up

and around, and the sufficiency of 15 to 20 seconds for getting to the bathroom or the

kitchen to start flushing cocaine down the drain.” 124 S. Ct. at 527.

       We consider reasonable the 10-second wait in this case even though it is shorter

than the 15 to 20 seconds approved in Banks. That is because the agents in this case

faced the same exigency as in Banks, along with two others: their knowledge that

someone inside the apartment had already seen them approaching, and their hearing of




                                             10
scurrying footsteps inside the apartment that were not headed in the direction of the door. 2

We therefore affirm the District Court’s ruling that, under the facts of this case, the

manner in which the search was performed did not violate appellants’ Fourth Amendment

rights.

          C.     The Personnel File

          Miller argues that we should independently review the contents of Agent Bellis’s

personnel file to verify that there was no admissible material in it that could have been

used by the defense to undermine Bellis’s credibility with the jury. Even assuming such a

review is within our jurisdiction—the Government argues that it was waived when

Miller’s counsel agreed to abide by the outcome of the judge’s in camera review and did

not object when the judge returned with his ruling—we decline to review the file because

its contents would not produce a different result at trial. Giglio v. United States, 405 U.S.

150, 154–55 (1972); United States v. Milan, 304 F.3d 273, 287 (3d Cir. 2002).

          Agent Bellis’s testimony to the jury served two functions in the prosecution’s case.

First, he testified to Miller’s presence at Apartment 72 on one of the days of the stakeout,

November 19, 1999. While this information may have been important to the initial

finding of probable cause to issue the warrant, it did not play a great role, nor does it seem

even to have been contested, at trial. The second function of Bellis’s testimony was to



          2
        The Supreme Court noted with approval United States v. Markling, 7 F.3d 1309
(7th Cir. 1993), a case where a wait as short as seven seconds was considered reasonable
under the totality of circumstances. Banks, 124 S. Ct. at 526 n.5.

                                               11
explain why the agents forcibly broke open the door of the apartment when executing the

search warrant. While Miller questions the correctness of that conduct, he does not

dispute the factual circumstances leading up to it. As such, even if we were to discover

that the personnel file contained admissible information tending to undermine Bellis’s

credibility, and even if the jury had disbelieved the witness and entirely discounted both

aspects of his testimony, it would not be enough to call into question the sufficiency of

the evidence upon which the jury could rely to convict Miller. That evidence was

overwhelming, and there is no reasonable probability that the outcome of the trial would

have been different but for Bellis’s testimony.

       D.     Prosecutor’s Remarks

       Miller’s contention that the prosecutor’s rebuttal comments shifted the burden of

proof to the defendant and improperly asked the jury to base its considerations on

something other than the evidence is simply meritless. The prosecutor’s first remark, that

Miller had not shown that anyone else occupied the apartment, was spoken to underscore

Miller’s failure to support his contention at trial that he did not live in Apartment 72. In

that context, the prosecutor was merely highlighting a weakness in the defense’s theory

rather than shifting any evidentiary burden. The trial judge rightly overruled M iller’s

objection to the prosecutor’s mention of this weakness.

       Even more baseless is Miller’s contention that the prosecutor urging the jury to tell

Miller that having nearly 60 grams of crack cocaine in his apartment “was absolutely



                                             12
wrong” somehow amounted to directing the jury to base its considerations on something

other than the evidence. When asking the jury to return a guilty verdict, it is not fitting

for a prosecutor to describe a guilty verdict as expressive of the jury’s moral

disapprobation of a defendant’s conduct. But such a rhetorical device was harmless in

this case, especially when cured by the judge’s immediate admonition to the jury that

“[t]here is one thing you have to do here and [that is to] decide whether or not . . . the

defendant was guilty of the crime charged in Count 1 of the indictment beyond a

reasonable doubt.” See Gov’t of V.I. v. Joseph, 770 F.2d 343, 349 (3d Cir. 1985)

(defendant was not prejudiced by prosecutor’s closing argument in light of curative jury

instruction).

III.   Conclusion

       For the reasons stated, we affirm the District Court’s denial of appellants’ motions

to suppress evidence and Miller’s motion for a new trial. Accordingly, the convictions of

Tracy Clark and Anthony Miller are affirmed.




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