                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-29-2002

USA v. Morgan
Precedential or Non-Precedential:

Docket 01-2016




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Recommended Citation
"USA v. Morgan" (2002). 2002 Decisions. Paper 228.
http://digitalcommons.law.villanova.edu/thirdcircuit_2002/228


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                                                  NOT PRECEDENTIAL

                 UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT



                            No. 01-2016


                    UNITED STATES OF AMERICA

                                 v.

                       ANTHONY EDWARD MORGAN,
                            a/k/a DANGER

                                                                      Anthony Edward Morgan,

                                                                           Appellant



          Appeal from the United States District Court
            for the Eastern District of Pennsylvania
             (D.C. Criminal Action No. 00-cr-00375)
       District Judge: Honorable Franklin S. VanAntwerpen


                  Argued on February 25, 2002


            Before: ROTH and FUENTES, Circuit Judges
                     GIBSON*, Circuit Judge

                 (Opinion filed March 29, 2002)


     * Honorable John R. Gibson, Senior Circuit Court Judge for the Eighth Circuit,
sitting by designation.



                              OPINION


ROTH, Circuit Judge:

     Appellant, Anthony Edward Morgan, appeals his conviction of one count of
possession with intent to distribute crack cocaine in violation of 21 U.S.C. 841(a), two
counts of possession of a firearm in furtherance of a drug trafficking crime in violation of
18 U.S.C. 924(c)(1), and one count of possession of a firearm by an illegal alien in
violation of 18 U.S.C. 922(g)(5). Morgan was sentenced to 217 months imprisonment
with a mandatory term of 5 years supervised release. Morgan raises two issues in his
appeal: (1) His Fourth Amendment rights were violated when the District Court refused
to grant suppression of the evidence seized from his apartment, and (2) the seized
evidence was insufficient to support a guilty verdict that he used the firearms in
furtherance of a drug trafficking crime pursuant to 18 U.S.C. 924(c).
     We have appellate jurisdiction pursuant to 28 U.S.C. 1291. We exercise de novo
review over suppression issues. Ornelas v. United States, 517 U.S. 690, 694 (1996). For
the following reasons, we will affirm the judgment of the District Court.
     On the first issue, the violation of Morgan’s Fourth Amendment rights, he
contends that the police officers illegally entered his home without having sufficient
probable cause or the necessary exigent circumstances. The Fourth Amendment prohibits
unreasonable searches and seizures. A search is reasonable if it is conducted pursuant to
probable cause. Wong Sun v. United States, 371 U.S. 471, 479 (1963). However, a
warrantless search may be conducted when both probable cause and exigent
circumstances exist pursuant to the Fourth Amendment. See McDonald v. United States,
335 U.S. 451, 456 (1948). Exigent circumstances exist when (1) evidence is in imminent
danger of destruction, see Cupp v. Murphy, 412 U.S. 291, 294-296 (1973), Schmerber v.
California, 384 U.S. 757, 770-71 (1996), Ker v. California, 374 U.S. 23, 41-42 (1963);
(2) the safety of either law enforcement or the general public is threatened, see Warden v.
Hayden, 387 U.S. 294, 298-299 (1967); (3) the police are in hot pursuit of a suspect, see
United States v. Santana, 427 U.S. 38, 42-43; or (4) a suspect is likely to flee before
officers can obtain a warrant. See Minnesota v. Olson, 495 U.S. 91, 100 (1990). Exigent
circumstances are determined by reviewing the objective facts reasonably known to the
officers at the time of the search using the totality of the circumstances facing the officers
when the search was performed. See e.g., United States v. Sculco, 82 F. Supp. 2d 410,
417 (E.D. Pa. 2000), Illinois v. Gates, 462 U.S. 213, 232 (1983).
     The District Court found that probable cause clearly existed to search Morgan’s
apartment. Two policemen on the scene saw three men emerge from a breeze way
between houses, cross a street, and then one of the men entered the front of a building
while the other two climbed the fire escape on the back of the building and entered a
third-story window. The District Court found that this factual sequence alone was enough
to raise the suspicion in the minds of the experienced officers that criminal activity was
taking place.
     There was more, however. The officers climbed the fire escape and noticed that
both third story windows were closed and covered to prevent anyone from seeing inside.
The officers knocked on the window and announced their presence. A towel covering
one of the windows moved and then moved back again to cover the window. No one
responded to the officers. One of the officers, after trying the front door and finding it
locked, returned to the rear fire escape and climbed into the vacant second floor
apartment. Once inside, he heard the movement of people and the repeated flushing of a
toilet, coming from the third-floor. The officer believed that evidence of criminal activity
was probably being destroyed in the toilet.
     At this point, the officers believed that exigent circumstances were present. They
climbed the stairs and entered the third floor apartment through an open doorway. Three
men exited from the apartment onto the fire escape into the arms of another waiting
officer.   The officers conducted a protective sweep of the apartment and found
marijuana, scales, and packaging materials in plain view.
     The officers then obtained a search warrant and conducted a thorough search,
which uncovered crack cocaine and a .25 caliber Raven Arms firearm together in a drop
ceiling, a short-barreled shotgun in another section of the drop ceiling, a revolver on a
closet shelf, ammunition, currency, baggies, scales, cellular phones, and other drug
paraphernalia.
     On the basis of all this, the District Court found that the officers actions were
proper under the Fourth Amendment. We agree.
     The second issue is whether there was sufficient evidence to support Morgan’s
conviction of possession of firearms in furtherance of a drug trafficking crime. Morgan
was convicted under 18 U.S.C. 924(c) which states that anyone "who, uses or carries a
firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition
to the punishment provided for such crime of violence or drug trafficking crime" receive
an enhanced punishment. Morgan contends that under United States v. Bailey, 516 U.S.
143 (1995), "the inert presence of a firearm, without more, is not enough to trigger a
924(c) violation." Morgan points out that he did not use or carry the firearm and that he
was not present when it was found in the apartment.
     Section 924 (c) was amended after Bailey to add the act of possession as an act
that, if done in furtherance of a violent or drug trafficking crime, violates the statute.
Morgan’s Bailey argument is not, therefore, convincing. Here, three firearms were found
in Morgan’s apartment where substantial amounts of illegal drugs were also found. Such
propinquity supports the conclusion that the firearms were intended to be used for the
furtherance of the illegal drug trafficking. We find, therefore, that there was sufficient
evidence to warrant the jury’s guilty verdict.

     For the foregoing reasons, we will affirm the judgment of the District Court.


TO THE CLERK:

     Please file the foregoing Opinion.



                              By the Court,



                              /s/ Jane R. Roth
                               Circuit Judge




                                                                                         NOT P

                 UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT



                          No. 01-2016


                    UNITED STATES OF AMERICA

                               v.

                     ANTHONY EDWARD MORGAN,
                          a/k/a DANGER

                                                                      Anthony Edward Morgan,

                                                                           Appellant



          Appeal from the United States District Court
            for the Eastern District of Pennsylvania
             (D.C. Criminal Action No. 00-cr-00375)
       District Judge: Honorable Franklin S. VanAntwerpen


                  Argued on February 25, 2002


            Before: ROTH and FUENTES, Circuit Judges
                     GIBSON*, Circuit Judge
                 (Opinion filed March 29, 2002)


     * Honorable John R. Gibson, Senior Circuit Court Judge for the Eighth Circuit,
sitting by designation.



                            OPINION


ROTH, Circuit Judge:

     Appellant, Anthony Edward Morgan, appeals his conviction of one count of
possession with intent to distribute crack cocaine in violation of 21 U.S.C. 841(a), two
counts of possession of a firearm in furtherance of a drug trafficking crime in violation of
18 U.S.C. 924(c)(1), and one count of possession of a firearm by an illegal alien in
violation of 18 U.S.C. 922(g)(5). Morgan was sentenced to 217 months imprisonment
with a mandatory term of 5 years supervised release. Morgan raises two issues in his
appeal: (1) His Fourth Amendment rights were violated when the District Court refused
to grant suppression of the evidence seized from his apartment, and (2) the seized
evidence was insufficient to support a guilty verdict that he used the firearms in
furtherance of a drug trafficking crime pursuant to 18 U.S.C. 924(c).
     We have appellate jurisdiction pursuant to 28 U.S.C. 1291. We exercise de novo
review over suppression issues. Ornelas v. United States, 517 U.S. 690, 694 (1996). For
the following reasons, we will affirm the judgment of the District Court.
     On the first issue, the violation of Morgan’s Fourth Amendment rights, he
contends that the police officers illegally entered his home without having sufficient
probable cause or the necessary exigent circumstances. The Fourth Amendment prohibits
unreasonable searches and seizures. A search is reasonable if it is conducted pursuant to
probable cause. Wong Sun v. United States, 371 U.S. 471, 479 (1963). However, a
warrantless search may be conducted when both probable cause and exigent
circumstances exist pursuant to the Fourth Amendment. See McDonald v. United States,
335 U.S. 451, 456 (1948). Exigent circumstances exist when (1) evidence is in imminent
danger of destruction, see Cupp v. Murphy, 412 U.S. 291, 294-296 (1973), Schmerber v.
California, 384 U.S. 757, 770-71 (1996), Ker v. California, 374 U.S. 23, 41-42 (1963);
(2) the safety of either law enforcement or the general public is threatened, see Warden v.
Hayden, 387 U.S. 294, 298-299 (1967); (3) the police are in hot pursuit of a suspect, see
United States v. Santana, 427 U.S. 38, 42-43; or (4) a suspect is likely to flee before
officers can obtain a warrant. See Minnesota v. Olson, 495 U.S. 91, 100 (1990). Exigent
circumstances are determined by reviewing the objective facts reasonably known to the
officers at the time of the search using the totality of the circumstances facing the officers
when the search was performed. See e.g., United States v. Sculco, 82 F. Supp. 2d 410,
417 (E.D. Pa. 2000), Illinois v. Gates, 462 U.S. 213, 232 (1983).
     The District Court found that probable cause clearly existed to search Morgan’s
apartment. Two policemen on the scene saw three men emerge from a breeze way
between houses, cross a street, and then one of the men entered the front of a building
while the other two climbed the fire escape on the back of the building and entered a
third-story window. The District Court found that this factual sequence alone was enough
to raise the suspicion in the minds of the experienced officers that criminal activity was
taking place.
     There was more, however. The officers climbed the fire escape and noticed that
both third story windows were closed and covered to prevent anyone from seeing inside.
The officers knocked on the window and announced their presence. A towel covering
one of the windows moved and then moved back again to cover the window. No one
responded to the officers. One of the officers, after trying the front door and finding it
locked, returned to the rear fire escape and climbed into the vacant second floor
apartment. Once inside, he heard the movement of people and the repeated flushing of a
toilet, coming from the third-floor. The officer believed that evidence of criminal activity
was probably being destroyed in the toilet.
     At this point, the officers believed that exigent circumstances were present. They
climbed the stairs and entered the third floor apartment through an open doorway. Three
men exited from the apartment onto the fire escape into the arms of another waiting
officer.   The officers conducted a protective sweep of the apartment and found
marijuana, scales, and packaging materials in plain view.
     The officers then obtained a search warrant and conducted a thorough search,
which uncovered crack cocaine and a .25 caliber Raven Arms firearm together in a drop
ceiling, a short-barreled shotgun in another section of the drop ceiling, a revolver on a
closet shelf, ammunition, currency, baggies, scales, cellular phones, and other drug
paraphernalia.
     On the basis of all this, the District Court found that the officers actions were
proper under the Fourth Amendment. We agree.
     The second issue is whether there was sufficient evidence to support Morgan’s
conviction of possession of firearms in furtherance of a drug trafficking crime. Morgan
was convicted under 18 U.S.C. 924(c) which states that anyone "who, uses or carries a
firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition
to the punishment provided for such crime of violence or drug trafficking crime" receive
an enhanced punishment. Morgan contends that under United States v. Bailey, 516 U.S.
143 (1995), "the inert presence of a firearm, without more, is not enough to trigger a
924(c) violation." Morgan points out that he did not use or carry the firearm and that he
was not present when it was found in the apartment.
     Section 924 (c) was amended after Bailey to add the act of possession as an act
that, if done in furtherance of a violent or drug trafficking crime, violates the statute.
Morgan’s Bailey argument is not, therefore, convincing. Here, three firearms were found
in Morgan’s apartment where substantial amounts of illegal drugs were also found. Such
propinquity supports the conclusion that the firearms were intended to be used for the
furtherance of the illegal drug trafficking. We find, therefore, that there was sufficient
evidence to warrant the jury’s guilty verdict.

     For the foregoing reasons, we will affirm the judgment of the District Court.


TO THE CLERK:

     Please file the foregoing Opinion.



                              By the Court,



                              /s/ Jane R. Roth
                               Circuit Judge
