                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-31-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-2081




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Recommended Citation
"USA v. King" (2006). 2006 Decisions. Paper 1029.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1029


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                                                                  NOT PRECEDENTIAL


                          IN THE UNITED STATES COURT
                                   OF APPEALS
                              FOR THE THIRD CIRCUIT


                                      NO. 05-2081


                            UNITED STATES OF AMERICA

                                            v.

                                   STEVEN J. KING,
                                      Appellant



                    On Appeal From the United States District Court
                       For the Eastern District of Pennsylvania
                        (D.C. Crim. Action No. 04-cr-00177)
                        District Judge: Hon. Cynthia M. Rufe


                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    May 19, 2006

                 BEFORE: McKEE and STAPLETON, Circuit Judges,
                         and McCLURE,* District Judge

                             (Opinion Filed: May 31, 2006)




* Hon. James F. McClure, Jr., United States District Judge for the Middle District of
Pennsylvania, sitting by designation.
                                OPINION OF THE COURT



STAPLETON, Circuit Judge:

       Appellant Steven King was convicted after trial of attempting to manufacture

methamphetamine and of maintaining a place to manufacture methamphetamine. He was

sentenced to 120 months of incarceration and 8 years of supervised release. He here

complains of the District Court’s (1) denial of his motion to suppress physical evidence

seized during the execution of a search warrant; (2) denial of a motion to suppress a

statement which he made to police officers; and (3) enhancement of his sentence based on

a prior conviction not proven at trial.

                                             I.

       Contrary to King’s contention, the affidavit submitted in support of an application

to search the garage he rented provided ample support for the magistrate’s determination

of probable cause.

       While the appendix submitted by the parties does not include the affidavit that was

the focus of much of the briefing, it does reflect, however, that King asked the District

Court to make the following findings with respect to the affidavit:

       7. Analyzed for its content the first paragraph of the affidavit advised the
       Bail Commissioner that:
             (1) None of the information contained therein was personally
             known to the affiant. All information set forth and sworn to
             simply reflected what Officer Monaghan was told by Sgt.

                                             2
       Boudwin.
       (2) Sgt. Boudwin had received information from a reliable
       confidential informant of his (#1) that Defendant King
       operated a meth lab inside the rear garage of 6627 Greenway
       Avenue distinguished by a grey steel security door on the
       outside; that King had males inside the garage cooking the
       product using a live lab; and King stored U.S.C. inside the
       house at Greenway Avenue representing proceeds from drug
       sales.
       (3) The “reliability” of C/I#1 was based simply on “previous
       arrests and convictions of individuals within the confines of
       Delaware County”. No other information attesting to C/I#1's
       reliability was set forth.
       (4) The affiant did not recite how or when C/I#1 had become
       privy to the information concerning King operating a meth lab
       in the garage, men working in the garage cooking product, or
       the storing of money in the house.
       (5) The affiant did not set forth whether the information
       garnered from C/I#1 reflected past or present activity within
       the garage and house at 6627 Greenway Avenue. Indeed,
       Officer Monaghan testified that he did not know when or how
       long ago C/I#1 had allegedly learned the information
       imparted to Sgt. Boudwin.
8. The second paragraph of the affidavit again reflected information not
personally known to the affiant, but as related to him by Sgt. Boudwin.
This paragraph, analyzed for its content, advised the Bail Commissioner
that:
       (1) Delaware County Detectives had met with C/I#2 between
       7/1/03 and 7/2/03.
       (2) C/I#2 had been “considered to be reliable in the past”.
       No information whatsoever was provided documenting the
       alleged reliability of C/I#2.
       (3) C/I#2 was briefed by police on attempting to purchase a
       quantity of meth from inside the rear garage of 6627
       Greenway Avenue.
       (4) After being searched to insure that C/I#2 had no
       contraband on his person he was provided “a quantity of
       U.S.C.” to use in making a purchase.
       (5) C/I#2 was observed entering upon the driveway of 6627
       Greenway Avenue and then going “out of sight of police for
       approx [sic] five minutes”.

                                     3
              (6) C/I#2 was next observed exiting the driveway. He was
              then followed to a secure location where he turned over a
              plastic bag which field tested positive for the presence of
              methamphetamine.

App. at 82-84 (emphasis in original).

       Even accepting these proposed findings, it is apparent to us that the affidavit

provided probable cause to believe that evidence of a crime would be found in the garage.

In short, a confidential informant, who had a history of providing reliable information to

the police, told the police that King operated a methamphetamine lab inside the garage.

This was corroborated the day of the search when a controlled purchase of

methamphetamine was made from the garage.

                                             II.

       The District Court declined to suppress statements King made to the police even

though they were made in response to police questions asked after his arrest but before

Miranda warnings were given. The court found, with record support, “that the primary

object of [the] questions was to obtain safety information from Defendant before law

enforcement personnel entered the potentially dangerous clandestine methamphetamine

laboratory [and the] questions asked Defendant were consistent with this goal.” App. at

16. The court concluded that King’s statements were accordingly not subject to

suppression, citing New York v. Quarles, 467 U.S. 649 (1984). We agree.




                                             4
                                             III.

       It is true, as King stresses, that the District Court, in the course of imposing a 10

year mandatory minimum sentence, found that King had a prior conviction for a felony

drug offense. He claims that this was reversible error under Shepard v. United States, 544

U.S. 13 (2005). It was not. The Shepard Court specifically pointed out that its decision

did not affect Almendarez-Torres v. United States, 523 U.S. 224 (1998), which continues

to authorize a sentencing judge, in the context of an enhancement, to resolve the simple,

“conclusive” fact of a prior conviction. Shepard, 544 U.S. at 25. See United States v.

Ordaz, 398 F.3d 236, 240-41 (3d Cir. 2005) (holding that Almendarez-Torres remains

good law unless and until the Supreme Court chooses to overturn it).

                                             IV.

       The judgment of the District Court will be affirmed.




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