                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-13-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 04-4108




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                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 04-4108




                           UNITED STATES OF AMERICA

                                           v.

                                     RAFI SMITH,
                                             Appellant




                    On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                          D.C. Criminal No. 04-cr-00141-2
                            (Honorable Harvey Bartle III)


                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    March 1, 2007

       Before: SCIRICA, Chief Judge, McKEE and NOONAN * , Circuit Judges.

                                 (Filed March 13, 2007)




                              OPINION OF THE COURT




   *
    The Honorable John T. Noonan, Jr., United States Circuit Judge for the Ninth Judicial
Circuit, sitting by designation.
SCIRICA, Chief Judge.

       Defendant Rafi Smith challenges the District Court’s denial of his motion to

suppress physical evidence and statements obtained during the execution of a warrant.

We will affirm the judgment of conviction.

                                             I.

       On October 30, 2003,1 Philadelphia police officers observed an unknown black

male (later identified as Desi Glenn) sitting on the front steps of 2920 N. Bonsall Street

from 1:20 pm to 1:25 pm. At 1:25 pm, two unknown black males approached Glenn and

exchanged cash for small items. Moments later, Glenn entered 2920 N. Bonsall Street

and remained there for approximately twenty minutes. At 1:48 pm, Glenn exited 2920 N.

Bonsall Street and got into the passenger seat of a pick-up truck, which promptly drove

off. Around 2:31 pm, Glenn returned in the pick-up truck and re-entered 2920 N. Bonsall

Street. At 2:35 pm, police officers observed a criminal informant meet with Glenn and

walk across the street with Glenn to 2919 N. Bonsall Street, where the criminal informant

purchased from Glenn seven zip-locked packets of crack.

       After making these observations Philadelphia Police Officer Jeffrey Francis

applied for a search warrant based on his own affidavit. The affidavit included

information about the confidential informant and Officer Francis. The confidential




   1
    Because this case turns on the search warrant, the facts are largely taken from the
affidavit filed in support of the warrant.

                                             2
informant had participated in two prior investigations that led to six arrests. Officer

Francis had been a Philadelphia police officer for thirteen years and had spent ten of those

years in the Narcotics Field Unit.

       On October 31, 2003, Officer Francis received and executed a search warrant for

2920 N. Bonsall Street. During the execution of the warrant, police arrested Smith and

confiscated contraband (cocaine and marijuana) from Smith and from the residence.

Smith then filed a “Motion to Suppress Physical Evidence and Statements” contending

the search warrant did not comply with the Fourth Amendment because the facts

contained in the affidavit were too vague to establish probable cause. In addition, Smith

contended the good faith exception to the Fourth Amendment exclusionary rule did not

apply. See United States v. Leon, 468 U.S. 897 (1984). The District Court denied

Smith’s motion finding the warrant contained probable cause and even if the warrant did

not contain probable cause, the good faith exception applied.

       Smith pled guilty to possession of more than five grams of cocaine base with intent

to distribute in violation of 21 U.S.C. § 841(a)(1), possession of more than five grams of

cocaine base with intent to distribute within 1,000 feet of a school in violation of 21

U.S.C. § 860(a), and possession of a firearm and ammunition by a convicted felon in

violation of 18 U.S.C. § 922(g). Smith’s guilty plea specifically reserved the right to

appeal the District Court’s denial of his motion to suppress evidence. The District Court




                                              3
sentenced Smith to 110 months’ imprisonment, eight years of supervised release, and a

$200 special assessment. Smith timely appealed.

                                              II.

       We have jurisdiction under 28 U.S.C. 1291. “We review a District Court’s denial

of a motion to suppress for clear error as to the underlying factual findings and exercise

plenary review over the District Court’s application of the law to those facts.” United

States v. Lockett, 406 F.3d 207, 211 (3rd Cir. 2005).

        When reviewing a Magistrate Judge’s decision to issue a warrant, we only need to

determine whether a Magistrate Judge had “a substantial basis for finding probable

cause.” United States v. Hodge, 246 F.3d 301, 305 (3rd Cir. 2001). A finding of

probable cause requires a Magistrate Judge to “make a practical, common-sense decision

whether, given all the circumstances set forth in the affidavit before him . . . [that] 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). Probable cause can be “inferred by

considering the type of crime, the nature of the items sought, the suspect’s opportunity for

concealment and normal inferences about where a criminal might hide the fruits of his

crime.” Hodge, 246 F.3d at 305 (internal quotations omitted).

       Here, the Magistrate Judge had a substantial basis for finding probable cause

because the affiant represented evidence of Glenn’s crimes were stored inside 2920 N.

Bonsall Street. Glenn’s series of movements entering and exiting 2920 N. Bonsall Street



                                               4
immediately preceding and following the observed drug transaction demonstrates Glenn

was hiding drugs at that address. In addition, the Magistrate Judge was entitled to give

substantial weight to Officer Francis’s conclusion that evidence of a crime would be

found within 2920 N. Bonsall Street. See United States v. Whitner, 219 F.3d 289, 296

(3rd Cir. 2000) (finding the conclusion of an experienced law enforcement officer as to

the location of evidence is entitled to considerable weight). Accordingly, the Magistrate

Judge had a substantial basis for finding probable cause to issue the search warrant.

                                             III.

       Even if the Magistrate Judge did not have a substantial basis for finding probable

cause, the evidence obtained from the search would be admissible under the good faith

exception to the exclusionary rule. See Leon, 468 U.S. at 922. The exception “instructs

that suppression of evidence is inappropriate when an officer executes a search in

objectively reasonable reliance on a warrant’s authority.” Hodge, 246 F.3d at 307

(citations omitted). The existence of a warrant typically justifies use of the exception, but

an officer may not reasonably rely on a warrant:

       (1) when the magistrate judge issued the warrant in reliance on a
       deliberately or recklessly false affidavit; (2) when the magistrate judge
       abandoned his judicial role and failed to perform his neutral and detached
       function; (3) when the warrant was based on an affidavit so lacking in
       indicia of probable cause as to render official belief in its existence entirely
       unreasonable; or (4) when the warrant was so facially deficient that it failed
       to particularize the place to be searched or the things to be seized.




                                              5
Id. at 308 (citations omitted). Smith claims the third exception applies here. A warrant

will fall within this exception if it contains a bare bones affidavit. See United States v.

Loy, 191 F.3d 360, 368 (3rd Cir. 1999); Hodge, 246 F.3d at 309. In United States v.

Williams, 3 F.3d 69, 74 (3rd Cir. 1993), we found that this exception did not apply where

the affidavit presented several facts indicating illegal activity.

       Here, as already discussed, the affidavit was not a bare bones document. Instead,

the affidavit made specific references to Officer Francis’s observations of Glenn’s drug

transactions and the time frame of the observations. Like Williams, the Magistrate Judge

was called on to assess facts demonstrating illegal activity and to exercise his sound

judgment in finding probable cause. Thus, the officers executing the search warrant acted

reasonably in relying on the warrant’s authority.

                                              IV.

       For the foregoing reasons, we will affirm the judgment of conviction.




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