                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                _______________

                                     No. 11-3848
                                   _______________

                           UNITED STATES OF AMERICA

                                           v.

                              NISIA KEVIN DUNAWAY,
                                    a/k/a “BLIZZ,”
                                                   Appellant
                                  _______________

                    On Appeal from the United States District Court
                       for the Western District of Pennsylvania
                             (D.C. No. 3-10-cr-00032-001)
                      District Judge: Honorable Kim R. Gibson
                                  _______________

                      Submitted Under Third Circuit LAR 34.1(a)
                                   April 24, 2012
                                 _______________

                      Before: SLOVITER, ROTH, Circuit Judges,
                             and POLLAK, District Judge*

                             (Opinion filed: May 22, 2012)
                                  _______________

                                      OPINION
                                   _______________



*
 Honorable Louis H. Pollak, Senior Judge of the United States District Court for the
Eastern District of Pennsylvania, sitting by designation. Judge Pollak died on May 8,
2012. This opinion is filed by a quorum of the court pursuant to 28 U.S.C. § 46 and
Third Circuit IOP 12.1(b).
PER CURIAM.

       Police officers of the Cambria County Drug Task Force executed a warrant to

search the person and suitcase of appellant Nisia Kevin Dunaway on April 10, 2010. The

officers found 171 grams of crack cocaine in Dunaway‟s suitcase. He was subsequently

indicted by a federal grand jury for one count of knowing and intentional possession of

50 or more grams of cocaine base with intent to distribute. 21 U.S.C. §§ 841(a)(1),

(b)(1)(A)(iii) (2006).1 Prior to trial, Dunaway moved to suppress the evidence obtained

in the April 10 search on the ground that the warrant was defective. The District Court

denied the motion. Dunaway then entered a plea of guilty conditional on his right to

appeal from the order denying his motion to suppress, Fed. R. Crim. P. 11(a)(2), and he

now exercises his right to appeal. We will affirm.

                                            I.

       The disputed search warrant was issued upon the application of an officer of the

Cambria County Drug Task Force on April 10, 2010. According to the officer‟s affidavit

in support of the search warrant, a confidential informant (referred to as “C1”) had

1
  At the time of Dunaway‟s conduct, 21 U.S.C. § 841(b)(1)(A)(iii) required a mandatory
minimum prison sentence of at least 10 years for offenses involving 50 or more grams of
cocaine base. On August 3, 2010, § 841(b)(1)(A)(iii) was altered to apply only to
offenses involving 280 or more grams of cocaine base. Fair Sentencing Act (“FSA”) of
2010, Pub. L. No. 111-220, § 2(a)(1), 124 Stat. 2372, 2372; see also United States v.
Dixon, 648 F.3d 195, 203 (3d Cir. 2011) (holding that FSA applies to all defendants
sentenced on or after August 3, 2010). But see Dorsey v. United States, 635 F.3d 336,
339-40 (7th Cir.) (holding that FSA applies only to offenses committed after August 3,
2010, regardless of date of sentencing), cert. granted, 132 S. Ct. 759 (2011) (argued Apr.
17, 2012). Under the FSA amendments, an offense involving 171 grams of cocaine base
would now result in a mandatory minimum sentence of only 5 years. In the present case,
the District Court entered a judgment on October 11, 2011, sentencing Dunaway to 63
months of imprisonment and 4 years of supervised release.
                                             2
arranged to pick up a man named “Blizz” at the Johnstown, Pennsylvania, train station on

the evening of April 10, 2010, at 6:00 pm, when Blizz would be returning from

Philadelphia with a suitcase. The officer reported that C1 had been told by Blizz that he

(Blizz) would be traveling “loaded down,” which C1 understood to mean that Blizz

would be in possession of crack cocaine. The officer further reported that C1 would be at

the train station to identify Blizz to the police.

       The officer‟s affidavit identified C1 by name and stated that C1 “has provided

reliable information to this AFFIANT and the Cambria County Drug Task Force in the

past. This information has lead [sic] to several arrests and convictions.” The affidavit

also detailed several prior occasions in March 2010 on which C1 allegedly purchased

crack cocaine from Blizz in the Johnstown area.

       Finally, the affidavit indicated that the police had taken the following additional

investigative steps: (1) verifying the identity of an intermediary through whom C1

claimed to have met and initially done business with Blizz; (2) confirming that C1‟s

phone records were consistent with C1‟s claims regarding phone calls to and from Blizz;

(3) confirming the train schedule from Philadelphia to Johnstown; and (4) obtaining a

written statement from C1 detailing C1‟s putative knowledge of Blizz‟s drug trafficking.

       The warrant was issued on April 10, 2010, at 5:00 pm, by a judge of the Court of

Common Pleas of Cambria County, Pennsylvania. (The face of the warrant indicates that

the application was also reviewed and approved by the District Attorney‟s office.) The

warrant identifies the following “premises and/or person to be searched”:



                                                3
       The person of BLIZZ and any and all suitcases, packages and or any other
       unknown persons and suitcases and or packages that would be with BLIZZ.
       BLIZZ is a black male approx 6‟ to 6‟3 medium skin color, facial hair,
       medium build, short dark to black hair, to be arriving in Johnstown by train
       at or about 600 pm this date.

       It is undisputed that appellant Nisia Dunaway, carrying a suitcase, arrived by train

at Johnstown at approximately 6:00 pm on April 10, 2010. He was met there by C1.

After shaking hands with C1, Dunaway placed his suitcase in C1‟s car. The police then

converged on the car and executed the search warrant. They recovered 171 grams of

crack cocaine from Dunaway‟s suitcase.

                                              II.

       Dunaway argues on appeal that the District Court should have suppressed the

evidence recovered in the April 10 search for two reasons. First, Dunaway claims that

the warrant failed to describe the person or place to be searched with particularity and

was thus an unlawful “general warrant.” Second, Dunaway argues that there was

insufficient probable cause to issue the search warrant because the affidavit of probable

cause failed to establish the reliability of C1, the confidential informant.

       Both arguments were considered and rejected by the District Court after a hearing.

The District Court also held, in the alternative, that suppression was not justified under

the circumstances because the officers had relied on the warrant in good faith. Neither

party put forth any evidence at the suppression hearing, and the District Court made no

findings of fact.

       In the absence of fact-finding, our review of the denial of a motion to suppress is

plenary. United States v. Leveto, 540 F.3d 200, 211 n.9 (3d Cir. 2008); see also United

                                              4
States v. Williams, 3 F.3d 69, 71 n.2 (3d Cir. 1993) (plenary review of the application of

the good faith doctrine). “[W]e apply the same standard the District Court was required

to apply and determine whether the magistrate who issued the warrant had a „substantial

basis‟ for determining that probable cause existed.” United States v. Zimmerman, 277

F.3d 426, 432 (3d Cir. 2002).

                                              A.

       The Fourth Amendment was adopted in part to prohibit the issuance of writs of

assistance, colonial era warrants that authorized “a general, exploratory rummaging in a

person‟s belongings.” Coolidge v. New Hampshire, 403 U.S. 443, 467 (1971). To

prevent such unfettered rummaging, the Fourth Amendment requires that every warrant

“particularly describ[e] the place to be searched, and the persons or things to be seized.”

U.S. Const., amend. IV. “The particularity requirement „makes general searches . . .

impossible and prevents the seizure of one thing under a warrant describing another. As

to what is to be taken, nothing is left to the discretion of the officer executing it.‟” United

States v. Christine, 687 F.2d 749, 752-53 (3d Cir. 1982) (alteration in original) (quoting

Marron v. United States, 275 U.S. 192, 196 (1927)).

       The pejorative label of “general warrant” has typically been associated with

warrants that fail or allegedly fail to describe what to seize with the requisite particularity.

See Christine, 687 F.2d at 753 (collecting cases of warrants “condemn[ed] as general

warrants” because list of items to be seized lacked particularity).2 Dunaway does not


2
 For other efforts by defendants to challenge warrants as “general warrants” on the
ground that the warrants authorized seizure of such a broadly worded category of
                                               5
make such a challenge in his appeal. Instead, he argues that the search warrant failed to

describe where to search with the requisite particularity.

       The Fourth Amendment‟s particularity clause requires that a warrant describe the

place to be searched in sufficient detail “that the executing officer can with reasonable

effort identify the precise place intended.” United States v. Busk, 693 F.2d 28, 30 (3d

Cir. 1982) (citing Steele v. United States No. 1, 267 U.S. 498, 503 (1925)). The

Constitution demands no less when the warrant authorizes the search of a person: “the

individual to be searched must be described with such particularity that he may be

identified with reasonable certainty” by the officer executing the warrant. 2 Wayne R.

LaFave, Search and Seizure § 4.5(e), at 598 (4th ed. 2004); see United States v. Doe, 703

F.2d 745, 747 (3d Cir. 1983) (discussing “reasonable certainty” requirement for

particularity in warrant‟s description of person to be seized); United States v. Ferrone,

438 F.2d 381, 389 (3d Cir. 1971) (discussing particularity of search warrant).

       Here, the warrant did not include the appellant‟s proper name, Nisia Dunaway,

referring to him instead merely as “BLIZZ.” But the warrant did provide a physical

description of him, including his height, skin color, hair style and color, and build—




evidence as to license “exploratory rummaging” by the executing officers, see United
States v. Tracey, 597 F.3d 140, 151, 153-54 (3d Cir. 2010); Leveto, 540 F.3d at 204, 211;
United States v. Ninety-Two Thousand Four Hundred Twenty-Two Dollars and Fifty-
Seven Cents, 307 F.3d 137, 148-49 (3d Cir. 2002). In all of these cases, including
Christine, the warrant was found not to be a general warrant.
                                             6
though not, as Dunaway points out, his age. Further, the warrant specified that he would

be found arriving by train in Johnstown at 6:00 pm on April 10, 2010.3

       The warrant‟s physical description of “Blizz” and the specific location where he

would be found at a precise time were, together, sufficiently particular that an executing

officer could identify the appellant with reasonable certainty. Compare Doe, 703 F.2d at

747 (holding that warrant to arrest “John Doe a/k/a „Ed‟” was unconstitutional for lack of

particularity), with Ferrone, 438 F.2d at 389 (upholding search of defendant‟s person

pursuant to warrant to search “John Doe, a white male with black wavy hair and stocky

build observed using the telephone in Apartment 4-C 1806 Patricia Lane, East

McKeesport, Pennsylvania”). See also 2 LaFave, supra, § 4.5(e), at 598 n.134 (collecting

cases). Thus, we reject Dunaway‟s contention that the warrant to search his person was

so lacking in particularity as to be an unlawful general warrant.


3
  The affidavit of probable cause contained additional information from which an
executing officer could be reasonably certain of identifying the correct individual to
search—notably, the detail that Blizz would be met by C1 at the train station. Cf. United
States v. Muckenthaler, 584 F.2d 240, 245-46 (8th Cir. 1978) (search warrant limited to
those persons being met by informant at airport), cited in Doe, 703 F.2d at 747 n.4.

        We decline to rely on the affidavit, however, because it is unclear in the record
whether the affidavit was incorporated by reference into the warrant. The District Court
found that the warrant incorporated the affidavit because the warrant lists the total
number of pages in the affidavit and indicates that the warrant was issued upon
consideration of the affidavit. But the defendant points out the warrant also indicates that
the affidavit was to be sealed for 60 days. “[F]or an affidavit to cure a warrant‟s lack of
particularity, the words of incorporation in the warrant must make clear that the section
lacking particularity is to be read in conjunction with the attached affidavit.” Tracey, 597
F.3d at 149; see also Bartholomew v. Pennsylvania, 221 F.3d 425, 429-30 (3d Cir. 2000)
(holding that incorporated but sealed affidavit cannot save warrant that otherwise lacks
particularity). Because we do not rely on the affidavit, we need not resolve this
uncertainty.
                                             7
                                               B.

       Dunaway‟s alternative argument—that the search warrant failed to establish the

reliability of the government‟s informant—is also unpersuasive. To begin, our task is

merely to determine whether the issuing magistrate had a substantial basis for

determining that probable cause existed. Illinois v. Gates, 462 U.S. 213, 236-37 (1983).

In addressing that question, we are mindful that, when the government relies on an

informant to establish probable cause, the informant‟s “reliability” and “basis of

knowledge” are both “relevant considerations in the totality-of-the-circumstances

analysis that traditionally has guided probable cause determinations: a deficiency in one

may be compensated for . . . by a strong showing as to the other.” Id. at 233.

       The affidavit of probable cause in this case provided, as a basis for C1‟s

knowledge, a specific description of C1‟s prior purchases of crack cocaine from

Dunaway (“Blizz”) on March 13 and March 26, 2010. The affidavit also provided a

description of C1‟s phone calls with Dunaway to arrange the train station meeting on

April 10, 2010. As to reliability, the affidavit stated—albeit in general terms—that C1

had provided reliable information to the police in the past. Further, the affidavit

identified C1 by name. Cf. United States v. Nelson, 284 F.3d 472, 482 (3d Cir. 2002)

(“[O]ne of the characteristics of a known informant that contributes to reliability is that

he or she can be held responsible if the allegations turn out to be fabricated.”); United

States v. May, 399 F.3d 817, 823 (6th Cir. 2005) (“An informant‟s tip is considered to

have greater reliability . . . if the affidavit avers that the name of the confidential

informant has been disclosed to the issuing judge.”). And, finally, the affidavit details

                                                8
several steps the police took to corroborate details of C1‟s information. Cf. Gates, 462

U.S. at 244 (corroboration of even non-inculpatory portions of informant tip can bolster

informant‟s reliability). There was more than enough in the affidavit to provide a

substantial basis to issue the warrant.

       Lastly, even if the magistrate judge had erred in issuing the warrant, the executing

officers would have been entitled to rely on it in good faith. United States v. Leon, 468

U.S. 897, 922-23 (1984). “Ordinarily, the mere existence of a warrant suffices to prove

that an officer conducted a search in good faith, and will obviate the need for any deep

inquiry into reasonableness.” United States v. Stearn, 597 F.3d 540, 561 (3d Cir. 2010)

(internal quotation marks and alteration omitted); see also Zimmerman, 277 F.3d at 436-

37 (listing four situations in which officers cannot rely on warrant in good faith). We

have concluded that the affidavit provided a substantial basis for determining that

probable cause existed to search Dunaway‟s person and suitcase for crack cocaine on

April 10. It follows that, after the issuance of the warrant by a judge, it was reasonable

for the executing officers to believe that the warrant was supported by probable cause.

                                            III.

       For the foregoing reasons, we conclude that the District Court correctly denied

Dunaway‟s motion to suppress. We will affirm the judgment of the District Court.




                                             9
