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


7-3-2006

USA v. Veal
Precedential or Non-Precedential: Precedential

Docket No. 05-1612




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                                     PRECEDENTIAL

   UNITED STATES COURT OF APPEALS
        FOR THE THIRD CIRCUIT


                  No. 05-1612


       UNITED STATES OF AMERICA

                        v.

                SAMUEL VEAL
                    a/k/a
                    ICE

                             Samuel Veal,
                                  Appellant



   Appeal from the United States District Court
     for the Eastern District of Pennsylvania
    (D.C. Criminal Action No. 03-cr-00709-1)
   District Judge: Honorable Cynthia M. Rufe



   Submitted Under Third Circuit LAR 34.1(a)
                March 8, 2006

Before: AMBRO and STAPLETON, Circuit Judges,
                and STAGG,* District Judge

               (Opinion filed: July 3, 2006)

Stuart M. Wilder, Esquire
Pratt, Brett & Luce
68 East Court Street
P.O. Box 659
Doylestown, PA 18901

      Counsel for Appellant

Patrick L. Meehan
  United States Attorney
Robert A. Zauzmer
  Assistant United States Attorney
  Chief of Appeals
Thomas P. Hogan, Jr.
  Assistant United States Attorney
Office of United States Attorney
615 Chestnut Street
Philadelphia, PA 19106

      Counsel for Appellee


               OPINION OF THE COURT


      *
      Honorable Tom Stagg, Senior District Judge for the
Western District of Louisiana, sitting by designation.

                              2
AMBRO, Circuit Judge

       Samual Veal appeals from a judgment and sentence
entered by the United States District Court for the Eastern
District of Pennsylvania. After the District Court denied his
motion to suppress evidence, Veal entered a conditional guilty
plea reserving his right to challenge the adverse suppression
decision. Veal now challenges the denial of his motion, arguing
that the police did not have probable cause to believe that he
was located and residing at the residence of his wife; thus his
arrest inside that residence was unlawful and the evidence
seized cannot be used against him. For the reasons set out
below, we affirm the judgment of the District Court.1

                                I.

       In January 2003, two Philadelphia detectives were
interviewing the nephew of a murder victim as part of a
homicide investigation. The nephew stated that he had been
selling drugs supplied by Samuel Veal, and he owed Veal
money for drugs. The nephew also gave the detectives a
description of Veal’s car. When the detectives ran a
background check on Veal, they discovered he had two open


       1
        It had subject matter jurisdiction over this case pursuant
to 28 U.S.C. § 3231. We have appellate jurisdiction under 28
U.S.C. § 1291, as this is an appeal from a final decision of the
District Court.

                                3
arrest warrants issued in 2002 – one for, inter alia, attempted
murder and aggravated assault, and one for a parole violation.

        The parole violator warrant was issued by Veal’s parole
officer, Jerome Coleman, when Coleman learned that Veal was
no longer residing with his mother as required by the conditions
of his parole. The parole warrant identified Veal’s wife, Tina
Veal, as a possible lead. On January 6, 2003, the Philadelphia
detectives called the Pennsylvania Board of Probation and
Parole (“PBPP”) to determine if the parole warrant was still
valid. PBPP confirmed the validity of the warrant and informed
the detectives that Veal no longer resided with his mother.
Later that same day the detectives visited several addresses
provided by the murder victim’s nephew, the PBPP, and police
files, in an effort to find Veal. On January 7, 2003, they were
able to speak with the owner of a building at one of the
addresses, who informed them that Tina and Samuel Veal had
previously rented that property but had since moved.

        The detectives next conducted a check of Philadelphia
Housing Authority records, and discovered that Tina Veal was
listed as living at 1848 South Conestoga Street. The detectives
went to that address between 3:00 a.m. and 4:00 a.m. on January
8, 2003, and observed a vehicle, described by the nephew of the
murder victim as Veal’s, parked near the house. A check of the
vehicle’s registration showed it was registered to Tina Veal. The
detectives then prepared a report for the Police Department’s
Homicide Fugitive Squad that stated, inter alia, Veal was

                               4
wanted on a parole violation and an arrest warrant, and that he
was living at 1848 South Conestoga Street. The report
requested the Fugitive Squad to make an early morning arrest at
that address.

        The detectives’ report was picked up later that morning
by Michael Walter, a member of the Fugitive Squad. At 6:00
a.m., accompanied by two other detectives and uniformed police
officers, Walter went to 1848 South Conestoga Street. He
confirmed that the vehicle described by the nephew was still in
the driveway, and banged on the door of the house. After the
officers identified themselves as police and stated they were
there to serve a warrant on Veal, Tina Veal opened the door and
admitted the officers into the residence.2 She claimed Veal was


       2
         Tina Veal testified before the District Court that the
officers did not identify themselves as police and that she did
not let them in voluntarily. The Court declined to accept this
testimony as credible, as it was “riddled with inconsistencies.”
Although the Court did not list the inconsistencies, our review
of the record reveals multiple contradictions. For example, Tina
Veal testified at trial that she opened the door, shut it, and the
police barged through the unlocked, but closed, door. In her
affidavit, however, she stated that the officers stormed into the
house “as [she] opened the door.” She also testified that she did
not see any uniformed police enter the residence but, when
challenged, admitted she remembered one particular officer in
full uniform. In this factual context, there is no evidence of
clear error; thus we uphold the District Court’s adverse

                                5
not there. However, the officers heard noises from the second
floor of the home and went upstairs, where they found Veal
under a bed. After Veal requested help in getting out from
underneath the bed, Walter lifted it up and Veal, bearing a pistol
in each hand, pointed them at Walter and another detective.
Walter slammed the bed back down on Veal. This began
approximately forty minutes of negotiation that led to Veal’s
surrender and arrest. The officers thereafter seized evidence
from the bedroom, including the two handguns wielded by him.

        Veal was indicted for being a felon in possession of a
firearm in violation of 18 U.S.C. § 922(g)(1). He moved to
suppress all evidence that was seized by police following the
arrest, including the two handguns. The District Court held a
suppression hearing and denied the motion. Veal then entered
a conditional plea of guilty, reserving his right to challenge the
denial of his suppression motion, and was sentenced to 120
months in prison. He filed a timely notice of appeal.

                               II.

       Veal argues that he had a reasonable expectation of
privacy while in his wife’s residence in which he was arrested,


credibility determination. See United States v. Lockett, 406 F.3d
207, 211 (3d Cir. 2005) (we review the denial of a motion to
suppress for clear error as to the underlying factual
determinations).

                                6
and the police did not have probable cause to believe he was
residing at and present in the residence.3 We review the denial
of a motion to suppress for clear error as to the underlying


       3
        The constitutional standard for home arrests was
articulated in Payton v. New York, 445 U.S. 573, 603 (1980),
where the Supreme Court held that, “for Fourth Amendment
purposes, an arrest warrant founded on probable cause
implicitly carries with it the limited authority to enter a dwelling
in which the suspect lives when there is reason to believe the
suspect is within.” Payton is not explicit, however, about
whether courts should apply a “probable cause” or “reasonable
belief” standard to the question of whether a suspect is in the
residence, or whether there is a difference between the two. See
Matthew A. Edwards, Posner’s Pragmatism and Payton Home
Arrests, 77 Wash. L. Rev. 299, 362-63 (2002). (“Two
possibilities exist when comparing reason to believe with
probable cause. First, the two terms may be synonymous. . . .
Second[,] . . . reason to believe requires less proof than
probable cause.”). “Most courts have held that [the] Payton
reason to believe [standard] requires less proof than probable
cause.” Id. at 363. Our Court, however, has described the test
using the language of “probable cause.” See, e.g., Agnew, 407
F.3d at 196 (“[P]olice may enter a suspect’s residence to make
an arrest armed only with an arrest warrant if they have
probable cause to believe that the suspect is in the
home.”(emphasis added)). As we conclude that the probable
cause standard was met, we need not determine whether a
possibly lower standard of reasonable belief should be applied
here.

                                 7
factual determinations and exercise plenary review over the
application of the law to those facts. United States v. Lockett,
406 F.3d 207, 211 (3d Cir. 2005). We may affirm on any
ground supported by the record. United States v. Agnew, 407
F.3d 193, 196 (3d Cir. 2005).

        We do not need to determine whether Veal had a privacy
interest in his wife’s residence,4 for, even assuming such an
interest, the police had probable cause to believe he was
residing at and present in the residence.5 “[A]n arrest warrant
founded on probable cause implicitly carries with it the limited
authority to enter a dwelling in which the suspect lives when
there is reason to believe the suspect is within.” Payton v. New
York, 445 U.S. 573, 603 (1980); see also United States v.


       4
        We note that the home of Veal’s wife was not Veal’s
residence. Although we do not know the status of Veal’s
relationship with his wife, the record shows that he was required
to live with his mother as a condition of his probation.
       5
         The Supreme Court has held that an arrest warrant does
not carry with it the authority to enter the home of a third person
to seize a suspect, and that to enter such a home police need to
get a search warrant. Steagald v. United States, 451 U.S. 204,
222 (1981). Steagald, however, only protects "the interests of
the third-party owner of the residence, not the suspect himself,
“regardless of whether the suspect has a reasonable expectation
of privacy in the home.” Agnew, 407 F.3d at 196-97.


                                8
Edmonds, 52 F.3d 1236, 1247 (3d Cir. 1995), vacated on other
grounds, 80 F.3d 810 (3d Cir. 1996). Payton requires that
officers have “a reasonable belief the arrestee (1) lived in the
residence, and (2) is within the residence at the time of entry.”
United States v. Gay, 240 F.3d 1222, 1226 (10th Cir. 2001); see
also Edmonds, 52 F.3d at 1247. To determine whether the
police had probable cause to believe a suspect was residing and
present in a home, we apply a “common sense approach” and
consider “the facts and circumstances within the knowledge of
the law enforcement agents, when viewed in the totality.”
United States v. Magluta, 44 F.3d 1530, 1535, 1536 (11th Cir.
1995).

       The following facts (and, where applicable, supporting
law in analogous situations) gave the police officers probable
cause to believe Veal resided at 1848 South Conestoga Street:6
(1) the parole violation warrant indicated Veal was no longer
living with his mother, and Tina Veal was a possible lead – see,


       6
        For purposes of determining whether a suspect resides
at a location pursuant to Payton (and as distinct from the
determination of a person’s Fourth Amendment privacy interest
in a residence), he “need not actually live in the [specified]
residence, so long as he possesses common authority over, or
some other significant relationship to, the residence entered by
police.” Gay, 240 F.3d at 1226 (internal quotation marks and
citations omitted).


                               9
e.g., United States v. Lovelock, 170 F.3d 339, 344 (2d Cir. 1999)
(relying on probation warrant for evidence that location was
defendant’s address); (2) the Veals’ former landlord reported
that Tina and Samuel Veal had lived together in the apartment
they rented from him – see, e.g., Magluta, 44 F.3d at 1537 (tip
from third-party suggested defendant lived at particular
location); Gay, 240 F.3d at 1227 (same); (3) a car Veal was
reported to drive was registered to Tina Veal and was parked
near her home – see, e.g., Magluta, 44 F.3d at 1537 (noting
evidence that defendant was a “frequent visitor to the
residence”); and (4) Tina and Samuel Veal were married.

        The following facts gave the police officers probable
cause to believe that Veal was located in the residence at 1848
South Conestoga Street at the time of arrest: (1) a car Veal was
reported to drive was parked nearby at the time of arrest – see,
e.g., Edmonds, 52 F.3d at 1248 (noting car connected to
defendant was parked in front of residence); United States v.
Boyd, 180 F.3d 967, 978 (8th Cir. 1999) (noting car matching
description of car driven by suspect parked outside of
girlfriend’s residence); Magluta, 44 F.3d at 1538 (“The presence
of a vehicle connected to a suspect is sufficient to create the
inference that the suspect is at home.”); (2) the officers arrived
early in the morning, when it was reasonable to expect that
residents or guests would still be present – see, e.g., Edmonds,
52 F.3d at 1248 (noting at 6:45 a.m. it was “early enough that it
was unlikely someone living in the apartment would have
already departed for the day”); Magluta, 44 F.3d at 1535 (stating


                               10
that officers may presume a person is home at certain times of
day) United States v. Terry, 702 F.2d 299, 319 (2d Cir. 1983)
(8:45 a.m. was “a time when [the officers] could reasonably
believe that [the defendant] would be home”); (3) while in the
living room of the residence, the officers heard unexplained
noises upstairs – see, e.g., Gay, 240 F.3d at 1227 (noting that
noise inside apartment suggested to officer that someone was
inside); and (4) the officers were aware Veal was a fugitive who
might be attempting to conceal his location – see id. at 1227
(finding that police may consider that person involved in
criminal activity may be attempting to conceal his whereabouts);
Magluta, 44 F.3d at 1538 (“officers were entitled to consider
that [the defendant] was a fugitive from justice . . . who might
have been concealing his presence”).

        When we consider, using a common sense approach, the
totality of the facts and circumstances known to the officers, we
hold that they had probable cause to believe both that Veal
resided at 1848 South Conestoga Street, and he was actually
there at the time of his arrest. Therefore, on the record before
us, the arrest of Veal was lawful and the evidence seized
pursuant to the arrest was properly admitted into evidence.

                        * * * * *

       We conclude that Veal’s motion to suppress evidence
was properly denied, and we affirm the judgment of the District
Court.


                               11
