                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-13-2003

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Precedential or Non-Precedential: Non-Precedential

Docket No. 02-4342




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                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                       No. 02-4342


                            UNITED STATES OF AMERICA

                                            v.

                                  DENNIS FREEMAN,

                                                               Appellant


                     On Appeal from the United States District Court
                         for the Eastern District of Pennsylvania
                                (D.C. Crim. No. 00-00692)
                        Honorable Robert F. Kelly, District Judge


                       Submitted under Third Circuit LAR 34.1(a)
                                  November 7, 2003

             BEFORE: MCKEE, SMITH and GREENBERG, Circuit Judges

                               (Filed: November 13, 2003)


                               OPINION OF THE COURT


GREENBERG, Circuit Judge.

        This matter comes on before the court on defendant Dennis Freeman’s appeal

from a judgment of conviction and sentence entered November 25, 2002, following his

plea of guilty to one count of a multi-count indictment in this case involving various drug
charges. The district court sentenced Freeman to serve a 270-month custodial term to be

followed by ten years of supervised release. In particular, Freeman pleaded guilty to

conspiracy to distribute more than 50 grams of cocaine base (“crack”) in violation of 21

U.S.C. § 846. Freeman made this plea following the district court’s denial of his motion

to suppress physical evidence by an order entered April 10, 2002. See United States v.

Freeman, CR. No. 00-692-01, 2002 WL 523166 (E.D. Pa. Apr. 9, 2002). But at the time

that Freeman pleaded guilty he reserved his right to appeal the denial of his motion to

suppress as authorized by Fed. R. Crim. P. 11(a)(2). The district court had jurisdiction

under 18 U.S.C. § 3231 and we have jurisdiction pursuant to 28 U.S.C. § 1291.

         On this appeal Freeman contends that the district court erred “when it failed to

grant [his] motion to suppress evidence based on appellee’s sealed warrant to adequately

describe the premises to be searched when [appellee] failed to reasonably investigate the

true nature of the structure” and “when it failed to suppress evidence upon the appellee’s

representative’s [sic] failure to adequately ‘knock and announce’ their presence and

purpose.” Appellant’s Br. at i. There is a variation between the parties’ concept of the

applicable standard of review. Initially Freeman contended that our entire review was

plenary. Appellant’s Br. at 13. But in its answering brief the government pointed out that

our review with respect to the district court’s factual findings was on a clear error basis

but our application of the law to the facts was plenary. Appellee’s Br. at 20, 36. Then in

his reply brief Freeman apparently adopted the government’s position, at least in part, as



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he indicated that “the district court’s finding that the ‘knock and announce’ rule [was not

violated] was clearly erroneous.” Appellant’s Reply Br. at 8. In fact, the government

properly sets forth the applicable standards of review. See United States v. Perez, 280

F.3d 318, 336 (3d Cir. 2002).

        We do not describe the facts as the parties are familiar with them and the district

court set them forth in its memorandum of April 9, 2002, accompanying its order of April

10, 2002. Applying the applicable standards of review we will affirm substantially for the

reasons the district court advanced in its memorandum. We add only that there is

substantial authority supporting the district court’s conclusion that the search was lawful

because “the police limited their search to the first floor apartment.” Freeman, 2002 WL

523166, at *3. See, e.g., United States v. Geraldo, 271 F.3d 1112, 1118 (D.C. Cir. 2001);

Mena v. City of Simi Valley, 226 F.3d 1031, 1038-39 (9th Cir. 2000); see also United

States v. $92,422.57, 307 F.3d 137, 149 (3d Cir. 2002).

        The judgment of conviction and sentence entered November 25, 2002, will be

affirmed.




TO THE CLERK:

        Please file the foregoing not precedential opinion.

                                                        /s/ Morton I. Greenberg
                                                             Circuit Judge




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