09-3963-cr(L)
United States v. Armstrong


                                  UNITED STATES COURT OF APPEALS
                                     FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to a summary order filed on or after January
1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and this court’s Local Rule
32.1.1. When citing a summary order in a document filed with this court, a party must cite either the Federal
Appendix or an electronic database (with the notation “summary order”). A party citing a summary order must
serve a copy of it on any party not represented by counsel.

        At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
on the 14th day of January, two thousand eleven.

PRESENT:
            AMALYA L. KEARSE,
            RALPH K. WINTER,
            PETER W. HALL,
                        Circuit Judges.
______________________________________________

UNITED STATES OF AMERICA ,
                                          Appellee,

                             v.                                 Nos. 09-3963-cr(L), 09-3970-cr(Con)

JOHN ARMSTRONG , ALSO KNOWN AS PESO , JUSTICE CEPHAS, ALSO KNOWN AS WOODROW
JACKSON , ALSO KNOWN AS MAN , ALSO KNOWN AS REGINALD MURRAY , NICHOLAS HAYES,
TYQUAN MIDYETT , SHAWN PENDER , OSCAR RAY , ALSO KNOWN AS JOHN DOE , ALSO KNOWN AS
E, BRIAN SANTANO , CHEYENNE SIMONS, ALSO KNOWN AS THE PRESIDENT , ALSO KNOWN AS
SHITTY , TEON SIMONS,
                                 Defendants,

MICHAEL BROWN , ALSO KNOWN AS NIGHTCRAWLER, STANLEY FEASTER , ALSO KNOWN AS GREEN
EYES,
                               Defendants-Appellants.1

        1
       In a separate order filed today, we grant both Joseph F. Kilada’s motion for permission to
withdraw as Defendant-Appellant Stanley Feaster’s counsel pursuant to Anders v. California,
386 U.S. 738 (1967), and the Government’s motion to dismiss Feaster’s appeal as barred by the

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______________________________________________

FOR APPELLEE:                                         WILLIAM E. SCHAEFFER, Assistant United
                                                      States Attorney, of counsel (David C. James,
                                                      Assistant United States Attorney) for Loretta
                                                      E. Lynch, United States Attorney for the
                                                      Eastern District of New York, Brooklyn,
                                                      New York.

FOR DEFENDANT-APPELLANT
MICHAEL BROWN:                                        RICHARD D. WILLSTATTER, Green &
                                                      Willstatter, White Plains, New York.



       Appeal from a judgment of the United States District Court for the Eastern District of

New York (Matsumoto, J.). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED, that the judgment of the district court is AFFIRMED.

       Defendant-Appellant Michael Brown appeals from the district court’s judgment entered

on September 15, 2009 convicting him, after a jury trial, of conspiracy to distribute cocaine base

in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A)(iii) and § 846, three counts of drug

distribution near a school and public housing authority in violation of 21 U.S.C. §§ 841(a)(1) and

(b)(1)(B)(iii) and § 860(a), and use of a firearm in violation of 18 U.S.C. § 924(c)(1)(A)(i). We

assume the parties’ familiarity with the underlying facts and procedural history in this case.

       On appeal, Brown raises three principal arguments that the district court erred in denying

his motion to suppress physical evidence and post-arrest statements. First, he asserts that the

search of his apartment was illegal because, although a warrant for that apartment had been



waiver of appellate rights contained in his plea agreement. Accordingly, this summary order
addresses only Defendant-Appellant Michael Brown’s claims on appeal.


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issued, the police officers, prior to conducting the search, did not have the warrant in hand, had

not read the warrant, and had not had its terms read to them. Second, he contends that exigent

circumstances did not otherwise justify the search because, inter alia, a person throwing vials of

crack cocaine from an apartment window did not constitute violent conduct, and a slight delay to

contact the narcotics division to retrieve the previously issued warrant would not have resulted in

the destruction of evidence. Third, he submits the government failed to meet its burden in

establishing that the seizure of the firearm and crack cocaine in his apartment’s closet fit within

the plain view exception to the Fourth Amendment’s warrant requirement. We review the

district court’s ruling on a suppression motion for clear error with respect to factual findings,

viewing the evidence in the light most favorable to the government, and de novo as to questions

of law. United States v. Rodriguez, 356 F.3d 254, 257 (2d Cir. 2004).

       Applying these principles to this case, we affirm for substantially the same reasons

articulated by the district court in its thoughtful and well-reasoned memorandum and order filed

on February 3, 2009. See generally United States v. Brown, 596 F. Supp. 2d 611 (E.D.N.Y.

2009). The Supreme Court has explicitly recognized that “neither the Fourth Amendment nor

Rule 41 of the Federal Rules of Criminal Procedure requires the executing officer to serve the

warrant on the owner before commencing the search.” Groh v. Ramirez, 540 U.S. 551, 562 n.5

(2004). Relying on this authority, the district court concluded that an officer is not required to

have a search warrant in hand when conducting the search. Brown, 596 F. Supp. 2d at 625.

Additionally, having found that the supervising officer had knowledge that the narcotics division

had obtained a search warrant for crack cocaine at Brown’s apartment, and that the supervising

officer informed the other officers of the warrant prior to the search, the court properly held that


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such objective information allowed the officers to conduct a reasonable search that fell within

constitutional parameters. See id. at 626-27; see also Brigham City v. Stuart, 547 U.S. 398, 404

(2006) (“An action is reasonable under the Fourth Amendment, regardless of the individual

officer’s state of mind, as long as the circumstances, viewed objectively, justify [the] action.”

(emphasis in original; internal quotation marks omitted)). Because the search of Brown’s

apartment was authorized by and executed pursuant to a valid search warrant, we need not reach

Brown’s arguments concerning exigent circumstances and the plain view doctrine.

       We have considered all of Brown’s contentions on this appeal and have found them to be

without merit. For the reasons stated, the judgment of the district court is AFFIRMED.



                                                      FOR THE COURT:
                                                      Catherine O’Hagan Wolfe, Clerk




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