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


12-9-2003

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Precedential or Non-Precedential: Non-Precedential

Docket No. 02-2996




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                                                                  NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT


                                        No. 02-2996


                            UNITED STATES OF AMERICA

                                             v.

                                    GREGORY MAY,
                                              Appellant


             APPEAL FROM THE UNITED STATES DISTRICT COURT
               FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
                            D.C. Crim. No. 01-cr-00127
                 District Judge: The Honorable William J. Nealon


                       Submitted Under Third Circuit LAR 34.1(a)
                                 November 19, 2003


             Before: RENDELL, BARRY, and CHERTOFF, Circuit Judges


                            (Opinion Filed: December 8, 2003)


                                         OPINION


BARRY, Circuit Judge

       The parties are familiar with the facts of this case. As a result, we will provide

only a brief summary of those facts at the outset and will incorporate additional facts as
they are relevant to our discussion of the issues.

       On November 12, 2000, Lewis Kunzman (“Kunzman”) was discovered dead in a

bathroom at the home of Curtis and Donna Williams. According to the autopsy report,

the cause of death was “morphine/heroin toxicity.” An investigation revealed that

appellant, Gregory May (“May”), was with Kunzman when he died, and was an overnight

guest in the Williams’ house. May had sold the Williamses heroin earlier that evening,

and while the Williamses were working the night shift at a manufacturing plant, May

invited his friend Kunzman to their house.

       Upon returning home, the Williamses (along with their adult child and his

girlfriend) found May in one bathroom and Kunzman lying on the floor of their other

bathroom, unconscious. Curtis Williams called 911. May was pacing nervously outside

the house when the paramedics and police arrived. Pennsylvania State Police Trooper

Jeffrey Sredenschek and Bradford County Assistant Deputy Coroner Thomas Carmen

entered the house. Trooper Sredenschek saw that Kunzman’s face was purple and red;

the upper left side of his lip appeared swollen; he had at least two puncture marks on the

left inside arm region by the elbow; his right arm was extended, as rigor mortis had set in;

his left arm was extended out from his body; and he had what appeared to be two EKG

leads on his abdominal area. Carmen’s preliminary opinion was that Kunzman had died

from the ingestion of a narcotic. Sredenschek knew that May was a drug dealer and saw a

syringe on the kitchen counter top.



                                              2
       Sredenschek submitted an affidavit of probable cause and an application for a

search warrant to District Magistrate Jonathan Wilcox in Troy Borough, and it was

signed. The items sought were described as follows:

       Any and all items that may have contributed to the death of Lewis Wesly
       Kunzman, DOB: 05/18/67, including but not limited to any illegal narcotic;
       drug; drug paraphernalia; prescription medication; over the counter
       medication; bags or bottles containing any drug or narcotic; any weapon,
       including, but not limited to, any cutting instrument; knife or knives;
       firearm(s); blunt objects; wires and /or cords; blood; hair; hair fibers; fluids;
       bodily fluids; clothing; material; chemicals; hardware.

The places to be searched were described as follows:

       Single-story, double wide residential trailer, yellow in color with reddish
       brown shutters and an attached storage shed located at 162 West South
       Ave., Canton Twp., Bradford County, PA. Additionally, any and all out
       buildings/storage sheds including a wooden barn, red in color with gray
       shingles and white doors and an attached storage shed, green in color with a
       metal roof; a gray storage shed with a red roof; a brown wooden
       outbuilding/storage shed; a gray colored storage shed with blue shingled
       roof and white door; a cinderblock storage shed with white door; a 1984
       Pontiac Fiero 2M4, VIN: 1G2AM 37R4EP232036, bearing PA registration
       CAX-6322, white in color; a 1984 Pontiac Fiero 2M$, VIN:
       1G2AM37R5EP269371, bearing PA registration BFG-2936, black in color;
       a Dodge Power Wagon 150, maroon in color.

Upon executing the warrant, troopers found over 100 baggies and items used to ingest

heroin; some of the baggies tested positive for heroin residue.

       On November 14 and 15, 2000, May called the state police several times, asking to

speak to the police about Kunzman’s death. On November 15, 2000, Troopers

Sredenschek, Kerrick and Shiposh went to M ay’s house. When they arrived, May said:

“All right. Here I am. Take me, go ahead and take me.” The troopers replied “Greg,

                                              3
we’re not here to arrest you. You called us here to speak to you. We’re here to talk to

you.” After May calmed down, the troopers asked, “Can we talk to you?” and May

replied, “Yeah, yeah, we can talk.”

       The troopers were dressed in plain clothes and had weapons that were only visible

if their jackets were off. Prior to beginning the interview, the troopers explained to May

that he was not under arrest, that he was free to ask the troopers to leave at any time, and

that he did not have to answer any of their questions. May said he understood. The

troopers did not advise May of his Miranda rights at this time.

       The troopers interviewed May at his kitchen table. Among other things, May

admitted having done drugs with Kunzman on the night Kunzman died. The decision was

then made to arrest him for delivery of a controlled substance and, after the arrest, he was

advised of his Miranda rights.

       On April 10, 2001, a federal grand jury returned a two-count indictment, charging

May with conspiracy to distribute and possess with intent to distribute heroin and cocaine

base, in violation of 21 U.S.C. § 846, and with the distribution of heroin, in violation of

21 U.S.C. § 841(a)(1). May moved to suppress both the evidence retrieved in the search

and certain of his statements. Following a hearing, the motion was denied, and May

thereafter pleaded guilty to a one-count superceding information charging him with the

distribution of heroin and possession with intent to distribute. The plea was conditional,

however, with May reserving the right to appeal the District Court’s denial of his motion



                                              4
to suppress.

         May was sentenced to 132 months imprisonment, and now appeals. The District

Court had jurisdiction pursuant to 18 U.S.C. § 3231, and we have jurisdiction under 28

U.S.C. § 1291. We review the District Court’s denial of May’s motion to suppress for

“clear error as to the underlying facts, but exercise plenary review as to its legality in light

of the court’s properly found facts.” United States v. Inigo, 925 F.2d 641, 656 (3d Cir.

1991) (citing United States v. Mitlo, 714 F.2d 294, 295-96 (3d Cir. 1983), cert. denied,

464 U.S. 1018 (1983)). With respect to whether police conduct constitutes custodial

interrogation, our review is plenary. United States v. Leese, 176 F.3d 740, 741 (3d Cir.

1999).




                                               I.

         In claiming that the search warrant issued was overly broad and otherwise

deficient, May argues (1) the affidavit did not demonstrate probable cause; and (2) the

warrant was overbroad. We easily dispose of both arguments through our application of

the good faith exception to the exclusionary rule.

         Pursuant to United States v. Leon, 468 U.S. 897 (1984), unless novel issues are

present, reviewing courts may bypass the issue of probable cause and examine whether

the executing officers operated in good faith. United States v. $92,422.57, 307 F.3d 137,

145 (3d Cir. 2002). This case presents no novel questions of law, and we turn directly to



                                               5
the officers’ good faith.

       In United States v. Hodge, 246 F.3d 301 (3d Cir. 2001), we stated that the “test for

whether the good faith exception applies is whether a reasonably well trained officer

would have known that the search was illegal despite the magistrate’s authorization.” Id.

at 307 (quoting United States v. Loy, 191 F.3d 360, 367 (3d Cir. 1999)). We continued:

“[t]he mere existence of a warrant typically suffices to prove that an officer conducted a

search in good faith and justifies application of the good faith exception.” Hodge, 246

F.3d at 307-08 (citing Leon, 468 U.S. at 922, and United States v. Williams, 3 F.3d 69, 74

(3d Cir. 1993)).

       We cautioned, however, that an officer’s reliance on a warrant would not be

reasonable:

       (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.

Hodge, 246 F.3d at 308 (quoting Williams, 3 F.3d at 74 n.4).

       May does not claim that Trooper Sredenschek’s affidavit was deliberately or

recklessly false or that the issuing judge was other than neutral and detached. As to

number (3), probable cause must be defined before it can be determined whether or not



                                              6
the warrant was so “lacking in indicia of probable cause” that an “official belief in its

existence [was] entirely unreasonable.” In United States v. Jones, 994 F.2d 1051 (3d Cir.

1993), we explained the standard to be used when reviewing a probable cause finding by

a magistrate as follows: “When faced with a challenge to a magistrate’s probable cause

determination, a reviewing court must remember that its role is limited. It is not to

conduct a de novo review. Rather, it simply ensures that the magistrate had a substantial

basis for concluding that probable cause existed.” Id. at 1055 (citations omitted). In

defining probable cause, we noted in Hodge, that “[a] magistrate judge may find probable

cause when, viewing the totality of the circumstances, there is a fair probability that

contraband or evidence of a crime will be found in a particular place.” Hodge, 246 F.3d

at 305 (internal quotations omitted).

       Here, it was surely not “entirely unreasonable” to believe there was probable cause

and that there was a “fair probability that contraband or evidence of a crime [would] be

found on the premises.” The Magistrate had a “substantial basis” for determining that

probable cause existed.

       As for number (4), not only must the magistrate have erred, but his error must have

been so obvious that a law enforcement official should have realized the mistake just by

reading the warrant. Number (4) basically boils down to the Fourth Amendment’s

requirement that search warrants “particularly” describe: (1) “the place to be searched,”

and (2) “the persons or things to be seized.” See Maryland v. Garrison, 480 U.S. 79



                                              7
(1987).

       A warrant particularly describes the place to be searched “if the description is such

that the officer with a search warrant can, with reasonable effort ascertain and identify the

place intended.” United States v. Bedford, 519 F.2d 50, 655 (3d Cir. 1975) (quoting

Steele v. United States, 267 U.S. 498, 503 (1925)). Clearly, the warrant in this case

particularly described the places to be searched. It stated the type, color, and address of

the residence. Other buildings to be searched were similarly described, and vehicle

locations, makes, models, years and VIN numbers were provided. As to the description

of the items themselves, in $92,422.57 we upheld a warrant very similar to the one at

issue here. We uphold the warrant here.




                                             II.

       May argues that he was in custody when he was interviewed and, because he had

not been Mirandized, his statements must be suppressed. We disagree. Miranda

warnings are only required if a statement was the product of “custodial interrogation.”

Miranda v. Arizona, 384 U.S. 436, 444 (1966). Custodial interrogation means

“questioning initiated by law enforcement officers after a person has been taken into

custody or otherwise deprived of his freedom of action in any significant way.” Id. In

determining whether a person is “in custody”, “the ultimate inquiry is simply whether

there is a ‘formal arrest or restraint on freedom of movement’ of the degree associated



                                              8
with a formal arrest.” California v. Beheler, 463 U.S. 1121, 1125 (1983) (per curiam)

(quoting Oregon v. Mathiason, 429 U.S. 492, 495 (1977) (per curiam)). This

determination is objective, based on “how a reasonable man in the suspect’s position

would have understood his situation.” Berkemer v. McCarty, 468 U.S. 420, 442 (1984).

       An objective, reasonable person in May’s position would not have felt restrained

to the degree of formal arrest. The interview was conducted at May’s request, in familiar

surroundings–his home. The police never indicated they would not heed a request to

leave; on the contrary, May was told that he was not under arrest and that he could

terminate the interview at any time. Moreover, May’s freedom of movement, as the

District Court found, was not restricted.




                                             III.

       The judgment of sentence will be affirmed.




TO THE CLERK OF THE COURT:

       Kindly file the foregoing Opinion.




                                            Maryanne Trump Barry
                                            Circuit Judge
