                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-8-2002

USA v. Charles
Precedential or Non-Precedential:

Docket 0-4352




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2002

Recommended Citation
"USA v. Charles" (2002). 2002 Decisions. Paper 158.
http://digitalcommons.law.villanova.edu/thirdcircuit_2002/158


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2002 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                      NOT PRECEDENTIAL

                UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT


                             No. 00-4352


                     UNITED STATES OF AMERICA

                                 v.

                         ALICE CHARLES,

                                      Appellant


                On Appeal from the District Court
                of the Virgin Islands - St. Croix
                 (D.C. Criminal No. 99-cr-00051)
              District Judge: Hon. Thomas K. Moore


                     Argued December 6, 2001

  BEFORE: BECKER, Chief Judge, NYGAARD and COWEN, Circuit Judges

                    (Filed    March 8, 2002       )

George W. Cannon, Jr., Esq. (Argued)
Law Offices of George W. Cannon, Jr.
70 & 70-A (115) Queen Street
Frederiksted, St. Croix
USVI, 00840

     Counsel for Appellant
Tracey Christopher, Esq. (Argued)
Office of the United States Attorney
1108 King Street, Suite 201
Christiansted, St. Croix
USVI, 00820

     Counsel for Appellee


                             OPINION


COWEN, Circuit Judge.
     Alice Charles appeals from the judgment of conviction of the District
Court of the
Virgin Islands finding her guilty of knowingly and intentionally
manufacturing
marijuana, in violation of 21 U.S.C.    841(a)(1) and (b)(1)(C). Charles
contends that
the District Court erred in denying her motion to suppress the evidence of
drugs allegedly
seized in violation of the Fourth Amendment. We will affirm the judgment
of the
District Court.
                               I.
     On May 4, 1999, Officers Angel Diaz and Christopher Howell, members
of the
Virgin Islands High Intensity Drug Trafficking Area Task Force, received
an anonymous
tip from a "concerned citizen" that the renter of No. 8 Catherine's Rest
Estates, St. Croix,
United States Virgin Islands ("No. 8"), was growing marijuana in her
residence and
selling it at a local school. The officers had no prior contact or
experience with the
informant. On three occasions over a period of approximately two weeks
the officers
surveilled No. 8, which was located on land known as Martin Farm, a
fenced-in property
containing No. 8 and several other rental houses. The fence surrounding
Martin Farm
had an opening which allowed car access to a dirt road known as Martin
Farmer's Road.
No. 8 was located approximately one quarter of a mile from the entrance of
Martin Farm
on Martin Farmer's Road. During the three visits to No. 8, the officers
observed that the
air conditioning was always running, all of the windows were shut, and no
one appeared
to be in the house, except on May 20, 1999, when Charles was arrested.
     On May 18, 1999, the same concerned citizen contacted Officer Diaz
and stated
that the renter at No. 8 came to the residence for only a few hours each
day, but that the
air conditioning remained on at all times and that the windows were always
shut.
Officers Diaz and Howell went to the house at 4:45 a.m. on May 19, 1999,
and again
observed that the air conditioning was running and that no one appeared to
be at the
house. Officer Diaz ran a swab across the outside door latch attached to
the screen door
that led to the screened-in front porch. An Ionscan was performed on the
swab revealing
a high presence of marijuana.
     The next morning, Officer Diaz and INS Special Agent David Levering
(assigned
to the same task force as Officer Diaz) returned to No. 8. A blue car was
parked outside
the house, which had not been present on any previous visit. All of the
windows to the
house were closed. Officer Diaz opened the unlocked screen door, walked
approximately eight or ten feet through the screened-in porch, and knocked
on the front
door. Charles answered from inside the house, without opening the front
door. The
officers stated that it was the police. Charles opened the door and
stepped onto the
porch. The officers observed that the air conditioning was on inside the
house, and
almost immediately also detected the smell of growing marijuana. The
officers asked
Charles if any illegal activity was going on inside the house, to which
Charles answered
in the negative. The officers then asked if they could go into the house.
Charles refused
and told the officers that they needed a warrant to go inside.
     Officer Diaz told Charles that she could not go back inside the house
because of
his fear that she would destroy evidence. Charles told Officer Diaz that
she needed to
use the bathroom. Officer Diaz told her to go to a neighbor's house or
that he would take
her to the police station to use the facilities, but that she could not go
into the house.
Charles then bolted to inside the house locking the door behind her.
Within moments,
the officers heard the sound of a flushing toilet. Officer Diaz unplugged
the water pump
outside the house and started to use a masonry block to knock the front
door down. At
one point Charles yelled from behind the door for Officer Diaz to stop and
she would
open the door. But too much damage had been done to the door and Officer
Diaz had to
break it down. Once inside the house, the officers arrested Charles and
surveilled each
room to make sure no one else was inside. During their surveillance of
the house, they
observed live marijuana plants in the bedroom and in the toilet bowl.
     Officer Diaz provided the affidavit used to obtain the search warrant
for No. 8.
He included in the affidavit: the informant's tip on May 18, 1999; his
observations of
No. 8 made on the morning of May 19, 1999, which corroborated the
informant's
information; the results of the Ionscan; the smell of fresh marijuana upon
Charles
opening the door on the morning of May 20, 1999. Also included was the
chain of
events on May 20, 1999, when Charles ran back into the house and the
officers secured
the house as well as detained Charles.
     A Magistrate Judge granted a search warrant which included No. 8 and
the blue
car parked outside of the house. In executing the warrant, forty-six live
marijuana plants
were seized. The officers used the information from the search of No. 8
and Charles' car
to obtain a second warrant for Charles' other residence, No. 11E Estate
Pleasant, St.
Croix, Virgin Islands ("No. 11E"). Officers seized drying marijuana from
this second
house.
                              II.
     A grand jury returned a three-count indictment. It charged Charles
with the
manufacture of a controlled substance, marijuana, in violation of 21
U.S.C.   841(a) &
(b)(1)(C), possession with intent to distribute marijuana, in violation of
21 U.S.C.
841(a)(1) & (b)(1)(B)(vii), and operation and maintenance of a
manufacturing facility for
marijuana, in violation of 19 V.I.C.   608b. Charles moved to suppress
the evidence
seized during the searches of the two houses and her car. Officers Diaz
and Levering
testified, and Charles presented two witnesses to dispute the officers'
testimony
regarding the odor of marijuana plants. Following the hearing on the
motion to suppress,
the government offered a demonstration in order for the District Court to
observe the
smell of growing marijuana. The next day the District Court observed
forty-seven live
marijuana plants in a holding cell in the basement of the courthouse.
Charles' counsel
suggested that No. 8 would be a better location for the demonstration but
he did not
object to the demonstration which the government put forth.
     The District Court issued a memorandum and order suppressing the
results of the
Ionscan but denied Charles' motion to suppress the evidence that resulted
from the
execution of the two search warrants for No. 8, Charles' car, and No. 11E.
With regard
to the results of the Ionscan, the District Court determined that the
doorknob fell within
the curtilage of the house, and held the swabbing of the doorknob to be an
unconstitutional search.
     The District Court denied the Motion to Suppress for No. 8 and
Charles' car based
upon "[t]he information the agents obtained from an informant, as verified
by the agents'
own observations of the exterior of the house and their plain smell of
marijuana." App.
at 180. Based upon the demonstration with growing marijuana plants, the
District Court
found that "[w]ithin a second or two of opening the door to the room
containing the
plants, the fragrance was noticeable. Within another two or three
seconds, the strong and
distinctive odor permeated the hallway outside the room. The viewing thus
confirmed
the government's evidence that green, growing marijuana plants have a very
strong and
distinctive odor." App. at 170-71. The District Court explained that
despite the fact that
Diaz's affidavit contained the results of the Ionscan (which the District
Court
suppressed), there was a "sufficient independent basis for probable cause
that marijuana
cultivation was taking place inside the house." App. at 180. The
District Court also
denied the Motion to Suppress the evidence seized at No. 11E. Charles
entered a
conditional plea of guilty to Count One of the indictment, for the
unlawful manufacture
of marijuana.
     Charles appeals the District Court's finding that Officers Diaz and
Levering were
lawfully present at No. 8 on May 20, 1999, from which the District Court
found probable
cause for the first search warrant issued based upon the plain smell
doctrine. Charles
asserts that but for the Ionscan results obtained on May 19, 1999, the
officers would not
have returned the following morning to No. 8 nor smelled the marijuana
when she
opened the door. Charles also asserts that the District Court erred in
finding that
probable cause existed for the two search warrants independent of the
alleged
unconstitutional Ionscan.
     We agree with the District Court that there is sufficient basis to
justify the search
warrants, independent of the Ionscan which was suppressed. The officers
were lawfully
present at No. 8 on May 19th and 20th. We conclude that the results of
the Ionscan did
not taint the evidence obtained through the knock and talk on May 20,
1999, or the
subsequent execution of the search warrants. The investigation by the
officers of No. 8
was ongoing and had not been resolved as of May 20, 1999. We are
reasonably
confident that the officers would have returned to No. 8 on May 20th or
thereafter, either
with or without the results of the Ionscan. Under a totality of the
circumstances analysis,
there was probable cause for the issuance of the search warrant on May 20,
1999. The
subsequent warrant for No. 11E was therefore also valid. It is
unnecessary on the record
before us to reach the constitutionality of the Ionscan and we reserve
that question for
another day.
                              III.
     We review the District Court's findings of the underlying facts for
clear error but
exercise plenary review as to conclusions of law. See United States v.
Acosta, 965 F.2d
1248, 1250 (3d Cir. 1992); United States v. Inigo, 925 F.2d 641, 656 (3d
Cir. 1991). In
reviewing the Order of the District Court upholding the Magistrate Judge's
probable
cause determination, we exercise a deferential review. Illinois v. Gates,
462 U.S. 213,
236, 103 S.Ct. 2317, 2331. We must determine only "that the magistrate
judge had a
'substantial basis' for concluding that probable cause existed to uphold
the warrant."
United States v. Whitner, 219 F.3d 289, 296 (3d Cir. 2000) (citing Gates,
462 U.S. at
238, 103 S.Ct. at 2331).
                              IV.
     Charles contends that the District Court erred by determining that
the officers'
presence at No. 8 on May 20 was legal. She asserts that but for the
allegedly illegal
Ionscan results, the officers would not have knocked on the front door of
No. 8 on May
20th, the officers would not have been exposed to the alleged smell of
growing marijuana,
and there would have been no basis for the Magistrate Judge to make his
probable cause
determination.
     We resolve this issue without addressing the constitutionality of the
Ionscan. The
Fourth Amendment protects against "unreasonable searches and seizures."
U.S. Const.
amend. IV. But not all encounters with law enforcement officials
implicate the Fourth
Amendment. Only when the encounter restrains the person's liberty is the
Fourth
Amendment triggered. So long as the encounter on May 20th was consensual
and fell
short of an investigative stop, the officers were lawfully present at No.
8 on that date and
did not need to make a showing of reasonable suspicion or probable cause.
Contrary to
Charles' position, the officers needed neither reasonable suspicion nor
probable cause to
knock on No. 8 on May 20th because the encounter fell short of an
investigative stop and
was consensual. See United States v. Kim, 27 F.3d 947, 950 (3d Cir. 1994)
(citing
Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 2386 (1991)); see
also United
States v. Jones, 239 F.3d 716, 720 (5th Cir. 2001) ("knock and talk" is "a
reasonable
investigative tool"); United States v. Hardeman, 36 F.Supp.2d 770, 777
(E.D. Mich.
1999) (noting that the "knock and talk" is "generally upheld as a
legitimate method of
investigation, designed to obtain a suspect's consent to search"); Davis
v. United States,
327 F.2d 301, 303 (9th Cir. 1964) ("Absent express orders from the person
in possession
against any possible trespass, there is no rule of private or public
conduct which makes it
illegal per se, or a condemned invasion of the person's right of privacy,
for anyone
openly and peaceably, at high noon, to walk up the steps and knock on the
front door of
any man's 'castle' with the honest intent of asking questions of the
occupant
thereof whether the questioner be a pollster, a salesman, or an officer of
the law.").
     In United States v. Kim, we held that an encounter between an officer
and an
occupant of a roomette on a passenger train was consensual where the
"totality of the
circumstances" demonstrated that the exchange between the officer and
defendant was
voluntary and cooperative. Kim, 27 F.3d at 954. We explained that the
location
contributed very little to the argument that a reasonable person would not
have felt free
to terminate the encounter because a person "can reject an invitation to
talk in a private,
as well as a public space." Id. at 952 (quoting Bostick, 501 U.S. at 437,
111 S.Ct. at
2387). The "high expectation of privacy, alone, does not destroy the
otherwise
consensual nature of the encounter." Kim, 27 F.3d at 953. We also
explained that asking
potentially incriminating questions is permissible and does not make the
encounter
coercive the standard is whether an innocent reasonable person would feel
compelled to
cooperate. Id. (citing Bostick, 501 U.S. at 438, 111 S.Ct. at 2388).
     Because the law is clear that the officers did not need reasonable
suspicion or
probable cause on May 20th to knock at No. 8, the issue is whether the
encounter became
coercive in the few seconds that passed from the moment Charles opened the
door until
the officers smelled marijuana. The standard by which we determine
whether the
encounter between Charles and the police on May 20th was consensual
depends on where
the encounter took place. See Kim, 27 F.3d at 951. A distinction is made
between an
encounter in a public place, such as on a public street or in an airport
terminal, where a
person is free to simply walk away from inquiries, and Charles' situation
where she was
at her own home when the officers knocked on her door. See, e.g.,
Bostick, 501 U.S. at
430-34, 111 S.Ct. at 2384-86 (Bostick was confined on a bus and was not
free to leave
when officers approached him). Because the encounter occurred at Charles'
home, the
test is "whether a reasonable person would feel free 'to disregard the
police and go about
his business,' id. at 434, 111 S.Ct. at 2386, or ultimately 'whether a
reasonable person
would feel free to decline the officers' requests or otherwise terminate
the encounter,' id.
at 436, 111 S.Ct. 2387, 'taking into account all of the circumstances
surrounding the
encounter.'" Kim, 27 F.3d at 951. There is no evidence that the encounter
between
Charles and the two officers rose to a coercive exchange.
     The fact that Charles did not consent to a search of her house shows
that she did
not feel coerced or pressured into allowing a search. In addition, the
exchange between
the officers and Charles was short, and there is no evidence of repeated
questioning or
badgering behavior by the officers. The officers asked approximately 3
questions before
they became aware of the scent of the marijuana.
     The District Court, in affirming the Magistrate Judge's probable
cause
determination, correctly considered the odor of fresh growing marijuana in
its probable
cause determination. We will not disturb the District Court's factual
findings that the
officers detected the scent of the marijuana plants from where they stood
on the porch
during their exchange with Charles. Where there are two permissible views
of the
evidence, the factfinder's choice between them cannot be clearly
erroneous.
     While Charles recognizes that the officers did eventually obtain
search warrants,
she still asserts that the evidence discovered upon execution of those
warrants to search
her residences and car is inadmissible as "fruits of the poisonous tree,"
as stemming from
the allegedly unconstitutional Ionscan.
     Under a totality of the circumstances analysis, there was probable
cause for the
search warrant on May 20, 1999, given the informant's information, the
officers'
surveillance of No. 8, and the plain smell of marijuana observed during
the knock and
talk on May 20, 1999. The results of the Ionscan did not taint the
evidence obtained
during the knock and talk, as we are reasonably confident that the
officers would have
returned on May 20, 1999, or thereafter, despite the results of the
Ionscan given that their
investigation was ongoing.
     For the foregoing reason, the District Court's judgment of November
11, 1999 will
be affirmed.
TO THE CLERK:
          Please file the foregoing opinion.
                              /s/Robert E. Cowen

                             United States Circuit Judge
