                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-22-2005

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Precedential or Non-Precedential: Non-Precedential

Docket No. 04-3129




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                                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ____________

                                       No. 04-3129
                                      ____________

                           UNITED STATES OF AMERICA

                                              v.

                                     JARELL JONES,
                                    a/k/a Jarrell Koger,

                                            Appellant
                                      ____________

                    On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                                (D.C. No. 03-cr-00243)
                    District Judge: Honorable Michael M. Baylson
                                     ____________

                              Argued September 22, 2005

                 Before: ROTH, McKEE and FISHER, Circuit Judges.

                                 (Filed November 22, 2005)

Dennis J. Cogan (Argued)
Cogan, Petrone & Associates
2000 Market Street, Suite 2925
Philadelphia, PA 19103
      Attorney for Appellant

Andrea B. Grace (Argued)
Office of United States Attorney
615 Chestnut Street
Philadelphia, PA 19106
       Attorney for Appellee
                                      ____________

                               OPINION OF THE COURT
                                    ____________

FISHER, Circuit Judge.

       Defendant Jarrell Jones (“Jones”) appeals from the District Court’s judgment of

conviction and sentence. The basis for Jones’s appeal is the District Court’s denial of his

motion to suppress certain evidence seized from his apartment at 533 Dickinson Street,

Philadelphia. We believe that exigent circumstances justified the search of Jones’s

apartment, and that the District Court properly denied Jones’s motion to suppress.

Therefore, we will affirm the District Court’s judgment of conviction and sentence.

                                             I.

       As we write only for the parties, we set forth only those facts necessary to our

analysis. On August 19, 2001, officers of the Philadelphia Police Department obtained an

arrest warrant for Felix Summers. Summers was the lead suspect in several murders in

the South Philadelphia area. One of the victims was a witness against Summers in a

pending homicide case. As a result of their awareness of these murders, the officers

believed that Summers was extremely violent, had access to firearms, and had experience

in the use of firearms.

       Prior to August 22, 2001, Philadelphia police officers had unsuccessfully

attempted to execute the arrest warrant for Summers at two known addresses. These



                                             2
addresses were in the immediate vicinity of 533 Dickinson Street. Police had information

that Summers was dealing drugs in that same area.

       At approximately 6:00 p.m. on August 22, 2001, Detective Michael Gross of the

Philadelphia Police Department answered a telephone call from an anonymous female.

The caller dialed the number released to the press as a hotline for tips regarding the

whereabouts of Summers.1 The woman stated that Summers was inside 533 Dickinson

Street, second floor, at the time of the call. When Detective Gross attempted to obtain

more information from the caller, she hung up. Detective Gross then notified Detective

Gerald Lynch, who was investigating the murders in which Summers was a suspect. The

officers did not obtain a search warrant for 533 Dickinson, but instead proceeded with

only the arrest warrant for Summers. The officers had a fear for their own safety and the

safety of the neighborhood due to the violent nature of the murders in which Summers

was a suspect.

       Upon their arrival at 533 Dickinson, the officers rang the doorbell of the first floor

apartment. A male and a female answered the door, and officers questioned them

regarding Summers. The answers to these questions and gestures from the residents

confirmed that it was likely that Summers was present in the upstairs apartment.




       1
         The Philadelphia Police Department published the fact that Summers was wanted
in print and television media. Based on these publications and based on previous
attempts to locate him, the officers believed that Summers would know he was wanted for
murder.

                                              3
       Based on this information, the officers proceeded to the second floor apartment.

Upon reaching the door of the apartment, the officers heard a slight noise coming from

inside.2 The officers then knocked and announced themselves as police officers. Within

about thirty seconds, the officers heard someone running. The officers believed that this

running came from inside the second floor apartment. Approximately one or two minutes

later, the officers were able to enter the apartment forcibly by using a fire extinguisher as

a battering ram.

       While searching the apartment for Summers, the officers saw drugs in plain view.

The officers left and obtained a search warrant for the premises. During the search, the

officers found cocaine, handguns, and currency. The total weight of the seized cocaine

was over 200 grams. The officers also found a lease agreement and insurance policies in

the name of Jarrell Jones. The officers did not find anything during the search that linked

the apartment to Summers. Based upon this evidence, the police secured an arrest

warrant for Jones.

       Almost nine months later, on June 4, 2002, officers of the Philadelphia Police

Department were engaged in surveillance of a high drug trafficking area near 533

Dickinson Street. The officers testified at the suppression hearing that drugs are typically

sold in South Philadelphia using what are known as “delivery services.” Buyers have




       2
       The officers later discovered that this noise was the television, which was on even
though no one was inside the apartment.

                                              4
certain cell phone numbers that they call to tell suppliers what they want to purchase. A

short time later, the supplier pulls into a previously discussed location, and the buyer gets

into the supplier’s vehicle. The supplier and buyer then make the exchange.

       The officers were traveling on 11th Street in South Philadelphia when they

observed an unknown female make a call from a pay phone. The officers had on at least

three to five previous occasions witnessed drug buyers use that pay phone to call the

delivery services. A short time later, a Lexus picked up the woman and drove a short

distance. Officers pulled their unmarked car in front of the Lexus, blocking the lane of

travel. The unmarked police car was approximately forty to fifty feet in front of the

Lexus. At this time, one officer began approaching the vehicle. The driver then exited

the vehicle, dropping a clear plastic baggie. The baggie contained forty-eight small

packets of crack cocaine and two larger chunks of crack cocaine. The total weight of the

crack was nineteen grams.

       Prior to the female getting into the vehicle, the officers had identified the driver of

the Lexus as Jarrell Jones. The officers knew that there were several bench warrants for

the arrest of Jones, and intended to stop Jones based on these bench warrants. The

officers testified, however, that they had not detained Jones prior to the time he dropped

the bag containing the narcotics.

       On April 9, 2003, a grand jury sitting in the Eastern District of Pennsylvania

returned a seven-count indictment charging Jones with possession with the intent to



                                              5
distribute more than 50 grams of cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and

841(b)(1)(A) [Count 1]; possession with the intent to distribute more than 50 grams of

cocaine base within 1000 feet of a school in violation of 21 U.S.C. § 860 [Count 2];

possession with the intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1) and

§ 841(b)(1)(C) [Count 3]; possession with the intent to distribute cocaine within 1,000

feet of a school in violation of 21 U.S.C. § 860 [Count 4]; possession of a firearm in

furtherance of a drug trafficking crime [Count 5]; possession with the intent to distribute

more than 5 grams of cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and

841(b)(1)(B) [Count 6]; and possession with the intent to distribute more than 5 grams of

cocaine base within 1000 feet of a school in violation of 21 U.S.C. § 860 [Count 7].

       Counts one through five of the indictment were based upon the evidence

discovered during the August 22, 2001 search of defendant’s apartment. Counts six and

seven arose out of the incident that occurred on June 4, 2002.

       Jones filed a motion to suppress the evidence discovered during the search of his

apartment.3 The District Court denied the motion on October 9, 2003, concluding that the

officers had: (1) a reasonable belief that Summers was occupying 533 Dickinson Street;

and (2) a reasonable belief that he was present at the time of the entry. The court further

concluded that the search was justified by exigent circumstances.




       3
        Although Jones initially sought to suppress the evidence seized on June 4, 2002,
as well, he later withdrew his challenge to that seizure.

                                             6
       On January 16, 2004, a jury convicted Jones on counts six and seven.4 At the

sentencing hearing, Jones was sentenced to 115 months imprisonment, 120 months

supervised release, a $200 special assessment, and a $1,000 fine. This timely appeal

followed.

                                             II.

       We review a District Court’s denial of a motion to suppress for clear error as to the

underlying facts, and exercise plenary review of the District Court’s application of the

law to those facts. United States v. Perez, 280 F.3d 318, 336 (3d Cir. 2002). A factual

finding is clear error if it is not supported by the record. Cooper v. Tard, 855 F.2d 125,

126 (3d Cir. 1988). We may affirm the denial of a suppression motion on any ground

supported by the record. United States v. Agnew, 407 F.3d 193, 196 (3d Cir. 2005).

                                            III.

       The police did not obtain a search warrant in this case. However, a warrantless

entry into a person’s home will not violate the Fourth Amendment if it is supported by

exigent circumstances. See Estate of Smith v. Marasco, 318 F.3d 497, 518 (3d Cir. 2003)

(citing Payton v. New York, 445 U.S. 573, 590 (1980)).

       In determining whether exigent circumstances existed, we must review “the facts

and reasonably discoverable information available to the officers at the time they took




       4
       The jury deadlocked on counts one through five. At the time of sentencing,
counts one through five were dismissed upon motion of the United States.

                                             7
their actions and in making this determination consider the totality of the circumstances

facing them.” Estate of Smith v. Marasco, 318 F.3d at 518. We have identified certain

factors as relevant to an analysis of exigent circumstances. Among these factors are:

(1) that a grave offense has been committed; (2) that the suspect sought is reasonably

believed armed; (3) that a strong reason exists to believe that the suspect is on the

premises; and (4) a likelihood that the suspect might escape if not caught quickly.

Government of Virgin Islands v. Gereau, 502 F.2d 914, 928 (3d Cir. 1974).

       A review of the evidence presented to the District Court demonstrates that the

District Court did not err in finding that the August 22, 2001 search was supported by

exigent circumstances. First, the District Court made a factual finding that the officers

involved in the search of Jones’s residence were aware that Summers was the lead suspect

in a series of gruesome murders in the Philadelphia area. The court’s finding is supported

by the detectives’ lengthy testimony that they were aware of the crimes allegedly

committed by Summers. Second, there is evidence in the record to support the District

Court’s finding that “Summers was also believed to be experienced in the use of firearms

and had access to firearms.” Third, the District Court found that the police had a strong

belief that Felix Summers was inside the second floor apartment at 533 Dickinson Street.

The District Court based this finding upon the anonymous tip received by the police that

Summers was at the apartment, the confirmation from the residents of the first floor

apartment, the fact that the officers had previously attempted to arrest Summers in the



                                              8
area, and the noises coming from inside the apartment. Finally, the District Court found

that the officers reasonably believed that Summers would escape if not apprehended

quickly. Summers had a reputation for evading arrest, and he was aware that he was

wanted for murder. The officers were aware that fugitives in serious cases would not

remain indefinitely at any one location. The officers heard footsteps that they believed

came from inside the apartment. These sounds were consistent with someone trying to

flee. Based upon the evidence presented at the suppression hearing, the District Court’s

findings relevant to exigent circumstances are not clearly erroneous.

       In addition to the above findings, the District Court determined that the police had

a reasonable fear for their own safety and the safety of the neighborhood in which they

would make any attempt to arrest Felix Summers. The District Court stated that it was

“highly plausible that the investigating officers, considering the gruesome crimes of

which Summers stood accused, reasonably, yet incorrectly, deduced that Summers was

preparing to defend himself violently at whatever cost.” Danger to either law

enforcement or the general public is highly relevant in determining if there were exigent

circumstances. Warden v. Hayden, 387 U.S. 294, 298-299 (1967).

       The factual scenario in this case is remarkably similar to Government of Virgin

Islands v. Gereau. In Gereau, the police received a tip from a reliable informant that a

criminal suspect was at a particular place. The suspect was wanted for such serious

crimes as murder, assault, and robbery. The police had a belief that the suspect would not



                                             9
tarry long in any place accessible to police, a belief that he had committed these serious

offenses, and a belief that the suspect was heavily armed and ready to resist arrest.

Gereau, 502 F.2d at 928, 929. Based on these facts, it was imperative that the police

move quickly, without waiting for a search warrant, to arrest the suspect. We therefore

found that exigent circumstances were present. Id.

       Jones argues that there could not possibly have been exigent circumstances

because no one was in fact inside the apartment. This argument ignores all relevant

Fourth Amendment precedent. In determining whether there are exigent circumstances in

a particular case, we must review “the facts and reasonably discoverable information

available to the officers at the time they took their actions and in making this

determination consider the totality of the circumstances facing them.” Marasco, 318 F.3d

at 518. See also Maryland v. Garrison, 480 U.S. 79, 85 (1987); Hill v. California, 401

U.S. 797 (1971). The fact that no one was in fact inside the apartment is not dispositive

in our determination. Viewing the totality of the facts known to and facing the officers on

August 22, 2001, it is clear that there were exigent circumstances that justified the

warrantless search of 533 Dickinson Street.

       The search of Jones’s residence was justified by the existence of exigent

circumstances, and the District Court, therefore, properly denied Jones’s motion to




                                              10
suppress.5 Accordingly, we will affirm the District Court’s judgment of conviction and

sentence.




       5
         Based on this holding, we need not discuss whether the officers had a reasonable
belief that Summers resided at 533 Dickinson Street and a reasonable belief that he was
present at the time of the search so as to justify the entry under the Payton exception to
the search warrant requirement. See United States v. Agnew, 407 F.3d at 196 (“We may
affirm the denial of a suppression motion on any ground supported by the record.”).

                                            11
