                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-21-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-1788




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                                                                NOT PRECEDENTIAL

                  IN THE UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                               _______________

                                    No: 06-1788
                                  _______________

                          UNITED STATES OF AMERICA

                                           v.

                                  DANIEL SMITH,

                                         Appellant
                                  _______________

                    On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                                (D.C. No. 05-cr-00227)
                    District Judge: Honorable Mary A. McLaughlin
                                   _______________

                        Submitted Under Third Circuit 34.1(a)
                                   May 8, 2007

                  Before: RENDELL and JORDAN, Circuit Judges
                          and VANASKIE*, District Judge.

                                 (Filed May 21, 2007)
                                  _______________

                             OPINION OF THE COURT
                                 _______________




_______________
  *Honorable Thomas I. Vanaskie, District Court Judge for the Middle District of
Pennsylvania, sitting by designation
JORDAN, Circuit Judge.

       Daniel Smith appeals the decision of the United States District Court for the

Eastern District of Pennsylvania denying his motion to suppress evidence obtained, in

part, as a result of a warrantless entry into a residence at 512 High Street in Norristown,

Pennsylvania. Smith contends that the warrantless entry was improper because the police

lacked both probable cause and exigent circumstances. Smith also argues that a search

warrant that subsequently issued for 512 High Street was invalid because it was based on

evidence obtained as a result of the initial warrantless entry. Smith finally asserts, in a

single sentence, that statements elicited from him by the police must be suppressed

because they were obtained without his first being given the warnings required by

Miranda v. Arizona, 384 U.S. 436 (1966). For the reasons that follow, we will affirm the

decision of the District Court.

                                              I.

       On the morning of April 20, 2003, multiple law enforcement agencies executed

over forty search warrants throughout Philadelphia County and Montgomery County,

thirteen of them in Norristown, as part of an extensive investigation into illegal drug

dealing. Because members of the targeted drug organization were in constant

communication with one another, the police were concerned that, if the warrants were

executed at different times, news of the searches would spread quickly to the other

members and evidence would be destroyed. Therefore, more than one hundred law

enforcement officers attempted to execute the warrants at approximately the same time.

                                              2
       One of the search warrants was for 1222 Green Street in Norristown, which the

police believed to be Smith’s residence. However, when police entered the house, Smith

was not there. The owner of the home, Smith’s former girlfriend, informed the police that

she had thrown him out of the house earlier that week and that he was now living with his

mother at 512 High Street in Norristown. The owner also told the police that, while she

had never seen Smith sell drugs, he often kept a white powdery substance in the house

and packaged it in small bags. According to her, when she kicked Smith out of her house,

she threw into the street a bottle containing white powder and a bottle marked acetone,

both of which belonged to Smith, and she also threw out his electronic scale. She showed

the police an area near her house where some of the white powdery substance was still

left on the ground, along with the batteries that had fallen out of the scale when she threw

it.

       Based on that information, several officers went to 512 High Street to see if Smith

was there. When one of the officers knocked on the door, Smith looked out a window

and immediately closed the curtains. The officers became concerned that Smith would

destroy evidence, so they forcibly entered the home. They searched the house to the

extent necessary to ensure that everyone inside the house was gathered in one location,

and that no weapons were within reach. Smith was found in the living room, and, in plain

view, an officer saw what he believed to be a bag of marijuana and a bag of cocaine. The

officers then waited for a search warrant. Without any solicitation from the officers,

Smith told them that the contraband they had found in the house belonged to him.

                                             3
       After a search warrant for 512 High Street was issued, the officers conducted a full

search of the premises. They seized a large amount of cocaine packaged in individual

plastic bags, a small amount of marijuana, a handgun, and a shotgun. During the search,

an officer provided Smith with a copy of the search warrant and informed him of his

constitutional rights. Smith reiterated that the contraband belonged to him. He was then

arrested and transported to the County Detectives’ Office, where an officer again read

Smith his rights and took a statement from him. Smith admitted that he sold cocaine, and

that the cocaine, the marijuana, the handgun, and the shotgun seized from 512 High Street

were his.

                                             II.

       The District Court held that the warrantless entry into 512 High Street was

justified because the police officers had probable cause to believe that drugs and other

evidence were present and because they had reasonably concluded that Smith would

destroy the evidence before a search warrant could be obtained. The District Court found

that the information used to obtain the warrant for 1222 Green Street, along with the

statement given by Smith’s former girlfriend, provided probable cause with respect to 512

High Street. More specifically, the affidavit attached to the warrant for 1222 Green Street

stated that a confidential informant had told police that Smith sold cocaine, that the police

had observed Smith sell cocaine, and that Smith had been in communication with one of

the main targets of the Norristown drug investigation. And, as discussed above, Smith’s

former girlfriend told police that she believed Smith was a drug dealer and that, while

                                              4
they lived together, he often kept a white powdery substance, small bags, and an

electronic scale in her home.

       The District Court concluded that exigent circumstances justified the warrantless

entry because the police had reasonably determined that evidence would be destroyed

during the time needed to obtain a warrant. Because numerous warrants involving

members of the same drug faction were being executed within a two-square-mile area of

Norristown on the same morning, the District Court found that the police had reason to

believe that Smith would learn of the other searches and dispose of any contraband in his

possession. In addition, Smith’s former neighbors saw police officers execute the warrant

at 1222 Green Street, and Smith might therefore have been warned of an impending

search by those neighbors.

       The District Court held that the search warrant issued for 512 High Street was

valid because Smith had already conceded that, if the warrantless entry was proper, then

the evidence obtained during that entry would be sufficient to establish probable cause.

As a result, the court denied Smith’s motion to suppress with respect to the evidence

seized from 512 High Street.

       With respect to Smith’s motion to suppress statements he made to the police

officers, the District Court concluded that Smith’s pre-arrest comments were unsolicited,

and thus admissible, and that his post-arrest statement was given after he was duly

informed of his constitutional rights, and thus also admissible. Accordingly, the court

denied Smith’s motion to suppress those statements.

                                             5
       Following the denial of his motion to suppress, Smith pleaded guilty to all four

charges in the indictment. Therefore, on appeal, Smith only challenges the District

Court’s denial of his suppression motion. The District Court had jurisdiction pursuant to

18 U.S.C. § 3231, and we have appellate jurisdiction under 28 U.S.C. § 1291. “We

review the denial of a suppression motion for clear error as to the underlying facts, but

exercise plenary review as to its legality in light of the district court’s properly found

facts.” United States v. Coles, 437 F.3d 361, 365 (3d Cir. 2006) (citing United States v.

Givan, 320 F.3d 452, 458 (3d Cir. 2003)).

                                              III.

       Smith argues that the search warrant issued for 1222 Green Street was invalid

because the affidavit upon which it was based does not demonstrate probable cause.

Smith admits that he lacks standing to challenge that warrant because he had already been

evicted from the residence and, thus, had no reasonable expectation of privacy. However,

Smith contends that the issue must still be addressed because, if the warrant for 1222

Green Street lacked probable cause, then the government is precluded from arguing that

exigent circumstances justified the warrantless entry at 512 High Street. Smith appears to

be arguing that, if the warrant for 1222 Green Street is found to have lacked probable

cause, then there is also no probable cause for the entry into 512 High Street, which

would make the exigent circumstances analysis irrelevant. While his logic is faulty,1 to



       1See infra at section IV, A.

                                               6
the extent Smith’s argument is a challenge to the entry into 512 High Street and not 1222

Green Street, we address the circumstances surrounding the entry of the latter residence,

as well as the entry of the former.

                                            IV.

       The crux of Smith’s appeal is his position that the warrantless entry into 512 High

Street was improper. “Warrantless searches and seizures inside someone’s home . . . are

presumptively unreasonable unless the occupants consent or probable cause and exigent

circumstances exist to justify the intrusion.” Coles, 437 F.3d at 365-66. No one argues

that the entry into 512 High Street was consensual. Therefore, we must determine

whether the District Court correctly concluded that the entry was justified by both

probable cause and exigent circumstances.

                                             A.

       In finding that the police had probable cause to believe Smith was storing drugs at

512 High Street, the District Court relied in part on the information contained in the

warrant for 1222 Green Street. That warrant was based on a confidential informant’s

statement that Smith sold cocaine, an officer’s observation of Smith selling cocaine in a

controlled buy, and evidence that Smith had been in communication with one of the main

targets of the Norristown drug investigation. Despite Smith’s contentions to the contrary,

we need not decide whether that information alone creates probable cause, because we

agree with the District Court that the decision to enter 512 High Street was not predicated

solely upon the warrant for 1222 Green Street. After executing the warrant at 1222 Green

                                             7
Street, but before entering 512 High Street, the police obtained a statement from his

former girlfriend, who had been living with Smith until she evicted him earlier that week.

She told the police that she believed Smith was a drug dealer. Also, she said that, right

before she evicted Smith from her home, she found a bottle containing a white powder, a

bottle labeled acetone, small bags, and an electronic scale, which she claimed belonged to

Smith.

         Smith argues that the information obtained from the girlfriend adds nothing that

would establish probable cause with respect to 512 High Street. First, Smith attempts to

cast doubt upon her credibility by pointing out that she was angry with him and had

recently thrown him out of her home. However, her statement is corroborated by other

evidence. Her belief that Smith was selling drugs is consistent with the evidence the

police had obtained in order to procure the warrant for 1222 Green Street. Also, her

statement that she emptied a bottle of white powder in the street and threw away Smith’s

electronic scale is corroborated by the remnants of those items that the police found near

her home. Therefore, we find that there was a sufficient basis for the police to conclude

that the former girlfriend’s statements were credible.

         Smith also contends that, because his former girlfriend had disposed of all the drug

paraphernalia she found, there is no probable cause to believe that Smith was storing any

contraband at 512 High Street. In other words, Smith claims that the police had no

evidence that Smith had obtained replacements for the items she threw away. His

argument is not persuasive. We have repeatedly held that “direct evidence linking the

                                               8
residence to criminal activity is not required to establish probable cause.” United States

v. Burton, 288 F.3d 91, 103 (3d Cir. 2002) (citing United States v. Hodge, 246 F.3d 301,

305 (3d Cir. 2001); United States v. Whitner, 219 F.3d 289, 297 (3d Cir. 2000)). Instead,

probable cause can be based on circumstantial evidence which indicates there is a fair

probability that contraband is present at the suspect’s home. Id.

       Specifically, in the case of drug dealers, this Court, and several other courts of

appeal, have recognized that “evidence of involvement in the drug trade is likely to be

found where the dealers reside.” Whitner, 219 F.3d at 297-98 (citing cases from other

circuits); see also Burton, 288 F.3d at 103-04; Hodge; 246 F.3d at 306. It is reasonable

for the police to infer that evidence of drug dealing is present in a person’s home if they

have evidence of three preliminary facts: “(1) that the person suspected of drug dealing is

actually a drug dealer; (2) that the place to be searched is possessed by, or the domicile

of, the dealer; and (3) that the home contains contraband linking it to the dealer’s drug

activities.” Burton, 288 F.3d at 104. In this case, the police had evidence of all of those

facts before they entered 512 High Street.

       First, the evidence used to obtain the warrant for 1222 Green Street and the

information provided by the former girlfriend adequately support the premise that Smith

was actually a drug dealer. Next, after the former girlfriend told the police that Smith was

currently residing at 512 High Street, they knocked on the door at that address, and a man

whom one of the officers identified as Smith looked out a window. That, along with the

girlfriend’s statement, was sufficient evidence for the police to conclude 512 High Street

                                              9
was Smith’s domicile. Lastly, evidence, including the girlfriend’s statements, showed

that Smith had stored drugs at his home in the past, which supports the premise that

Smith’s new residence would contain evidence of his drug activity. The fact that Smith

looked out the window when the police knocked, but refused to open the door, also

suggests that there was contraband inside. Cf. Whitner, 219 F.3d at 299 (holding that the

suspect’s attempt to conceal his address logically suggests that he was storing some

evidence of illegal activity which he did not want to be discovered).

       Therefore, the information that the police had acquired provided a substantial basis

from which it was reasonable to infer that evidence of Smith’s drug activity was being

stored at 512 High Street. Under our precedent, that is enough to establish probable

cause. See Burton, 288 F.3d at 103-04; Hodge, 246 F.3d at 306-07; Whitner, 219 F.3d at

298-99.

                                            B.

       Smith contends that, even if probable cause did exist, the warrantless entry into

512 High Street was nonetheless improper because the exigent circumstances exception

to the warrant requirement did not apply. “[E]xigent circumstances include, but are not

limited to, hot pursuit of a suspected felon, the possibility that evidence may be removed

or destroyed, and danger to the lives of officers or others.” Coles, 437 F.3d at 366. The

District Court determined that the entry was justified on the basis that evidence of Smith’s

drug activity would be removed or destroyed in the time needed to get a warrant.



                                            10
       Smith argues that the District Court’s decision is contrary to this Court’s holding

in United States v. Coles, 437 F.3d 361 (3d Cir. 2006), because, according to Smith, the

police created the exigency in this case by knocking on his door and announcing their

presence. In Coles, a hotel manager informed the Federal Bureau of Investigation

(“FBI”) that he believed Coles had drugs in his hotel room. Id. at 362-63. After

establishing surveillance of Coles’s hotel room, law enforcement officers observed Coles

and another man entering the hotel room. Id. at 363. The officers then attempted to gain

access to the room by knocking on the door and claiming that they were hotel employees.

Id. When that failed, the officers identified themselves as the police, and demanded that

Coles let them in the room. Id. The officers then heard sounds of rustling and running

footsteps, so they tried to open the door with an electronic key provided by the hotel

manager, but were prevented from doing so by a bar latch over the door. Id. at 364.

Coles eventually opened the door, and the officers found crack cocaine, cash, and a

firearm in the room. Id. This Court held that the exigent circumstances exception to the

warrant requirement did not apply in Coles because “the police impermissibly created the

very exigency which they claim permitted the warrantless search.” Id. at 362.

       Coles is distinguishable from this case. In Coles, we emphasized that there was no

urgency until the officers’ decided to knock and announce their presence, because Coles

had not detected the police surveillance. Id. at 371. In contrast, here the exigent

circumstances existed before the police arrived at Smith’s home. The police were in the

process of executing more than forty warrants at the same time, in a coordinated effort to

                                             11
obtain evidence before members of a drug conspiracy could warn one another of the

investigation. After executing the warrant at 1222 Green Street and discovering that

Smith no longer lived there, the police reasonably believed that, in the time needed to

obtain a warrant for 512 High Street, Smith would learn of the other searches that

morning and destroy evidence of his criminal activity. Therefore, the police did not

create an exigency in order to gain entry into 512 High Street. The exigency was the

result of an unforeseen circumstance – that Smith no longer lived at 1222 Green Street –

and not the officers’ decision to knock and announce.

       Smith argues that the police officers’ perceived exigency is insufficient to justify

the warrantless entry because there was no evidence that he had actually been alerted to

the other searches conducted that morning. However, the exigent circumstances

exception does not require an officer to have knowledge that evidence is actually being

removed or destroyed. United States v. Rubin, 474 F.2d 262, 266 (3d Cir. 1973). It is

sufficient that the police officers reasonably believed, under the circumstances, that the

delay necessary to obtain a warrant would result in the destruction of evidence. Id. at

269. In this case, it was entirely reasonable for the police to conclude, based on their

extensive experience and common sense, that other members of Smith’s drug conspiracy

would try to alert him to a possible search. Cf. id. (holding that the warrantless entry into

a suspect’s home was justified after the suspect yelled, “Call my brother,” even though

the police did not know whether other individuals in the suspect’s home were actually

notified).

                                             12
       For the reasons discussed, we find that the police had a reasonable belief that

Smith would destroy evidence of his drug activity in the time needed to procure a warrant

for 512 High Street. Also, we conclude that our holding in Coles is inapplicable because

the exigency in this case was not deliberately created by the officers in order to gain entry

into Smith’s residence. Therefore, the warrantless entry into 512 High Street was proper

because of the existence of both probable cause and exigent circumstances.

                                             V.

       Smith admits that the evidence that was in plain view during the warrantless entry

of 512 High Street was sufficient to establish probable cause for the warrant to search that

residence. As a result, Smith concedes that, if we find the warrantless entry to have been

justified, his challenge to that warrant must fail. Because we cannot fault the warrantless

entry into 512 High Street, we find that the warrant, and the corresponding search of that

residence, was valid.2

                                             VI.

       For the foregoing reasons, we will affirm the decision of the District Court.




      2As noted above, Smith asserts that the District Court should have suppressed the
statements he made to the police. However, Smith fails to articulate any basis for that
conclusory assertion. Therefore, we will uphold the District Court’s decision denying his
motion to suppress those statements.

                                             13
