                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-22-2004

USA v. Agnew
Precedential or Non-Precedential: Precedential

Docket No. 03-2654




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Recommended Citation
"USA v. Agnew" (2004). 2004 Decisions. Paper 269.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/269


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                          PRECEDENTIAL        LORI J. ULRICH (ARGUED)
                                              JAMES V. WADE
        UNITED STATES COURT                   Federal Public Defender for the
           OF APPEALS FOR                     Middle District of Pennsylvania
         THE THIRD CIRCUIT                    DANIEL I. SIEGEL
                                              Assistant Federal Public Defender
                                              100 Chestnut Street, Suite 306
               NO. 03-2654                    Harrisburg, PA 17101
               __________                       Counsel for Appellant

      UNITED STATES OF AMERICA                THEODORE B. SMITH, III, (ARGUED)
                                              JAMES T. CLANCY
                     v.                       Assistant U.S. Attorney
                                              THOMAS A. MARINO
            AARON AGNEW,                      United States Attorney
                   Appellant                  Federal Building
            ________________                  228 Walnut Street
                                              P.O. Box 11754
       Appeal from the United States          Harrisburg, PA 17108-1754
           District Court for the               Counsel for Appellee
       Middle District of Pennsylvania                       _________
              District Judge:
      Honorable William W. Caldwell                 OPINION OF THE COURT
      (D.C. Criminal No. 02-cr-00055)

           Argued May 27, 2004                SCHW ARZER, Senior District Judge.

  BEFORE: RENDELL and COWEN,                         Aaron Agnew appeals his
        Circuit Judges, and                   conviction for distributing crack cocaine
    SCHWARZER,* District Judge.               and being a felon in possession of a
                                              firearm. He contends that the District
                                              Court erred in denying his motion to
        (Filed September 22, 2004)            suppress physical evidence, and in
                                              preventing him from impeaching a witness
                                              with evidence of a sixteen-year-old forgery
                                              conviction.     The District Court had
                                              jurisdiction pursuant to 18 U.S.C. § 3231
                                              and we exercise jurisdiction pursuant to
  *
   The Honorable William W Schwarzer,         28 U.S.C. § 1291. We will affirm.
Senior United States District Judge for the
Northern District of California, sitting by
designation.
  FACTUAL AND PROCEDURAL                          and six other officers approached the front
          HISTORY                                 of the residence, and four or five officers
                                                  were posted around the perimeter and at
        Agnew was charged in an                   the rear of the residence. Some of the
indictment with distribution of crack             officers wore “raid gear,” including
cocaine in violation of 21 U.S.C. §               bulletproof vests, and carried ballistics
841(a)(1), possession of a firearm by a           shields. Duncan testified that when the
felon in violation of 18 U.S.C. §§                officers knocked on the front door of the
922(g)(1) and 924(a)(2), and possession of        residence and announced, “Police, open
a firearm in furtherance of a drug                the door,” he saw Agnew pull aside a
trafficking crime in violation of 18 U.S.C.       curtain in a window of the home. He then
§ 924(c)(1)(A).                                   heard “what sounded like scuffling inside,
                                                  running around.” Duncan testified that he
        Before trial, Agnew moved to              “felt that due to the knowledge that
suppress the fruits of the search in              [Agnew] had a handgun that we were
connection with his arrest.         At the        compromised and we decided to take the
suppression hearing, Dauphin County               door.” The officers then entered the
Sheriff’s Deputy Gary Duncan testified            residence and apprehended Agnew as he
that he was assigned to the Fugitive Task         ran up a flight of stairs. Once inside,
Force charged with “the service of all            officers noticed in plain view a clear
violent felony warrants, drug warrants and        plastic bag containing cocaine. They
any other cases referred to [it] from             thereafter obtained a search warrant and
Dauphin County or the surrounding                 found a .22 caliber revolver and fifteen
communities.” Agnew’s case was referred           grams of cocaine in the home.
to Duncan’s unit because Agnew had
twice previously evaded capture by                       The District Court denied Agnew’s
jumping from a second story window and            suppression motion. It found that the
by holding onto the roof rack of a passing        officers acted pursuant to an arrest
car for a block and a half. Duncan had            wa rrant, a n d he ld that e xig e n t
learned from an informant that Agnew              circumstances justified the entry into the
“was at the residence [at 2740 Ludwig             home.
Street] and that he was to be in possession
of a firearm, a revolver, . . . and that he               The day before trial, the
was also to be in possession of some              government made a motion in limine to
narcotics.” Duncan checked with the Drug          prevent Agnew from cross-examining a
Task Force and learned that it had no             government witness, Wyatt Dawson, using
investigations pending against Agnew.             a sixteen-year-old forgery conviction. The
                                                  court granted the motion at trial, stating, “I
       Duncan and a group of other                have read the motion and your brief. I am
officers went to 2740 Ludwig Street. He           going to sustain the objection.” Dawson

                                              2
subsequently testified that he had                 different ground).
purchased crack cocaine from Agnew on
numerous occasions and that he rented and                  We find that the entry into the
lived in the residence at 2740 Ludwig              residence did not violate Agnew’s Fourth
Street. In addition to the testimony of an         Amendment rights because the officers
officer who searched the residence, the            were armed with a warrant for his arrest.
government also presented several                  Payton v. New York, 445 U.S. 573 (1980),
witnesses who testified to buying crack            establishes that police may enter a
from Agnew. Agnew himself took the                 suspect’s residence to make an arrest
stand and testified that the firearm and           armed only with an arrest warrant if they
drugs were owned by Dawson, who was in             have probable cause to believe that the
fact the dealer who supplied Agnew with            suspect is in the home. Id. at 602-03; see
drugs.                                             also United States v. Clayton, 210 F.3d
                                                   841, 843 (8th Cir. 2000) (holding that a
        The jury convicted Agnew of                valid misdemeanor arrest warrant “carries
distributing crack cocaine and possessing          with it the authority to enter the residence
a firearm, but acquitted him of possessing         of the person named in the warrant in
a firearm in furtherance of drug                   order to execute the warrant so long as the
trafficking. Agnew timely appealed.                police have a reasonable belief that the
                                                   suspect resides at the place to be entered
                                                   and that he is currently present in the
             DISCUSSION                            dwelling”). The District Court found that
                 I.                                the officers entered the residence for the
                                                   purpose of executing an arrest warrant, and
        Agnew first argues that the District       this finding has not been challenged.
Court erred in finding that the officers’          Indeed, Duncan testified that he was
entry into 2740 Ludwig Street was                  assigned to the Fugitive Task Force
justified by exigent circumstances. We             charged with serving arrest warrants, and
review the denial of a suppression motion          Agnew testified that he was aware that
for clear error as to the underlying facts,        there was “a warrant out for [his] arrest” at
but exercise plenary review as to its              the time of the arrest. Moreover, the
legality in light of the court’s properly          police had probable cause to believe that
found facts. United States v. Givan,               Agnew was in the home because they saw
320 F.3d 452, 458 (3d Cir. 2003). We may           him through the window.
affirm on any ground supported by the
record. United States v. Jasin, 280 F.3d                  We note that Payton only addresses
355, 362 (3d Cir.), cert. denied, 537 U.S.         entry by officers into the residence of the
947 (2002); United States v. Belle, 593            subject of the warrant, 445 U.S. at 603,
F.2d 487, 499 (3d Cir. 1979) (en banc)             and that there was no testimony at the
(affirming denial of suppression motion on         suppression hearing about whether 2740

                                               3
Ludwig Street was Agnew’s residence.                As the Ninth Circuit observed:
However, whether the home was Agnew’s
residence is ultimately irrelevant because                 A person has no greater
under any of the possible alternatives the                 right of privacy in another’s
entry pursuant to the arrest warrant did not               home than in his own. If an
violate Agnew’s Fourth Amendment                           arrest warrant and reason to
rights.                                                    believe the person named in
                                                           the warrant is present are
        If Agnew resided at 2740 Ludwig                    sufficient to protect that
Street, his arrest was lawful under Payton                 person’s fourth amendment
because the police acted pursuant to an                    privacy rights in his own
arrest warrant. See id. at 602-03. If                      home, they necessarily
Agnew did not reside at 2740 Ludwig                        suffice to protect his privacy
Street, he may have lacked a privacy                       rights in the home of
interest in the residence and would have no                another.
standing to challenge the police officers’
entry. Minnesota v. Olson, 495 U.S. 91,                    The right of a third party not
95-97 (1990) (holding that only a person                   named in the arrest warrant
with a reasonable expectation of privacy in                to the privacy of his home
a residence—like an overnight guest—may                    may not be invaded without
complain that an entry into the residence                  a search warrant. But this
was unlawful). In any event, even if                       right is personal to the home
Agnew, although not a resident at 2740                     owner and ca nnot be
Ludwig Street, did have a privacy interest,                asserted vicariously by the
the entry did not violate his privacy rights.              person named in the arrest
The Supreme Court held in United States                    warrant.
v. Steagald, 451 U.S. 204, 211-14 (1981),
that the Fourth Amendment does not                  United States v. Underwood, 717 F.2d
permit police to enter a third person’s             482, 484 (9th Cir. 1983) (en banc)
home to serve an arrest warrant on a                (citations omitted); see also United States
suspect.      But Steagald protected the            v. Kaylor, 877 F.2d 658, 663 n.5 (8th Cir.
interests of the third-party owner of the           1989) (“Steagald addressed only the right
residence, not the suspect himself. See id.         of a third party not named in the arrest
at 212 (stating the issue to be “whether an         warrant to the privacy of his or her home.
arrest warrant—as opposed to a search               This right is personal to the homeowner
warrant— is adequate to protect the Fourth          and cannot be asserted vicariously by the
Amendment interests of persons not                  person named in the arrest warrant.”).
named in the warrant, when their homes              Thus, even if Agnew was a non-resident
are searched without their consent and in           with a privacy interest, the Fourth
the absence of exigent circumstances”).             Amendment would not protect him from

                                                4
arrest by police armed with an arrest             Rule [of Evidence] 403 objection and its
warrant.                                          reasons for doing so are not otherwise
                                                  apparent from the record, there is no way
       Because the officers entered the           to review its discretion. In such cases, we
residence armed with a warrant for                need not defer to the reasoning of the
Agnew’s arrest, and had probable cause to         district court.”     Id. at 781 (citation
believe that he was inside, the District          omitted). Agnew asks us to extend this
Court properly denied the motion to               principle to decisions under Rule 609. The
suppress.                                         District Court stated, “I have read the
                                                  [government’s] motion and your brief. I
                    II.                           am going to sustain the objection.” We
                                                  believe that this statement adequately
        Agnew next contends that the              reveals the Court’s reasons for sustaining
district court erred in preventing him from       the objection: it agreed with the arguments
cross-examining Dawson using the                  contained in the government’s brief.2 In
witness’s sixteen-year-old forgery                any case, we find that the Court’s decision
conviction. He argues that we should              should be affirmed even under a plenary
review the district court’s decision de           standard of review.
novo, and that the evidence should have
been admitted because it would have                                   B.
helped resolve a dispute between two
witnesses—Dawson and Agnew— about                        Federal Rule of Evidence 609(a)
who owned the gun found in Agnew’s                permits parties to use evidence of a past
room.                                             conviction to impeach witnesses “if it
                                                  involved dishonesty or false statement.”
                    A.                            Forgery, of course, involves dishonesty
                                                  and false statement. Wagner v. Firestone
       Agnew concedes that we usually             Tire & Rubber Co., 890 F.2d 652, 655 n.3
review decisions to exclude evidence for          (3d Cir. 1989). But Rule 609(b) states that
abuse of discretion. See United States v.
Saada, 212 F.3d 210, 220 (3d Cir. 2000).                 Evidence of a conviction
He contends that we should employ                        under this rule is not
plenary review here, however, because the
record does not reflect that the district
court actually exercised its discretion.             2
                                                      The government’s argument was that
                                                  Agnew had numerous other avenues for
       In United States v. Himelwright, 42
                                                  cross-examination, including a more recent
F.3d 777 (3d Cir. 1994), we stated that
                                                  conviction for passing a bad check, and
“[w]here . . . the district court fails to
                                                  that the probative value of the forgery
explain its grounds for denying a [Federal]
                                                  conviction was small.

                                              5
       admissible if a period of                   forgery conviction.
       more than ten years has
       elapsed since the date of the
       conviction . . . unless the                             CONCLUSION
       court determines, in the
       interests of justice, that the                   For the reasons stated, we will
       probative value of the                      AFFIRM the conviction.
       conviction supported by
       spec ific facts and
       circumstances substantially
       outweighs its prejudicial
       effect.

Here, Dawson’s conviction was more than
ten years old.

        We find that the probative value of
the evidence of Dawson’s forgery
conviction was sufficiently small that the
“interests of justice” did not warrant its
admission, and that any error in refusing to
admit the evidence was harmless. See
United States v. Colletti, 984 F.2d 1339,
1343 (3d Cir. 1992) (employing harmless-
error analysis in the Rule 609(b) context).
Two witnesses other than Dawson testified
that Agnew sold crack numerous times,
and Agnew admitted as much shortly after
the crime. The police found cocaine in
Agnew’s shoes.          Likewise, Agnew
admitted that he knew that the gun had
“come from” two individuals named
“Nature” and “Light,” and a police officer
testified that drug dealers commonly keep
guns at their disposal. Indeed, the jury had
already learned that Dawson used crack
cocaine. It would not have resolved the
question of ownership of the gun and
drugs in favor of Agnew simply because it
also learned that Dawson had an old

                                               6
