                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-28-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-2950




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                                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                      No. 06-2950


                           UNITED STATES OF AMERICA

                                           v.

                                    JAMES MILLER
                                a/k/a JAMES WARREN

                                                      James Miller,
                                                               Appellant


                    On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                            D.C. Criminal No. 04-cr-0636
                            (Honorable Gene E.K. Pratter)


                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   January 28, 2008

                        Before: SCIRICA, Chief Judge,
             RENDELL, Circuit Judge, and RODRIGUEZ, District Judge *

                              (Filed: February 28, 2008)


                              OPINION OF THE COURT




   *
   The Honorable Joseph H. Rodriguez, United States District Judge for the District of
New Jersey, sitting by designation.
SCIRICA, Chief Judge.

       James Miller pleaded guilty conditionally to possession of a firearm by a convicted

felon, 18 U.S.C. §§ 922(g)(1) and 924(e), and was sentenced to a mandatory minimum 15

years of incarceration under the Armed Career Criminal Act (“ACCA”). 18 U.S.C. §

924(e). On appeal he contends the District Court abused its discretion by denying his

motion to suppress and erred by applying the ACCA. We will affirm.

                                              I.

       In June 2002, Miller was convicted in the Philadelphia Court of Common Pleas for

distribution of a controlled substance and sentenced to 1.5 to 3 years imprisonment. He

was released on February 24, 2004, under the supervision of the Pennsylvania Board of

Probation and Parole. Under the terms of his parole, he was not to use or distribute illegal

controlled substances or possess a firearm.

       Miller’s approved residence while under parole supervision was his mother’s

home. Parole Agent Frontis Cue, Miller’s parole supervisor, testified that Miller’s mother

telephoned him on July 20 and 21, 2004, saying she suspected Miller was selling drugs

from her house. On July 22, Agent Cue advised Miller’s mother to have Miller call him

under the pretext of offering job leads. Miller called Agent Cue, who told him to report

to his office.1




   1
     Miller’s mother testified that she never called Agent Cue with concerns about her
son’s activities. The District Court found her testimony not credible.

                                               2
       Parole agents detained Miller when he arrived and took his keys. While Miller

was held at the parole office, Agent Cue and others searched Miller’s home, using

Miller’s keys to enter the property. They discovered drug paraphernalia and a loaded AR-

1 (AK type) semi-automatic assault rifle. The agents took the weapon and drug

paraphernalia to the parole office and received a warrant to detain Miller. Agent Cue,

holding the firearm in his hands, told Miller he was being detained because of the

recovery of the firearm from his closet. Miller said he obtained the weapon from his

recently deceased father.

       Miller was indicted for violating 18 U.S.C. §§ 922(g)(1) and 924(e). After the

District Court denied Miller’s motion to suppress the firearm and his post-detention

statements, Miller entered a conditional plea agreement, allowing appeal of the denial of

his motion to suppress.

                                            II.

       Miller contends his motion to suppress should have been granted because his

bedroom was searched without reasonable suspicion. A parolee’s residence may be

searched based only on reasonable suspicion of criminal activity. United States. v.

Knights, 534 U.S. 112, 121 (2001). The agents had reasonable suspicion to believe Miller

possessed illegal drugs in his house based on his mother’s telephone calls. The search

was lawful and the District Court correctly denied Miller’s motion to suppress.




                                            3
       As an alternative basis, Miller contends, for the first time on appeal, that he was

arrested without probable cause by being held at the parole office while the agents

searched his house. In his motion to suppress, Miller contended “[t]he police illegally

searched his house without a warrant, without probable cause, and without reasonable

suspicion . . . [and] after being arrested Defendant gave statement (sic) regarding

ownership of the gun. He was not provided his Miranda warnings in violation of his 5th

Amendment right of the United States Constitution.” A.36.

       Miller’s argument is waived. “[I]n the context of a motion to suppress, a

defendant must have advanced substantially the same theories of suppression in the

district court as he or she seeks to rely upon in this Court.” United States v. Lockett, 406

F.3d 207, 212 (3d Cir. 2005) (citing United States v. Neumann, 887 F.2d 880, 886 (8th

Cir. 1989). Nothing in Miller’s motion suggested he was challenging his detention at the

parole office. This argument is not “substantially the same” as those brought before the

District Court. Id.

       Even if not waived, it must fail. Miller’s detention allowed the agents to search

Miller’s home safely and without the danger of Miller fleeing or destroying evidence.

Officers executing a search warrant may “detain the occupants of the premises while a

proper search is conducted.” Michigan v. Summers, 452 U.S. 692, 705 (1981). Miller

was a parolee with only a “conditional liberty” interest, Morrissey v. Brewer, 408 U.S.

471, 480 (1972), which gave parole agents greater authority to investigate his possible



                                              4
criminal activities. Knights, 534 U.S. at 121. Given his parolee status, and the facts

providing Agent Cue with reasonable suspicion, Miller’s detention was reasonable and

did not violate the Fourth Amendment.

       Even if illegally detained, the evidence Miller seeks to suppress cannot be

excluded because it inevitably would have been discovered. Suppression of evidence as

“fruit of the poisonous tree” is only justified if “‘the challenged evidence is in some sense

the product of illegal governmental activity.’” United States v. Segura, 468 U.S. 796, 815

(1984) (quoting United States v. Crews, 445 U.S. 463, 471 (1980)). Agent Cue had

reasonable suspicion to search Miller’s home and would have discovered the evidence

regardless of Miller’s detention. With respect to Miller’s statement about how he came

into the possession of the firearm, the District Court characterized it as a spontaneous

response to Agent Cue, who told Miller there was a firearm in the bedroom. Miller was

not responding to interrogation or conduct calculated or reasonably foreseeable to elicit a

confession. The evidence was discovered “by means sufficiently distinguishable to be

purged of the primary taint.” Wong Sun v. United States, 371 U.S. 471, 488 (163)

(quotation omitted). Accordingly, the District Court properly denied Miller’s motion to

suppress.

       Miller also contends the District Court’s imposition of a 15-year mandatory

minimum sentence under the statutory recidivist enhancement of 18 U.S.C. § 924(g)(1)

was unconstitutional. Miller asks us to find that prior convictions must be proven beyond



                                              5
a reasonable doubt. This contention ignores the clear rule laid out by the Supreme Court.

See Apprendi v. New Jersey, 530 U.S. 466 (2000); Almendarez-Torres v. United States,

523 U.S. 224 (1998); United States v. Coleman, 451 F.3d 154, 159-161 (3d Cir. 2006).

The District Court properly relied on Miller’s prior convictions in imposing the 15-year

mandatory minimum sentence.

                                           III.

      Accordingly, we will affirm the denial of Miller’s motion to suppress, and affirm

the judgment of conviction and sentence.




                                            6
