                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-9-2003

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Precedential or Non-Precedential: Non-Precedential

Docket No. 02-2707




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                                          NOT PRECEDENTIAL

                   IN THE UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                       No. 02-2707
                                  _________________

                           UNITED STATES OF AMERICA

                                               v.

                                MIGUEL O. DAVILLA
                         a/k/a MIGUEL GONZALEZ BERRIOS

                                Miguel Davilla, Appellant
                       ____________________________________

                    On Appeal From the United States District Court
                        For the Eastern District of Pennsylvania
                               (D.C. No. 01-CR-00732-1)
                       District Judge: Honorable John R. Padova
                    _______________________________________

                       Submitted Under Third Circuit LAR 34.1(a)
                                    June 23, 2003
                        Before: SLOVITER, AMBRO, BECKER,
                                    Circuit Judges.

                                   (Filed July 9, 2003)
                               _______________________

                                      OPINION
                               _______________________

BECKER, Circuit Judge.

       Defendant Miguel O. Davilla, a state parolee, was charged in a single-count

indictment with being a felon in possession of a firearm, in violation of 18 U.S.C. §

922(g)(1). After the District Court denied his motion to suppress the gun, Davilla entered
a plea of guilty to the indictment, reserving his right to appeal the adverse suppression

ruling. This is an appeal from the District Court’s order denying Davilla’s motion to

suppress physical evidence found by state parole agents during a search of his apartment.

Because we conclude that the state parole agents had reasonable suspicion to conduct the

search, we will affirm. W e have jurisdiction under 18 U.S.C. § 1291.

                                                I.

          On July 31, 2001, a team of state parole officers, including Agent Amy Clewell,

Davilla’s parole officer, decided to investigate whether Davilla was abiding by an 8:00

p.m. curfew. At about 8:30 p.m. the parole officers found Davilla drinking a can of Coors

Lite on the corner outside his approved residence. They proceeded to arrest him for three

violations of his conditions of parole: the consumption of alcohol, the violation of the

curfew, and the failure to appear for a scheduled meeting with his state parole agent. 1

          After being handcuffed Davilla broke free and fled, but was caught two blocks

away. Parole Agent David Guglielmi recommended that they search Davilla’s apartment

for evidence of drug activity. After Davilla had been secured, the parole agents received

the supervisor’s permission to search his apartment and they conducted a search. Inside

the apartment they found, among other things, drugs, drug paraphernalia, cash, and a gun.

          Davilla claims that the parole agents lacked reasonable suspicion to justify the

search they conducted the day he was arrested. Agent Guglielmi testified that his



   1
       On July 27, Davilla had failed to report to a parole meeting with Agent Clewell.

                                                2
suspicion was based on several grounds. He testified that Davilla had lost his construction

job in January 2001, yet he was able to keep up with his household expenses. In addition,

Davilla had been seen by a parole officer a few weeks before his arrest counting what

appeared to be a large amount of currency on the corner outside his residence. Agent

Clewell testified that the neighborhood where Davilla was seen counting money is a high

drug trafficking area, and that in her experience counting a large amount of money on a

street corner may indicate drug dealing.

         Agent Guglielmi also testified that some time during the Spring of 2001 he went to

Davilla’s apartment. Davilla was not home and agent Guglielmi decided to wait in the

car. While waiting in his car he twice observed people pull up outside the apartment and

call up to Davilla. Guglielmi testified that this seemed suspicious to him and it was likely

that someone was there to purchase drugs. However, Guglielmi did not note this incident

in his parole supervision reports for Davilla (Guglielmi was Davilla’s parole officer at the

time).

         In addition, the parole authorities had received information from a confidential

informant regarding Davilla’s association with parolee Oscar Colon, who had been

Davilla’s co-defendant in a murder case. In December 1999, the confidential informant

told parole authorities that Davilla was associating with Colon, and that Colon was

involved with drugs and weapons. In September 2000, the same informant told parole

authorities that Colon and Davilla had assaulted another parolee. This information was


                                               3
corroborated by a witness, who identified the assailants as Colon and Davilla. However,

the assault victim was unable to identify them. Additionally, in October 2000, the

informant told authorities that Davilla was associating with Colon at a bar where there

was illegal drug dealing. Agent Guglielmi was familiar with all the information and

interpreted it to mean that Davilla was involved with Colon in drug dealing.

                                              II.

       The only issue on appeal is whether the District Court erred in finding that, under

the lower Fourth Amendment standard applicable to parolees, the state parole agents had

reasonable suspicion sufficient to justify the search.2

       Generally, the Fourth Amendment authorizes government officials to have a

warrant issued upon a finding of probable cause to conduct a search. However, the

“touchstone of the Fourth Amendment is reasonableness.” United States v. Knights, 534

U.S. 112, 118 (2001). In order to determine the reasonableness of a search the court must

assess “on the one hand, the degree to which it intrudes upon an individual’s privacy and,

on the other, the degree to which it is needed for the promotion of legitimate

governmental interests.” Id. at 119, quoting Wyoming v. Houghton, 526 U.S. 295 (1999).

       Under Griffin v. Wisconsin, 483 U.S. 868 (1987), the ‘special needs’ of the



   2
    We review the factual findings of the District Court for clear error. See, United States
v. Brown, 159 F.3d 147, 148 (3d Cir. 1998). This Court exercises plenary review of a
district court’s determination of whether police had reasonable suspicion to conduct a
search. See, Ornelas v. United States, 517 U.S. 690, 699-700 (1996); United States v.
Valentine, 232 F.3d 350, 353 (3d Cir. 2000).

                                              4
probation system are to be taken into consideration under the Fourth Amendment’s

‘reasonableness’ analysis, and might justify warrantless searches based on a reduced level

of suspicion. In United States v. Hill, 967 F.2d 902 (3d Cir. 1992), this Court extended

the holding of Griffin to parolees. The Hill Court concluded that a warrantless search of a

parolee’s property based upon reasonable suspicion was reasonable under the Fourth

Amendment. We apply that standard. We also note that at the time of his release from

prison, parolee Davilla consented to warrantless searches of his apartment by parole

agents. Additionally, Pennsylvania parole agents are empowered by statute to conduct

searches of parolees’ property without a warrant upon reasonable suspicion. 61 P.S. §

331.27a. Davilla’s consent to warrantless searches diminished his reasonable expectation

of privacy. See, Knights, 534 U.S. at 120.

                                             III.

       Two of our recent cases involving parole searches are helpful in guiding our

analysis in determining whether, under the circumstances, the state parole agents had

reasonable suspicion to justify the search of Davilla’s apartment.

       Davilla argues that this case is analogous to United States v. Baker, 221 F.3d 438

(3rd Cir. 2000). In Baker, we found a search of parolee Baker’s trunk was not supported

by reasonable suspicion. In Baker, as a condition of his parole, the defendant was not

permitted to drive without a license. Nevertheless, he drove to the state parole office for a

scheduled meeting with his parole officer. A parole officer asked Baker whether he had a


                                              5
driver’s license. He said that he did not. Baker was arrested when attempting to drive

away after the meeting. After arresting Baker, the agents searched the car’s trunk, where

they found what they suspected to be drug paraphernalia. The officers then conducted a

warrantless search of Baker’s home, where they found numerous guns and sixty six grams

of heroin. In Baker, we concluded that “neither Baker’s violation of his parole by driving

a vehicle nor his failure to document that he owned the vehicle can give rise to a

reasonable suspicion that he was committing other, unspecified, unrelated parole

violations–the evidence of which might be found in the trunk.” Id. At 445. We held that

“the parole officers’ actions were not based on any ‘specific facts’ giving rise to suspicion

that there would be some evidence of a further violation of parole in the trunk.” Id. at

444.

       This case is distinguishable from Baker. Unlike Baker, the state parole officers in

this case had indications that contraband might be found in Davilla’s apartment. They had

information that Davilla was associating with Colon at a bar where there was illegal drug

dealing; that Davilla and Colon had assaulted another parolee; that he had been seen

counting cash, in spite of the fact that he had been unemployed since January; that people

had come and called to his window; and finally he attempted to escape when the agents

were apprehending him.

       In United States v. Hill, 967 F.2d 902 (3rd Cir. 1992), parole agents conducted a

search based on a report from the parolee’s estranged wife that he had committed several


                                             6
parole violations, including keeping drugs and guns in the home that they jointly owned.

We concluded that these facts were specific enough to give rise to reasonable suspicion.

We reasoned that the parole agent’s interest in conducting a search of the parolee’s

property did not end upon his arrest, and concluded that a search conducted after Hill’s

arrest pursuant to further information provided by Mrs. Hill was supported by reasonable

suspicion. Hill supports the District Court’s order here.

       The concept of reasonable suspicion is somewhat abstract and elusive. United

States v. Arvizu, 534 U.S. 266, 274 (2002). When making reasonable-suspicion

determinations “courts must look at the ‘totality of the circumstances’ of each

case.”Arvizu, 534 U.S. at 274. The fact that each of the observations of the parole

authorities is by itself readily susceptible to an innocent explanation is entitled to no

weight. See id. at 275. In determining whether a search is supported by reasonable

suspicion, officers are “allowed to draw on their own experience and specialized training

to make inferences from and deductions about the cumulative information available to

them that ‘might well elude an untrained person.’” Id. at 273, quoting United States v.

Cortez, 449 U.S. 411, 418 (1981).

       Each of the facts relied upon by Guglielmi may be readily explainable as innocent

behavior. For example, the people calling up to Davilla’s widow might just have wanted

to socialize with him. Davilla could have been counting a wad of one dollar bills after

getting change in a store when he was seen by Martinez. However, the question is not


                                               7
whether each of these facts alone has an innocent explanation. The question is whether

the totality of the circumstances, in light of the agents’ experience and specialize training,

would allow them to conclude through inferences and deductions that there was a

reasonable suspicion that Davilla’s apartment might contain evidence of illegal activity.

       Guglielmi, who had observed the people calling up to Davilla’s window, testified

that this seemed suspicious and that it was possible that someone was there to purchase

drugs. Guglielmi also testified that it was odd that Davilla was able to keep up with all his

household expenses, although Davilla had no legitimate source of income. For the same

reason, it was odd that Davilla was counting what appeared to be a large amount of

money in the street. In fact, Agent Clewell testified that the neighborhood where Davilla

was seen counting money is a high drug trafficking area and that in her experience

counting a large amount of money on a street corner may indicate drug dealing. In

addition, Guglielmi had information that Davilla was associating with Colon at a bar

where there was illegal drug dealing and that they had assaulted another parolee. Based

on this information, Guglielmi, a 15-year veteran parole officer, recommended the search

of Davilla’s apartment. We find that the cumulative effect of this information justifies

Guglielmi’s conclusion that evidence of illegal activity might be found in Davilla’s

apartment.

       Davilla argues that the District Court’s finding that he was involved in drug sales

with Oscar Colon was clearly erroneous, and that without this particular finding it is clear


                                              8
that the officers did not have reasonable suspicion for the search. However, even if the

District Court’s finding was clearly erroneous, the cumulative effect of the remaining

evidence is sufficient to justify the conclusion that the search was reasonable. Thus, the

order of the District Court will be affirmed.




                                                9
TO THE CLERK:

    Please file the foregoing Opinion.

                                              BY THE COURT:




                                              /s/ Edward R. Becker
                                               Circuit Judge




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