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


2-3-2004

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Precedential or Non-Precedential: Non-Precedential

Docket No. 03-3233




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                                                                  NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                 _______________

                                       No. 03-3233
                                     _______________

                            UNITED STATES OF AMERICA,

                                              vs.

                                   HASHIM JOHNSON,
                                   a/k/a Hameen Abdulah

                                    HASHIM JOHNSON
                                        Appellant

                      ______________________________________

                      On Appeal from the United States District Court
                         for the Eastern District of Pennsylvania

                  District Court Judge: The Honorable Legrome D. Davis
                                 (D.C. Civ. No. 02-Cr-504)
                                _______________________

                       Submitted Under Third Circuit L.A.R. 34.1(a)
                                    January 23, 2004

                   Before: ALITO and CHERTOFF, Circuit Judges, and
                       DEBEVOISE * , Senior District Court Judge

                             (Opinion Filed: February 3, 2004)
                              __________________________

                                OPINION OF THE COURT


       *
        Honorable Dickinson R. Debevoise, Senior United States District Judge for the District
of New Jersey, sitting by designation.
                               _________________________

Debevoise, Senior District Court Judge

       Appellant, Haashim Johnson, pled guilty to a two count indictment charging

possession of more than 500 grams of cocaine with intent to distribute and possession of

more than 50 grams of cocaine base with intent to distribute.

       Prior to entry of the plea Johnson had moved to suppress evidence found in the

house where he resided. He contended that the original warrantless entry upon the

premises was unlawful because there was no reason to believe that he was in the premises

at the time. He contended that after the original entry and failure to find him there was no

justification for police officers to continue their entry and search of the premises. The

District Court denied Johnson’s motion. Upon pleading guilty Johnson preserved his

right to appeal the denial of his motion to suppress.

       We conclude that the government sustained its burden of justifying the warrantless

entry of the premises in which Johnson resided and that the crack cocaine found in the

premises was discovered during the course of that search. The District Court’s order

denying Johnson’s motion to suppress the crack cocaine was correct and the judgment of

conviction will be affirmed.

                                         The Facts

       In April 2001, following Johnson’s failure to appear in Camden County Court and

his conviction in absentia for possession of marijuana with intent to distribute and



                                              2
attempting to elude the police a bench warrant was issued for his arrest. It was

ascertained that Johnson was driving a 2001 Ford Excursion registered to Hameen

Abdulah. It was also ascertained that a Pennsylvania driver’s license with Johnson’s

photograph had been issued on April 3, 2001 in the name of Hameen Abdulah. The

address on the license was 6834 Lynford Street, Philadelphia.

       New Jersey State Police Detective Christopher Leone and Deputy United States

Marshall John Wilson of the New Jersey Fugitive Task Force, drove by the Lynford

Street address several times in June 2001 and did not see the Excursion or observe anyone

entering or leaving the premises. Deputy United States Marshal Mickey Pease

interviewed two residents of Lynford Street. They identified Johnson as the occupant of

6834 Lynford Street. One resident reported that he had seen Johnson driving the

Excursion and that Johnson was at the residence when the vehicle was present.

       The critical events occurred on June 28, 2001. Two teams of law enforcement

officers participated in these events – a team of officers who conducted an extended

surveillance and a six - member SWAT team that made the initial entry into the premises,

quickly searched it to ascertain if Johnson were there and then left, leaving control of the

premises in the hands of the officers conducting the surveillance. Members of both teams

testified at the suppression hearing before the District Court.

       On June 28, one of the Lynford Street neighbors called Deputy Pease and told him

that the Excursion was parked in front of 6834 Lynford Street. Deputy Pease was also



                                              3
informed that Johnson was seen entering the premises. Task Force officers started

arriving in the vicinity of 6834 Lynford Street at about 3:00 p.m. The Excursion was

parked on the street. Surveillance was established.

       Shortly before dark Camden County Sheriff’s officer William Ruff and Deputy

Marshal John Wilson, who were watching the rear of the house, observed a man come

out, enter a silver Chevrolet Lumina and drive away. Deputy Pease testified that Deputy

Wilson reported that “it’s definitely not him.” Sergeant Cella testified that Trooper Leone

reported that the departing man was similar to Johnson but that he did not get enough of a

look to determine one way or another whether it was he. Officer Ruff testified at the

suppression hearing that the man leaving the house was not the person whose photograph

he had been shown. He further testified that he had sufficient time to observe him and to

make an arrest if he had thought the man was Johnson.

       Surveillance continued. The Excursion remained parked on the street. As

darkness fell the officers observed lights and an operating television inside the residence.

Thereafter Deputy Pease communicated with an Assistant United States Attorney in New

Jersey, informed her of the facts available to him and received authorization to make a

warrantless search of the residence.

       Because Johnson was believed to be armed and dangerous, a Philadelphia Police

Department SWAT team was called to make the initial entry into the house. Shortly after

11 p.m. the SWAT officers knocked and announced their presence, received no answer



                                              4
and forcibly entered. In two teams of three they searched the premises. They did not find

Johnson. The search was a rapid one and took about five minutes to complete. Two

members of the SWAT team, Officer Patrick Whalen and Officer Thomas DeMalto,

testified that they saw a cooky sheet on the dining room floor with white material on it,

which Officer Whalen believed to be crack. Neither mentioned this discovery in his post-

search report. Officer DeMalto explained “all we do is go in there looking for a person . .

. we don’t do searches.”

       A Lieutenant Colarette of the SWAT team officially turned over the property to

Sergeant Joseph Cella at the doorway of the house. At that moment other SWAT team

members were still coming up from the basement and from the second floor. According

to Sergeant Cella’s testimony as soon as he was inside the house with Lieutenant

Colarette he smelled crack and saw it from the doorway. He informed the Lieutenant

what the substance on the dining room floor was. Led by Sergeant Cella the other

surveillance officers entered the house as the SWAT team departed. Officer Whalen

testified that he informed the Task Force officers that there was a substance he thought

was crack cocaine on the dining room floor. The purpose of the Task Force was to

double-check that no one was present and to secure the building, the front door of which

had been broken open. Application was made for a search warrant.

       At about 11:30 p.m., after the house had been secured, Johnson drove toward the

property in a Chevrolet Lumina. After a chase he was arrested. The next morning more



                                             5
than one kilogram of crack cocaine which had previously been observed in the residence

and more than two kilograms of cocaine powder were recovered from the 6834 Lynford

Street house upon the execution of the search warrant.

                            Jurisdiction and Standard of Review

         The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have

appellate jurisdiction pursuant to 28 U.S.C. § 1291 and by virtue of Johnson’s

preservation in his plea of his right to appeal from the District Court’s denial of his

motion to suppress evidence.

         The denial of a motion to suppress is reviewed for clear error with respect to the

District Court’s findings of fact. We exercise plenary review of the District Court’s

application of the law to the facts. United States v. Perez, 280 F.3d 318, 336 (3d Cir.

2002).

                                          Discussion

         Defendant challenges the District Court’s order denying his suppression motion on

two grounds. First, he contends that the District Court erred when it determined that the

warrantless entry into the 6834 Lynford Street premises was justified because the officers

making the entry had reason to believe that defendant was within. Second, defendant

contends that the District Court erred when it found that the crack cocaine was seized

within the parameters of a permitted limited search.

         It is undisputed that the law enforcement authorities possessed an arrest warrant



                                               6
for defendant founded on probable cause. “And ‘an arrest warrant founded on probable

cause implicitly carries with it the limited authority to enter a dwelling in which the

suspect lives when there is a reason to believe the suspect is within.’ Payton v. New

York, 445 U.S. 573, 603 (1980).”

       In its findings of fact the District Court described the events of June 28, 2001

essentially as set forth above. Pertinent to the challenge defendant now raises is the

court’s finding that “[t]wo of the officers who were surveying the back of the house saw

an individual leave the back entrance of the residence, enter a vehicle, and drive away.

The individual did not appear to the officers to be defendant.”

       Also pertinent to defendant’s present challenge is the District Court’s finding with

respect to Officer Whalen, a member of the SWAT team who testified that during the

initial sweep of the house he observed what he believed to be crack cocaine on the dining

room floor. The District Court found that:

              “Officer Patrick Whalen, a member of the SWAT team, observed plates in
              plain view on the dining room floor. These plates contained a substance
              that he believed to be crack cocaine. A number of other officers observed
              the plates of cocaine at various points during the evening. The court finds
              that Officer Whalen’s observations were the initial observations. The court
              also finds Officer Whalen’s testimony to be clear and truthful. Officer
              Whalen informed the officers outside of the residence that he believed there
              was cocaine on the floor in the dining room. The officers outside of the
              residence then entered the residence but did not seize the crack cocaine or
              any other items at that time.”

       Defendant, in support of his two contentions challenges both of these findings. He

argues that only one person, defendant, was reported to have entered the residence and

                                              7
when a person who, according to one witness, had at least some resemblance to

defendant, left the house, it was not reasonable for the law enforcement officers to

continue to believe that defendant remained in the house. These are legitimate

arguments, but the District Court’s finding that the warrantless entry “was made pursuant

to the reasonable belief that Defendant was inside of the residence at the time” is

supported by substantial evidence and is not clearly erroneous.

       There was ample evidence to support this finding. Neighbors had reported that

defendant regularly drove an Excursion and on June 28 a neighbor reported that

defendant drove up to the house in his Excursion, parked it on the street and entered the

house. When a man left the house towards dusk one officer testified that the man was not

Johnson, the person whose photograph he had been shown, and one officer stated that he

could not tell one way or another who it was. The man drove off in a different vehicle

and the Excursion remained parked on Lynford Street. Lights remained on in the house

and television appeared to be playing. In these circumstances it was not clearly erroneous

for the District Court to find that the officers had a reasonable belief that defendant was

still inside the residence.

       Defendant challenges the finding that Officer Whalen and other members of the

SWAT team were the first persons to observe the crack cocaine on the dining room floor.

Defendant contends that the crack cocaine was discovered in a subsequent impermissible

search conducted by the surveillance team after the SWAT team search for defendant had



                                              8
been completed. To support this argument defendant points to what he characterizes as

inconsistencies in the testimony. For example he notes that Officer Whalen testified that

he told some of the surveillance officers about the crack cocaine, but no officer testified

to having received such a report. Sergeant Cella testified that he smelled and observed

the crack cocaine as he entered the house. None of the SWAT team members mentioned

the crack cocaine in their written reports.

       Again these are legitimate arguments, but again the District Court’s finding that

Officer Whalen and other SWAT team members made the initial observations is not

clearly erroneous. There is ample evidence to support it. There is, of course, Officer

Whalen’s unambiguous testimony. SWAT team member Officer DeMalto testified that

he saw the crack cocaine during the course of the search for defendant. Because the plate

of crack cocaine was in the middle of the dining room floor, it is inconceivable that the

SWAT team members would not have seen it as they proceeded through the various

rooms of the house. The testimony of Sergeant Cella and Officer Whalen are not

inconsistent.

       On the basis of this finding the District Court correctly concluded that “under these

circumstances, Officer Whalen would have been entitled to seize the cocaine pursuant to

the ‘plain view’ doctrine.” See Horton v. California, 496 U.S. 128, 136-37(1990).1 Of


       1
          It might well be argued that the SWAT team entry into the house and the entry of the
surveillance team five minutes later were part and parcel of the same entry in search of defendant
and that, therefore, it made no difference whether the crack cocaine was first observed by the
SWAT team or by the surveillance team. In view of the District Court’s findings it is

                                                9
course, no seizure was made at the time and ultimately the crack cocaine and the

powdered cocaine were seized later pursuant to a valid search warrant.

                                        Conclusion

       We conclude that the district court’s findings were supported by the evidence and

thus were not clearly erroneous, and that he correctly denied defendant’s motion to

suppress evidence. We will affirm the judgment of the district court.


TO THE CLERK OF THE COURT:
Kindly file the foregoing Opinion




                                         /s/ Dickinson R. Debevoise
                                         SENIOR DISTRICT COURT JUDGE




unnecessary to address that question.

                                            10
