
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 94-2080                                    UNITED STATES,                                      Appellee,                                          v.                                   JOHN M. JEWELL,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                    [Hon. Michael A. Ponsor, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                         Campbell, Senior Circuit Judge, and                                    ____________________                                 Cyr, Circuit Judge.                                      _____________                                 ____________________            Stuart P.  Feldman with whom Thomas  J. Dougherty was on brief for            __________________           ____________________        appellant.            Andrew  Levchuk, Assistant  U.S.  Attorney, with  whom  Donald  K.            _______________                                         __________        Stern, United States Attorney, was on brief for appellee.        _____                                 ____________________                                    July 21, 1995                                 ____________________                      CAMPBELL, Senior Circuit Judge.   Defendant John M.                                ____________________            Jewell  was tried and convicted by a jury in federal district            court  on one  count  of being  a felon  in  possession of  a            firearm, in violation of 18 U.S.C.   922(g)(1), and one count            of  receiving a stolen firearm,  in violation of  18 U.S.C.              922(j).  On appeal he argues that the district court erred in            denying  his motion to suppress  all fruits of  the search at            his  apartment at 162 Linden  Street on the  grounds that the            affidavit  supporting the application  for the search warrant            failed to establish probable  cause and failed to  provide an            adequate  basis for  the issuance  of a  "no-knock" warrant.1            He  also argues  that he  was denied  procedural due  process            under  the Federal Magistrate Act  of 1979, 28  U.S.C.   636.            We affirm.                      The evidence at trial,  the sufficiency of which is            not  disputed, showed that on  November 22, 1992, officers of            the Pittsfield Police Department executed a state  "no-knock"            search warrant on the residence of Jewell and his girlfriend,            Brandee Richards, at  the first floor  of 162 Linden  Street,            Pittsfield.   Found and  seized during the  search were crack            cocaine, cocaine processing paraphernalia, marijuana, $473 in            cash, and a  stolen Ruger .22  caliber revolver, S/N  191220.                                            ____________________            1.  Jewell also made a  motion to suppress certain statements            made by him at his apartment and later  at the police station            on the ground that he was not properly advised of  his rights            under  Miranda.  Jewell has  not appealed from  the denial of                   _______            that motion.                                         -2-            Jewell  and  Richards  were  arrested and  processed  at  the            Pittsfield Police Station.                      Jewell  challenges the  district court's  denial of            his motion to suppress the physical evidence seized from  his            apartment  on the  grounds that  the search  warrant was  not            supported  by  probable cause,  as  required  by U.S.  Const.            amend.  IV.   In particular,  he asserts  that  the affidavit            supporting  the  application  for  the   search  warrant  was            deficient.   The search  warrant was issued  by Massachusetts            Clerk-Magistrate Leo  Evans upon the  affidavit of  Detective            Granger.  The affidavit stated, in sum:  that police received            an anonymous tip on October  6, 1992 that an African-American            male named "Radar" was  engaged in a drug transaction  in the            vicinity of 168 Linden  Street; that information was received            the  following  week  from   a  "concerned  citizen"  in  the            neighborhood that Radar was  distributing drugs from the pink            house  with maroon  trim in  the 1st  floor apartment  on the            right side; that subsequent surveillance by Pittsfield Police            Investigator Decker of Radar's residence confirmed that Radar            was  an individual known to  Decker as John  Jewell, and that            Jewell was living in  the first floor right apartment  of 162            Linden Street with Brandee  Richards, and also confirmed that            individuals entered  the apartment for short  periods of time            and left;  that a  reliable confidential informant  (CI-3), a            longtime  resident  of Pittsfield  who  had previously  given                                         -3-            information leading to drug arrests  and convictions, advised            that Jewell was living  at 162 Linden Street and  appeared to            be  dealing  cocaine out  of  that  location, and  that  CI-3            observed Jewell exchanging  money with individuals  in return            for  small, light-colored  objects, and  reported substantial            traffic in and  out of the apartment at all  hours of the day            and  night, with  most  visitors entering  the apartment  for            short  periods of time  and leaving  (which behavior  was, in            Detective   Granger's   view,   consistent   with   narcotics            distribution);  that a second reliable confidential informant            (C1), who had previously  provided information leading to the            arrest and indictment of two individuals, advised that it had            purchased crack  cocaine from  Jewell; and finally,  that one            William Shepard,  an informant of untested  veracity, visited            the Pittsfield  Police Department  on November 21,  1992, and            provided a sworn  statement to  the effect that  he had  seen            crack cocaine in Jewell's apartment at 162 Linden Street that            afternoon,  and  that  Jewell  had stolen  various  items  of            clothing and other  personal property from  him, and that  he            had  smoked  crack cocaine  obtained  from  Jewell some  time            before coming to the police station.                       The   district  court  determined  that  there  was            sufficient  probable   cause  stated  on  the   face  of  the            affidavit,  finding that  "[t]he affidavit,  and particularly            the  information provided  by William  Shepard, is  more than                                         -4-            adequate to provide probable  cause for the search."   United                                                                   ______            States  v. Jewell, Cr. No. 93-30036 (D. Mass. April 28, 1994)            ______     ______            (memorandum andorder denying defendant'smotions to suppress).                      We review the  district court's decision  to uphold            the warrant for clear  error only.  United States  v. Garcia,                                                _____________     ______            983  F.2d  1160,  1167  (1st  Cir.  1993);  United States  v.                                                        _____________            Nocella, 849 F.2d 33, 39 (1st Cir. 1988).  In evaluating  the            _______            sufficiency of an affidavit, we  afford great deference to  a            magistrate's  determination of probable  cause.   Illinois v.                                                              ________            Gates, 462 U.S.  213, 236 (1983)  (citing Spinelli v.  United            _____                                     ________     ______            States, 393 U.S. 410, 419 (1969)).            ______                      We apply a "totality of the circumstances" standard            in determining  the sufficiency of an affidavit.   Gates, 462                                                               _____            U.S. at 238.  The affidavit is to be interpreted in a common-            sense rather than  a hypothetical  or hypertechnical  manner.            See id.;  United  States  v. Ventresca,  380  U.S.  102,  109            _______   ______________     _________            (1965);  United States v.  Cochrane, 896  F.2d 635,  637 (1st                     _____________     ________            Cir.), cert. denied, 496 U.S. 929 (1990).                   ____________                      Jewell  argues that  the fact  that no  warrant was            obtained in mid-October shows that the police lacked probable            cause at that time, and that Shepard's statement, he being an            admitted drug user and high at the time it was  made, was not            enough to make up for  the deficiency.  There is no  merit to            this  contention.    Appellant  would  have  us  engage in  a            piecemeal examination  of the affidavit, and  base our review                                         -5-            of  the clerk-magistrate's  action  on "'bits  and pieces  of            information  in isolation.'"   See Cochrane, 896  F.2d at 637                                           ___ ________            (quoting Massachusetts  v. Upton, 466 U.S.  727, 732 (1984)).                     _____________     _____            Viewing the affidavit as a whole, as it should be,  there was            more  than  adequate  information  presented  to  the  clerk-            magistrate from which to find probable cause that  drugs were            present at Jewell's apartment.                      Probable cause means  simply that  the totality  of            the circumstances gives rise  to a "fair probability" that  a            search  of  the target  premises will  uncover evidence  of a            crime.   United States v. Jordan,  999 F.2d 11, 13  (1st Cir.                     _____________    ______            1993)  (citations  omitted).    In this  case,  such  a  fair            probability  was shown  by  the reports  of two  demonstrably            reliable confidential informants that Jewell  was trafficking            in drugs; Shepard's statement that he had observed cocaine in            Jewell's  apartment on the day  before the search warrant was            issued; the statements of the concerned citizen; and finally,            the  trained  observations  of  Investigator  Decker.    Even            discounting  Shepard's  reliability, the  information  in the            affidavit still  provides probable  cause to believe  that an            ongoing  drug trafficking  operation  existed  at 162  Linden            Street.   See United States  v. Hershenow, 680  F.2d 847, 853                      ___ _____________     _________            (1st Cir. 1982) (citation omitted) ("[W]here  the information            points  to  illegal  activity  of a  continuous  nature,  the            passage  of several  months between  the observations  in the                                         -6-            affidavit and the issuance of the warrant will not render the            information stale.").                      Appellant  also  argues  that  the  district  court            should have excluded the physical evidence seized pursuant to            the search because the clerk-magistrate lacked probable cause            to authorize  service of the  warrant without knocking.   The            government correctly responds  that the Federal  Constitution            does not require state authorities, before they  issue a "no-            knock" warrant,  to have probable cause to believe that entry            without knocking is required.   All that is required  is that            it  be  reasonable  under   the  circumstances  to  allow  an            unannounced entry.   See Wilson v. Arkansas,  115 S.Ct. 1914,                                 ___ ______    ________            1918 (1995) (holding that  in some circumstances an officer's            unannounced entry into a home might be unreasonable under the                                                   ____________            Fourth Amendment) (emphasis added).  The Court in Wilson left                                                              ______            to   the  lower   courts   "the  task   of  determining   the            circumstances under which an unannounced entry is  reasonable            under the Fourth Amendment."  Id. at 1919.                                          ___                      The  affidavit here  stated that  Detective Granger            had personal knowledge of  Jewell's record of convictions for            violent  offenses, and  that he  had personal  knowledge that            Jewell possessed  a grey  pit bull  dog that  he kept  at the            apartment at  162 Linden  Street.   The district  court found            that  "the affiant's  personal  knowledge of  the defendant's            potentially  violent tendencies  and  of the  existence of  a                                         -7-            pitbull on the  premises was,  again, more  than adequate  to            justify  a 'no-knock' warrant."  United States v. Jewell, Cr.                                             _____________    ______            No. 93-30036 (D. Mass. April  28, 1994) (memorandum and order            denying defendant's motions to suppress).                      In  Wilson, the  Court made  clear that  not "every                          ______            entry must be preceded by an announcement," Wilson, 115 S.Ct.                                                        ______            at 1918, and  noted the common-law rule that "the presumption            in  favor  of announcement  would  yield  under circumstances            presenting a threat  of physical  violence."  Id.   at  1918-                                                          ___            19.2    We must  therefore  determine  whether the  affidavit            presented  in support  of  the application  for a  "no-knock"            warrant  reasonably  described  "circumstances  presenting  a            threat of physical violence."                      Like  the  district court,  we  hold  that it  did.            Detective Granger  stated that  he had personal  knowledge of            the  existence of  a pit  bull  dog in  the  apartment to  be            searched.  The Fourth Amendment did not require the police to            risk  having to  fight  off a  forewarned  attack dog  before                                            ____________________            2.  In a footnote,  115 S.Ct. at 1918  n. 3, the  Court cited            Sabbath  v.  United States,  391  U.S.  585  (1968), for  the            _______      _____________            proposition that both the common-law rule of announcement and            entry and its exceptions were  codified in the federal "knock                  __________________            and announce" statute, 18 U.S.C.   3109.   Appellant suggests            that  service of  the warrant in  this case did  not meet the            requirements of that statute. However, the threat of physical            violence is an established common-law exception to the "knock            and  announce"  principle and,  as such,  is recognized  in              3109.   Section  3109,  moreover,  does not  apply  to  state            investigations by  state officers.  United  States v. Andrus,                                                ______________    ______            775 F.2d 825, 844 (7th Cir. 1985).                                         -8-            executing  their  warrant.    See,  e.g.,  United  States  v.                                          __________   ______________            Buckley, 4 F.3d  552, 557  (7th Cir. 1993)  (presence of  pit            _______            bull and  firearms sufficient to  justify "no-knock"  entry).            That, and the  fact of Jewell's  extensive history of  arrest            and  conviction  for violent  crimes,  made  concern for  the            physical safety of the  officers executing the search warrant            entirely reasonable.  The  "no-knock" provision was justified            in this instance.                      We affirm  the denial of the motion to suppress the            evidence  seized pursuant  to the  state search  warrant from            Jewell's  apartment.   We have carefully  considered Jewell's            other  arguments and  find them  to be  without merit.3   The            judgment of the district court is therefore                      Affirmed.                      _________                                            ____________________            3.  In particular,  we find  no merit in  Jewell's contention            that he was denied procedural due process when District Judge            Ponsor,  who   had   presided  over   pre-trial   proceedings            concerning Jewell's  motions to  suppress as a  United States            magistrate  judge, denied  those  motions  shortly after  his            appointment  to  the  district  court.    While  the  Federal            Magistrate  Act  provides  that  magistrate judges  "may"  be            designated to  conduct hearings and submit "proposed findings            of  fact  and  recommendations"  on  suppression motions,  28            U.S.C.   636(b)(1)(A),(B), the  district court judge who made            the  assignment  to  the  magistrate  judge  retains  primary            jurisdiction  over the motion  to suppress.   In  re Worksite                                                          _______________            Inspection of  Quality Products, 592 F.2d 611,  613 (1st Cir.            _______________________________            1979).   Judge  Freedman  recalled the  case from  Magistrate            Judge  Ponsor on March 14,  1994, and reassigned  it to Judge            Ponsor on March  17, 1994.   Judge Freedman, in  transferring            the  case,  and  Judge  Ponsor,  in  denying  the  motion  to            suppress,  were merely  acting  pursuant to  their powers  as            district judges.                                         -9-
