Title United States v. Stiver
Date 1993
By Alito
Subject Criminal Law
Contents
Page 1
LEXSEE 9 F3D 298
UNITED STATES OF AMERICA, Appellee v. ROBERT C. STIVER, Appellant
No. 92-3661
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
9 F.3d 298; 1993 U.S. App. LEXIS 29494
July 1, 1993, Argued
November 12, 1993, Filed
PRIOR HISTORY: **1 ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA. (D.C. Criminal No. 92-00163--01).
CASE SUMMARY:
PROCEDURAL POSTURE: Defendant appealed the judgment of the United States District Court For The Western District Of Pennsylvania, which convicted him of possession of heroin with intent to distribute, in viola- tion of 21 U.S.C.S. § 841(a)(1), (b)(1)(C), and denied his motion to suppress evidence.
OVERVIEW: An informant told state police officers that defendant was selling heroin in defendant's apartment and was keeping some heroin in the trunk of his car. After sup- plying the information to a magistrate, a search warrant was issued. The police knocked on defendant's door, an- nounced themselves, heard heavy and hurried steps mov- ing away from the door, broke down the door, and found heroin in the apartment. Defendant was convicted of pos- session of heroin with intent to distribute. His motion to suppress the evidence was denied. The court affirmed the conviction and held that even though state officials issued and executed the search warrant, federal law was to be applied to the examination of the propriety of the warrant and the search. The court ruled that, even though no date was included in the application for the search warrant concerning when heroin was stored in the trunk of defen- dant's vehicle, because there was fresh information that defendant was actively selling drugs, the recent presence of heroin in the trunk could have been logically inferred. The court also held that the forced entry was reasonable under the circumstances.
OUTCOME: The court affirmed defendant's conviction for possession of heroin with intent to distribute and held that the search warrant contained fresh information that defendant was actively selling drugs, even though
there was no date in the application for a search war- rant. Forced entry was reasonable when police officers announced themselves and then heard footsteps moving quickly away from the door.
LexisNexis(R) Headnotes
Criminal Law & Procedure > Search & Seizure > Search
Warrants > Scope of Warrant
Constitutional Law > Search & Seizure > Scope of
Protection
HN1 Evidence obtained in accordance with federal law on search warrants is admissible in federal court, even though it was obtained by state officers in violation of state law.
Criminal Law & Procedure > Search & Seizure > Search
Warrants > Probable Cause
HN2 The age of the information supporting a warrant application is a factor in determining probable cause. If too old, the information is stale, and probable cause may no longer exist. Age alone, however, does not de- termine staleness. The determination of probable cause is not merely an exercise in counting the days or even months between the facts relied on and the issuance of the warrant. Rather, a court must also examine the nature of the crime and the type of evidence.
Criminal Law & Procedure > Search & Seizure > Search
Warrants > Probable Cause
HN3 The prohibitions of the Fourth Amendment and the prohibition of the common law rule codified in 18
U.S.C.S. § 3109 ,which applies to federal officers, over- lap but are not coextensive. Some conduct authorized by
§ 3109 may nonetheless violate the Constitution; con- versely, some conduct permissible under the Constitution may be barred by § 3109. The Fourth Amendment does not impose a specific rule governing forced entries to execute search warrants but rather imposes a general re- quirement of reasonableness, informed by the goals of preventing undue invasion of privacy and destruction of
9 F.3d 298, *; 1993 U.S. App. LEXIS 29494, **1
Page 2
private property.
Criminal Law & Procedure > Search & Seizure > Search
Warrants > Execution of Warrant
HN4 See 18 U.S.C.S. § 3109.
Criminal Law & Procedure > Search & Seizure > Search
Warrants > Execution of Warrant
HN5 Under federal common law, an officer executing a warrant could enter without waiting to be admitted where those within, made aware of the presence of someone outside (because, for example, there has been a knock at the door), are then engaged in activity which justifies the officers in the belief that an escape or the destruction of evidence is being attempted.
Criminal Law & Procedure > Search & Seizure > Search
Warrants > Execution of Warrant
HN6 Officers executing a search warrant are required to interpret it, and they are not obliged to interpret it narrowly.
COUNSEL: RICHARD C. SCHOMAKER, ESQ.
(Argued), 1800 Lawyers Building, 428 Forbes Avenue, Pittsburgh, PA 15219, Attorney for Appellant.
THOMAS W. CORBETT, JR. United States Attorney, PAUL J. BRYSH, BONNIE R. SCHLUETER (Argued), Assistant United States Attorneys, 633 U.S. Post Office and Courthouse, Pittsburgh, PA 15219, Attorneys for Appellee.
JUDGES: Before: BECKER, ALITO, and ROTH, Circuit Judges.
OPINIONBY: ALITO
OPINION: *299 OPINION OF THE COURT
ALITO, Circuit Judge:
Robert C. Stiver appeals his conviction for a drug offense, contending that the district court erroneously de- nied his motion to suppress evidence seized from his res- idence and automobile pursuant to a state warrant. Stiver argues: (1) that the warrant was not supported by proba- ble cause as that term is understood in Pennsylvania law,
(2) that the state officers who executed the warrant vio- lated Pennsylvania's "knock and announce" rule, and (3) that the officers exceeded their authority by answering his telephone and speaking with some of his drug customers when they called to place orders during the execution of the warrant. **2 We hold that Stiver's suppression motion was properly denied, and we therefore affirm the judgment of the district court.
I.
On November 20, 1991, a Pennsylvania magistrate issued a warrant to search Stiver's apartment, automo- bile, and person, as well as the person of the woman with whom he was living. The warrant application was based on an affidavit co-signed by two municipal police offi- cers. The affidavit stated that on or about November 1 a reliable informant had told the officers that Stiver was selling heroin from his apartment. The affidavit explained that "this informant knows this to be true because he/she has been to that location on several occasions and has purchased heroin for his/her personal use, from Stiver as recently as a week prior to giving this information to af- fiants." Furthermore, the affidavit also stated that "on or about 11/18/91 this informant was in Robert Stivers (sic) residence . . . and saw Stiver selling heroin to others." The affidavit added that on this occasion Stiver "offered to sell heroin to the informant" and told the informant to return if the informant subsequently wanted to make a purchase. In addition, the affidavit stated that, according **3 to the informant, Stiver drove a particular automobile and
"uses this vehicle to sell his heroin from." The affidavit elaborated that "the informant said that he has seen Stiver keep his heroin in the trunk of his vehicle when he is in his apartment to keep the police from finding it in case his apartment is raided." Moreover, the officers stated in the affidavit that they had observed this automobile in front of Stiver's residence "on a daily basis" and that they had ascertained that Stiver had a criminal record for prior drug offenses.
After the warrant was issued, approximately 12 state and local officers went to Stiver's apartment at about 11:20 p.m. to execute the warrant. One of the officers knocked on the door and announced, "Police officers. Search warrant." The officer then heard "hurried, heavy" footsteps moving away from the door. Consequently, five to ten seconds af- ter announcing their presence, the officers broke down the door. The officers then seized heroin from Stiver's pocket and from that of an associate. The officers also seized 13 packets of heroin found in the residence and 270 packets from Stiver's automobile, which was parked in front of the building. The officers **4 remained in the apart- ment for approximately one hour and twenty minutes. During that time, the telephone rang ten to twelve times, and the officers answered the phone. The callers gener- ally asked for "Bugsy," which was Stiver's nickname. The officers generally identified themselves using a different first name and asked the callers, "What do you need?" The callers then usually responded by asking for things, such as "bags," that were identified at trial as references to drugs.
Stiver was originally arrested on state charges, but
9 F.3d 298, *299; 1993 U.S. App. LEXIS 29494, **4
Page 3
he was subsequently charged in a one-count federal in- dictment with possession *300 of heroin with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1) and
841(b)(1)(C). He moved to suppress the fruits of the search of his residence and automobile, but after a hearing the district court denied the motion. The court held that the search warrant affidavit contained "timely and spe- cific" information and that it established probable cause to search the apartment and car. The court further held that the warrant had been properly executed. The court found that the police had knocked and announced their presence and that "forced **5 entry was appropriate . .
. due to the exigent circumstances . . ., namely the hurried steps that were heard by the police officers and the delay in opening the door."
After a jury trial, Stiver was convicted and sentenced and took the current appeal.
II.
Stiver argues that the validity of the search warrant and of the method in which it was executed must be judged under Pennsylvania law, since the warrant was applied for, issued, and executed by state officers, and since he was originally charged with state offenses. Stiver contends that under Pennsylvania law the warrant was not supported by fresh probable cause concerning the presence of drugs in his car, and he notes that the Pennsylvania Supreme Court has declined to adopt the good faith exception set out in United States v. Leon, 468 U.S. 897, 82 L. Ed. 2d 677, 104
S. Ct. 3405 (1984). See Commonwealth v. Edmunds, 526
Pa. 374, 586 A.2d 887 (1991). Stiver likewise argues that the execution of the search warrant must also be assessed under Pennsylvania law.
Stiver's argument that Pennsylvania rather than fed- eral law governs the validity of the search in this case is foreclosed by our decision in United States v. Rickus,
737 F.2d 360, **6 (3d Cir. 1984). In that case, the defendant argued that the search of the trunk of his car should be tested under Pennsylvania, not federal, law. We disagreed, holding that HN1 "evidence obtained in ac- cordance with federal law is admissible in federal court -- even though it was obtained by state officers in violation of state law." 737 F.2d at 363-64. n1 We added:
n1 See also United States v. Shaffer, 520 F.2d
1369, 1372 (3d Cir. 1975), cert. denied, 423 U.S.
1051 (1976); United States v. Armocida, 515 F.2d
49, 51-52 (3d Cir.), cert. denied, 423 U.S. 858
(1975).
We are not insensitive to the claim that we should not encourage state officials to vio- late principles central to the state's social and governmental order. But sanctions already exist to control the state officer's conduct. He is "punished" by the exclusion of evidence in the state criminal trial, and the state **7 can, if it chooses, enforce its policies with respect to its own officers by permitting civil suits. We are persuaded that the additional deterrent effect to be gained from excluding this evidence in federal trials for federal of- fenses is small, and is far outweighed by the costs to society of excluding the evidence.
Id. at 364 (citations omitted).
We noted precedents concerning the applicability of state law to arrests made by state officers (see, e.g., United States v. Di Re, 332 U.S. 581, 587-92, 92 L. Ed. 210, 68
S. Ct. 222 (1948); United States v. Day, 455 F.2d 454 (3d Cir. 1972)), but we did not find those precedents apposite. United States v. Rickus, 737 F.2d at 364 n.2. Stiver's brief does not suggest any basis for distinguishing our holding in Rickus. Accordingly, we will examine Stiver's argu- ments regarding the validity and execution of the search warrant under federal standards. We add, however, that we do not believe that the outcome of this appeal would be any different if Pennsylvania law were applied. n2
n2 See infra notes 3-4 and accompanying text.
**8 III.
Under federal law, the information supporting prob- able cause was not stale. As we recently explained in United States v. Harvey, 2 F.3d 1318, 1993 U.S. App. LEXIS 21204 (3d Cir. 1993):
HN2
Age of the information supporting a war- rant application is a factor in determining probable cause. If too old, the information
*301 is stale, and probable cause may no longer exist. Age alone, however, does not determine staleness. "The determination of probable cause is not merely an exercise in counting the days or even months between the facts relied on and the issuance of the warrant." Rather, we must also examine the nature of the crime and the type of evidence.
Id. at 1322 (citations omitted).
9 F.3d 298, *301; 1993 U.S. App. LEXIS 29494, **8
Page 4
Here, the information concerning the presence in the apartment of drugs and evidence of drug offenses was very fresh. According to the affidavit, the informant had indicated that Stiver was regularly selling heroin from his apartment, that the informant had personally made sev- eral purchases, including one in late October, and that the informant had seen Stiver selling heroin in this apartment as recently as **9 November 18 -- just three days prior to the issuance of the warrant on November 21. Moreover, according to the affidavit, Stiver had told the informant on November 18 to return to the apartment if he wanted to purchase heroin at a later time. Taken together, these facts clearly provided probable cause to believe that drugs and evidence of drug offenses remained in Stiver's apart- ment on November 21, when the warrant was issued and executed.
Although the affidavit did not include information that drugs or evidence of drugs had been seen in Stiver's auto- mobile on a specified date, the likelihood that drugs were present in the car on the date of the warrant could easily be inferred. As already noted, there plainly was probable cause to believe that Stiver was still making drug sales from his apartment on that date. Moreover, according to the affidavit, the informant reported that "Stiver usually uses his vehicle to sell heroin from" and that the informant had "seen Stiver keep his heroin in the trunk of his vehi- cle when he is in his apartment to keep the police from finding it in case his apartment is raided." Thus, putting together the fact that Stiver was probably selling heroin from **10 his apartment on November 21 and the fact that Stiver had the practice of usually storing heroin in his car when he was in his apartment, the magistrate clearly had probable cause to conclude that drugs or evidence of drug dealing was present in Stiver's car on the date when the warrant was issued. n3
n3 As noted, the defendant argues that the in- formation regarding his car did not provide an ade- quate basis for a search warrant under Pennsylvania law. He argues that Pennsylvania law requires that
"the time frame as to when the informant obtained the information in question must be specified in the affidavit."
Appellant's Br. at 14.
In support of this argument, the defendant chiefly relies on Commonwealth v. Edmunds, supra. As we read Edmunds and related Pennsylvania cases, however, they do not stand for the propo- sition that information is stale even if a judicial of- ficer may reasonably infer from the circumstances that the information still provides probable cause to believe that evidence is located in the place to be
searched. See also Commonwealth v. Kalinowski,
303 Pa. Super. 354, 449 A.2d 725 (1982) and
Commonwealth v. Conner, 452 Pa. 333, 305 A.2d
341 (1973). Consequently, while we apply federal law in this case, we do not believe that the out- come would be different if Pennsylvania law were applied.
**11 IV.
The defendant next argues that the evidence found in his apartment should have been suppressed because the officers who executed the warrant broke down the door rather than waiting for someone to answer. We disagree. Since we must judge the legality of the execution of the search warrant under federal law and since there is no federal statute governing the execution of warrants by state officers, the standard we must apply is that imposed by the Fourth Amendment as made applicable to the states by the Fourteenth Amendment. We discussed this stan- dard in detail in United States v. Nolan, 718 F.2d 589,
598-602 (3d Cir. 1983). We stated that HN3 the pro- hibitions of the Fourth Amendment and the prohibition of the common law rule codified in 18 U.S.C. § 3109 n4
(which applies *302 to federal officers) overlap but are not coextensive. Id. at 600. We explained that "some con- duct authorized by section 3109 may nonetheless violate the Constitution; conversely, some conduct permissible under the Constitution may be barred by section 3109." Id. We suggested that the Fourth Amendment does not impose **12 a specific rule governing forced entries to execute search warrants but rather imposes a general requirement of reasonableness, informed by the goals of preventing undue invasion of privacy and destruction of private property. Id. at 602.
n4 This provision states:
HN4
The officer may break open any outer or inner door or window of a house, or any part of a house, or anything therein, to execute a search warrant, if, after notice of his authority and pur- pose, he is refused admittance or when necessary to liberate himself or a per- son aiding him in the execution of the warrant.
In light of the overlap between the common law rule and the Fourth Amendment, we begin our analysis of the question presented in this case by noting that the offi- cers' conduct complied with the common law rule. HN5
9 F.3d 298, *302; 1993 U.S. App. LEXIS 29494, **12
Page 5
Under that rule, an officer executing a warrant could en- ter without waiting to be admitted "where those within, made aware of the presence of someone outside (because, for example, there has been a knock **13 at the door), are then engaged in activity which justifies the officers in the belief that an escape or the destruction of evidence is being attempted." United States v. Kane, 637 F.2d 974,
978 (3d Cir. 1981), quoting Ker v. California, 374 U.S.
23, 47, 10 L. Ed. 2d 726, 83 S. Ct. 1623 (1963) (Brennan, J., concurring and dissenting). See also Nolan, 718 F.2d at 596; United States v. Davis, 461 F.2d 1026, 1034 (3d Cir. 1972). Here, the officers had a strong basis for believ- ing that the defendant was involved in the drug trade and that drugs or other evidence could be readily destroyed if entry was delayed. When they announced their presence, they heard heavy and hurried footsteps leading away from the door. Under these circumstances, the officers did not violate the common law rule by entering without waiting for someone to open the door. See, e.g., United States v. Bonner, 277 U.S. App. D.C. 271, 874 F.2d 822, 824
(D.C. Cir. 1989); United States v. Allende, 486 F.2d 1351,
1353 (9th Cir. 1973), cert. denied, 416 U.S. 958 (1974);
**14 United States v. DeLutis, 722 F.2d 902, 909 (1st
Cir. 1983).
Nor do we think that there was a Fourth Amendment violation. While we recognized in Nolan that the Fourth Amendment may prohibit some conduct that the com- mon law rule allows, this case does not involve such an instance. In this case, the officers' conduct was reasonable under the circumstances, and we therefore hold that the officers did not violate the Fourth Amendment in forcibly entering the defendant's apartment. n5
n5 While the defendant argues that the offi- cers violated Pennsylvania's "knock and announce" rule, this argument appears to us to be incorrect. Under Pennsylvania law, police officers may break down a door in carrying out a search or arrest if they "have reason to believe that an announcement prior to entry would imperil their safety" or if they
"have reason to believe that evidence is about to be destroyed." Commonwealth v. Chambers, 528 Pa.
403, 598 A.2d 539, 541 (1991). Thus, it appears that the officers' conduct in this case comported with state law.
**15 V.
The defendant's final argument is that the officers ex- ceeded their authority under the warrant by answering his telephone and taking orders from his customers. n6 In our
view, however, the search warrant authorized the officers'
conduct.
n6 While we have not previously addressed this argument, many other courts have considered simi- lar contentions, and it appears that these arguments have been uniformly rejected, albeit based on dif- fering rationales. See United States v. Passarella,
788 F.2d 377, 380-81 (6th Cir. 1986) (collecting cases); United States v. Ordonez, 737 F.2d 793,
810 (9th Cir. 1984); United States v. Vadino, 680
F.2d 1329, 1335 (11th Cir. 1982), cert. denied, 460
U.S. 1082 (1983); United States v. Campagnuolo,
592 F.2d 852, 861-63 (5th Cir. 1979). Our decision in this case should not, however, be interpreted to mean that it is always proper for officers to answer a telephone when it rings while the officers are exe- cuting a search warrant. We express no view about the legality of such conduct under factual circum- stances different from those present here. We hold only, as explained in text, that the warrant in this case authorized the officers to answer the telephone.
**16
As the Seventh Circuit recently observed, HN6 offi- cers executing a search warrant are "required to interpret it," and they are "not obliged to interpret it narrowly." Hessel v. O'Hearn, 977 F.2d 299, 302 (7th Cir. 1992). Here, as noted earlier, the warrant authorized the officers to search for and seize, *303 among other things, "all drug paraphernalia." In ordinary usage, the term "para- phernalia" is defined to mean "equipment and apparatus
. . . used in or necessary for a particular activity." n7 The
Random House Dictionary of the English Language 1408
(Second Edition 1987). See also Webster's Third New International Dictionary 1638 (1971). In light of the fact that the officers had ample cause to believe that the defen- dant had been using the apartment to make heroin sales, including sales to individuals who wanted the drug for personal use, the officers had an entirely reasonable basis for concluding that the defendant's telephone was a piece of "equipment" or "apparatus" that was "used in or nec- essary for the defendant's particular activity," namely, selling drugs to users and others from his residence. The officers therefore acted properly in **17 "searching" n8 the telephone, i.e., answering it.
n7 Federal and state criminal statutes define
"drug paraphernalia" more narrowly, 21 U.S.C. §
863 (1993) and Pa. Stat. Ann. tit. 35, § 780-102(b)
(1993), but these definitions do not help us to in- terpret the term as it is used in the search warrant.
"Drug paraphernalia" can be defined in many ways,
9 F.3d 298, *303; 1993 U.S. App. LEXIS 29494, **17
Page 6
and there is no reason for us to interpret the phrase to accord with its definition in criminal statutes that played no role in these proceedings.
n8 The Sixth Circuit has held that the answering of a telephone under circumstances such as those that existed here does not invade any legitimate expectation of privacy of the person in whose resi- dence the telephone is located. See Passarella, 788
F.2d at 379. The Sixth Circuit termed this ques- tion "not without difficulty," and we do not reach it here. Particularly in light of the Supreme Court's subsequent decision in Arizona v. Hicks, 480 U.S.
321, 324-25, 94 L. Ed. 2d 347, 107 S. Ct. 1149
(1987), we assume for the sake of argument that the answering of the telephone in this case was a search, but we hold, as explained in text, that the
search warrant authorized this search.
**18
We also believe that the officers' conduct was au- thorized by the portion of the warrant permitting them to search for "any items to prove residency." Telephone calls for the defendant at the premises would provide evidence that he resided there. Thus, the officers were justified in answering the telephone to obtain evidence regarding the defendant's residence.
VI.
For the reasons explained above, we hold that the district court properly denied the defendant's motion to suppress. The judgment of the district court is therefore affirmed.
Contents
Prev
Next
Last
