United States v. Clark , 110 F. App'x 245 ( 2004 )

Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
9-30-2004
USA v. Clark
Precedential or Non-Precedential: Non-Precedential
Docket No. 03-3066
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 03-3066
UNITED STATES OF AMERICA
v.
TRACY CLARK,
Appellant
No. 03-3073
UNITED STATES OF AMERICA
v.
ANTHONY MILLER,
Appellant
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Criminal Action Nos. 01-cr-00428-2/1)
District Judge: Honorable Robert F. Kelly
Submitted Under Third Circuit LAR 34.1(a)
September 14, 2004
Before: SCIRICA, Chief Judge, ALITO and AM BRO, Circuit Judges
(Opinion filed September 30, 2004)
OPINION
AM BRO, Circuit Judge
Appellant Anthony Miller was convicted of possession with intent to distribute in
excess of 50 grams of crack cocaine, in violation of 21 U.S.C. § 841(a), and sentenced to
360 months imprisonment. Appellant Tracy Clark was convicted of unlawful possession
of a firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e), and
sentenced to 293 months imprisonment. Both convictions were based on evidence that
was recovered during the execution of a search warrant at Miller’s apartment in
Philadelphia on December 8, 1999. Miller and Clark appeal the District Court’s denial of
their motions to suppress evidence obtained during the search of the apartment. They
contend that the warrant authorizing the search was not supported by probable cause and,
in the alternative, that the officers executing the search waited an unreasonably short time
before forcing entry, violating the “knock-and-announce” principle implicit in the Fourth
Amendment.
Miller separately raises two additional issues in his appeal. He asserts that there
may have been impeachment material in a confidential personnel file of one of the
officers involved in his investigation. By motion of Miller’s counsel, the trial judge
reviewed the file in camera before ruling that he would not compel its discovery because
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the file’s contents were immaterial and could not be entered into evidence. Miller now
asks us to review independently the file and make our own ruling regarding its relevance.
Finally, Miller charges that the prosecutor of his case made improper and prejudicial
statements to the jury in a rebuttal argument, warranting a mistrial.
Because the judge issuing the warrant had a substantial basis for concluding that
probable cause existed, and because the manner in which the search was executed was not
unreasonable under the circumstances, we affirm the District Court’s denial of the
motions to suppress the evidence. We decline Miller’s invitation to review the materials
excluded by the District Court because even if they were to contain the very evidence
Miller suspects they might, this would not be enough to cast into doubt the sufficiency of
the evidence upon which the jury relied to convict him. Likewise, the prosecutor’s
comments to which Miller takes exception, even if we were to consider them improper,
were too insignificant and too quickly cured to render their inclusion harmful.
Accordingly, we affirm the convictions.
I. Facts and Procedural History
A. Facts
On October 28, 1999, agents of the Pennsylvania Attorney General’s Office,
Bureau of Narcotics Investigation and Drug Control (“BNI”), received information from
a confidential informant (“CI”) regarding drug trafficking activity on the 600 block of
Creighton Street in Philadelphia. The CI reported that crack cocaine was being sold at
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this location on a 24-hour-a-day basis. The CI stated that sellers on the corner paged
Miller when crack supplies began to run low, and that he would generally arrive within a
half hour to resupply them. The CI indicated that Miller drove a cream-colored Lexus
and that the drugs he sold were packaged and stored in a residence at the Parkside Village
Apartments at Bryn Mawr Avenue and Parkside Avenue.
As a result of this information, BNI agents performed surveillance on the 600
block of Creighton Street on November 8, November 19, and December 1, 1999. On
those days, agents observed numerous drug transactions conducted in a nearby alley.
They also twice observed Miller resupply the sellers after leaving Apartment 72 of
Parkside Village. Subsequent to these observations, the BNI agents applied for a search
warrant from a judge of the Court of Common Pleas of Philadelphia, requesting
authorization to search Miller’s residence for evidence of drug trafficking. An agent
submitted an affidavit summarizing the CI’s information and the observations made
during the surveillance, which, he submitted, established probable cause for the search.
The judge agreed that probable cause existed and issued the warrant on December 7,
1999.
On December 8, 1999, at about 5:00 p.m., six BNI agents prepared to execute the
search warrant. When the agents, who wore raid gear that was clearly marked “Police,”
gathered outside the buildings, one of the agents observed someone looking out of the
window of Apartment 72. The agents proceeded upstairs, where they knocked on the
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door and announced “police search warrant.” No one responded to this announcement,
although agents heard footsteps inside the apartment suggesting that someone was
running around and not traveling in the direction of the door. The agents believed that
there was a strong possibility that evidence, particularly cocaine, was being destroyed.
After waiting approximately 10 seconds, the agents forcibly knocked down the door and
entered the apartment.
Miller was inside the apartment together with Clark. Clark attempted to pull a .45
caliber semiautomatic handgun out of his waistband, but was apprehended along with
Miller. In Miller’s jacket were found 135 packets of crack cocaine. In addition, a wide
variety of packaging material and other paraphernalia were recovered throughout the
apartment, including amber-colored vials containing crack, many empty packets and vials,
and a heat sealer, strainer, and other tools used in packaging narcotics. Other items
included a glass bowl in the microwave oven containing white powdery residue, digital
scales, blue-tinted ziplock packets of crack, and a coffee grinder containing white powder
residue. The total amount of crack recovered was approximately 59.9 grams.
B. The M otions to Suppress
Prior to trial, Miller and Clark separately moved to suppress evidence obtained in
the search of the apartment on two grounds: 1) that the BNI failed to establish probable
cause when applying for the search warrant, and 2) that the officers waited an
unreasonably short period before forcing entry into the apartment. The District Court
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held a hearing on these issues, during which Miller’s counsel argued that the probable
cause determination had been based entirely on uncorroborated information by a non-
credible CI and that the knock-and-announce principle was violated. The District Court
denied the motions, ruling that the affidavit submitted with the the application for the
warrant supported a finding of probable cause to believe that the narcotics operation on
Creighton Street was being supplied from drugs stored in Apartment 72 of Parkside
Village. The District Court also ruled that the knock-and-announce principle was not
violated, because the manner of the forced entry was not unreasonable under the
circumstances. The exigent circumstances that, in the District Court’s opinion, rendered
the short wait reasonable included: 1) the agents noticing someone look out the window
of the apartment, leading them to conclude that the individuals inside the apartment were
aware of their presence, and 2) the agents hearing hurried footsteps inside the apartment
that were not moving in the direction of the door, leading them to believe that crack,
which is easily destroyed, was possibly being destroyed or disposed.
C. The Personnel File
During trial, Miller’s counsel requested that the Government produce the
personnel file of BNI Agent Kenneth Bellis, who testified against Miller. The file
contained an internal BNI report on an investigation into alleged misuse of Government
property by Agent Bellis. Because the Government represented that the contents of the
confidential report were irrelevant to this case, it objected to their discovery by the
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defense. At the suggestion of Miller’s counsel, both sides agreed that the trial judge
would review the report in camera to determine whether it was relevant to the defense,
and in particular whether it contained anything that would tend to undermine the
credibility of Agent Bellis’s testimony. The Court reviewed the report in camera and
ruled that nothing in the file could constitute impeachment material or matter that would
assist in cross-examination to attack the credibility of Agent Bellis. Accordingly, it
declined to compel discovery of the confidential report.
D. Prosecutor’s Remarks
At the close of Miller’s trial, the prosecutor made a rebuttal statement summarizing
the evidence presented and asking the jury to return a guilty verdict. On two occasions
the defense objected to remarks made by the prosecutor to the jury. 1 In the first objection,
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The first remark by the prosecutor to which the defense took exception was:
MR. DOUGLAS: The defense says, well, why didn’t they fingerprint him?
And the Government would contend, they had the person, you heard the []
testimony that we were focusing on the one person we knew who lived at
this address or had access to this address, this defendant. And when they
went to that location, what did they find? They found these items. Was
there anybody else there? No. Was there testimony that anybody else lived
there? No.
(Emphasis added.)
The second remark was:
MR. DOUGLAS: And when you stop to think and apply your common
sense and your life experience to that, you will come up with one
conclusion and one conclusion only and that is the same conclusion that the
Government is asking you to do and that is tell Anthony Miller that on
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Miller’s counsel claimed that the prosecutor was improperly shifting onto the defense the
burden of proof on the issue of whose residence was Apartment 72. This, he argued, was
an element that formed part of the prosecution’s burden. Following a sidebar, the trial
judge overruled this objection. In the second objection, moments later, Miller’s counsel
moved for a mistrial on the ground that the prosecutor had asked the jury to “send a
message” by convicting Miller. The trial judge summarily overruled this objection, but
also immediately clarified to the jury that “we aren’t sending messages. There is one
thing you have to do here and decide whether or not the Government has proven over this
couple days, that the defendant was guilty of the crime charged in Count 1 of the
indictment beyond a reasonable doubt.”
II. Analysis
A. Probable Cause
Because the District Court’s decision that the search warrant was supported by
probable cause was based on the facts contained in the search warrant affidavit—the
veracity of which Miller and Clark do not challenge—we afford plenary review to their
claims of error. United States v. Burton, 288 F.3d 91, 97 (3d Cir. 2002). Miller’s claim
that the affidavit improperly relied on the uncorroborated information of a first-time CI to
establish the required nexus between the property to be searched and contraband sought
December 8, 1999, that having all of this was absolutely wrong.
(Emphasis added.)
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leaves us scratching our heads. Even a cursory review of the affidavit and the facts
surrounding the BNI investigation reveals that, to the contrary, before applying for the
warrant the agents actively sought to corroborate the CI’s information and to link the drug
transactions on Creighton Street to Apartment 72 of Parkside Village. Probable cause is a
“practical, common-sense decision” and may be found whenever “there is a fair
probability that contraband or evidence of a crime will be found in a particular place.”
Illinois v. Gates, 462 U.S. 213, 238 (1983). Because the information in the affidavit
could reasonably be read to show that there was more than a fair probability that drugs
would be found in the apartment, we affirm the District Court’s conclusion that the
issuing judge’s probable cause determination should be upheld. Accordingly, the District
Court’s refusal to suppress evidence obtained during execution of the search warrant was
entirely proper.
B. Knock-and-Announce
Our inquiry into whether the manner in which the agents executed the warrant was
consistent with the Fourth Amendment’s protection from unreasonable searches is guided
by the Supreme Court’s recent decision in United States v. Banks, 540 U.S. 31, 124 S. Ct.
521 (2003). There the Court reiterated its holdings from previous cases that
constitutionality of the manner in which a search is performed is subject to a “totality of
circumstances” analysis. Banks, 124 S. Ct. at 525. This analysis focuses on
reasonableness, a sensible standard when one considers that the Amendment itself relies
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on the same language. U.S. Const. amend. IV (“The right of the people to be secure . . .
against unreasonable searches and seizures, shall not be violated . . . .”). The
reasonableness of a warrant’s execution turns in significant measure on the significance
of the exigency revealed by the circumstances as they are perceived by the officers. In
Banks, the Supreme Court affirmed the constitutionality of a search remarkably similar to
ours. The officers arrived at the home of a suspected cocaine dealer on a weekday
afternoon, rapped hard on the door, and called out “police search warrant.” Hearing
nothing, and waiting for 15 to 20 seconds with no answer, the officers broke open the
front door with a battering ram and entered the premises. The Supreme Court emphasized
that “what matters is the opportunity to get rid of cocaine, which a prudent dealer will
keep near a commode or kitchen sink. The significant [exigent] circumstances include
the arrival of the police during the day, when anyone inside would probably have been up
and around, and the sufficiency of 15 to 20 seconds for getting to the bathroom or the
kitchen to start flushing cocaine down the drain.” 124 S. Ct. at 527.
We consider reasonable the 10-second wait in this case even though it is shorter
than the 15 to 20 seconds approved in Banks. That is because the agents in this case
faced the same exigency as in Banks, along with two others: their knowledge that
someone inside the apartment had already seen them approaching, and their hearing of
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scurrying footsteps inside the apartment that were not headed in the direction of the door. 2
We therefore affirm the District Court’s ruling that, under the facts of this case, the
manner in which the search was performed did not violate appellants’ Fourth Amendment
rights.
C. The Personnel File
Miller argues that we should independently review the contents of Agent Bellis’s
personnel file to verify that there was no admissible material in it that could have been
used by the defense to undermine Bellis’s credibility with the jury. Even assuming such a
review is within our jurisdiction—the Government argues that it was waived when
Miller’s counsel agreed to abide by the outcome of the judge’s in camera review and did
not object when the judge returned with his ruling—we decline to review the file because
its contents would not produce a different result at trial. Giglio v. United States, 405 U.S.
150, 154–55 (1972); United States v. Milan, 304 F.3d 273, 287 (3d Cir. 2002).
Agent Bellis’s testimony to the jury served two functions in the prosecution’s case.
First, he testified to Miller’s presence at Apartment 72 on one of the days of the stakeout,
November 19, 1999. While this information may have been important to the initial
finding of probable cause to issue the warrant, it did not play a great role, nor does it seem
even to have been contested, at trial. The second function of Bellis’s testimony was to
2
The Supreme Court noted with approval United States v. Markling, 7 F.3d 1309(7th Cir. 1993), a case where a wait as short as seven seconds was considered reasonable
under the totality of circumstances. Banks, 124 S. Ct. at 526 n.5.
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explain why the agents forcibly broke open the door of the apartment when executing the
search warrant. While Miller questions the correctness of that conduct, he does not
dispute the factual circumstances leading up to it. As such, even if we were to discover
that the personnel file contained admissible information tending to undermine Bellis’s
credibility, and even if the jury had disbelieved the witness and entirely discounted both
aspects of his testimony, it would not be enough to call into question the sufficiency of
the evidence upon which the jury could rely to convict Miller. That evidence was
overwhelming, and there is no reasonable probability that the outcome of the trial would
have been different but for Bellis’s testimony.
D. Prosecutor’s Remarks
Miller’s contention that the prosecutor’s rebuttal comments shifted the burden of
proof to the defendant and improperly asked the jury to base its considerations on
something other than the evidence is simply meritless. The prosecutor’s first remark, that
Miller had not shown that anyone else occupied the apartment, was spoken to underscore
Miller’s failure to support his contention at trial that he did not live in Apartment 72. In
that context, the prosecutor was merely highlighting a weakness in the defense’s theory
rather than shifting any evidentiary burden. The trial judge rightly overruled M iller’s
objection to the prosecutor’s mention of this weakness.
Even more baseless is Miller’s contention that the prosecutor urging the jury to tell
Miller that having nearly 60 grams of crack cocaine in his apartment “was absolutely
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wrong” somehow amounted to directing the jury to base its considerations on something
other than the evidence. When asking the jury to return a guilty verdict, it is not fitting
for a prosecutor to describe a guilty verdict as expressive of the jury’s moral
disapprobation of a defendant’s conduct. But such a rhetorical device was harmless in
this case, especially when cured by the judge’s immediate admonition to the jury that
“[t]here is one thing you have to do here and [that is to] decide whether or not . . . the
defendant was guilty of the crime charged in Count 1 of the indictment beyond a
reasonable doubt.” See Gov’t of V.I. v. Joseph, 770 F.2d 343, 349 (3d Cir. 1985)
(defendant was not prejudiced by prosecutor’s closing argument in light of curative jury
instruction).
III. Conclusion
For the reasons stated, we affirm the District Court’s denial of appellants’ motions
to suppress evidence and Miller’s motion for a new trial. Accordingly, the convictions of
Tracy Clark and Anthony Miller are affirmed.
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