United States v. Tirado , 133 F. App'x 13 ( 2005 )

Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
5-23-2005
USA v. Tirado
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-3370
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NOT PRECEDENTIAL
IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Case No: 04-3370
UNITED STATES OF AMERICA
v.
ANTONIO M. TIRADO,
Appellant
On Appeal from the United States District Court
for the Western District of Pennsylvania
District Court No.: 04-cr-0004E
District Judge: The Honorable Sean J. McLaughlin
Submitted Pursuant to Third Circuit LAR 34.1(a)
May 6, 2005
Before: McKEE, SMITH, and VAN ANTWERPEN, Circuit Judges
(Filed: May 23, 2005)
OPINION
SMITH, Circuit Judge.
Antonio M. Tirado, who was convicted of violating 18 U.S.C. §922(g)(1),
challenges the warrantless search of his apartment, which was precipitated by a tip given
to Tirado’s parole officer by another parolee. A .38 caliber handgun was discovered
during the search, the possession of which by a felon was a violation of 18 U.S.C. §
922(g)(1).1 A jury found Tirado guilty and the District Court sentenced him to 120
months of incarceration. We will affirm the denial of Tirado’s motion to suppress, but
will remand the case for resentencing in accordance with United States v. Booker, 543
U.S. __, 125 S. Ct. 738 (2005).
Factual Background
Parolee Antonio M. Tirado was a convicted felon who came under the supervision
of Pennsylvania Board of Probation and Parole (PBPP) Agent Vanessa Norton-Booker in
September 2003. Among the conditions of Tirado’s parole were that he not use, possess,
or sell controlled substances, or own or possess firearms. In the six weeks Tirado was
under Norton-Booker’s supervision, the agent received repeated phone tips from an
anonymous woman that Tirado was selling drugs. Tirado denied the allegations when
confronted by Norton-Booker. Over the six weeks, Tirado had tested positive for
marijuana three times, indicating that he had used the drug at least twice.2 After Tirado’s
third positive test for marijuana on October 24, 2003, Norton-Booker and her supervisor
1
Tirado also challenges the enactment of § 922(g)(1) by Congress as exceeding its
authority under the Commerce Clause. Tirado concedes that this Court rejected a facial
challenge to § 922 (g) in United States v. Singletary, 268 F.3d 196 (3d Cir. 2001). He
continues to raise this issue to preserve it for further appellate review. Singletary is
binding precedent, and we will not discuss the constitutionality of § 922(g). See Third
Circuit IOP 9.1.
2
Because Tirado’s THC count was lower in his third positive test than in his second
positive test, it is uncertain whether Tirado had used marijuana in the interim between the
two tests.
2
determined that they would arrest Tirado, but they had not set a date for effecting the
arrest.
On October 29, 2003, another of Norton-Booker’s parolees, who had been
avoiding the agent and who had been declared delinquent, surrendered himself to her.
This unnamed parolee, who appeared with and was urged on by his girlfriend, admitted to
having used crack cocaine that day. The parolee stated that having to dodge Norton-
Booker made his crack habit not worth the bother, and that he wanted to return to prison
to serve the rest of his sentence. By doing so, the parolee reasoned he could live “off
paper,” i.e. without PBPP supervision, upon his release and resume his drug habit in
relative peace.
At the “stern request” of his girlfriend, the informant, who initially did not want to
give Norton-Booker the information, divulged that his drug supplier was also one of
Norton-Booker’s parolees, “Poopie” Tirado. Norton-Booker recognized “Poopie” Tirado
as Antonio Tirado. The informant reported that he had traded his girlfriend’s living room
and bedroom furniture to Tirado for drugs while the girlfriend worked, and it appears that
the “highly upset” girlfriend’s wish to retrieve her furniture was the motivating factor
behind the informant’s fingering of Tirado. Upon further questioning by Norton-Booker,
the informant stated that he had also traded a handgun to Tirado for drugs.
Upon hearing of the gun, Norton-Booker, who had been on the job less than a year,
summoned PBPP Agent William Wehrle to continue the interview with the informant.
3
Wehrle had thirty-two year’s experience and a greater knowledge of firearms. The
informant told Wehrle that he had traded a gun to Tirado for drugs approximately a week
and a half earlier and that the informant had seen Tirado carrying another handgun. The
informant described where Tirado lived, knew that Tirado had recently moved to that
apartment to live with a girlfriend, and gave Wehrle the telephone number he had used to
contact Tirado at the residence to arrange drug purchases. The informant was arrested
and returned to prison that day. The informant’s statements were not part of any bargain.
After interviewing the informant, Wehrle checked the informant’s statements
concerning Tirado’s living situation with Norton-Booker, and confirmed that the
description of the residence given by the informant matched the address Norton-Booker
had for Tirado by driving past the building. Wehrle also reviewed Tirado’s file and noted
that Tirado’s criminal history was consistent with the accusations of the informant.
Wehrle did not, however, check the telephone number the informant had provided for
Tirado or review the informant’s file to assess his reliability. Confident that he had the
requisite reasonable suspicion to search Tirado’s residence for drugs and guns,3 Wehrle,
consistent with PBPP policy, received approval from his supervisor to conduct a
warrantless search of Tirado’s residence.
Agents Norton-Booker and Wehrle searched Tirado’s residence later that day, and
3
Tirado had signed Pennsylvania’s standard consent to search form, about which this
Court has predicted the Pennsylvania Supreme Court would construe as including “an
implicit requirement that any search be based on reasonable suspicion.” United States v.
Baker, 221 F.3d 438, 448 (3d Cir. 2000).
4
found a .38 caliber handgun behind the ceiling tiles in the living room. Tirado was
arrested, tried for and convicted of being a felon in possession of a firearm, and was
sentenced to 120 months’ incarceration.
District Court Order
On May 6, 2004, following a hearing at which Agents Norton-Booker and Wehrle
testified, the District Court issued an order from the bench denying Tirado’s motion to
suppress. The District Court “credit[ed] the testimony of Agent Booker in all respects,”
but noted that Norton-Booker had made an error in recalling the description of the firearm
the informant exchanged for drugs. On this point, the District Court found Agent
Wehrle’s recollection “much clearer.” The District Court also found credible Agent
Wehrle’s testimony that the informant told Wehrle that Tirado had given drugs to the
informant in exchange for a firearm.
The District Court observed that “it is now well-settled that the home of a parolee
or probationer may be searched without a warrant whenever the parole or probation
officer reasonably believes that it is necessary in the performance of their duties to search
the house based on reasonable suspicion.” Citing Griffin v. Wisconsin, 483 U.S. 868,
871-72 (1987); United States v. Hill, 967 F.2d 902, 910 (3d Cir. 1992); United States v.
Baker, 221 F.3d 438 (3d Cir. 2000).
The District Court found substantial evidence to support a reasonable suspicion for
the search because the informant (1) was known to the agents; (2) would face adverse
5
consequences had he lied about Tirado’s illegal behavior; (3) had firsthand knowledge;
and (4) related specific information that lent credence to the conclusion that he had
witnessed Tirado’s parole violations.
Analysis
The District Court had jurisdiction pursuant to 18 U.S.C. § 3231, and this Court
has jurisdiction under 28 U.S.C. § 1291. “This Court reviews the District Court’s denial
of a motion to suppress for clear error as to the underlying factual findings and exercises
plenary review of the District Court’s application of the law to those facts.” United States
v. Perez, 280 F.3d 318, 316 (3d Cir. 2002).
In Griffin, the Supreme Court held that the state’s interest in supervising
probationers raised a “special need” justifying an exception to the Fourth Amendment’s
requirement that searches be conducted pursuant to a warrant supported by probable
cause. 438 U.S. at 873. The Wisconsin regulation at issue mirrored the Pennsylvania
regulation implicated here – it allowed any probation officer to conduct a warrantless
search of a probationers’ residence so long as the officer had his supervisor’s approval
and “reasonable grounds” to believe the residence contained items the probationer was
prohibited from possessing. Id. at 870. The Court found the search of the probationer’s
residence reasonable under the Fourth Amendment “because it was conducted pursuant to
a valid regulation governing probationers.” Id. at 880.
In Hill, this Court determined that Griffin’s “special needs” reasoning applied
6
equally to parolees. 967 F.2d at 909. Though there was no regulatory provision
authorizing warrantless searches as a parole condition, nor had the parolee expressly
agreed to such a condition, this Court upheld the search of the parolee’s convenience
store based on his wife’s report that he had stored guns and drugs there. Id. at 908, 911.
Then, in Baker, upon the Pennsylvania Supreme Court’s denial of this Court’s petition for
certification on the question, we reasoned from analogous state case law that where a
parolee had signed PBPP’s standard consent-to-search form (as Tirado had), warrantless
searches of a parolee’s residence by PBPP agents must be based on reasonable suspicion
that evidence of a parole violation would be found there. 221 F.3d at 449.
Given the uncontroverted fact that Agents Norton-Booker and Wehrle received
supervisory approval to conduct a warrantless search Tirado’s residence in accordance
with the PBPP regulation, the District Court properly framed the issue in this case to be
whether the search of Tirado’s residence was supported by reasonable suspicion. As an
initial matter, we note that Tirado’s positive drug tests and the anonymous phone tips
stating that he was selling illegal narcotics may have given Norton-Booker enough
reasonable suspicion to conduct an administrative search of Tirado’s residence before the
informant even appeared in Norton-Booker’s office on October 29, 2003. Indeed, a
positive drug test alone has been held to be reasonable suspicion to support a search of a
probationer’s residence. United States v. Hubbard, 269 F. Supp. 2d 474, 478 (D. Del.
2003).
7
In the thirty-six years since the seminal case of Terry v. Ohio, 392 U.S. 1 (1968),
the Supreme Court has repeatedly taught that reasonable suspicion determinations “must
be based on commonsense judgments and inferences about human behavior.” Illinois v.
Wardlow, 528 U.S. 119, 125 (2000); see United States v. Cortez, 449 U.S. 411, 418
(1981). Though courts have fleshed out the probative value of tips in the typical
circumstances of anonymous tipsters, known persons informing for the first time, or
repeat tipsters whose past reliability is known; and tips from concerned citizens
uninterested in personal gain and from those who seek monetary rewards or favorable
deals from prosecutors, the commonsense approach is sufficiently malleable to guide our
inquiry in the seemingly unique situation here, where a known informant has a prison
wish and an irate girlfriend seeking the return of her property from the informant’s
supplier. In short, the commonsense framework holds that where an informant’s tip
weighs in the totality-of-the-circumstances analysis, courts must determine whether the
tip is credible, reliable, and has a solid basis of knowledge. See Alabama v. White, 496
U.S. 325, 328 (1990).
Tirado attacks the credibility of the tip by noting that the source was a drug-
addicted parole violator who may have been under the influence of crack cocaine at the
time he implicated Tirado as his supplier. Tirado also questions the reliability of the
information by observing that it came from a first-time informant and by arguing that the
PBPP agents inadequately corroborated the tip.
8
Recognizing that the totality of the circumstances inquiry is a compensating
mechanism in which a deficit in one area can be overcome by a strong showing in
another, see id. at 330, and, as suggested above, realizing that the informant did not have
to add much if anything for the PBPP agents to attain the reasonable suspicion necessary
to conduct a warrantless search of Tirado’s house, we do not view this as a particularly
close case. See id. (“Reasonable suspicion is a less demanding standard than probable
cause not only in the sense that reasonable suspicion can be established with information
that is different in quantity or content than that required to establish probable cause, but
also in the sense that reasonable suspicion can arise from information that is less reliable
than that required to show probable cause.”).
Though Tirado rightly points out that the informant had no history of providing
tips to Norton-Booker, meaning the reliability of this tip could not be judged by past
performance, and though the PBPP agents did not do as much as they could have to
corroborate the tip, the deficit of reliability here is offset by a strong showing of
credibility and the informant’s firsthand knowledge.
First, Agent Wehrle independently corroborated some of the informant’s tip,
bolstering its reliability. See Gates, 462 U.S. at 241 (“Our decisions applying the totality-
of-the-circumstances analysis outlined above have consistently recognized the value of
corroboration of details of an informant's tip by independent police work.”). Wehrle
matched the informant’s description of the location of Tirado’s residence with the latest
9
address Norton-Booker had for Tirado, and Wehrle conducted a drive-by surveillance of
the building to assure the match. Wehrle corroborated with Norton-Booker the
informant’s statement that Tirado had recently moved in with a girlfriend, which
supported the informant’s claim that he had recently been in Tirado’s residence. Also,
Wehrle reviewed Tirado’s file, and ascertained that Tirado’s past involvement in
criminality – which included drug and assault convictions – roughly matched the
informant’s accusations of Tirado’s lawbreaking while on parole.
Second, despite the informant’s statement that he had ingested crack cocaine
earlier in the day, suggesting that he was either under its influence at the time of his
interview or suffering withdrawal, the circumstances under which his statements were
made lend credibility to them. The emotionality exhibited by the informant with which
Tirado attempts to undermine his statements did not reveal an inherent untrustworthiness
of the information as much as it reflected the informant’s realization of the wretched
depths of his depravity. The informant was reluctant to inform on Tirado. He sought
nothing in exchange for the information, and thus had no reason to lie. Further, we can
conceive of no greater indicia of credibility than the absurd facts of this real life
tragicomedy – that of an informant shamed by his partner to divulge with whom the
informant had traded the partner’s belongings for drugs while the partner was at work. In
this scenario, the gun-for-drugs trade and the informant’s sighting of Tirado with a
second prohibited weapon seemed like a secondary consideration to the informant, if not
10
the PBPP agents. Everyday experience advises that one is less likely to lie about a matter
they consider relatively unimportant, thus the informant’s statements about Tirado’s gun
possession were credible.
Third, the informant’s knowledge of Tirado’s drug and gun possession was
firsthand. See Gates, 462 U.S. at 234 (stating that the informant’s “explicit and detailed
description of alleged wrongdoing, along with a statement that the event was observed
first-hand entitles the tip to greater weight than might otherwise be the case”). The
informant received drugs from Tirado in exchange for furniture on at least one occasion
and in exchange for a gun on another. The informant also averred that he saw Tirado
with a second gun, one Tirado “generally carried.” The informant’s participation in and
personal observation of Tirado’s parole violations significantly support the conclusion
that it was reasonable for the PBPP agents to suspect that Tirado had drugs and guns in
his residence.
In light of the anonymous tip that Tirado was selling illegal narcotics, and Tirado’s
positive drug tests before October 29, 2003, even were the informant’s statements that
Tirado possessed drugs and guns of modest overall reliability, they would have been
enough of an addition to the totality of the circumstances calculus to support a search of
Tirado’s residence pursuant to the reasonable suspicion standard. As it is, the
circumstances of the informant’s interview lent credibility to his statements, and, when
coupled with his firsthand knowledge, easily overcame any deficiency related to the fact
11
that the informant had no established track record of giving law enforcement accurate tips
and that the PBPP agents’ corroboration of the informant’s statements was somewhat
cursory. For these reasons, we will affirm the District Court’s denial of Tirado’s motion
to suppress.
Tirado’s Sentence
In response to this Court’s March 9, 2005, “Booker order,” Tirado argues that
judicial fact finding and the concomitant increases in his sentence were precluded under
Blakely v. Washington, 542 U.S. __, 124 S.Ct. 2531 (2004). On Blakely’s heels, the
Supreme Court decided United States v. Booker, 543 U.S. __, 125 S.Ct. 738 (2005).
There, the Supreme Court determined that the Guidelines were only advisory, not
mandatory.
Having determined that the sentencing issues Tirado raises are best determined by
the District Court in the first instance, we will vacate the sentence and remand for
resentencing in accordance with Booker.
12