United States v. Sellman ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5970
ROSS AVON SELLMAN,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
J. Frederick Motz, Chief District Judge; Herbert N. Maletz,
Senior Judge, sitting by designation.
(CR-95-111-WMN)
Argued: March 7, 1997
Decided: June 19, 1997
Before WILKINSON, Chief Judge, and RUSSELL and
HALL, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
ARGUED: Harvey Greenberg, LAW OFFICES OF HARVEY
GREENBERG, Towson, Maryland, for Appellant. Martin Joseph
Clarke, Special Assistant United States Attorney, Baltimore, Mary-
land, for Appellee. ON BRIEF: Lynne A. Battaglia, United States
Attorney, Baltimore, Maryland, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Ross Avon Sellman appeals his drug-related convictions and sen-
tence on a variety of grounds. The only issue warranting exposition
is whether an inaccurate description of the car listed in the search
warrant required suppression of the evidence found therein.1
I.
Based on information supplied by a confidential informant, Balti-
more City Police Officers Willie Grandy and Darrell Wayne Town-
send investigated the illegal narcotic trafficking activities of Ross
Avon Sellman during January 1995. Grandy conducted surveillance
of Sellman's primary place of residence, 2612 Oswego Avenue.
Townsend conducted surveillance in and around 1730 Smallwood
Street, a known "shooting gallery,"2 where Sellman distributed narcot-
ics to his street dealers. On each day of surveillance, Grandy observed
Sellman leave his house carrying a small dark handbag and drive
away in a 1982 black Plymouth four-door vehicle with Maryland
license BMT-002. When Townsend observed Sellman's arrival at the
shooting gallery, he noted that Sellman carried a small dark handbag
and that narcotics trafficking subsequently increased in the vicinity.
On January 23, Grandy and Townsend applied for and received
warrants to search Sellman, the black Plymouth with Maryland
license BMT-002, the shooting gallery, and two other residences --
one of which was Sellman's home. The first search warrant autho-
rized the search of Sellman and 1730 N. Smallwood Street. The sec-
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1 We do not address the remaining issues raised by Sellman as we hold
them to be meritless.
2 A shooting gallery is a house used for the sale and use of narcotics,
specifically heroin.
2
ond search warrant authorized the search of Sellman, 2224 Walbrook
Avenue, and a 1982 Plymouth, black four-door, with Maryland
license BMT-002. The third search warrant authorized the search of
Sellman, 2612 Oswego Avenue, and a 1982 Plymouth, black four-
door, with Maryland license BMT-002. Nine days later on January
31, officers from the Baltimore City Police Department prepared to
execute the search warrants simultaneously. After observing Sellman
exit his home carrying the same handbag, Grandy was surprised to see
Sellman get into a blue Cadillac with Maryland license BMT-002 and
drive away. A helicopter monitored Sellman's movements from
above, and Grandy alerted the other officers involved in the execution
of the search warrants.
When the blue Cadillac arrived in the vicinity of the shooting gal-
lery, officers stopped the vehicle. Sellman, the only occupant, was
observed holding a handbag. A search of the handbag yielded fifty-
eight bags of heroin with star markings, twenty-one vials of cocaine
with black markings, and a loaded .32 caliber revolver. A search of
the car yielded personal papers in Sellman's name, and a registration
card revealing that the Cadillac was registered to Thomasine Felder,
Sellman's girlfriend, who also lived at 2612 Oswego Avenue.
Prior to trial, Sellman sought to suppress the evidence seized from
the blue Cadillac. Sellman argued that the search warrant upon which
the officers acted did not authorize them to search the blue Cadillac
because the warrant identified the place to be searched as "a 1982
Plymouth, black 4-door [Maryland] tag BMT-002." During the sup-
pression hearing, the Government introduced the three applications
for the search warrants, an affidavit in support of the applications, and
the three warrants issued by the magistrate judge. The district court
found that the warrants for Sellman's person, his residence on
Oswego Avenue, and the black Plymouth were supported by a single
affidavit. The affidavit showed probable cause to believe that: Sell-
man habitually left 2612 Oswego Avenue in the morning; he drove
a vehicle with Maryland license BMT-002; and he distributed cocaine
and heroin to his street dealers at the shooting gallery. The district
court determined that the officers did not unconstitutionally search the
blue Cadillac and denied the suppression motion. The district court
stated that Sellman's presence in a vehicle displaying the identical
registration tag identified in the search warrant enabled the officers to
3
believe reasonably that they did not need a separate warrant for the
blue Cadillac, and that the blue Cadillac was the appropriate place to
search.
Sellman appeals the district court's ruling. The question of whether
a district court properly denied a motion to suppress evidence because
police obtained the evidence in violation of the Fourth Amendment
is a mixed question of law and fact, which we review de novo.3
II.
The Fourth Amendment provides that "no Warrants shall issue, but
upon probable cause, supported by Oath or affirmation and particu-
larly describing the place to be searched, and the persons or things to
be seized."4 The requirement for particularity "ensures that the search
will be carefully tailored to its justifications, and will not take on the
character of the wide-ranging exploratory searches the Framers
intended to prohibit."5 The particularity requirement is satisfied when
an officer in possession of a search warrant describing a particular
place to be searched can reasonably ascertain and identify the
intended place to be searched.6 Should the description of the place to
be searched prove overbroad or mistaken, however, no Fourth
Amendment violation occurs when the officers executing the search
reasonably believe that the warrant is sufficiently particular and that
they are searching the correct location.7 An erroneous description or
a factual mistake in the search warrant will not necessarily invalidate
the warrant and the subsequent search.8 The officers in the instant
case executed the search warrant issued for the"1982 Plymouth,
black 4-door, with Maryland license BMT-002" on the blue Cadillac
bearing the identical registration tag. We must decide whether the
intervening change in two of the vehicle's identifying characteristics,
the color and model, between the last date the officers observed the
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3 United States v. Gastiaburo, 16 F.3d 582, 585 (4th Cir. 1994).
4 U.S. Const. amend. IV.
5 Maryland v. Garrison, 480 U.S. 79, 84 (1987).
6 Steele v. United States, 267 U.S. 498, 503 (1925).
7 Garrison, 480 U.S. at 84-9.
8 United States v. Owens, 848 F.2d 462, 463-66 (4th Cir. 1988).
4
Plymouth and date the magistrate signed the warrant, served to vitiate
the search. We find the Supreme Court's decision in Maryland v.
Garrison9, and our decision inUnited States v. Owens10,instructive in
resolving the question before us.
In Garrison, the Court upheld the validity of a search conducted at
the wrong apartment. The police officers applied for and were issued
a warrant authorizing a search of a premises described as 2036 Park
Heights Avenue, third floor apartment and for the resident of the
apartment, Meril McWebb. Relying on utility company records, the
officers reasonably believed that the third floor contained only one
apartment and that it was occupied by McWebb. The police seized
narcotics and drug paraphernalia from the apartment they were
searching, but they soon realized they were in a second apartment
located on the third floor, which belonged to a different person, Har-
old Garrison. Garrison was subsequently convicted for violating
Maryland's Controlled Substances Act. The Court affirmed Garri-
son's conviction, noting that before the officers discovered the factual
mistake, the officers reasonably believed they had been searching
McWebb's apartment. The Court declared that a search warrant must
be reviewed in light of the information available to the officers at the
time they executed the search.11
In Owens, when officers went to execute a search warrant of an
apartment, identified in the warrant as number 336 and said to be
located on the third floor of an apartment building, they found that of
the two apartments located on the third floor, only one was occupied
and neither apartment was numbered 336. Because the affidavit
clearly identified the apartment to be searched as one that was occu-
pied, and an informant confirmed the officers' observations that it had
to be the apartment on the right, the officers searched the apartment
numbered 324. When Owens contested the validity of the search on
the basis that the warrant authorized the search of apartment 336 and
not 324, we held that:
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9 480 U.S. 79 (1987).
10 848 F.2d 462 (4th Cir. 1988).
11 Garrison, 480 U.S. at 88.
5
The officers had a reasonable and objective basis on
which to conclude that the warrant authorized a search of
apartment numbered 324. This determination was much
more than a calculated guess and cannot be described as an
effort to conduct a fishing expedition. The officers were jus-
tified in using common sense and reliable information
known to them outside the four corners of the warrant and
affidavit to assist in determining the place actually autho-
rized to be searched. They were not prohibited from making
a good faith interpretation of the warrant in light of the
information available to them at the time they acted. . . .
While the warrant here was facially deficient because an
incorrect apartment number was given, the deficiency was
corrected prior to the search by personal observations and
information on which one could reasonably and in good
faith make a determination of the actual place the warrant
authorized to be searched.12
In the instant case, the application for the search warrant, the sup-
porting affidavit, and the warrant itself identified the vehicle to be
searched as a "1982 Plymouth, black 4 door, MD tag BMT-002."
Unbeknownst to the officers applying for the search warrant, between
the last date of their surveillance, January 12, and the date on which
the magistrate judge signed the warrant, January 23, Sellman pur-
chased the blue Cadillac because the Plymouth had been involved in
an accident. Consequently, on January 31, when the officers began to
execute the search, Grandy was surprised to see Sellman drive away
from his residence in a blue Cadillac. Because the blue Cadillac dis-
played the identical registration number as the black Plymouth, the
officers stopped the vehicle as planned and searched Sellman and the
blue Cadillac.
We believe that the technical misdescription of the vehicle's color
and make did not render the search of the Cadillac unconstitutional.
The vehicle's registration number, the most visible factor used in the
identification of a specific vehicle identified the blue Cadillac as the
most reasonable place for the officers to search. Furthermore, the
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12 Owens, 848 F.2d at 466 (internal quotations omitted).
6
facts that Sellman and his residence were listed on the same warrant,
and that the affidavit indicated that Sellman transported drugs from
his residence to the shooting gallery in a vehicle bearing the license
BMT-002, supports our holding that the officers reasonably executed
the search warrant "in light of the information available to them at the
time they acted."13 Accordingly, we find no error in the district court's
denial of Sellman's motion to suppress the evidence seized from the
blue Cadillac.
III.
For the foregoing reasons, Sellman's convictions and sentence are
AFFIRMED.
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13 Owens, 848 F.2d at 466 (quoting Garrison, 480 U.S. at 85).
7