United States v. Freeman , 80 F. App'x 768 ( 2003 )

Opinions of the United
2003 Decisions States Court of Appeals
for the Third Circuit
11-13-2003
USA v. Freeman
Precedential or Non-Precedential: Non-Precedential
Docket No. 02-4342
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 02-4342
UNITED STATES OF AMERICA
v.
DENNIS FREEMAN,
Appellant
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Crim. No. 00-00692)
Honorable Robert F. Kelly, District Judge
Submitted under Third Circuit LAR 34.1(a)
November 7, 2003
BEFORE: MCKEE, SMITH and GREENBERG, Circuit Judges
(Filed: November 13, 2003)
OPINION OF THE COURT
GREENBERG, Circuit Judge.
This matter comes on before the court on defendant Dennis Freeman’s appeal
from a judgment of conviction and sentence entered November 25, 2002, following his
plea of guilty to one count of a multi-count indictment in this case involving various drug
charges. The district court sentenced Freeman to serve a 270-month custodial term to be
followed by ten years of supervised release. In particular, Freeman pleaded guilty to
conspiracy to distribute more than 50 grams of cocaine base (“crack”) in violation of 21
U.S.C. § 846. Freeman made this plea following the district court’s denial of his motion
to suppress physical evidence by an order entered April 10, 2002. See United States v.
Freeman, CR. No. 00-692-01, 2002 WL 523166 (E.D. Pa. Apr. 9, 2002). But at the time
that Freeman pleaded guilty he reserved his right to appeal the denial of his motion to
suppress as authorized by Fed. R. Crim. P. 11(a)(2). The district court had jurisdiction
under 18 U.S.C. § 3231 and we have jurisdiction pursuant to 28 U.S.C. § 1291.
On this appeal Freeman contends that the district court erred “when it failed to
grant [his] motion to suppress evidence based on appellee’s sealed warrant to adequately
describe the premises to be searched when [appellee] failed to reasonably investigate the
true nature of the structure” and “when it failed to suppress evidence upon the appellee’s
representative’s [sic] failure to adequately ‘knock and announce’ their presence and
purpose.” Appellant’s Br. at i. There is a variation between the parties’ concept of the
applicable standard of review. Initially Freeman contended that our entire review was
plenary. Appellant’s Br. at 13. But in its answering brief the government pointed out that
our review with respect to the district court’s factual findings was on a clear error basis
but our application of the law to the facts was plenary. Appellee’s Br. at 20, 36. Then in
his reply brief Freeman apparently adopted the government’s position, at least in part, as
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he indicated that “the district court’s finding that the ‘knock and announce’ rule [was not
violated] was clearly erroneous.” Appellant’s Reply Br. at 8. In fact, the government
properly sets forth the applicable standards of review. See United States v. Perez, 280
F.3d 318, 336 (3d Cir. 2002).
We do not describe the facts as the parties are familiar with them and the district
court set them forth in its memorandum of April 9, 2002, accompanying its order of April
10, 2002. Applying the applicable standards of review we will affirm substantially for the
reasons the district court advanced in its memorandum. We add only that there is
substantial authority supporting the district court’s conclusion that the search was lawful
because “the police limited their search to the first floor apartment.” Freeman, 2002 WL
523166, at *3. See, e.g., United States v. Geraldo, 271 F.3d 1112, 1118 (D.C. Cir. 2001);
Mena v. City of Simi Valley, 226 F.3d 1031, 1038-39 (9th Cir. 2000); see also United
States v. $92,422.57, 307 F.3d 137, 149 (3d Cir. 2002).
The judgment of conviction and sentence entered November 25, 2002, will be
affirmed.
TO THE CLERK:
Please file the foregoing not precedential opinion.
/s/ Morton I. Greenberg
Circuit Judge
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