United States v. David Washington ( 2022 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 20-2970
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UNITED STATES OF AMERICA
v.
DAVID WASHINGTON,
Appellant
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On Appeal from the United States District Court
For the Middle District of Pennsylvania
(D.C. No. 1-18-cr-0051-01)
District Judge: Honorable Sylvia H. Rambo
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Submitted Under Third Circuit LAR 34.1(a)
November 10, 2022
Before: CHAGARES, Chief Judge, JORDAN, and SCIRICA, Circuit Judges
(Filed: November 30, 2022)
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OPINION
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
This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
JORDAN, Circuit Judge.
On a tip about a woman in danger, police officers conducted a warrantless entry
into an apartment inhabited by David Washington. After later obtaining a search warrant,
the officers seized a large quantity of drugs, drug trafficking paraphernalia, and firearms.
Washington was indicted for felony drug possession, drug trafficking, and illegal
possession of firearms. He filed a motion to suppress, arguing that the police violated his
Fourth Amendment rights. The District Court denied that motion, and Washington
entered a conditional guilty plea allowing him to appeal the denial. Because probable
cause and exigent circumstances justified the limited warrantless entry into the apartment,
we will affirm.
I. BACKGROUND1
In August 2017, Harrisburg City Police Department officers went to an apartment
building to investigate a confidential informant’s concern that a woman, nicknamed
“Pretty” and later identified as Shakila Jackson, was being held against her will and being
forced to use drugs. When police officers arrived at the scene, they smelled marijuana
smoke emanating from the apartment. They heard sounds coming from within, knocked
on the door, and announced that they were police officers. Washington eventually
answered the door while smoking a cigarette, which the officers believed was an attempt
to mask the odor of marijuana.
1
These background facts are drawn from the suppression hearing testimony of the
government’s sole witness, Harrisburg Police Officer Darrin Bates, and are undisputed.
2
A woman named Bonnie Rodgers was with Washington. When asked how many
other people were in the apartment, Washington initially said there was just his girlfriend,
who was in the bathroom, but he later stated that two other women, Elizabeth Matters and
Tanya Fox, were also there. Fox and Matters then came within sight but neither they nor
Rodgers matched the description of “Pretty.” The officers noticed that Fox was “swaying
as she was standing[,]” as if she was “falling asleep[,]” and her eyes appeared “real
glassy[,]” indicating that she was under the influence of a controlled substance. (App. at
20.) Washington again repeated that his girlfriend was in the bathroom, and the police
officers believed that he was hiding her either because she was badly hurt or she was
flushing evidence of drug use down the toilet. Based on those suspicions, the officers
entered the apartment to prevent any destruction of evidence or harm to “Pretty” that
might occur before they could obtain a search warrant.
Once the officers were inside, “Pretty” stepped out of the bathroom and the
officers confirmed her identity as Shakila Jackson and that she was not hurt. The officers
performed a protective sweep after Washington gave them permission to walk through
the apartment to see if anyone else was inside.
Suspicious of illegal activity, officers telephoned the owner of the apartment,
Washington’s wife’s stepdaughter, for permission to search the apartment, which was
refused. They requested and, after several hours of waiting, obtained a search warrant.
Pursuant to that warrant, they seized “over 28 grams of cocaine base, heroin, fentanyl,
marijuana, and other drugs in addition to seven firearms, tasers, handcuffs, ammunition,
and five cellular phones.” (D.I. 40 at 6.)
3
Washington filed a motion to suppress that physical evidence, which the District
Court denied, concluding that “exigent circumstances created by [Washington] …
permitted [police officers] to enter the apartment prior to obtaining a warrant.” (D.I. 40
at 10.) Washington pleaded guilty to Possession with Intent to Distribute Heroin, N-
ethylpentaylone and Dibutylone (bk-DMBDB), in violation of 21 U.S.C. §§ 841(a)(1)
and 841(b)(1)(C), and Possession of a Firearm in Furtherance of a Drug Trafficking
Crime, in violation of 18 U.S.C. § 924(c)(1)(A), but his plea was conditioned on being
allowed to appeal the denial of his suppression motion. He timely appealed.
II. DISCUSSION2
Washington argues that the entry into and search of his apartment prior to the
application for a search warrant requires the suppression of the physical evidence later
seized pursuant to the warrant. Washington also argues that the District Court erred
when it failed to consider whether the officer’s continued presence in the apartment after
confirming Jackson’s safety was improper. 3 We first review the reasonableness of the
warrantless entry into the apartment.
The Fourth Amendment requires that “all searches and seizures must be
2
The District Court had jurisdiction under 18 U.S.C. § 3231. We exercise
appellate jurisdiction pursuant to 28 U.S.C. § 1291. We review the underlying factual
findings of a district court’s denial of a motion to suppress for clear error, and we
exercise plenary review over the district court’s application of the law to those facts.
United States v. Perez, 280 F.3d 318, 336 (3d Cir. 2002).
3
Washington did not challenge the validity of the warrant in the District Court,
nor has he done so before us, so that argument is forfeited. United States v. Pelullo, 399
F.3d 197, 222 (3d Cir. 2005).
4
reasonable.” Kentucky v. King, 563 U.S. 452, 459 (2011) (citing Payton v. New York,
445 U.S. 573, 584 (1980)). “Warrantless searches and seizures inside someone’s home
… are presumptively unreasonable unless the occupants consent or probable cause and
exigent circumstances exist to justify the intrusion.” United States v. Coles, 437 F.3d
361, 365-66 (3d Cir. 2006) (emphasis in original) (citing Steagald v. United States, 451
U.S. 204, 211 (1981)). We have held that “the smell of marijuana alone, if articulable
and particularized, may establish not merely reasonable suspicion, but probable cause,”
United States v. Ramos, 443 F.3d 304, 308 (3d Cir. 2006), and exigent circumstances
include, among other things, “the possibility that evidence may be removed or destroyed,
and danger to the lives of officers or others,” Coles, 437 F.3d at 366.
The District Court correctly concluded that the initial warrantless search was
reasonable, and Washington’s Fourth Amendment rights were not violated, because
probable cause and exigent circumstances justified the police officer’s limited entry into
the apartment. It found credible the testifying officer’s statements that the marijuana
odor was emanating from Washington’s apartment, that Washington appeared evasive
and not forthcoming regarding the number of occupants in the apartment, that
Washington attempted to cover up the odor of marijuana by smoking a cigarette, and that
Fox appeared to be under the influence of a controlled substance.4
The District Court also justifiably concluded that it was reasonable for the police
to step inside the apartment without a warrant because they believed that Washington
4
The District Court opinion refers to Matters as the one under the influence of a
controlled substance, but the testifying officer stated that it was Fox.
5
“was hiding [Jackson] because she was badly hurt ... or they were getting rid of evidence
in the bathroom [by] flushing it down the toilet,” (App. at 21.), and both possibilities
created exigent circumstances under Coles, 437 F.3d at 365-66. None of those factual
findings constitutes clear error, and the District Court correctly applied the law to the
facts.
We turn next to whether the District Court committed an error by failing to
consider whether the officers’ continued presence in the apartment was unlawful after
they had confirmed Jackson’s safety. Washington contends that the District Court erred
when it “ended its analysis of [his] motion to suppress at the entry of the apartment …
[because] the continued intrusion in the apartment after police made contact with
Ms. Jackson was improper and was done to purely investigate an odor of marijuana
without a warrant.” (Opening Br. at 13.) But the same exigency concerning the
destruction of evidence that helped support the warrantless entry into the apartment also
justified the officers remaining in the apartment until they had a reasonable opportunity
to obtain a search warrant. It would be illogical to allow law enforcement to enter a
residence without a warrant to prevent the destruction of evidence only to require them to
leave before a search warrant issued, effectively presenting suspects a second opportunity
to destroy evidence of wrongdoing. Cf. Illinois v. McArthur, 531 U.S. 326, 331-34
(2001) (“[N]o case [has been found] in which th[e] [Supreme] Court has held unlawful a
temporary seizure that was supported by probable cause and was designed to prevent the
loss of evidence while police diligently obtained a warrant in a reasonable period of
time.”). Additionally, Washington “granted permission [to one of the officers to walk
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through the apartment] as long as he could go with [the officer],” and he does not dispute
that permission. (App. at 22.) Finally, no evidence was obtained while the officers
remained in the apartment. All of it was seized after the officers obtained a search
warrant. The District Court therefore did not commit an error by failing to explicitly
consider whether the officer’s continued presence in the apartment was improper after
they had confirmed Jackson’s safety.
III. CONCLUSION
For the foregoing reasons, we will affirm.
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