United States v. Agnew ( 2004 )

Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
9-22-2004
USA v. Agnew
Precedential or Non-Precedential: Precedential
Docket No. 03-2654
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PRECEDENTIAL LORI J. ULRICH (ARGUED)
JAMES V. WADE
UNITED STATES COURT Federal Public Defender for the
OF APPEALS FOR Middle District of Pennsylvania
THE THIRD CIRCUIT DANIEL I. SIEGEL
Assistant Federal Public Defender
100 Chestnut Street, Suite 306
NO. 03-2654 Harrisburg, PA 17101
__________ Counsel for Appellant
UNITED STATES OF AMERICA THEODORE B. SMITH, III, (ARGUED)
JAMES T. CLANCY
v. Assistant U.S. Attorney
THOMAS A. MARINO
AARON AGNEW, United States Attorney
Appellant Federal Building
________________ 228 Walnut Street
P.O. Box 11754
Appeal from the United States Harrisburg, PA 17108-1754
District Court for the Counsel for Appellee
Middle District of Pennsylvania _________
District Judge:
Honorable William W. Caldwell OPINION OF THE COURT
(D.C. Criminal No. 02-cr-00055)
Argued May 27, 2004 SCHW ARZER, Senior District Judge.
BEFORE: RENDELL and COWEN, Aaron Agnew appeals his
Circuit Judges, and conviction for distributing crack cocaine
SCHWARZER,* District Judge. and being a felon in possession of a
firearm. He contends that the District
Court erred in denying his motion to
(Filed September 22, 2004) suppress physical evidence, and in
preventing him from impeaching a witness
with evidence of a sixteen-year-old forgery
conviction. The District Court had
jurisdiction pursuant to 18 U.S.C. § 3231and we exercise jurisdiction pursuant to
*
The Honorable William W Schwarzer, 28 U.S.C. § 1291. We will affirm.
Senior United States District Judge for the
Northern District of California, sitting by
designation.
FACTUAL AND PROCEDURAL and six other officers approached the front
HISTORY of the residence, and four or five officers
were posted around the perimeter and at
Agnew was charged in an the rear of the residence. Some of the
indictment with distribution of crack officers wore “raid gear,” including
cocaine in violation of 21 U.S.C. § bulletproof vests, and carried ballistics
841(a)(1), possession of a firearm by a shields. Duncan testified that when the
felon in violation of 18 U.S.C. §§ officers knocked on the front door of the
922(g)(1) and 924(a)(2), and possession of residence and announced, “Police, open
a firearm in furtherance of a drug the door,” he saw Agnew pull aside a
trafficking crime in violation of 18 U.S.C. curtain in a window of the home. He then
§ 924(c)(1)(A). heard “what sounded like scuffling inside,
running around.” Duncan testified that he
Before trial, Agnew moved to “felt that due to the knowledge that
suppress the fruits of the search in [Agnew] had a handgun that we were
connection with his arrest. At the compromised and we decided to take the
suppression hearing, Dauphin County door.” The officers then entered the
Sheriff’s Deputy Gary Duncan testified residence and apprehended Agnew as he
that he was assigned to the Fugitive Task ran up a flight of stairs. Once inside,
Force charged with “the service of all officers noticed in plain view a clear
violent felony warrants, drug warrants and plastic bag containing cocaine. They
any other cases referred to [it] from thereafter obtained a search warrant and
Dauphin County or the surrounding found a .22 caliber revolver and fifteen
communities.” Agnew’s case was referred grams of cocaine in the home.
to Duncan’s unit because Agnew had
twice previously evaded capture by The District Court denied Agnew’s
jumping from a second story window and suppression motion. It found that the
by holding onto the roof rack of a passing officers acted pursuant to an arrest
car for a block and a half. Duncan had wa rrant, a n d he ld that e xig e n t
learned from an informant that Agnew circumstances justified the entry into the
“was at the residence [at 2740 Ludwig home.
Street] and that he was to be in possession
of a firearm, a revolver, . . . and that he The day before trial, the
was also to be in possession of some government made a motion in limine to
narcotics.” Duncan checked with the Drug prevent Agnew from cross-examining a
Task Force and learned that it had no government witness, Wyatt Dawson, using
investigations pending against Agnew. a sixteen-year-old forgery conviction. The
court granted the motion at trial, stating, “I
Duncan and a group of other have read the motion and your brief. I am
officers went to 2740 Ludwig Street. He going to sustain the objection.” Dawson
2
subsequently testified that he had different ground).
purchased crack cocaine from Agnew on
numerous occasions and that he rented and We find that the entry into the
lived in the residence at 2740 Ludwig residence did not violate Agnew’s Fourth
Street. In addition to the testimony of an Amendment rights because the officers
officer who searched the residence, the were armed with a warrant for his arrest.
government also presented several Payton v. New York, 445 U.S. 573 (1980),
witnesses who testified to buying crack establishes that police may enter a
from Agnew. Agnew himself took the suspect’s residence to make an arrest
stand and testified that the firearm and armed only with an arrest warrant if they
drugs were owned by Dawson, who was in have probable cause to believe that the
fact the dealer who supplied Agnew with suspect is in the home. Id. at 602-03; see
drugs. also United States v. Clayton, 210 F.3d
841, 843 (8th Cir. 2000) (holding that a
The jury convicted Agnew of valid misdemeanor arrest warrant “carries
distributing crack cocaine and possessing with it the authority to enter the residence
a firearm, but acquitted him of possessing of the person named in the warrant in
a firearm in furtherance of drug order to execute the warrant so long as the
trafficking. Agnew timely appealed. police have a reasonable belief that the
suspect resides at the place to be entered
and that he is currently present in the
DISCUSSION dwelling”). The District Court found that
I. the officers entered the residence for the
purpose of executing an arrest warrant, and
Agnew first argues that the District this finding has not been challenged.
Court erred in finding that the officers’ Indeed, Duncan testified that he was
entry into 2740 Ludwig Street was assigned to the Fugitive Task Force
justified by exigent circumstances. We charged with serving arrest warrants, and
review the denial of a suppression motion Agnew testified that he was aware that
for clear error as to the underlying facts, there was “a warrant out for [his] arrest” at
but exercise plenary review as to its the time of the arrest. Moreover, the
legality in light of the court’s properly police had probable cause to believe that
found facts. United States v. Givan, Agnew was in the home because they saw
320 F.3d 452, 458 (3d Cir. 2003). We may him through the window.
affirm on any ground supported by the
record. United States v. Jasin, 280 F.3d We note that Payton only addresses
355, 362 (3d Cir.), cert. denied, 537 U.S. entry by officers into the residence of the
947 (2002); United States v. Belle, 593 subject of the warrant, 445 U.S. at 603,
F.2d 487, 499 (3d Cir. 1979) (en banc) and that there was no testimony at the
(affirming denial of suppression motion on suppression hearing about whether 2740
3
Ludwig Street was Agnew’s residence. As the Ninth Circuit observed:
However, whether the home was Agnew’s
residence is ultimately irrelevant because A person has no greater
under any of the possible alternatives the right of privacy in another’s
entry pursuant to the arrest warrant did not home than in his own. If an
violate Agnew’s Fourth Amendment arrest warrant and reason to
rights. believe the person named in
the warrant is present are
If Agnew resided at 2740 Ludwig sufficient to protect that
Street, his arrest was lawful under Payton person’s fourth amendment
because the police acted pursuant to an privacy rights in his own
arrest warrant. See id. at 602-03. If home, they necessarily
Agnew did not reside at 2740 Ludwig suffice to protect his privacy
Street, he may have lacked a privacy rights in the home of
interest in the residence and would have no another.
standing to challenge the police officers’
entry. Minnesota v. Olson, 495 U.S. 91, The right of a third party not
95-97 (1990) (holding that only a person named in the arrest warrant
with a reasonable expectation of privacy in to the privacy of his home
a residence—like an overnight guest—may may not be invaded without
complain that an entry into the residence a search warrant. But this
was unlawful). In any event, even if right is personal to the home
Agnew, although not a resident at 2740 owner and ca nnot be
Ludwig Street, did have a privacy interest, asserted vicariously by the
the entry did not violate his privacy rights. person named in the arrest
The Supreme Court held in United States warrant.
v. Steagald, 451 U.S. 204, 211-14 (1981),
that the Fourth Amendment does not United States v. Underwood, 717 F.2d
permit police to enter a third person’s 482, 484 (9th Cir. 1983) (en banc)
home to serve an arrest warrant on a (citations omitted); see also United States
suspect. But Steagald protected the v. Kaylor, 877 F.2d 658, 663 n.5 (8th Cir.
interests of the third-party owner of the 1989) (“Steagald addressed only the right
residence, not the suspect himself. See id. of a third party not named in the arrest
at 212 (stating the issue to be “whether an warrant to the privacy of his or her home.
arrest warrant—as opposed to a search This right is personal to the homeowner
warrant— is adequate to protect the Fourth and cannot be asserted vicariously by the
Amendment interests of persons not person named in the arrest warrant.”).
named in the warrant, when their homes Thus, even if Agnew was a non-resident
are searched without their consent and in with a privacy interest, the Fourth
the absence of exigent circumstances”). Amendment would not protect him from
4
arrest by police armed with an arrest Rule [of Evidence] 403 objection and its
warrant. reasons for doing so are not otherwise
apparent from the record, there is no way
Because the officers entered the to review its discretion. In such cases, we
residence armed with a warrant for need not defer to the reasoning of the
Agnew’s arrest, and had probable cause to district court.” Id. at 781 (citation
believe that he was inside, the District omitted). Agnew asks us to extend this
Court properly denied the motion to principle to decisions under Rule 609. The
suppress. District Court stated, “I have read the
[government’s] motion and your brief. I
II. am going to sustain the objection.” We
believe that this statement adequately
Agnew next contends that the reveals the Court’s reasons for sustaining
district court erred in preventing him from the objection: it agreed with the arguments
cross-examining Dawson using the contained in the government’s brief.2 In
witness’s sixteen-year-old forgery any case, we find that the Court’s decision
conviction. He argues that we should should be affirmed even under a plenary
review the district court’s decision de standard of review.
novo, and that the evidence should have
been admitted because it would have B.
helped resolve a dispute between two
witnesses—Dawson and Agnew— about Federal Rule of Evidence 609(a)
who owned the gun found in Agnew’s permits parties to use evidence of a past
room. conviction to impeach witnesses “if it
involved dishonesty or false statement.”
A. Forgery, of course, involves dishonesty
and false statement. Wagner v. Firestone
Agnew concedes that we usually Tire & Rubber Co., 890 F.2d 652, 655 n.3
review decisions to exclude evidence for (3d Cir. 1989). But Rule 609(b) states that
abuse of discretion. See United States v.
Saada, 212 F.3d 210, 220 (3d Cir. 2000). Evidence of a conviction
He contends that we should employ under this rule is not
plenary review here, however, because the
record does not reflect that the district
court actually exercised its discretion. 2
The government’s argument was that
Agnew had numerous other avenues for
In United States v. Himelwright, 42
cross-examination, including a more recent
F.3d 777 (3d Cir. 1994), we stated that
conviction for passing a bad check, and
“[w]here . . . the district court fails to
that the probative value of the forgery
explain its grounds for denying a [Federal]
conviction was small.
5
admissible if a period of forgery conviction.
more than ten years has
elapsed since the date of the
conviction . . . unless the CONCLUSION
court determines, in the
interests of justice, that the For the reasons stated, we will
probative value of the AFFIRM the conviction.
conviction supported by
spec ific facts and
circumstances substantially
outweighs its prejudicial
effect.
Here, Dawson’s conviction was more than
ten years old.
We find that the probative value of
the evidence of Dawson’s forgery
conviction was sufficiently small that the
“interests of justice” did not warrant its
admission, and that any error in refusing to
admit the evidence was harmless. See
United States v. Colletti, 984 F.2d 1339,
1343 (3d Cir. 1992) (employing harmless-
error analysis in the Rule 609(b) context).
Two witnesses other than Dawson testified
that Agnew sold crack numerous times,
and Agnew admitted as much shortly after
the crime. The police found cocaine in
Agnew’s shoes. Likewise, Agnew
admitted that he knew that the gun had
“come from” two individuals named
“Nature” and “Light,” and a police officer
testified that drug dealers commonly keep
guns at their disposal. Indeed, the jury had
already learned that Dawson used crack
cocaine. It would not have resolved the
question of ownership of the gun and
drugs in favor of Agnew simply because it
also learned that Dawson had an old
6