United States v. Raheem Carney ( 2018 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
________________
No. 17-2009
________________
UNITED STATES OF AMERICA
v.
RAHEEM HASAN CARNEY,
Appellant
________________
Appeal from the United States District Court
for the Western District of Pennsylvania
(W.D. Pa. No. 1-15-cr-00019-001)
District Judge: Honorable David S. Cercone
________________
Submitted Under Third Circuit LAR 34.1(a)
March 6, 2018
Before: MCKEE, AMBRO, and RESTREPO, Circuit Judges
(Opinion filed: March 30, 2018)
________________
OPINION*
________________
AMBRO, Circuit Judge
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
Raheem Hasan Carney conditionally pled guilty to possession of a firearm by a
convicted felon under 18 U.S.C. §§ 922(g) and 924(e) and possession with intent to
distribute less than 100 grams of heroin under 21 U.S.C. § 841(a)(1) and (b)(1)(c). He
appeals the District Court’s denial of his motion to suppress on the basis that a warrant
issued to search his residence was not supported by probable cause.
The District Court had jurisdiction under 18 U.S.C. § 3231, and we have appellate
jurisdiction under 28 U.S.C. § 1291. We review the District Court’s denial of a motion to
suppress anew as to questions of law and for clear error as to the underlying facts. United
States v. Ritter, 416 F.3d 256, 261 (3d Cir. 2005). We review the Magistrate Judge’s
issuance of the search warrant to determine whether there was “a ‘substantial basis’ for
concluding that probable cause was present.” Id. at 262 (quoting Illinois v. Gates, 462
U.S. 213, 236 (1983)). While we exercise plenary review of the District Court’s
consideration of that question, id. at 261, we pay “great deference” to the Magistrate’s
original determination, id. at 264 (quoting Gates, 462 U.S. at 236).
A magistrate issuing a search warrant must make a “practical, common-sense
decision whether, given all the circumstances set forth in the affidavit before him, . . .
there is a fair probability that contraband or evidence of a crime will be found in a
particular place,” and thus there is probable cause to search it. Gates, 462 U.S. at 238.
Contrary to Carney’s argument, the facts provided in the affidavit in this case were
sufficient for probable cause.
The affidavit described that a confidential informant (“CI”) told police she had
illegally purchased cocaine at Carney’s residence on several recent occasions and had
2
seen firearms there. The affiant, Pennsylvania State Trooper Troy Owen, stated he had
arrested Carney at least twice in years past for drug-related offenses and knew he was a
convicted felon not permitted to possess a firearm. According to the affidavit, within two
days prior to the search warrant request, the CI performed a controlled drug buy at
Carney’s residence under careful surveillance of Pennsylvania State Troopers, who
searched her and her vehicle both before and after she entered Carney’s residence. The
CI entered the residence with money provided by the Troopers and left with a baggie of
cocaine. This information provided the Magistrate a substantial basis to grant the warrant
to search Carney’s residence.
Carney also argues that the Magistrate was misled by certain omissions from the
affidavit in violation of Franks v. Delaware, 438 U.S. 154 (1978). He asserts the
Magistrate should have been informed of the CI’s previous conviction for theft by
deception, that she had violated parole by purchasing drugs, and that she may have held
hard feelings toward Carney because of a prior physical altercation with him. These facts
might have undermined the CI’s credibility in the eyes of the Magistrate—though the
affidavit acknowledged that the CI had purchased cocaine recently, and “magistrate
judges . . . often know, even without an explicit discussion of criminal history, that many
confidential informants ‘suffer from generally unsavory character’ . . . .” United States v.
Avery, 295 F.3d 1158, 1168 (10th Cir. 2002) (quoting United States v. Novaton, 271 F.3d
968, 985 (11th Cir. 2001)).
However, the CI’s claims regarding Carney’s drug dealing were also corroborated
by the controlled buy at Carney’s residence. The CI’s credibility thus reasonably could
3
be considered either proven or irrelevant by a magistrate. In short, even if the affidavit
had contained the additional facts Carney argues were impermissibly excluded, the
probable cause analysis would be no different. See Franks, 438 U.S. at 156 (holding “the
search warrant must be voided” only if the affidavit, as amended, “is insufficient to
establish probable cause”); see also United States v. Frost, 999 F.2d 737, 743 (3d Cir.
1993) (“[W]here an omission, rather than a misrepresentation, is the basis for the
challenge to the affidavit, a court should ask whether the affidavit would have provided
probable cause if it had contained a disclosure of the omitted information.”).
We therefore affirm.
4