United States v. Corey Felder , 457 F. App'x 316 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4183
UNITED STATES OF AMERICA,
Plaintiff − Appellee,
v.
COREY CHRISTOPHER FELDER,
Defendant − Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Catherine C. Blake, District Judge.
(1:09−cr−00306−CCB−1)
Argued: September 23, 2011 Decided: December 13, 2011
Before MOTZ, KEENAN, and DIAZ, Circuit Judges.
Affirmed by unpublished opinion. Judge Diaz wrote the opinion,
in which Judge Motz and Judge Keenan joined.
ARGUED: Lisa Jo Sansone, Baltimore, Maryland, for Appellant.
Peter Marshall Nothstein, OFFICE OF THE UNITED STATES ATTORNEY,
Baltimore, Maryland, for Appellee. ON BRIEF: Warren A. Brown,
LAW OFFICE OF WARREN A. BROWN, Baltimore, Maryland, for
Appellant. Rod J. Rosenstein, United States Attorney,
Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
DIAZ, Circuit Judge:
Corey Christopher Felder pleaded guilty to one count of
possession with intent to distribute cocaine, in violation of 21
U.S.C. § 841(a), and one count of possession of a firearm in
furtherance of a drug trafficking offense, in violation of 21
U.S.C. § 924(c). Felder reserved the right to appeal the denial
of a pretrial motion to suppress. On appeal, Felder contends
the district court erred by failing to suppress evidence
obtained from a series of searches conducted at two apartments
he occupied. We find the searches were lawful and therefore
affirm.
I.
A.
Early in the morning on July 10, 2008, officers from the
Maryland Division of Parole and Probation went to Apartment 707
at 601 North Eutaw Place, Baltimore, Maryland (“601 N. Eutaw”)
to execute a parole retake warrant for Felder’s brother, Martin
Felder. Martin Felder had reported to his parole officer that
601 N. Eutaw was his place of residence. Officers entered the
apartment at approximately 7:00 a.m. to execute the arrest
warrant but found no one inside. While searching the apartment
for Martin Felder, officers observed two boxes of .50 caliber
ammunition in plain view.
2
A maintenance worker at the apartment building confirmed
that Martin Felder lived at 601 N. Eutaw and described his two
vehicles to officers. Officers observed that neither vehicle
was present that morning. A second employee told officers that
Corey Felder was the sole lessee of 601 N. Eutaw and that Corey
and Martin Felder were in the process of moving out.
Officers relayed their findings to Detective Sergeant Allen
Meyer of the Baltimore County Police Department who, in turn,
applied for and obtained a search warrant for 601 N. Eutaw. The
application for the warrant averred that there was probable
cause to believe that Martin Felder, who was a convicted felon,
possessed ammunition in violation of state and federal law.
Although the application and affidavit correctly identified the
place to be searched and items to be seized, the search warrant
itself contained several errors. First, the warrant incorrectly
listed the place to be searched as “8601 N. Eutaw.” Next, in
reciting the basis for probable cause, the warrant misstated the
caliber of the ammunition identified by officers—referring to it
as .25 caliber rather than .50 caliber. The probable cause
section of the warrant also referred to an individual with no
connection to the instant case, Jamie Lee Overton, as the
subject of the search. Finally, the list of items subject to
seizure referred to a second individual, David Paul Frederick,
who also had no involvement in the case. Despite the errors,
3
the warrant correctly identified the apartment number and stated
that it was occupied by Martin Felder.
Early in the evening on July 10, Meyer and other officers
executed the search warrant at 601 N. Eutaw. They discovered
several boxes of ammunition, a bag containing six smaller
baggies of marijuana, a bag containing cocaine, an
identification card for Martin Felder, a work identification
card for Corey Felder covered in suspected cocaine residue, and
mail addressed to both Felders. Officers also discovered a
rental truck receipt that indicated Corey Felder had moved to a
different apartment building in Baltimore located at 511 West
Pratt Street.
Following the search, Meyer went to 511 West Pratt Street
to investigate. There he learned that Corey Felder had recently
rented and moved in to 511 West Pratt Street, Apartment 1607
(“511 W. Pratt”). Detective Ryan Guinn and other officers went
to the apartment door and knocked several times with no answer.
Guinn smelled what he believed to be the strong odor of
marijuana, and he and the other officers thought they heard
movement from within the apartment. Officers obtained a key
from building management and entered 511 W. Pratt. They
discovered no one inside but did see in plain view a plastic bag
containing marijuana and two handguns. Officers then secured
the apartment while Guinn left to obtain a search warrant.
4
In his affidavit seeking the search warrant, Guinn first
summarized the evidence discovered by officers during the
earlier search at 601 N. Eutaw, including the ammunition, bags
of marijuana, cocaine residue on Corey Felder’s identification
card, and truck rental receipt that led officers to 511 W.
Pratt. Next, Guinn described the officers’ observations when
they arrived at 511 W. Pratt, including that they smelled
marijuana and heard movement as they stood outside the
apartment. Finally, Guinn stated that officers saw marijuana
and handguns in plain view after entering the apartment. The
judge’s signature indicated the warrant for 511 W. Pratt issued
at 7:31 p.m.
With the search warrant for 511 W. Pratt in hand, officers
seized the firearms and marijuana discovered in plain view.
Additionally, officers found a carry bag containing
approximately 325 grams of heroin and digital scales, a safe
containing approximately $71,000 in cash, and a box of 9 mm
ammunition. The return for the warrant noted that the search of
511 W. Pratt took place at 7:10 p.m.
While officers were executing the search warrant, Corey
Felder arrived at 511 W. Pratt. Officers immediately placed
Felder under arrest and advised him of his Miranda 1 rights.
1
Miranda v. Arizona, 384 U.S. 436 (1966).
5
Felder stated that he understood his rights and proceeded to
answer questions without requesting an attorney. Felder
confirmed that he had leased the apartment at 511 W. Pratt. He
also told officers that he had not been selling drugs long and
that he was not afraid of retaliation for losing the drugs
because they “were paid for.” J.A. 97.
B.
Felder was charged in a superseding indictment with the
following four counts: Count One, possession with intent to
distribute cocaine or cocaine base, in violation of 21 U.S.C.
§ 841(a)(1); Count Two, conspiracy to possess with intent to
distribute heroin, cocaine, or cocaine base, in violation of 21
U.S.C. § 846; Count Three, possession with intent to distribute
heroin, in violation of 21 U.S.C. § 841(a)(1); and Count Four,
possession of a firearm in furtherance of a drug trafficking
crime, in violation of 21 U.S.C. § 924(c). 2
Prior to trial, Felder moved to suppress all unlawfully
seized evidence and all involuntary statements or admissions.
At the suppression hearing, Felder challenged the searches at
both apartments. Felder argued that the search warrant for 601
2
Several of Felder’s charges stemmed from evidence obtained
from a confidential informant who purchased cocaine from Felder.
We do not recite those facts here, however, because Felder has
not challenged his conviction on those counts.
6
N. Eutaw contained numerous errors and was therefore invalid,
and that there were no exigent circumstances justifying the
warrantless entry of 511 W. Pratt, which in turn tainted the
second search warrant. 3
The district court concluded that the searches were lawful.
The court found that the errors in the search warrant for 601 N.
Eutaw resulted from “careless[ness] with [a] word processor” but
nevertheless held that the search was “valid” because the
application for the search contained “the specific accurate
information on which the search was based.” J.A. 47. With
respect to the search of 511 W. Pratt, the court did not reach
the issue of exigent circumstances but instead ignored
references to what officers saw when they first entered the
apartment. The court concluded that even without that
information there was sufficient evidence to support a finding
of probable cause. Accordingly, the court denied Felder’s
motion.
Felder entered a conditional plea of guilty to Counts One
and Four of the superseding indictment, reserving his right to
appeal the denial of his motion to suppress. The district court
3
Felder also noted an objection to admission of the
statements he made to officers following his arrest. The
district court reserved ruling on the issue but later dismissed
the claim in a brief order.
7
sentenced Felder to 120 months on Count One and 60 months on
Count Four to run consecutively. Felder timely appealed.
II.
On appeal, Felder contends that (1) the initial entry of
601 N. Eutaw was unlawful because officers lacked a reasonable
belief Martin Felder was there; (2) the search warrant for 601
N. Eutaw contained numerous errors and was therefore invalid;
(3) the search of 511 W. Pratt was unlawful because there were
no exigent circumstances justifying the initial entry and the
subsequently obtained search warrant was invalid; and (4)
Felder’s statements to officers were the product of an unlawful
arrest and were therefore involuntary. We consider each of
Felder’s claims in turn, reviewing the district court’s factual
findings for clear error and legal conclusions de novo. United
States v. Blauvelt, 638 F.3d 281, 287 (4th Cir. 2011) (citing
United States v. Blake, 571 F.3d 331, 338 (4th Cir. 2009)).
A.
Felder contends that the officers’ entry into 601 N. Eutaw
to execute the arrest warrant for Martin Felder was unlawful and
that it tainted the subsequent searches. According to Felder,
officers did not have reason to believe Martin Felder was at the
8
apartment the morning of July 10, 2008. We disagree and
conclude the officers’ entry was lawful.
Officers may enter a home “without a search warrant in
order to execute an arrest warrant only if ‘there is reason to
believe [that the subject of the warrant] is within.’ ” United
States v. Hill, 649 F.3d 258, 262 (4th Cir. 2011) (quoting
Payton v. New York, 445 U.S. 573, 602 (1980)). If officers
possess the requisite reasonable belief to enter a residence,
they may search any place within that residence where the
suspect might be found. United States v. Green, 599 F.3d 360,
375–76 (4th Cir. 2010) (citing Maryland v. Buie, 494 U.S. 325,
332-33 (1990)). To determine whether officers may lawfully
enter a residence to execute an arrest warrant, we apply a two-
part test that evaluates “(1) whether there is reason to believe
that the location is the defendant’s residence, and (2) whether
or not there was a reasonable belief that he would be home.”
Hill, 649 F.3d at 262 (citations omitted).
We consider first whether officers had reason to believe
that Martin Felder was a resident of 601 N. Eutaw. Officers
initially went to 601 N. Eutaw because Martin Felder reported it
as his place of residence to parole officials. Parolees are
obligated to provide parole officers accurate, up-to-date
information regarding their place of residence. Accordingly, we
find that officers had reason to believe that 601 N. Eutaw was
9
Martin Felder’s residence. See United States v. Thomas, 429
F.3d 282, 286 (D.C. Cir. 2005) (concluding officers’ belief as
to residency was reasonable because “[as] a condition of his
parole, [the defendant] was required to keep his current address
on file with his parole supervision officer”); United States v.
Lovelock, 170 F.3d 339, 344 (2d Cir. 1999) (emphasizing “that
probationers are required to report to their probation officers
any change of residence” as a key factor supporting officers’
reasonable belief).
We next consider whether officers had reason to believe
Martin Felder was home on the morning of July 10 when they
arrived at 601 N. Eutaw to execute the arrest warrant. The
government relies on the early hour to support the officers’
reasonable belief. Felder counters that the officers could not
reasonably believe his brother was home that morning because
information obtained from apartment workers suggested otherwise.
Courts routinely rely on the time of day as a key factor in
determining whether officers could reasonably believe the
subject of an arrest warrant was home. E.g., United States v.
Edmonds, 52 F.3d 1236, 1248 (3d Cir. 1995), vacated on other
grounds, 80 F.3d 810 (3d Cir. 1996) (reasoning that 6:45 a.m.
was “early enough that it was unlikely someone living in the
apartment would have already departed for the day”). The
Eleventh Circuit has noted that “officers may presume that a
10
person is home at certain times of the day—a presumption which
can be rebutted by contrary evidence regarding the suspect’s
known schedule.” United States v. Magluta, 44 F.3d 1530, 1535
(11th Cir. 1995); see also United States v. Bervaldi, 226 F.3d
1256, 1267 (11th Cir. 2000) (“It was reasonable to believe, in
the absence of contrary evidence, that [the suspect] would be at
his residence at 6:00 in the morning.”). Similarly, the D.C.
Circuit has concluded, without citing any other factors, that
“the early morning hour was reason enough” for officers to
believe a defendant was home when they attempted to execute an
arrest warrant between 6:00 and 6:30 a.m. Thomas, 429 F.3d at
284, 286.
Based on these authorities, we find that it was reasonable
for officers to believe, absent contrary evidence, that Martin
Felder was home at 7:00 a.m. on the morning of July 10. Felder
contends, however, that the officers had such contrary evidence
because they knew that the apartment was not leased to Martin
Felder, that Martin Felder’s cars were not in the parking lot,
and that workers at the apartment building told the officers
that Martin Felder had moved out. The government responds that
the warrant and affidavit show that the officers learned these
facts from the apartment workers after the initial entry.
11
Because Felder did not request a Franks 4 hearing to challenge the
officers’ statements in the warrant affidavit, the district
court accepted them as true.
Although the affidavit does not explicitly delineate the
chronology, the description of the officers’ initial entry
appears prior to the summary of their discussions with the
apartment workers. Accordingly, the logical inference is that
the officers learned that Martin Felder’s cars were not at the
apartment complex and that he had recently moved out, after
their initial entry into the apartment. See United States v.
Branch, 537 F.3d 328, 337 (4th Cir. 2008) (explaining that where
the district court denies a defendant’s motion to suppress, we
construe the evidence in the light most favorable to the
government) (citing United States v. Uzenski, 434 F.3d 690, 704
(4th Cir. 2006)).
We therefore hold that officers had reason to believe both
that Martin Felder lived at 601 N. Eutaw and that he was home at
7:00 a.m. on July 10. Accordingly, the officers’ initial entry
into the apartment at 601 N. Eutaw was lawful and did not taint
the subsequent searches.
4
Franks v. Delaware, 438 U.S. 154 (1978).
12
B.
In the alternative, Felder argues that even if the initial
entry into 601 N. Eutaw was lawful, the search warrant contained
so many errors that it was invalid and could not be relied on by
a reasonable officer. Felder notes that the warrant incorrectly
identified the caliber of the ammunition observed by the
officers in plain view, misstated the address of the apartment,
and referred to two individuals with no connection to the
instant case. The district court determined that these errors
were the result of drafters who were “careless with their word
processor” but nevertheless concluded that the search warrant
was valid. J.A. 47. We agree.
The Warrant Clause of the Fourth Amendment requires any
warrant to “particularly describe[] the place to be searched,
and the persons or things to be seized.” U.S. Const. amend. IV.
A search warrant satisfies the particularity requirement if the
description enables an officer to ascertain and identify the
place to be searched with reasonable effort. United States v.
Owens, 848 F.2d 462, 463 (4th Cir. 1988). Accordingly, “[a]n
erroneous description . . . does not necessarily invalidate a
warrant and subsequent search.” Id. Furthermore, we have held
that “[a]s a general rule, a supporting affidavit or document
may be read together with (and considered part of) a warrant
that otherwise lacks sufficient particularity ‘if the warrant
13
uses appropriate words of incorporation, and if the supporting
document accompanies the warrant.’ ” United States v. Hurwitz,
459 F.3d 463, 470–71 (4th Cir. 2006) (quoting Groh v. Ramirez,
540 U.S. 551, 557–58 (2004)).
Here, despite the typographical errors, the warrant for 601
N. Eutaw correctly described Apartment 707 as the place to be
searched and identified Martin Felder as a resident. The
warrant also expressly incorporated and attached the affidavit
filed in support of the search warrant. And unlike the warrant,
the affidavit correctly stated the address of 601 N. Eutaw.
Thus, although the warrant was not prepared with care, it, along
with the incorporated affidavit, was sufficient to enable
officers to identify the place subject to search and items
subject to seizure. Accordingly, the warrant satisfied the
Fourth Amendment and was valid.
C.
With respect to the search of 511 W. Pratt, Felder contends
that the officers’ initial entry was not justified by exigent
circumstances and that the unlawful entry tainted the
subsequently obtained warrant. We need not reach the issue of
exigent circumstances, however, because the warrant was
supported by probable cause even without the evidence obtained
as a result of the officers’ initial entry.
14
The determination by a judicial officer to issue a warrant
on probable cause involves “a practical commonsense decision
whether, given all the circumstances[,] . . . there is a fair
probability that contraband or evidence of a crime will be found
in a particular place.” Illinois v. Gates, 462 U.S. 213, 238
(1983). When a warrant is supported in part by evidence
obtained in an unlawful search, we routinely exclude that
evidence and consider whether probable cause exists based on the
remaining facts. E.g., United States v. Allen, 631 F.3d 164,
173 (4th Cir. 2011). Under this approach, a warrant is valid if
after excising the unlawfully obtained evidence, there is
“sufficient untainted evidence . . . to establish probable
cause.” Id. (quoting United States v. Karo, 468 U.S. 705, 719
(1984)); United States v. Moses, 540 F.3d 263, 271 (4th Cir.
2008).
Probable cause for the 511 W. Pratt search warrant was
based both on the prior search at 601 N. Eutaw and evidence from
the initial entry at 511 W. Pratt. The first two paragraphs of
the affidavit recounted the evidence recovered from the search
at 601 N. Eutaw, including the ammunition, drugs, identification
cards, and truck rental receipt that led officers to 511 W.
Pratt. The third paragraph highlighted the circumstances that
led to the officers’ initial entry at 511 W. Pratt, including
the smell of marijuana and sound of movement from within the
15
apartment. Finally, the third paragraph described the marijuana
and handguns that officers observed in plain view after entering
the apartment.
Like the district court, we need not consider whether
exigent circumstances justified the officers’ initial
warrantless entry into 511 W. Pratt. Even after excising the
third paragraph describing the results of the initial entry, the
affidavit for 511 W. Pratt contained sufficient evidence to
establish probable cause. The affidavit averred that officers
seized evidence of drugs and weapons from 601 N. Eutaw,
collected evidence tying Felder to the contraband, suspected
Felder had moved to 511 W. Pratt based on the truck rental
receipt, and confirmed with building management that he had
recently rented the apartment. Based on this information alone,
there was probable cause to believe officers would locate
evidence of criminal activity at 511 W. Pratt. Cf. United
States v. Grossman, 400 F.3d 212, 218 (4th Cir. 2005) (“[I]t is
reasonable to suspect that a drug dealer stores drugs in a home
to which he owns a key.”).
Felder nevertheless contends for the first time on appeal
that no reasonable officer could have believed the warrant for
511 W. Pratt was valid because it was signed following execution
of the search. Felder points out that the note in the judge’s
signature block for the 511 W. Pratt search warrant indicated it
16
was signed at 7:31 p.m., while the return stated that the search
occurred at 7:10 p.m. According to Felder, this discrepancy
proves officers executed an unsigned warrant. We disagree.
Because Felder did not raise this issue in the district
court, we review for plain error, which requires Felder to
demonstrate an error that is plain and affects substantial
rights. United States v. Claridy, 601 F.3d 276, 285 (4th Cir.
2010). The discrepancy in the time notations could very well
have been clerical in nature. In any event, because Felder did
not alert the district court to the issue, it did not receive
testimony or make any specific findings. There is no question,
however, that a judge ultimately signed the warrant and that it
was supported by probable cause. Accordingly, we find no plain
error and hold that the warrant was valid.
D.
Finally, Felder contends that the statements he made to
officers following his arrest were tainted by the illegal search
and must be suppressed. Felder concedes that officers
administered Miranda warnings and that his statements were not
otherwise involuntary. Because we conclude that the searches
were lawful, we reject Felder’s argument and hold that his
statements were voluntary.
17
III.
For the foregoing reasons, we affirm the judgment of the
district court.
AFFIRMED
18