United States v. Hawks ( 1996 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 94-5901
ANTHONY D. HAWKS,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Frederic N. Smalkin, District Judge.
(CR-94-206-S)
Argued: July 14, 1995
Decided: January 17, 1996
Before NIEMEYER, HAMILTON and MICHAEL, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished opinion. Judge Niemeyer wrote the opinion
of the court except on part IV, in which Judge Hamilton and Judge
Michael join. Judge Michael wrote the opinion of the court on part
IV, in which Judge Hamilton joins and from which Judge Niemeyer
dissents.
_________________________________________________________________
COUNSEL
ARGUED: Robert Charles Bonsib, MARCUS & BONSIB, Green-
belt, Maryland, for Appellant. Jamie M. Bennett, Assistant United
States Attorney, Baltimore, Maryland, for Appellee. ON BRIEF:
Lynne A. Battaglia, United States Attorney, Baltimore, Maryland, for
Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
NIEMEYER, Circuit Judge, writing the opinion of the court except
on part IV; part IV is a dissenting opinion:
Anthony Hawks was convicted of violating drug and firearms laws
based on evidence obtained during police surveillance and seized dur-
ing searches of his residence and his automobile. He was sentenced
as an armed career offender to 322 months imprisonment. On appeal,
Hawks contends that (1) the warrant to search his residence in Janu-
ary 1994 was not supported by probable cause; (2) the warrantless
search on the same day of his Nissan Pathfinder was illegal; (3) his
consent to search his residence a second time in May 1994 was
obtained through improperly coercive tactics; and (4) his sentence
was calculated improperly because he is not an armed career offender.
Finding his arguments unpersuasive, we affirm.
I
In December 1993, the Baltimore City Police began to investigate
Hawks' activities after receiving information from a confidential
informant. The informant told the police that Hawks was delivering
drugs to street dealers at the corner of Abington and West Baltimore
Streets between 9:30 and 10:00 every morning and that Hawks stored
drugs in his residence at 2712 West Baltimore Street. The police
knew the area surrounding Abington and West Baltimore to be an
"open air drug market where cocaine and heroin[could] be purchased
seven days a week." The police also knew that Hawks had previously
been convicted for handgun and drug violations.
Based on this information, the police maintained surveillance of
Hawks' residence, beginning in late December 1993. On two occa-
sions, they observed Hawks leave 2712 West Baltimore Street early
in the morning and drive his black Nissan Pathfinder to the corner of
Abington and West Baltimore Streets, as the informant had described.
2
Each time, the officers observed Hawks remove a brown paper bag
from his car and hand it to an unidentified person whom the officers
identified as "Johnny." While the officers never saw the contents of
the brown paper bag, they observed "Johnny" retreat into a nearby
alley and reappear several times to conduct transactions which the
police believed to be drug transactions. The officers also recovered
drugs from the alley to which this unidentified person returned after
each sale.
Based on the results of this surveillance, the police obtained a war-
rant in January 1994 to search Hawks' residence. Before executing
the warrant, the officers waited outside Hawks' residence to see if he
would make his daily journey so that they could make a "felony stop."
At about 9:30 a.m., Hawks stepped outside of his house but quickly
retreated when he noticed the officers. At that point, the officers exe-
cuted the warrant, entering Hawks' house by force. Once inside, the
officers found Hawks flushing baggies of crack down the toilet, but
they were able to recover four baggies of crack. The officers placed
Hawks under arrest and searched the house. They seized drug para-
phernalia, over $15,000 in cash, and two loaded guns. The officers
also seized the Nissan Pathfinder and two other automobiles owned
by Hawks and his wife, pursuant to Baltimore Police Department reg-
ulations governing forfeiture of property suspected in connection with
a drug felony. Before towing the vehicles, the officers conducted an
inventory of the vehicles' contents and found four baggies of crack
in the Nissan Pathfinder.
After his arrest and release by state authorities, Hawks was indicted
by a federal grand jury on drug charges on May 27, 1994, and a bench
warrant was issued for his arrest. The following day, Hawks was
arrested outside of his home. While he was being transported in a
police vehicle, ATF Special Agent James Tanda radioed and asked
that Hawks be returned to his house so that his consent could be
obtained to search his residence. At that time, the police did not have
probable cause to obtain a search warrant.
Once back at 2712 West Baltimore Street, Agent Tanda again read
Hawks his Miranda warnings and then asked him to sign a consent-
to-search form. There is conflicting testimony over what happened
next. According to Hawks' testimony, Hawks initially refused to give
3
his consent to search his home, but instead requested permission to
go inside his house, unaccompanied, to see his young child who was
asleep. The child, four years old, supposedly had been in the house
alone for several hours. According to Hawks, Agent Tanda refused to
let Hawks see his son unless Hawks signed the consent-to-search
form. Hawks also testified that his twenty-year-old niece was avail-
able to check on the child, but that the police would not let anyone
into the house unless Hawks signed. Hawks ultimately agreed to sign
the consent form because he was concerned about his son. Hawks also
consented to a search of his Nissan Pathfinder and one other automo-
bile.
As a result of this search of Hawks' residence and automobiles, the
officers recovered over $17,000 in cash, a gun cleaning kit, ammuni-
tion of various calibers, and a scale with white powder residue. After
the search was completed, Hawks was taken to the ATF office where
once again he was read his Miranda rights. He signed a written
waiver of his rights and then made various self-incriminating state-
ments to Agent Tanda which were used at his trial.
Prior to trial, the district court held a suppression hearing on
Hawks' motion to suppress the fruits of (1) the January 1994 search
of his house; (2) the search of his Nissan on the same day; and (3)
the May 1994 search of his residence and two cars. After the district
court denied the motions, Hawks was convicted by a jury. The court
sentenced Hawks to a total term of imprisonment of 322 months,
which included a mandatory enhancement under the Armed Career
Criminal Act, 18 U.S.C. § 924(e).
II
Hawks first challenges the sufficiency of the affidavit offered by
the police to support their application for a warrant to search Hawks'
residence in January 1994. He asserts that the affidavit did not dem-
onstrate probable cause to search the house.
Based on our review of the application for the warrant, we con-
clude that the magistrate judge was provided with probable cause to
believe that contraband or evidence of criminal activity would be
found in Hawks' residence.
4
First, the tip of the confidential informant, who told the police of
Hawks' daily excursions to the open air drug market, was corrobo-
rated by the surveillance team, which observed Hawks on two early
morning trips, behaving exactly as the informant predicted. See
United States v. Miller, 925 F.2d 695, 698 (4th Cir.) (holding that reli-
ability of informant may be established through corroborating infor-
mation), cert. denied, 502 U.S. 833 (1991). Second, the affidavit
included information, supplied by the informant, specifically linking
the location to be searched to the possibility of finding contraband,
i.e. the affidavit reports that the informant told police that Hawks
stored drugs in his house. See United States v. Lalor, 996 F.2d 1578,
1583 (4th Cir.), cert. denied, 114 S. Ct. 485 (1993) (finding that affi-
davit failed the "nexus" requirement).
Finally, we reject appellant's contention that the affidavit was
insufficient because the surveillance team could only observe transac-
tions involving brown paper bags, but could not know for sure
whether any of the bags actually contained drugs. The police knew
that area surrounding Abington and West Baltimore Streets was "an
open air drug market." On two mornings at around the same hour, the
police observed Hawks drive up to that intersection in his black Nis-
san Pathfinder, exit his vehicle, wait for a man identified as "Johnny"
to approach him, remove a brown paper bag from his vehicle, hand
that bag to "Johnny," and then drive off. The police then observed
"Johnny" walk into a nearby alley and return to the corner a few min-
utes later. During the next hour, the police saw"Johnny" repeatedly
receive currency from various passersby while another unidentified
man would hand the buyer a small object. These circumstances pro-
vide ample evidence for the police, drawing upon their experience
and common sense, to surmise that they were observing drug transac-
tions even if they could not get close enough to identify the actual
objects being exchanged. Accordingly, we conclude that probable
cause supported the application for a search warrant.
III
Hawks next challenges the constitutionality of the January 1994
warrantless search of his Nissan Pathfinder. While the government
acknowledges that the police possessed insufficient information to
justify a search of the vehicle for incriminating evidence, it notes that
5
the police seized the Nissan with the intent of forfeiting it under state
law. Following established police regulations, the officers conducted
an inventory search of the seized Nissan.
It has long been settled that the government may conduct a war-
rantless, routine "inventory" search pursuant to standardized police
procedures without violating the Fourth Amendment. See South
Dakota v. Opperman, 428 U.S. 364 (1976); Florida v. Wells, 495 U.S.
1 (1990); United States v. Brown, 787 F.2d 929 (4th Cir.), cert.
denied, 479 U.S. 837 (1986). For an inventory search of a vehicle to
be valid, (1) the vehicle must be in the lawful custody of the police;
(2) the inventory search must be routine and conducted pursuant to
standard police procedures; and (3) the purpose of the inventory
search must be to secure the car or its contents and not to gather
incriminating evidence. See Brown, 787 F.2d at 932.
The Baltimore City Police regulations on vehicle forfeiture are
intended to implement § 297, Article 27, of the Maryland Code which
directs the seizure of vehicles that are "used, or intended for use, to
transport, or in any manner to facilitate the transportation, sale,
receipt, possession, or concealment of [controlled substances]." These
regulations require the seizure of a vehicle when (A) controlled sub-
stances are sold from that vehicle; or (B) controlled substances are
found in the vehicle in an amount reasonably indicating that sale is
contemplated; or (C) the total circumstances of the case dictate that
seizure is justified. Baltimore City Police Dep't, Gen. Order 3-84,
§ I(A)-(C) (Feb. 1, 1984). The regulations go on to state:
Officers shall inventory all personal and detachable property
not removed from the vehicle by the owner prior to being
transported to the storage facility. . . . All inventoried prop-
erty shall be processed according to established departmen-
tal procedures.
Id. at II(A).
On appeal, Hawks contends, first, that the seizure of the vehicles
was not justified under the Baltimore City Police regulations, and sec-
ond, that even if the seizure was justified, the need to inventory the
contents of the vehicles was merely a pretext for conducting an illegal
6
warrantless search for evidence. Hawks does not challenge the legiti-
macy or constitutionality of the Baltimore City Police regulations.
Hawks' first contention is without merit, as the"total circum-
stances of the case" dictated that the police seize Hawks' Nissan Path-
finder for possible forfeiture. See Gen. Order 3-84, § I(C). Indeed,
approximately one week before Hawks was arrested, the police had
observed Hawks using the Nissan Pathfinder on two occasions to dis-
tribute what the police reasonably understood to be controlled sub-
stances. These observations, coupled with the "circumstances of
[Hawks'] arrest"--i.e. Hawks' hurrying back into his house to attempt
to flush baggies of crack down the toilet--justified the seizure of the
Nissan Pathfinder. There would be less grounds for seizing the other
two vehicles owned by Hawks and his wife because the police did not
actually observe those vehicles being used in suspected drug transac-
tions. But Hawks challenges only the seizure of the Nissan, the only
car in which incriminating evidence was found. When this case was
pursued in federal court, all three cars were returned to their owners.
Once the seizure of the vehicles was justified, the unchallenged
police regulations require that the officers enter the passenger sections
of the vehicle to inventory the contents. Accordingly, the inventory
search of the Pathfinder was constitutional.
IV
Hawks also contends that he was coerced into consenting to a sec-
ond search of his residence when he was arrested by federal authori-
ties on May 27, 1994. Hawks claims that after officers arrested him
outside of his house and started driving him downtown, Hawks turned
to one of the officers and asked them if he could return to his house
to see his four-year-old son:
I said to the officer, I said, my four-year-old son is in the
house upstairs by himself, asleep. I said, when he wakes up,
he is going to be startled because nobody is in the house
with him . . . . [The officer] said we'll go back if we can
search your house.
7
Although Hawks had not yet agreed to authorize a search, the officers
took Hawks back to his house. Hawks does not deny that once back
at his house, the officers re-read him his Miranda rights, explained
that he was not required to give his consent, and informed him that
he could force the officers to obtain a search warrant first. The offi-
cers told Hawks that no one would be allowed to enter the house to
check on his son unless he signed the form. Hawks concedes that he
eventually did give his consent, but only because he believed that it
was the only way that he could check on his son.
ATF Special Agent Tanda, the officer supervising the arrest, con-
tradicted key aspects of Hawks' testimony. Most importantly, Agent
Tanda testified that when he was arrested, Hawks was not wearing a
shirt and that Tanda allowed Hawks to enter his house, unaccompa-
nied and without handcuffs, to change clothes and take care of his
son. Agent Tanda further testified that Hawks was taken back to his
residence not at the request of Hawks, but at Tanda's request, because
Tanda wanted to try to convince Hawks to give his consent. Agent
Tanda denied that any further discussion about Hawks' son took
place, or that the officers told Hawks that no one else could enter the
house.
Rather than choose between these conflicting versions of events,
the district court assumed arguendo that Hawks' story was accurate,
but concluded nevertheless that Hawks' decision was"voluntary" for
purposes of Fourth Amendment analysis.
According to Hawks, he asked to be taken to his house to see his
son. While the police were under no obligation to grant Hawks'
request, they offered Hawks a "bargain": he could see his son if he
agreed to let the police search his house. Hawks was free to reject this
offer, in which case he would be in exactly the same position as he
was before he made the request. While I see little difference in the
decision facing Hawks and the decision which defendants face regu-
larly when offered a plea bargain--they must choose whether to plead
guilty and forsake their constitutional right to a trial in return for a
benefit--if improper coercion produced Hawks' agreement, the taint
was harmless. In light of the strong evidence otherwise obtained, I
conclude the jury would have convicted Hawks nevertheless.
8
In sum, even if I assume arguendo that Hawks' testimony is true,
I question whether the search was the product of a coercive offer and
conclude in any event that any error was harmless.
V
Finally, Hawks asserts that it was error for the district court, in cal-
culating his sentence, to consider his prior conviction for attempted
burglary as a "crime of violence" for purposes of sentencing him
under the Armed Career Criminal Act, 18 U.S.C. § 924(e). We have
recently decided, however, that attempted burglary is a "crime of vio-
lence" that may trigger sentence enhancement under 18 U.S.C.
§ 924(e). See United States v. Custis, 988 F.2d 1355, 1363 (4th Cir.
1993), aff'd on other grounds, 114 S. Ct. 1732 (1994).
VI
For the reasons given in parts I, II, III, and V, above and in part
IV written by Judge Michael, we affirm Hawks' conviction and sen-
tence.
AFFIRMED
MICHAEL, Circuit Judge, writing the opinion of the court on Part IV,
in which Judge Hamilton joins:
IV.
Hawks also contends that he was coerced into consenting to a sec-
ond search of his house when he was arrested by federal authorities
on May 27, 1994. This claim cannot support a reversal of Hawks'
conviction.
According to Hawks, after officers arrested him in front of his
house and started driving him to ATF offices downtown, Hawks told
them he was concerned about his four-year-old son, who had been left
alone in the house. Hawks testified as follows at the suppression hear-
ing:
9
I said to the officer, I said, my four-year-old son is in the
house upstairs by himself, asleep. I said, when he wakes up,
he is going to be startled because nobody is in the house
with him, right. He [the officer] said we'll go back if we can
search your house. I said all I want to do is wait until my
niece comes back. She is at the store. So, he said, can we
search your house.
Hawks did not then agree to a search, but the officers took him
back to his house. Hawks testified that when they arrived, Hawks'
niece, who was waiting outside, told him that officers would not let
her into the house to check on the boy until Hawks first consented to
a search. The officers then re-read Hawks his Miranda rights and told
him he was not required to give consent. Hawks said the officers also
told him no one would be allowed to enter the house to check on his
son unless he signed the consent form. According to Hawks, he
signed the form because of concern for his son.
ATF Special Agent Tanda, the officer supervising the arrest, con-
tradicted some of Hawks' testimony. According to Tanda, Hawks was
not wearing a shirt when he was arrested, and Tanda let Hawks go
inside the house to change clothes. According to Agent Tanda, he
decided to have Hawks returned to the house so that the officers could
try to get Hawks' consent for a search. Agent Tanda said that Hawks
never asked to be returned home and that he (Tanda) never heard
Hawks express any concern about his young son.
The district court concluded that, even if it accepted Hawks' testi-
mony as true, Hawks was simply presented with a difficult choice and
was not coerced. The suppression motion was denied and the fruits
of the May 27, 1994, search, including $17,000 in cash and a scale
with white powder residue, were admitted into evidence.
We need not reach the question whether coercion produced Hawks'
agreement to the search of his house on May 27, 1994. Assuming
arguendo both that Hawks' testimony is true and that it was error for
the district court to admit evidence of the May 27 search, we are con-
vinced that any error was harmless beyond a reasonable doubt. In
light of the other strong evidence against Hawks, including the crack,
cash, drug paraphernalia, and guns seized during the first search of his
10
house in January 1994, we conclude the jury would have convicted
him nevertheless.
11