United States v. Marcus Neal Manning

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
July 18, 2005
No. 04-15719
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 03-00069-CR-4-SPM-AK
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARCUS NEAL MANNING,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(July 18, 2005)
Before TJOFLAT, ANDERSON and HULL, Circuit Judges.
PER CURIAM:
Defendant Marcus Neal Manning appeals his convictions for distribution of
cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C), possession with
intent to distribute cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and
(b)(1)(A)(iii), and possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(8)
and 924(a)(2). Manning argues on appeal that the district court erred in denying
his three motions to suppress drugs, drug paraphernalia, and a firearm found by
officers in his apartment while executing a search warrant, and that he thus is
entitled to a new trial. After review, we affirm.
I. BACKGROUND
On October 3, 2003, law enforcement officers arrested Manning a short
distance from his home pursuant to an arrest warrant. That same day, law
enforcement officers executed a search warrant of his home. During that search,
officers discovered crack cocaine, drug paraphernalia, and a firearm. Manning
subsequently was charged with distribution of crack cocaine, in violation of 21
U.S.C. §§ 841(a)(1) and (b)(1)(C) (count 1); possession with intent to distribute
crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A)(iii) (count 2);
possession of a firearm in furtherance of a drug trafficking crime, in violation of 18
U.S.C. § 924(c)(1)(A)(i) (count 3); and possession of a firearm while subject to a
domestic violence restraining order, in violation of 18 U.S.C. §§ 922(g)(8) and
924(a)(2) (count 4).
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A. First Suppression Motion
Prior to trial, Manning moved the district court to suppress the drugs, drug
paraphernalia, and firearm seized from his home during the execution of a search
warrant, contending that the warrant was executed in an unreasonable manner. In
that motion, Manning asserted that officers watched his apartment in preparation of
serving an arrest and search warrant, saw him leave his apartment, and arrested him
a short distance from his house. According to Manning, while officers detained
him in the location of his arrest, another group of officers broke open his door to
conduct the search of his apartment. He asserted that by the time the officers
returned him to his apartment, the other officers had already found the drugs and
firearm. Manning further argued that there were no exigent circumstances and that
the officers did not have to break into his apartment. More specifically, Manning
contended the officers could have returned him to his apartment and offered him
the opportunity to unlock the door and inform officers of the location of the
contraband, in order to avoid property damage and limit the scope of the officers’
search.
The government’s account of the facts was materially different. According
to the government, officers David Duncan and Gary Hunnings stopped Manning
near his home, placed him under arrest, and returned him to his apartment. Upon
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their return to Manning’s apartment, and while other officers were taking Manning
out of the car, officers Duncan and Hunnings knocked loudly on Manning’s door
and announced that they were from the Sheriff’s Office and were executing a
search warrant.
After receiving no response, officer Duncan asked Manning if there was
anyone in the apartment, and Manning did not respond. Duncan was concerned
that someone was in the apartment destroying evidence. Duncan thus determined
that immediate entry was necessary, and forced open the door. According to the
government, Manning was present at the apartment but did not inform officers that
he had keys to unlock the door until after officers forced the door open.
Upon entering the apartment, the officers did a protective sweep, during
which Duncan saw a Nike shoe box containing crack. After the protective sweep,
Duncan directed Manning to enter and sit in the apartment. Manning originally
refused, but, after speaking with an officer whom he knew, complied with the
officers’ instructions. Officers had Manning sit in a chair in his home and read
Manning the search warrant, while other officers searched the home. Officers
found more drugs and a firearm while Manning was in the apartment.
The district court conducted a hearing, at which two officers testified
consistent with the government’s factual account. In addition, a videotape of the
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search showed Manning sitting in the apartment during the search and showed the
discovery of the handgun and other drugs.
Robert Baucham testified on Manning’s behalf regarding what he saw at the
arrest scene. Baucham indicated that he saw a patrol car leave with a tow truck.
Although Baucham did not see Manning in the patrol car, others told him that
Manning was in the car. The district court stated that Baucham’s testimony
suggested that Manning was not immediately returned to his apartment after his
arrest; however, the district court discounted that suggestion because Baucham did
not actually see Manning in the patrol car and, according to the testimony of the
officers, a second patrol car was called to the arrest scene to oversee the
impoundment of Manning’s vehicle.
The other defense witness, George Simmons, testified that he lived in the
apartment immediately below Manning’s apartment. Simmons heard loud noises
coming from Manning’s apartment, as if the apartment were being torn apart. He
looked out the window and saw a patrol car and several officers, but did not see
Manning. Fifteen to twenty minutes later, Simmons saw Manning walk up to the
apartment from the road and heard the officers threatening to drag Manning up the
stairs if he did not walk. He saw Manning go up to the apartment and heard more
noises coming from the apartment. However, Simmons acknowledged that he did
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not keep a constant watch of the scene, but walked back and forth to his window to
look outside.
The district court found that Simmons’s testimony was generally consistent
with the officers’ testimony. Although Simmons did not see Manning initially, it
was unclear whether Manning was in Simmons’s line of view from the window,
and it was unclear whether Manning was placed back in the patrol car during the
protective sweep.
The district court thus found that: (1) Manning was present at the apartment
at the time the search began and failed to respond to the officers when they asked if
anyone was inside the apartment; (2) the officers were concerned that someone was
in Manning’s apartment destroying evidence; (3) Manning did nothing to allay
those fears, and it did not appear that Manning would respond positively to a
request to open the door immediately; and (4) after the protective sweep, Manning
was led into the apartment so he could be present during the search. Based on
these findings, the district court concluded that the officers’ actions in executing
the search warrant were reasonable and valid under the circumstances.
Accordingly, the district court denied Manning’s motion to suppress.
B. Second Suppression Motion
Manning filed a second motion to suppress, arguing that the search warrant
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in his case was based on an affidavit containing false information and that the
inclusion of that information amounted to a reckless disregard for the truth.
The search warrant was issued as a result of an affidavit submitted by officer
Hunnings. The Hunnings affidavit indicated that during their investigation of
Manning, the officers used Anthony Sanders, a confidential informant (CI), to
make three purchases. Prior to each purchase they searched Sanders to ensure he
did not possess cocaine, equipped him with audio or video recording equipment,
provided him with cash, and sent him to Manning’s apartment to buy cocaine.
Each time, Sanders returned with cocaine.
According to Manning, after the government revealed that Sanders was the
confidential informant, Sanders contacted Baucham, who formerly served as a CI,
for advice. According to Manning, Sanders admitted to Baucham that he had not
purchased cocaine from Manning, but had only entered Manning’s residence and
spoken to him briefly. Prior to being searched by the officers, Sanders hid drugs in
his mouth, and those were the drugs he gave to the officers when he returned from
Manning’s apartment. Sanders told Baucham that, in exchange for his assistance,
officer Jeff Lockley promised to pay Sanders, to allow him to keep some of the
drugs, and not to interfere with his personal drug transactions.
Manning argued that Sanders was a drug user with numerous felony
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convictions, and thus was unreliable. Further, the officers supervising Sanders’s
transactions with Manning did not maintain visual surveillance and did not conduct
a reasonable search of Sanders prior to his meetings with Manning. Manning also
asserted that the video recording of one of the transactions did not actually capture
a transaction, but only showed Manning holding money and a bag that might or
might not have contained drugs, and that the quality of the audio recording of a
second transaction was so poor that it was impossible to tell whether a drug
transaction occurred. Under these circumstances, Manning argued that Hunnings
should have known that Sanders was lying about the controlled buys and that
Hunnings’s inclusion of the controlled buys in the affidavit demonstrated a
reckless disregard for the truth.
The district court held a hearing, at which Baucham testified that Sanders
approached him and told him he had given drugs to officer Hunning, but that he
had not obtained those drugs from Manning. Sanders told Baucham about two
occasions in which he approached Manning to talk about drugs, but neither he nor
Manning ever mentioned drugs. According to Baucham, Sanders hid drugs in his
mouth, which officers never searched, and later gave the officers the drugs he had
hidden. Baucham further testified that Sanders was a drug user.
Officer Hunnings testified that he searched Sanders’s person, bicycle, and
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clothing before the controlled buys, but did not search his mouth. Sanders spoke
normally before the buys, and it never occurred to officer Hunnings to search
Sanders’s mouth. The officers monitored Sanders through a radio transmitter
and/or watched him constantly as he traveled to and from Manning’s apartment.1
officer Hunnings did not see Sanders retrieve hidden drugs or money.
The government also played a videotape of the third controlled buy, and
officer Hunnings indicated that in the video, Manning had money in his hand and
appeared to be retrieving a plastic baggy containing crack rocks. Officer Hunnings
testified that he believed he witnessed a crack deal. Officer Hunnings also
indicated that when Sanders returned from the buy, he gave Hunnings an amount
of crack cocaine that was consistent with the amount of money Hunnings had
given Sanders for the purchase.
Officer Hunnings testified that to his knowledge, officer Lockley never told
Sanders that he could buy or keep crack cocaine. Officer Hunnings was aware of
Sanders’s significant criminal history. However, Sanders was paid the same for
each transaction whether or not he successfully purchased drugs; he had previously
provided reliable information in 15-20 cases with officer Hunnings and in other
1
During the second controlled buy, officers did not maintain constant visual contact since
Sanders had a video recorder. The video, however, became unplugged and did not record the
transaction.
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cases with other officers; and he was searched and monitored closely. Under these
circumstances, Hunnings testified he had no reason to believe that Sanders had
faked the controlled buys.
The district court denied Manning’s motion, finding that Manning failed to
show that Hunning had a reckless disregard for the truth. The court concluded that
the evidence presented at the hearing refuted Manning’s argument that Hunning
should have known Sanders was lying because the video tape corroborated
Sanders’s representation to Hunning that he purchased drugs from Manning. Even
if Sanders faked the buys, Hunning took reasonable precautions to ensure the
legitimacy of the controlled buys by searching Sanders’s person and bicycle and
supervising Sanders either visually or through recording devices.
C. Third Suppression Motion
Manning filed a third motion to suppress, reasserting that the search warrant
was issued as a result of an affidavit by officer Hunnings containing false
information. The third motion made the same arguments presented in the second
motion to suppress, but included an affidavit from Sanders indicating that he had
not purchased crack cocaine from Manning.
During a hearing, Sanders testified that he was not searched by officer
Hunnings prior to going to Manning’s house, and he never bought cocaine from
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Manning. He received a total of $400 for his assistance, and he told officers that
he bought cocaine from Manning because he wanted the money.
Officer David Odom, a Tallahassee police officer assigned to the DEA task
force, testified that Sanders told him that he had obtained crack cocaine from
Manning. Officer Odom had reviewed with Sanders the videotape of the third
controlled buy, and Sanders pointed out on the videotape when Manning was
retrieving the cocaine. Officer Odom further testified that, in their conversations
about the second suppression motion, Sanders denied hiding crack in his mouth
and pointed out that he spoke freely during the controlled buys and would not have
been able to do so if he had crack in his mouth.
The district court denied Manning’s third motion, again finding that
Manning had not shown that officer Hunnings had a reckless disregard for the
truth. The court found that Sanders lacked credibility as a result of his prior
inconsistent statements. The court also concluded that the precautions taken by
officer Hunnings and the surveillance recordings supported officer Hunnings’s
testimony that he believed Sanders actually bought cocaine from Manning.
D. Trial
After a three-day trial, a jury convicted Manning on the drug offenses in
counts 1 and 2 and the firearm offense in count 4, but found him not guilty on the
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firearm offense in count 3. The court sentenced Manning to 151 months’
imprisonment on the drug offenses in counts 1 and 2, and 120 months’
imprisonment on count 4, all to run concurrently. Manning timely appealed.
II. DISCUSSION
On appeal, Manning argues again that the district court erred in denying his
motions to suppress because: (1) the search of his home was unreasonable; and (2)
the search warrant was issued based on officer Hunnings’s affidavit, which
contained statements in reckless disregard of the truth. We address each argument
in turn.
A. Search of Manning’s Home
Manning argues that the officers who searched his home acted unreasonably
in forcing entry into his home even though he was detained only a short distance
away and no exigent circumstances existed. Manning disputes both the district
court’s factual finding that Manning was present at the time the officers entered his
home and its legal conclusion that the search was conducted in a reasonable
fashion.2
As to the factual issue, the district court did not clearly err in determining
2
We review the district court’s factual findings for clear error and its legal conclusions de
novo. United States v. McGough, — F.3d —, 2004 WL 3389374, at *3 (11th Cir. June 15,
2005).
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that Manning was present when the officers began the search of his home. Two
officers testified that Manning was present when the search began, and the district
court found their testimony to be credible. “We accord great deference to the
district court’s credibility determinations.” United States v. Gregg, 179 F.3d 1312,
1316 (11th Cir. 1999) (citation omitted). Based on the officers’ testimony, the
district court did not commit reversible error in concluding that Manning was
present.
In any event, the district court did not ignore, as Manning alleges,
Simmons’s testimony that he saw only one patrol car when he first heard noises in
Manning’s apartment and that he did not see Manning until minutes later. Rather,
the district court acknowledged Simmons’s testimony, but discounted Simmons’s
statement that he did not see Manning because it was unclear whether Manning
was in Simmons’s line of view when he looked out the window. The district court
did not err in discounting Simmons’s testimony based on his imperfect view of the
events, and Manning has failed to show clear error in the district court’s findings.
As for the legal issue, a search pursuant to a warrant is valid if it is
conducted reasonably, examining the totality of the circumstances. United States
v. Banks, 540 U.S. 31, 36, 124 S. Ct. 521, 525 (2003). While police officers are
generally required to announce their intent to search before entering closed
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premises, “the Fourth Amendment normally requires little more notice than a
knock on the door prior to a forced entry pursuant to a lawfully issued
warrant . . . .” Storck v. City of Coral Springs, 354 F.3d 1307, 1318 (11th Cir.
2003). Indeed, even the knock-and-announce obligation “gives way when officers
have a reasonable suspicion that knocking and announcing their presence, under
the particular circumstances, would be dangerous or futile, or would inhibit the
effective investigation of the crime by, for example, allowing the destruction of
evidence.” Banks, 540 U.S. at 36, 124 S. Ct. at 525 (quotation marks,
punctuation, and citation omitted).
Here, the officers knocked and announced their presence to anyone who
might have been inside Manning’s apartment. In addition, they asked Manning
whether anyone was in his apartment, and gave Manning an opportunity to
cooperate and avoid the forced entry. Manning declined that opportunity by
refusing to answer the officers, and it reasonably appeared that it would be futile to
ask Manning to open the door immediately. Under these circumstances, in light of
the officers’ concern that someone could be in the apartment and easily could
dispose of the cocaine in the kitchen, the officers’ forced entry was reasonable.3
3
The government has not argued that the evidence found in Manning’s apartment would
be admissible under the inevitable-discovery doctrine even if the officers’ conduct was
unreasonable. Accordingly, any such argument was waived. In any event, we conclude that the
search was reasonable, and we thus need not address whether the inevitable-discovery doctrine
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See id. at 41, 124 S. Ct. at 527 (holding that forced entry was valid when officers
waited 15 to 20 seconds after knocking and announcing at apartment, where police
arrived during the day, when anyone inside probably would have been up and
around, and 15 to 20 seconds would be sufficient for getting to the bathroom or
kitchen to dispose of cocaine).
B. Affidavit Supporting the Search Warrant
Manning also argues, pursuant to Franks v. Delaware, 438 U.S. 154, 98 S.
Ct. 2674 (1978), that the search warrant was invalid because the Hunnings affidavit
supporting the warrant contained statements in reckless disregard for the truth.
This argument is equally unavailing.
Under Franks, a defendant can have a warrant voided and the fruits of the
search excluded based on false statements in the supporting affidavit only if he
shows that: (1) the falsehood was deliberate or in reckless disregard for the truth;
and (2) the affidavit’s remaining content is insufficient to establish probable cause.
Id. at 171-72, 98 S. Ct. at 2684-85; see also United States v. Novaton, 271 F.3d
968, 986-87 (11th Cir. 2001).
Here, Manning’s motions were properly denied because he failed to show
that officer Hunnings’s affidavit contained statements in reckless disregard for the
would apply.
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truth.4 The testimony of Baucham and Sanders indicated that Sanders claimed he
faked the controlled buys. However, the district court found Sanders to be
incredible, and we defer to that finding. See Gregg, 179 F.3d at 1316. Further,
Sanders admitted that he told Hunnings he had purchased cocaine from Manning
and that he produced cocaine after the controlled buys. Thus, even assuming that
Sanders faked the controlled buys, Sanders’s own testimony suggests that officer
Hunnings reasonably believed Sanders purchased cocaine from Manning.
While officer Hunnings did not search Sanders’s mouth because it did not
occur to him, officer Hunnings did search Sanders’s shirt, ankles, and bicycle
before the controlled buy.5 In addition, officer Hunnings equipped Sanders with
audio and video recording devices and obtained video footage that appeared to
show a drug deal. Although officer Hunnings perhaps could have taken further
precautions, such as performing a more intrusive search or maintaining constant
visual surveillance of Sanders, his failure to do so does not amount to a reckless
disregard for the truth. Manning cites no authority indicating otherwise.
For all the above reasons, the orders of the district court are affirmed.
AFFIRMED.
4
Manning does not argue that officer Hunnings deliberately made false statements.
5
Although Sanders claimed that officer Hunnings did not search him, the district court
found Sanders incredible and found that officer Hunnings searched Sanders.
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