United States v. Fisher

Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
4-16-2009
USA v. Fisher
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-2314
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Recommended Citation
"USA v. Fisher" (2009). 2009 Decisions. Paper 1538.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1538
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
__________
No. 07-2314
_____________
UNITED STATES OF AMERICA
v.
OMAR FISHER,
Appellant
__________
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Criminal No. 05-cr-00401)
District Judge: Honorable Legrome D. Davis
__________
Submitted Under Third Circuit LAR 34.1(a)
on March 27, 2009
Before: RENDELL, AMBRO, and JORDAN, Circuit Judges.
(Filed April 16, 2009)
__________
OPINION OF THE COURT
__________
RENDELL, Circuit Judge.
Omar Fisher appeals from the denial of his motion to suppress evidence after his
conviction by a jury of possession of cocaine with intent to distribute, and various
firearms offenses, including possession of a firearm in furtherance of a drug trafficking crime.
Fisher contends that his parole officer, Agent Cue, lacked the “reasonable
suspicion” necessary to justify the search of his house, where contraband – drugs and
money – were discovered.1 We disagree.
The District Court reviewed the facts known to Cue at the time of the search.
These included, first, his having observed Fisher driving a new car while Cue knew that
Fisher was largely unemployed; second, Fisher’s speeding away when Cue attempted to
pull him over, knowing he did not have a driver’s license; and third, Cue’s observation of
a “thousand dollar stack” – a thousand dollars in cash wadded and wrapped in a rubber
band – in Fisher’s possession when Fisher emptied his pockets upon reporting to Cue’s
office a few days after his flight in the car. Fisher said he brought the money so as to
have money “on the books” if he was arrested.
Cue acted on his suspicion that Fisher was violating his parole and authorized a
search of Fisher’s house. The search resulted in the discovery of two firearms, numerous
packages of crack cocaine, and over $13,000 in cash wrapped in rubber bands. The
agents then applied for a state warrant to search the residence, and seized the evidence.2
1
Because Fisher was on parole and had agreed to warrantless searches as a condition to
his release, “reasonable suspicion,” without need for a warrant or “probable cause,” was
required. Fisher does not urge a different standard.
2
The government also justifies the search on the alternative basis of the good faith
exception to the warrant requirement but, like the District Court, we need not reach this
issue.
2
The District Court applied a “totality of the circumstances” analysis to the
determination as to whether there was reasonable suspicion for the search, requiring a
“particularized and objective basis for suspecting legal wrongdoing.” United States v.
Arvizu, 534 U.S. 266, 273 (2002)( internal citations omitted). It engaged in a thorough
review of the facts before Agent Cue and concluded:
In its totality, this combination of events operated to create a
reasonable suspicion, amply supported by objective and
particularized facts, as to the source of money in defendant’s
possession. The unemployed do not walk around with in
excess of eleven hundred dollars in their pockets, packaged in
the signature manner of the drug trade. Defendant’s
explanation was implausible in light of the assurances the
agent previously provided defendant. Moreover, a person in
full compliance with the terms of parole is unlikely to
sped [sic] away from his supervising parole officer unless
flight is necessary to conceal improper behavior. Certainly,
when viewed through the eyes of an experienced parole
officer, these events create a reasonable suspicion as to
defendant’s activities. Agent Cue was responsible for
defendant’s rehabilitation and, should rehabilitation prove
unsuccessful, with protecting the community. In light of
these twin responsibilities, when confronted with this
multitude of incongruent events, a series of events which
create, rather than alleviate, supervisory concerns, the agent
was obligated to conduct further investigation. Such is the
nature of parole.
(Order denying defendant Omar Fisher’s Motion to Suppress Evidence; District Court
Docket No. 24, dated 5/4/06 (entered 5/10/06), at page 8.)
On appeal, Fisher characterizes Cue’s mindset as no more than a “hunch,” and
urges that Cue was merely a parolee officer, not an experienced officer or expert in
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narcotics trafficking. We do not accept either characterization. To the contrary, Cue had
five years’ experience supervising parolees such as Fisher and was trained to detect
possible parole violations, as he did here, based on his knowledge and experience.
Similarly, the facts known to him provided him with more than a hunch. Indeed they
compelled the conclusion that Fisher had unexplained resources, very likely to be
explained by a connection to some illegal activity, most likely drugs.
We commend the District Court for its thorough analysis, with which we agree.
Accordingly, we will AFFIRM the Judgment and Commitment Order of the District
Court.
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