United States v. Antonio Hill, Jr.

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-4784

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

ANTONIO HILL, JR., a/k/a NuNu,

Defendant – Appellant.

Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Alexander Williams, Jr., District
Judge. (8:12-cr-00375-AW-3)

Argued: March 26, 2015 Decided: April 13, 2015

Before TRAXLER, Chief Circuit Judge, DUNCAN, Circuit Judge, and
DAVIS, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

ARGUED: Steven Kiersh, Washington, D.C., for Appellant. James
I. Pearce, OFFICE OF THE UNITED STATES ATTORNEY, Greenbelt,
Maryland, for Appellee. ON BRIEF: Rod J. Rosenstein, United
States Attorney, Baltimore, Maryland, Sujit Raman, Chief of
Appeals, A. Zoe Bedell, Student Law Clerk, OFFICE OF THE UNITED
STATES ATTORNEY, Greenbelt, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Antonio Hill pleaded guilty to conspiracy to distribute and

possess with intent to distribute 1,000 kilograms or more of

marijuana in violation of 21 U.S.C. § 846, and to conspiracy to

commit money laundering in violation of 18 U.S.C. § 1956(h).

The court sentenced him to 140 months’ imprisonment. Hill now

appeals from the denial of his motion to suppress evidence,

arguing that it stemmed from an illegal search. For the

following reasons, we affirm. 1

In 2011, while surveilling an apartment building in New

Carrollton, Maryland, two police officers saw Dominic Hill

(“Dominic”), Appellant’s brother, on a third-floor balcony.

They later observed Dominic conducting what they believed to be

a narcotics transaction on the sidewalk outside the building.

The next day, the officers stopped Dominic in the street and

asked for his name and destination. Dominic gave his name and

explained that he did not live in the area and was waiting for a

bus home after visiting a friend. To corroborate his story,

1
We decide this appeal on the merits as presented by the
parties. The government did not preserve the issue of
cognizability.

2
Dominic handed the officers a set of keys, unasked, and said,

“[L]ook, I don’t even have a car. [These are] the only keys I

have.” J.A. 163.

The officers took the keys to the third-floor apartment

where they had observed Dominic the day before and attempted a

key turn at the apartment’s front door. One of the keys fit,

and the officers unlocked then relocked the door, without

opening it, and withdrew the key. The officers then knocked on

the door and identified themselves as police. From inside,

Erico Hill (“Erico”), another defendant later charged in the

indictment, asked, “Who is it?” J.A. 164. The officers once

again identified themselves as police, and Erico opened the

door.

From their vantage point in the hallway, the officers saw

marijuana inside the apartment. The officers entered the

apartment, handcuffed Erico, and detained him on the couch.

While one officer stayed with Erico, the other conducted a

protective sweep, observing in plain view additional marijuana,

currency, and a firearm. The officers then secured the

apartment, applied for and obtained a search warrant, and waited

for the narcotics enforcement division to arrive.

3
This search led to a federal investigation and, nearly two

years later, an indictment charging ten defendants, including

Appellant, with drug-related crimes. 2

Appellant moved to suppress all evidence against him as

fruit of the poisonous tree based on the warrantless search of

the apartment. The court denied the motion for several reasons.

First, the court ruled that the key turn was not a search,

agreeing with the government that persuasive authority compelled

that result. Second, the court ruled that the presence of

marijuana in plain view justified warrantless entry into the

apartment because “[b]y the time [the police could] get a

warrant, obviously the marijuana wouldn’t still be there.” J.A.

204. Finally, the court ruled that the protective sweep was

permissible because the officers did not find any evidence other

than what was in plain view and did not seize any evidence prior

to obtaining a warrant. This appeal followed.

II.

2
Testimony in the record suggests that Appellant resided in
the apartment at the time of the search, although he was not
present when it occurred.

4
In reviewing a denial of a motion to suppress, we review

the district court’s factual findings for clear error and its

legal conclusions de novo. United States v. Williams, 740 F.3d

308, 311 (4th Cir. 2014).

Appellant contends on appeal that Erico involuntarily

opened the apartment door in response to the officers’ demands

under color of authority. Thus, Appellant submits that the

officers conducted an illegal search by viewing marijuana in the

apartment through the opened door, and that all evidence

gathered as a result of this search was fruit of the poisonous

tree. We disagree.

It is well established that a knock and announcement,

without more, does not constitute a demand under color of

authority. See Kentucky v. King, 131 S. Ct. 1849, 1863 (2011)

(stating that “[t]here [was] no evidence of a ‘demand’ of any

sort” where the officers “banged on the door as loud as [they]

could” and identified themselves as police (second alteration in

original)). That is all that happened here. Erico opened the

door after the officers knocked and identified themselves as

police. They made no accompanying demand that the door be

opened.

Appellant’s reliance on cases in which the police demanded

under color of authority that the door be opened are therefore

5
misplaced. See, e.g., United States v. Mowatt, 513 F.3d 395,

400 & n.3 (4th Cir. 2008) (holding that the defendant did not

open a door voluntarily where he “initially refused to open his

door and . . . opened it slightly after the officers had

identified themselves and demanded that he open it”), abrogated

on other grounds by King, 131 S. Ct. 1849. Because Erico opened

the door in response to the officers’ knock and announcement

only rather than in response to a demand that he open it, we

conclude that he did so voluntarily. Therefore, the officers

conducted a legal search and the evidence gathered as a result

was not fruit of the poisonous tree warranting suppression.

III.

For the foregoing reasons, the district court’s denial of

Appellant’s motion to suppress evidence is

AFFIRMED.