UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4784
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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
I.
A.
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
B.
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.
A.
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).
B.
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.
6