USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 94-2080
UNITED STATES,
Appellee,
v.
JOHN M. JEWELL,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Michael A. Ponsor, U.S. District Judge] ___________________
____________________
Before
Torruella, Chief Judge, ___________
Campbell, Senior Circuit Judge, and ____________________
Cyr, Circuit Judge. _____________
____________________
Stuart P. Feldman with whom Thomas J. Dougherty was on brief for __________________ ____________________
appellant.
Andrew Levchuk, Assistant U.S. Attorney, with whom Donald K. _______________ __________
Stern, United States Attorney, was on brief for appellee. _____
____________________
July 21, 1995
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CAMPBELL, Senior Circuit Judge. Defendant John M. ____________________
Jewell was tried and convicted by a jury in federal district
court on one count of being a felon in possession of a
firearm, in violation of 18 U.S.C. 922(g)(1), and one count
of receiving a stolen firearm, in violation of 18 U.S.C.
922(j). On appeal he argues that the district court erred in
denying his motion to suppress all fruits of the search at
his apartment at 162 Linden Street on the grounds that the
affidavit supporting the application for the search warrant
failed to establish probable cause and failed to provide an
adequate basis for the issuance of a "no-knock" warrant.1
He also argues that he was denied procedural due process
under the Federal Magistrate Act of 1979, 28 U.S.C. 636.
We affirm.
The evidence at trial, the sufficiency of which is
not disputed, showed that on November 22, 1992, officers of
the Pittsfield Police Department executed a state "no-knock"
search warrant on the residence of Jewell and his girlfriend,
Brandee Richards, at the first floor of 162 Linden Street,
Pittsfield. Found and seized during the search were crack
cocaine, cocaine processing paraphernalia, marijuana, $473 in
cash, and a stolen Ruger .22 caliber revolver, S/N 191220.
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1. Jewell also made a motion to suppress certain statements
made by him at his apartment and later at the police station
on the ground that he was not properly advised of his rights
under Miranda. Jewell has not appealed from the denial of _______
that motion.
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Jewell and Richards were arrested and processed at the
Pittsfield Police Station.
Jewell challenges the district court's denial of
his motion to suppress the physical evidence seized from his
apartment on the grounds that the search warrant was not
supported by probable cause, as required by U.S. Const.
amend. IV. In particular, he asserts that the affidavit
supporting the application for the search warrant was
deficient. The search warrant was issued by Massachusetts
Clerk-Magistrate Leo Evans upon the affidavit of Detective
Granger. The affidavit stated, in sum: that police received
an anonymous tip on October 6, 1992 that an African-American
male named "Radar" was engaged in a drug transaction in the
vicinity of 168 Linden Street; that information was received
the following week from a "concerned citizen" in the
neighborhood that Radar was distributing drugs from the pink
house with maroon trim in the 1st floor apartment on the
right side; that subsequent surveillance by Pittsfield Police
Investigator Decker of Radar's residence confirmed that Radar
was an individual known to Decker as John Jewell, and that
Jewell was living in the first floor right apartment of 162
Linden Street with Brandee Richards, and also confirmed that
individuals entered the apartment for short periods of time
and left; that a reliable confidential informant (CI-3), a
longtime resident of Pittsfield who had previously given
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information leading to drug arrests and convictions, advised
that Jewell was living at 162 Linden Street and appeared to
be dealing cocaine out of that location, and that CI-3
observed Jewell exchanging money with individuals in return
for small, light-colored objects, and reported substantial
traffic in and out of the apartment at all hours of the day
and night, with most visitors entering the apartment for
short periods of time and leaving (which behavior was, in
Detective Granger's view, consistent with narcotics
distribution); that a second reliable confidential informant
(C1), who had previously provided information leading to the
arrest and indictment of two individuals, advised that it had
purchased crack cocaine from Jewell; and finally, that one
William Shepard, an informant of untested veracity, visited
the Pittsfield Police Department on November 21, 1992, and
provided a sworn statement to the effect that he had seen
crack cocaine in Jewell's apartment at 162 Linden Street that
afternoon, and that Jewell had stolen various items of
clothing and other personal property from him, and that he
had smoked crack cocaine obtained from Jewell some time
before coming to the police station.
The district court determined that there was
sufficient probable cause stated on the face of the
affidavit, finding that "[t]he affidavit, and particularly
the information provided by William Shepard, is more than
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adequate to provide probable cause for the search." United ______
States v. Jewell, Cr. No. 93-30036 (D. Mass. April 28, 1994) ______ ______
(memorandum andorder denying defendant'smotions to suppress).
We review the district court's decision to uphold
the warrant for clear error only. United States v. Garcia, _____________ ______
983 F.2d 1160, 1167 (1st Cir. 1993); United States v. _____________
Nocella, 849 F.2d 33, 39 (1st Cir. 1988). In evaluating the _______
sufficiency of an affidavit, we afford great deference to a
magistrate's determination of probable cause. Illinois v. ________
Gates, 462 U.S. 213, 236 (1983) (citing Spinelli v. United _____ ________ ______
States, 393 U.S. 410, 419 (1969)). ______
We apply a "totality of the circumstances" standard
in determining the sufficiency of an affidavit. Gates, 462 _____
U.S. at 238. The affidavit is to be interpreted in a common-
sense rather than a hypothetical or hypertechnical manner.
See id.; United States v. Ventresca, 380 U.S. 102, 109 _______ ______________ _________
(1965); United States v. Cochrane, 896 F.2d 635, 637 (1st _____________ ________
Cir.), cert. denied, 496 U.S. 929 (1990). ____________
Jewell argues that the fact that no warrant was
obtained in mid-October shows that the police lacked probable
cause at that time, and that Shepard's statement, he being an
admitted drug user and high at the time it was made, was not
enough to make up for the deficiency. There is no merit to
this contention. Appellant would have us engage in a
piecemeal examination of the affidavit, and base our review
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of the clerk-magistrate's action on "'bits and pieces of
information in isolation.'" See Cochrane, 896 F.2d at 637 ___ ________
(quoting Massachusetts v. Upton, 466 U.S. 727, 732 (1984)). _____________ _____
Viewing the affidavit as a whole, as it should be, there was
more than adequate information presented to the clerk-
magistrate from which to find probable cause that drugs were
present at Jewell's apartment.
Probable cause means simply that the totality of
the circumstances gives rise to a "fair probability" that a
search of the target premises will uncover evidence of a
crime. United States v. Jordan, 999 F.2d 11, 13 (1st Cir. _____________ ______
1993) (citations omitted). In this case, such a fair
probability was shown by the reports of two demonstrably
reliable confidential informants that Jewell was trafficking
in drugs; Shepard's statement that he had observed cocaine in
Jewell's apartment on the day before the search warrant was
issued; the statements of the concerned citizen; and finally,
the trained observations of Investigator Decker. Even
discounting Shepard's reliability, the information in the
affidavit still provides probable cause to believe that an
ongoing drug trafficking operation existed at 162 Linden
Street. See United States v. Hershenow, 680 F.2d 847, 853 ___ _____________ _________
(1st Cir. 1982) (citation omitted) ("[W]here the information
points to illegal activity of a continuous nature, the
passage of several months between the observations in the
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affidavit and the issuance of the warrant will not render the
information stale.").
Appellant also argues that the district court
should have excluded the physical evidence seized pursuant to
the search because the clerk-magistrate lacked probable cause
to authorize service of the warrant without knocking. The
government correctly responds that the Federal Constitution
does not require state authorities, before they issue a "no-
knock" warrant, to have probable cause to believe that entry
without knocking is required. All that is required is that
it be reasonable under the circumstances to allow an
unannounced entry. See Wilson v. Arkansas, 115 S. Ct. 1914, ___ ______ ________
1918 (1995) (holding that in some circumstances an officer's
unannounced entry into a home might be unreasonable under the ____________
Fourth Amendment) (emphasis added). The Court in Wilson left ______
to the lower courts "the task of determining the
circumstances under which an unannounced entry is reasonable
under the Fourth Amendment." Id. at 1919. ___
The affidavit here stated that Detective Granger
had personal knowledge of Jewell's record of convictions for
violent offenses, and that he had personal knowledge that
Jewell possessed a grey pit bull dog that he kept at the
apartment at 162 Linden Street. The district court found
that "the affiant's personal knowledge of the defendant's
potentially violent tendencies and of the existence of a
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pitbull on the premises was, again, more than adequate to
justify a 'no-knock' warrant." United States v. Jewell, Cr. _____________ ______
No. 93-30036 (D. Mass. April 28, 1994) (memorandum and order
denying defendant's motions to suppress).
In Wilson, the Court made clear that not "every ______
entry must be preceded by an announcement," Wilson, 115 S.Ct. ______
at 1918, and noted the common-law rule that "the presumption
in favor of announcement would yield under circumstances
presenting a threat of physical violence." Id. at 1918- ___
19.2 We must therefore determine whether the affidavit
presented in support of the application for a "no-knock"
warrant reasonably described "circumstances presenting a
threat of physical violence."
Like the district court, we hold that it did.
Detective Granger stated that he had personal knowledge of
the existence of a pit bull dog in the apartment to be
searched. The Fourth Amendment did not require the police to
risk having to fight off a forewarned attack dog before
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2. In a footnote, 115 S. Ct. at 1918 n. 3, the Court cited
Sabbath v. United States, 391 U.S. 585 (1968), for the _______ _____________
proposition that both the common-law rule of announcement and
entry and its exceptions were codified in the federal "knock __________________
and announce" statute, 18 U.S.C. 3109. Appellant suggests
that service of the warrant in this case did not meet the
requirements of that statute. However, the threat of physical
violence is an established common-law exception to the "knock
and announce" principle and, as such, is recognized in
3109. Section 3109, moreover, does not apply to state
investigations by state officers. United States v. Andrus, ______________ ______
775 F.2d 825, 844 (7th Cir. 1985).
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executing their warrant. See, e.g., United States v. __________ ______________
Buckley, 4 F.3d 552, 557 (7th Cir. 1993) (presence of pit _______
bull and firearms sufficient to justify "no-knock" entry).
That, and the fact of Jewell's extensive history of arrest
and conviction for violent crimes, made concern for the
physical safety of the officers executing the search warrant
entirely reasonable. The "no-knock" provision was justified
in this instance.
We affirm the denial of the motion to suppress the
evidence seized pursuant to the state search warrant from
Jewell's apartment. We have carefully considered Jewell's
other arguments and find them to be without merit.3 The
judgment of the district court is therefore
Affirmed. _________
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3. In particular, we find no merit in Jewell's contention
that he was denied procedural due process when District Judge
Ponsor, who had presided over pre-trial proceedings
concerning Jewell's motions to suppress as a United States
magistrate judge, denied those motions shortly after his
appointment to the district court. While the Federal
Magistrate Act provides that magistrate judges "may" be
designated to conduct hearings and submit "proposed findings
of fact and recommendations" on suppression motions, 28
U.S.C. 636(b)(1)(A),(B), the district court judge who made
the assignment to the magistrate judge retains primary
jurisdiction over the motion to suppress. In re Worksite _______________
Inspection of Quality Products, 592 F.2d 611, 613 (1st Cir. _______________________________
1979). Judge Freedman recalled the case from Magistrate
Judge Ponsor on March 14, 1994, and reassigned it to Judge
Ponsor on March 17, 1994. Judge Freedman, in transferring
the case, and Judge Ponsor, in denying the motion to
suppress, were merely acting pursuant to their powers as
district judges.
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