Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
4-18-2006
USA v. Powell
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-2120
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NOT PRECEDENTIAL
IN THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
____________
No. 04-2120
____________
UNITED STATES OF AMERICA
v.
OMAR POWELL
a/k/a “O”
Omar Powell,
Appellant
____________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Crim. No. 03-cr-00050)
District Judge: Honorable James M. Munley
Submitted Under Third Circuit LAR 34.1(a)
April 17, 2006
Before: SLOVITER, AMBRO and MICHEL * , Circuit Judges
(Filed April 18, 2006)
OPINION
*
Hon. Paul R. Michel, Chief Judge, United States Court of Appeals for the Federal
Circuit, sitting by designation.
SLOVITER, Circuit Judge.
Defendant Omar Powell pled guilty to one count of conspiracy to distribute in
excess of 50 grams of cocaine base, in violation of 21 U.S.C. § 846, after his pretrial
motion to suppress physical evidence and statements was denied. He was sentenced on
April 22, 2004 to 268 months imprisonment pursuant to the U.S. Sentencing Guidelines.
Powell appeals the denial of his pretrial motion to suppress, arguing that his
Fourth Amendment rights were violated when he was subjected to a warrantless search by
a probation officer, and that the physical evidence seized during the search, as well as
subsequent statements he made in custody, should be suppressed. Powell also appeals his
sentence on the grounds that the District Court violated United States v. Booker, 543 U.S.
220 (2005), by enhancing his sentence based on facts not admitted by him or proven to a
jury beyond a reasonable doubt, and by treating the Guidelines as mandatory.
I.
On October 28, 2002, Powell began a term of probation in Monroe County,
Pennsylvania, for drug-related offenses. He was required to consent to warrantless
searches of his person, possessions, and residence on the determination of his probation
officer, and was also required to submit to periodic drug-testing. Shortly after his
probation period began, Powell’s urinalysis test revealed the presence of cocaine, in
violation of the terms of his probation.
Several months thereafter, Powell’s probation officer, Joseph Dunstone,
2
conducted a routine visit to the residence where Powell was reportedly living with his
girlfriend, Jennifer Fox, who was also on probation for drug-related offenses. Dunstone
was able to observe Powell and Fox in the bedroom through the glass door of the
residence. When he knocked on the door, he observed that Powell appeared to conceal
something inside his closet while Fox looked out the bedroom window towards the front
door.
After Dunstone was admitted, he conducted a “swipe test” on Powell’s fingertips
and forehead, which revealed the presence of cocaine. A few minutes later, Powell’s
urine tested negative for the presence of cocaine, indicating that although he had handled
the drug, he had not recently ingested it. Dunstone quickly located numerous small clear
bags of a white rocky substance hidden inside of a boot in the closet, surmised that the
substance was cocaine, and contacted the police, who arrived a short time later and
obtained a search warrant for the residence.
The search resulted in the seizure of additional quantities of cocaine (including
powder and rock cocaine hidden in Powell’s shoe), cellular telephones, and
approximately $4,000 in cash. Powell was arrested for probation violations. Before he
was transported to the police station, he told a police officer that the powder cocaine
belonged to him but that the rock cocaine did not. Powell was not given any Miranda
warnings before this conversation. The police officer testified that Powell initiated the
conversation and that he had only asked Powell whether he had been “ripped” (i.e.,
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robbed).
Powell was indicted by a federal grand jury and charged with conspiracy to
distribute and to possess with intent to distribute at least 50 grams of cocaine base in
violation of 21 U.S.C. § 846. While in custody, Powell signed Miranda waivers and
confessed to trafficking drugs in the area.
Thereafter, Powell moved to suppress the physical evidence seized during the
search of his home and person, and the incriminating statements made to law enforcement
officials during the search and in subsequent interviews. The motion was denied after an
evidentiary hearing. The District Court reasoned that because Powell was a probationer
who had consented to warrantless searches, the probation officers needed only reasonable
suspicion for the initial search. Dunstone’s testimony regarding his observations of
Powell’s furtive movements in the house, the positive swipe test and Dunstone’s
knowledge of Powell’s criminal history and his recent failure of a drug test provided
reasonable suspicion to believe that Powell possessed contraband. Moreover, Powell’s
subsequent confessions to authorities, occurring two days, five days, and three months
after the search, after valid Miranda waivers, were sufficiently distanced in time and
space so as to dissipate any taint.
Powell subsequently pled guilty to one count of conspiracy to possess with intent
to distribute in excess of 50 grams of cocaine base in violation of 21 U.S.C. § 846. At his
plea colloquy, Powell admitted to participating in an ongoing conspiracy to import
4
cocaine and distribute it in Monroe County, but reserved his right to appeal the denial of
his motion to suppress. He also agreed to cooperate with the Government in exchange for
favorable recommendations at sentencing for providing “substantial assistance.”
The District Court treated the Sentencing Guidelines as mandatory, and calculated
Powell’s offense level as 34, adopting the Presentence Report’s calculation of drug
quantity, and applying a two-level downward departure for cooperation and a two-level
enhancement for possession of a dangerous firearm in connection with the offense. The
District Court also found that Powell was a career offender. Powell’s resulting Guideline
range was 235 to 293 months. The District Court sentenced him to 268 months
imprisonment followed by ten years of supervised release. The statutory range for
Powell’s offense was twenty years to life. See 21 U.S.C. § 841(b)(1)(A).
II.
Powell challenges the District Court’s denial of his pretrial motion to suppress
physical evidence and statements. We review a District Court’s denial of a motion to
suppress for clear error as to the underlying factual findings, and exercise plenary review
over its application of the law to the facts. United States v. Lockett, 406 F.3d 207, 211
(3d Cir. 2005). We affirm the District Court’s denial of Powell’s motion to suppress
physical evidence and statements because its factual findings are not clearly erroneous
and because Powell’s Fourth Amendment rights were not violated when he and his
residence were searched by his probation officer and then by police officers.
5
Powell argues that because state and federal law enforcement officials “were
collaborating in concert . . . well before Mr. Powell was detained,” the searches violated
the Fourth Amendment. Br. App’t at 21. Powell argues that because the taint of this
violation extends to the incriminating statements he made to local and federal
investigators, and because he made those statements allegedly without being informed
that he faced a potential life sentence, all of his statements should also be suppressed. We
see no merit in these arguments.
Powell’s reasonable expectation of privacy was reduced because he was on
probation and had consented to warrantless searches on the determination of his parole
officer. At the same time, the Government had an increased interest in monitoring his
behavior. See Griffin v. Wisconsin, 483 U.S. 868, 875 (1987); United States v. Williams,
417 F.3d 373, 376 (3d Cir. 2005). “Reasonable suspicion” is sufficient to satisfy the
Fourth Amendment for a warrantless search by a probation officer under such
circumstances. United States v. Knights, 534 U.S. 112, 118–19 (2001).
We agree with the District Court’s determination that Dunstone had a
particularized and objective basis for surmising that there was cocaine on the premises.
See United States v. Arvizu, 534 U.S. 266, 273 (2002) (quotations omitted) (reasonable
suspicion is a particularized and objective basis, under the totality of the circumstances,
for suspecting legal wrongdoing).
Nor is there any basis for suppressing Powell’s statements. Powell initiated the
6
conversation with the police officer in his kitchen and volunteered the information that
the powder cocaine belonged to him. See Miranda v. Arizona, 384 U.S. 436, 444 (1966)
(custodial interrogation is questioning “initiated by law enforcement officers”). Powell
subsequently waived his Miranda rights in writing and his statements were voluntarily
given.
Powell challenges his sentence on the ground it violates the Supreme Court’s
decision in United States v. Booker, 543 U.S. 220 (2005), which was issued almost a year
after he was sentenced. Powell argues that the District Court violated Booker by
calculating his sentence based on facts not charged in the indictment, admitted by him, or
found by a jury by proof beyond a reasonable doubt, and by treating the Sentencing
Guidelines as mandatory.
We review for plain error because Powell did not raise these claims below. See
United States v. Davis, 407 F.3d 162, 164–165 (3d Cir. 2005); Fed. R. Crim. P. 52(b).
Because the District Court, acting pre-Booker, treated the Guidelines as mandatory, the
error is plain, and Powell’s sentence must be vacated and the case remanded for
resentencing in accordance with Booker.
Powell also argues for the first time on appeal that the District Court violated his
Sixth Amendment rights as elucidated in Booker by applying two sentencing
enhancements based on facts not admitted in his guilty plea or found by a jury beyond a
reasonable doubt. This court has stated that judicial fact-finding is permissible and “as
7
before Booker, the standard of proof under the Guidelines for sentencing facts continues
to be preponderance of the evidence.” United States v. Cooper, 437 F.3d 324, 330 (3d
Cir. 2006).
III.
We will affirm the order denying Powell’s motion to suppress physical evidence
and statements, but will vacate Powell’s sentence and remand for resentencing in
accordance with Booker.