Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
3-13-2007
USA v. Smith
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-4108
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 04-4108
UNITED STATES OF AMERICA
v.
RAFI SMITH,
Appellant
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
D.C. Criminal No. 04-cr-00141-2
(Honorable Harvey Bartle III)
Submitted Pursuant to Third Circuit LAR 34.1(a)
March 1, 2007
Before: SCIRICA, Chief Judge, McKEE and NOONAN * , Circuit Judges.
(Filed March 13, 2007)
OPINION OF THE COURT
*
The Honorable John T. Noonan, Jr., United States Circuit Judge for the Ninth Judicial
Circuit, sitting by designation.
SCIRICA, Chief Judge.
Defendant Rafi Smith challenges the District Court’s denial of his motion to
suppress physical evidence and statements obtained during the execution of a warrant.
We will affirm the judgment of conviction.
I.
On October 30, 2003,1 Philadelphia police officers observed an unknown black
male (later identified as Desi Glenn) sitting on the front steps of 2920 N. Bonsall Street
from 1:20 pm to 1:25 pm. At 1:25 pm, two unknown black males approached Glenn and
exchanged cash for small items. Moments later, Glenn entered 2920 N. Bonsall Street
and remained there for approximately twenty minutes. At 1:48 pm, Glenn exited 2920 N.
Bonsall Street and got into the passenger seat of a pick-up truck, which promptly drove
off. Around 2:31 pm, Glenn returned in the pick-up truck and re-entered 2920 N. Bonsall
Street. At 2:35 pm, police officers observed a criminal informant meet with Glenn and
walk across the street with Glenn to 2919 N. Bonsall Street, where the criminal informant
purchased from Glenn seven zip-locked packets of crack.
After making these observations Philadelphia Police Officer Jeffrey Francis
applied for a search warrant based on his own affidavit. The affidavit included
information about the confidential informant and Officer Francis. The confidential
1
Because this case turns on the search warrant, the facts are largely taken from the
affidavit filed in support of the warrant.
2
informant had participated in two prior investigations that led to six arrests. Officer
Francis had been a Philadelphia police officer for thirteen years and had spent ten of those
years in the Narcotics Field Unit.
On October 31, 2003, Officer Francis received and executed a search warrant for
2920 N. Bonsall Street. During the execution of the warrant, police arrested Smith and
confiscated contraband (cocaine and marijuana) from Smith and from the residence.
Smith then filed a “Motion to Suppress Physical Evidence and Statements” contending
the search warrant did not comply with the Fourth Amendment because the facts
contained in the affidavit were too vague to establish probable cause. In addition, Smith
contended the good faith exception to the Fourth Amendment exclusionary rule did not
apply. See United States v. Leon, 468 U.S. 897 (1984). The District Court denied
Smith’s motion finding the warrant contained probable cause and even if the warrant did
not contain probable cause, the good faith exception applied.
Smith pled guilty to possession of more than five grams of cocaine base with intent
to distribute in violation of 21 U.S.C. § 841(a)(1), possession of more than five grams of
cocaine base with intent to distribute within 1,000 feet of a school in violation of 21
U.S.C. § 860(a), and possession of a firearm and ammunition by a convicted felon in
violation of 18 U.S.C. § 922(g). Smith’s guilty plea specifically reserved the right to
appeal the District Court’s denial of his motion to suppress evidence. The District Court
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sentenced Smith to 110 months’ imprisonment, eight years of supervised release, and a
$200 special assessment. Smith timely appealed.
II.
We have jurisdiction under 28 U.S.C. 1291. “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 the District Court’s application of the law to those facts.” United
States v. Lockett, 406 F.3d 207, 211 (3rd Cir. 2005).
When reviewing a Magistrate Judge’s decision to issue a warrant, we only need to
determine whether a Magistrate Judge had “a substantial basis for finding probable
cause.” United States v. Hodge, 246 F.3d 301, 305 (3rd Cir. 2001). A finding of
probable cause requires a Magistrate Judge to “make a practical, common-sense decision
whether, given all the circumstances set forth in the affidavit before him . . . [that] there is
a fair probability that contraband or evidence of a crime will be found in a particular
place.” Illinois v. Gates, 462 U.S. 213, 238 (1983). Probable cause can be “inferred by
considering the type of crime, the nature of the items sought, the suspect’s opportunity for
concealment and normal inferences about where a criminal might hide the fruits of his
crime.” Hodge, 246 F.3d at 305 (internal quotations omitted).
Here, the Magistrate Judge had a substantial basis for finding probable cause
because the affiant represented evidence of Glenn’s crimes were stored inside 2920 N.
Bonsall Street. Glenn’s series of movements entering and exiting 2920 N. Bonsall Street
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immediately preceding and following the observed drug transaction demonstrates Glenn
was hiding drugs at that address. In addition, the Magistrate Judge was entitled to give
substantial weight to Officer Francis’s conclusion that evidence of a crime would be
found within 2920 N. Bonsall Street. See United States v. Whitner, 219 F.3d 289, 296
(3rd Cir. 2000) (finding the conclusion of an experienced law enforcement officer as to
the location of evidence is entitled to considerable weight). Accordingly, the Magistrate
Judge had a substantial basis for finding probable cause to issue the search warrant.
III.
Even if the Magistrate Judge did not have a substantial basis for finding probable
cause, the evidence obtained from the search would be admissible under the good faith
exception to the exclusionary rule. See Leon, 468 U.S. at 922. The exception “instructs
that suppression of evidence is inappropriate when an officer executes a search in
objectively reasonable reliance on a warrant’s authority.” Hodge, 246 F.3d at 307
(citations omitted). The existence of a warrant typically justifies use of the exception, but
an officer may not reasonably rely on a warrant:
(1) when the magistrate judge issued the warrant in reliance on a
deliberately or recklessly false affidavit; (2) when the magistrate judge
abandoned his judicial role and failed to perform his neutral and detached
function; (3) when the warrant was based on an affidavit so lacking in
indicia of probable cause as to render official belief in its existence entirely
unreasonable; or (4) when the warrant was so facially deficient that it failed
to particularize the place to be searched or the things to be seized.
5
Id. at 308 (citations omitted). Smith claims the third exception applies here. A warrant
will fall within this exception if it contains a bare bones affidavit. See United States v.
Loy, 191 F.3d 360, 368 (3rd Cir. 1999); Hodge, 246 F.3d at 309. In United States v.
Williams, 3 F.3d 69, 74 (3rd Cir. 1993), we found that this exception did not apply where
the affidavit presented several facts indicating illegal activity.
Here, as already discussed, the affidavit was not a bare bones document. Instead,
the affidavit made specific references to Officer Francis’s observations of Glenn’s drug
transactions and the time frame of the observations. Like Williams, the Magistrate Judge
was called on to assess facts demonstrating illegal activity and to exercise his sound
judgment in finding probable cause. Thus, the officers executing the search warrant acted
reasonably in relying on the warrant’s authority.
IV.
For the foregoing reasons, we will affirm the judgment of conviction.
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