United States v. Anthony Thomas

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 11-3512
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UNITED STATES OF AMERICA

v.

ANTHONY THOMAS,
a/k/a Ant

Anthony Thomas,
Appellant
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
(D.C. Crim. No. 11-cr-00008-001)
District Judge: Honorable Timothy J. Savage
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Submitted Under Third Circuit LAR 34.1(a)
April 17, 2012
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Before: VANASKIE, BARRY and CUDAHY,* Circuit Judges

(Opinion Filed: May 10, 2012 )
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OPINION
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*
Honorable Richard D. Cudahy, Senior Circuit Judge for the United States Court of
Appeals for the Seventh Circuit, sitting by designation.
BARRY, Circuit Judge.

Defendant Anthony Thomas appeals the District Court’s denial of his motion to

suppress evidence uncovered in a search of his vehicle, pursuant to a warrant, following

his arrest. He argues that his arrest and the subsequent search were not supported by

probable cause. He argues, as well, that the affidavit submitted with the warrant

application was deficient, precluding good faith reliance. We will affirm.

I. BACKGROUND

On January 6, 2011, a grand jury indicted Thomas for (1) distribution of cocaine,

in violation of 21 U.S.C. § 841(a)(1); (2) possession with intent to distribute cocaine and

cocaine base, in violation of 21 U.S.C. § 841(a)(1); (3) possession of a firearm in

furtherance of a drug trafficking offense, in violation of 18 U.S.C. § 924(c)(1); and (4)

possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1).

Thomas pleaded not guilty and moved to suppress evidence obtained in a search of his

vehicle.

The District Court held a hearing at which Philadelphia Police Officer Theresa

Weaver testified to the following: On November 2, 2010, Officer Weaver received

information from a confidential informant (“CI”) that a black male named Anthony

Thomas, a/k/a “Ant,” was dealing in large quantities of cocaine in south and southwest

Philadelphia, drove a tan Honda Accord with the Pennsylvania license plate, HGG-3378,

and used the cell phone number, (267) 304-6048. Weaver obtained a photograph of

Thomas and showed it to the CI, who confirmed that it was the same person he had

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described. Weaver then placed a call to the phone number the CI had provided and

handed the phone to the CI, who arranged a drug sale for the following day.1

On November 3, 2010, using the CI’s phone, Weaver placed another call to the

number provided and handed the phone to the CI; the man who answered informed him,

“No, I’m not coming. No, just no.” Later that day, Weaver’s supervisor, Sergeant

Brereton, radioed that he saw a tan Honda in the parking lot of the Purple Orchid Strip

Club on 61st Street and Passyunk Avenue. Brereton reported that he saw the Honda pull

up and park, and a white male exit from the passenger’s side and enter a white Grand

Am. The officers stopped the Grand Am as it drove away and arrested the passenger,

Brian Lester. They frisked Lester and found two green packets of cocaine. Lester stated

that he just purchased the cocaine from “Ant,” who drives a tan Honda, and provided a

different cell phone number for Thomas than the one previously given by the CI. Other

officers followed the tan Honda as it left the parking lot and, before losing it, confirmed

that Thomas was the driver.

On November 4, 2010, Weaver saw the tan Honda in the courthouse parking lot

and followed Thomas inside. Officers followed him as he exited the courthouse, went to

his car, and drove to neighboring Delaware County. They observed Thomas go to 931

Barker Road in Sharon Hill, knock on the door, and enter with a key. After about an hour

and a half, Thomas left the building, returned to his car, and drove back to Philadelphia.

Weaver’s partner then had Lester call Thomas to arrange a drug transaction at the Purple

Orchid parking lot. The officers, monitoring the parking lot, observed the tan Honda

1
On cross, Weaver testified that a different CI placed this call.
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arrive and a black female enter the passenger’s side of the vehicle. She exited minutes

later and entered another vehicle that left the area. The tan Honda left shortly thereafter.

Weaver told the officers to stop the Honda and arrest Thomas for selling cocaine to

Lester the previous day. Officer Simmons arrested Thomas, confiscated $1,014 from his

person, and took him to the precinct for processing.

Almost an hour later, a K-9 officer arrived to scan the vehicle. The dog alerted to

the presence of narcotics on the front passenger’s side door and trunk. The Honda was

brought to the precinct for an inventory search and taken to the impoundment lot.

Weaver prepared an application for a warrant to search the Honda, which issued on

November 5th. Pursuant to the warrant, Officers Simmons and Francis searched the

vehicle that day. They recovered cocaine and a loaded firearm from a hidden

compartment.

Following a hearing, the District Court denied Thomas’s motion to suppress the

evidence recovered in the search, concluding, as relevant here, that there was probable

cause to search his car without a warrant and, in any event, that the officers who executed

the warrant relied on the warrant in good faith. Thomas subsequently pleaded guilty to

all four counts, while reserving his right to appeal the denial of his motion to suppress.

He was sentenced to 72 months’ imprisonment.

II. ANALYSIS

The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction

under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291. We review the denial of a motion to

suppress for clear error as to the underlying facts, and de novo as to the legal conclusions

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in light of these facts. United States v. Tracey, 597 F.3d 140, 146 (3d Cir. 2010).2

Thomas argues that the police lacked probable cause to arrest him and search his

vehicle, and that the government cannot rely on the good faith exception to the warrant

requirement because the affidavit in support of the warrant application was misleading

and facially deficient. We conclude that the officers had probable cause to arrest

Thomas; that the warrant to search his vehicle was supported by probable cause; and that,

in any event, the officers relied on the warrant in good faith.

There was ample probable cause supporting Thomas’s arrest. Probable cause to

arrest exists if, given the totality of the circumstances, a prudent person could “believe

that a crime has been committed and the person to be arrested committed it.” United

States v. Stubbs, 281 F.3d 109, 122 (3d Cir. 2002). Here, the primary basis for probable

cause was not the CI’s tip. As even Thomas concedes, the phone number the CI provided

led to a dead end when the man who answered ultimately declined to sell drugs. The CI

simply provided a good lead—the name of the suspect, a description of his vehicle, and

the license plate. It was the information received from Lester that was the more

important basis of probable cause to arrest Thomas. Lester corroborated the suspicious

activity described by the CI: he told the officers that he purchased cocaine from a man

named “Ant” who drives a tan Honda—the man identified by the CI as a cocaine

dealer—and arranged a drug transaction at a time and location at which Thomas

appeared. The officers also recovered cocaine from Lester immediately after seeing him

leave the tan Honda that Thomas was observed driving shortly afterwards. Given these

2
Thomas does not challenge the District Court’s findings of fact.
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facts, a prudent person could surely believe that Thomas had sold Lester cocaine.

In addition, the search of Thomas’s vehicle was lawful because it was conducted

pursuant to a valid warrant, and, in any event, the officers relied on the warrant in good

faith. In the context of a search, probable cause requires a “fair probability that

contraband or evidence of a crime will be found in a particular place.” United States v.

Stearn, 597 F.3d 540, 554 (3d Cir. 2010) (internal quotation omitted). Under the good

faith exception, evidence discovered pursuant to an invalid warrant will not be

suppressed if the officers’ reliance on the warrant was objectively reasonable. See id. at

561 (discussing United States v. Leon, 468 U.S. 897, 923 (1984)). Typically, the mere

existence of a warrant will suffice to demonstrate good faith. Id. Reliance on a warrant

will not be reasonable, however, when the application contains deliberate or reckless

material falsehoods, or is so lacking in probable cause that no reasonable officer could

rely on it. Id. at 561 n.19.

Thomas argues that the warrant was not supported by probable cause and the

affidavit in support of the warrant application omitted supposedly exculpatory

information. He maintains that the government conceded the warrant’s invalidity at the

suppression hearing. We do not agree with this characterization.3 The government

conceded that the affidavit was “poorly drafted,” not that the warrant was invalid. (App.

101a).

Furthermore, the information presented in the supporting affidavit was sufficient

3
The District Court did not address the warrant’s validity in its findings, only observing,
for reasons not entirely clear to us, that no “intellectual[ly] honest law trained person”
would have signed it. (App. 119a).
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to establish probable cause and, certainly, to support good faith reliance. Thomas argues,

first, that the omission of the CI’s inability to arrange a drug transaction with Thomas

was material. There is no requirement, however, that an officer include all failed

investigatory attempts in the probable cause affidavit. Moreover, this information, while

not inculpatory, is far from exculpatory, and its inclusion would not have defeated

probable cause. See United States v. Yusuf, 461 F.3d 374, 383 (3d Cir. 2006). Thomas

also argues that the affidavit did not support a finding of probable cause because it failed

to mention any indicia of the CI’s reliability, that the calls made to Thomas’s cell phone

concerned arranging drug transactions, or Lester’s statement that he purchased the

cocaine from “Ant.” Although this information would have strengthened the application,

the totality of the circumstances presented to the Magistrate—the CI’s identification of

the vehicle and license plate; the officers’ observation of Lester exiting that vehicle and

Thomas driving it; the cocaine discovered on Lester immediately thereafter; Brereton’s

observation of the brief interaction with the black female shortly before Thomas’s arrest;

and, most significantly, the K-9 alert—supported the finding that there was more than a

fair probability that the tan Honda contained narcotics. See Stearn, 597 F.3d at 557

(“[S]eemingly innocent activity [might] bec[o]me suspicious in light of the initial tip.”

(quoting Illinois v. Gates, 462 U.S. 213, 243 n.13 (1983))).

Finally, even if the affidavit supporting the warrant application had not sufficiently

demonstrated probable cause, it certainly was not so lacking that no officer could

reasonably presume the warrant itself to be valid. The affidavit did, indeed, contain some

factual inaccuracies—for example, the license plate was incorrectly listed as “HJJ-3378”

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and two different names were given for the K-9 dog who scanned Thomas’s car—but

these minor inaccuracies surely do not indicate a deliberate or reckless disregard for the

truth. Therefore, the good faith exception would apply even if the warrant had not been

supported by probable cause.

IV. CONCLUSION

For the foregoing reasons, we will affirm the order of the District Court.

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