PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 21-1837
UNITED STATES OF AMERICA
v.
DAMON TODD CAREY,
Appellant
Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Criminal Action No. 1-18-cr-00263-001)
U.S. District Judge: Sylvia H. Rambo
Submitted Under Third Circuit L.A.R. 34.1(a)
June 8, 2023
Before: HARDIMAN, AMBRO and FUENTES, Circuit
Judges
(Filed: July 7, 2023)
Damon Todd Carey
Devens FMC
P.O. Box 879
Ayer, MA 01432
Pro Se Appellant
Daryl F. Bloom
Carlo D. Marchioli
Office of United States Attorney
Middle District of Pennsylvania
Sylvia H. Rambo United States Courthouse
1501 N 6th Street, 2nd Floor
P.O. Box 202
Harrisburg, PA 17102
Samuel S. Dalke
Office of United States Attorney
228 Walnut Street, Suite 220
Harrisburg, PA 17101
Counsel for Appellee United States of America
____________
OPINION OF THE COURT
____________
AMBRO, Circuit Judge
Defendant-Appellant Damon Carey appeals his
convictions for drug trafficking and using a firearm in
2
furtherance thereof. He challenges, among other things, many
of the District Court’s evidentiary rulings, its calculation of his
Guidelines range, and its refusal to grant a directed verdict in
his favor. We reject most of his arguments. But we agree that
insufficient evidence supports his conviction for possession
with intent to distribute 500 grams or more of cocaine
hydrochloride, in violation of 21 U.S.C. § 841(a). We vacate
that count and remand to the District Court for resentencing.
I.
On April 6, 2018, a fugitive task force of U.S. Marshals
in Harrisburg, Pennsylvania staked out Carey’s residence to
arrest him for violating conditions of his supervised release.
After Carey placed a large bag in the trunk of his rental car, he
soon took the wheel and began to pull away. The task force
moved quickly, effecting a vehicle containment maneuver by
driving directly toward Carey. Hoping to evade interdiction,
Carey “cut the wheel hard to the right and ended up striking a
parked car” on the side of the street. App. 86. He was arrested
after being pulled from the car. The task force then swept it,
“looking for bodies[,] for persons[,] [and] for possible threats.”
App. 87. In the trunk, they found Carey’s bag—opened. Inside
it, they could see a brown shoe box that “had a big opening
where you could put your thumb in . . . .” App. 541. Through
that thumb hole, a member of the task force saw U.S. currency.
The task force called the Harrisburg Bureau of Police. The
Bureau’s Vice and Organized Crime Unit arrived, and law
enforcement opened the shoe box, which contained $79,320.
From Carey’s residence, his pregnant girlfriend, Mikia
Slone, heard the commotion. She immediately located two
lime-sized bags of cocaine and a baby bottle of PCP, “ran to
3
the bathroom, and flushed what [she] could” down the toilet.
App. 756–57. The Government’s expert estimated that the
bags of cocaine together contained around 112 grams of the
drug.
After the crash, U.S. Marshals and Harrisburg Police
headed to Carey’s residence, where they were met by Slone.
Some officers engaged her in small talk “right at the front door,
possibly into the living room area,” App. 92, while others
secured the premises, App. 89, 94. Slone refused to consent to
a search of the residence but indicated there was a loaded
firearm in the upstairs bedroom (though she could not name the
make or caliber). Eventually, she asked if she could leave the
house to pick up her son. She was then escorted by police
upstairs to obtain her shoes. While Slone and the police walked
from the living room to the upstairs area, an investigator took
photographs of the interior of the home. At the same time, one
officer expressed his belief to Slone that “there were drugs in
the house . . . .” App. 429. She responded by saying that
although there was no crack or heroin, there was some
marijuana in the duffel bags on the floor of the bedroom. Using
Slone’s statements and the cash recovered at the accident scene
as support for probable cause, police applied for and obtained
a search warrant for Carey’s residence. 1
1
The police used the wrong street number in their warrant
request because of a miscommunication by one of the officers.
See App. 94 (Testimony of Detective Nicholas Ishman) (“I
gave him the wrong house number. I told him 648 South 21st
Street, and it was actually 748 South 21st Street.”). That error
was inadvertent and legally insignificant. See United States v.
Johnson, 690 F.2d 60, 65 n.3 (3d Cir. 1982). In any event, the
detectives on the scene relied on the facial validity of the
4
Police soon carried out the search warrant. During the
search, they recovered approximately five pounds of
marijuana 2 and 310 grams of cocaine, as well as “two
blenders[,] [f]ive cellular phones, a money counter, a loaded 9
millimeter handgun [registered in Slone’s name] . . . , .45
warrant in good faith. See App. 101 (Testimony of Detective
Jason Paul) (“Q: Now did you believe the warrant was valid
with the correct address at the time that it was signed by the
judge? A: Yes.”).
2
On cross-examination, the Government’s forensic scientist
and drug identification expert testified that laboratory tests of
the marijuana “did not test for tetrahydrocannabinol [THC]
content, and therefore did not distinguish between marijuana
and hemp.” Gov’t Br. 12 (citing App. 714–15, 720–21).
However, Slone gave essentially unrebutted testimony of
Carey’s extensive marijuana trafficking. Moreover, the
Government’s expert in narcotics and drug trafficking
explained that a high-level drug dealer like Carey would not
“be involved in hemp use or distribution” because hemp has a
negligible psychoactive effect and hence has no role in an illicit
drug dealer’s portfolio. App. 925. Thus, ample evidence
contradicts Carey’s claim that the marijuana seized from his
residence could have been hemp. See Griffin v. Spratt, 969
F.2d 16, 22 n.2 (3d Cir. 1992) (citing United States v. Schrock,
855 F.2d 327, 334 (6th Cir. 1988)).
Separately, we reject Carey’s contention that the District Court
erred by limiting cross-examination on marijuana’s legal status
in Pennsylvania. As the Government correctly notes, “recent
changes in state marijuana laws and state definitions . . . [have]
no bearing on the applicable federal standards. . . .” Gov’t Br.
48 (emphases in original).
5
caliber ammunition[,] a holster, two sifters . . . , [f]our digital
scales, [a] considerable amount of cutting agent, baking soda,
. . . confectionary sugar, baggies, a kilo press . . . , and
measuring spoons.” App. 216.
In the days following the search, Carey called Slone
from jail on a recorded line to catalogue the recovered evidence
and to admonish her for failing to destroy or hide what was
found by police during the search. He also instructed her to
collect drug debts on his behalf.
Law enforcement suspected Slone’s involvement in
Carey’s criminal enterprise, so they met with her to discuss a
cooperation agreement that would resolve potential charges
that might be brought against her. Slone initially rejected the
overture. But once the Government superseded its indictment
of Carey to add Slone as a codefendant, she began
cooperating. 3
Carey filed several motions to suppress the evidence
recovered from his vehicle and residence on April 6, 2018. The
3
The records of these interactions “were provided to Carey [by
the Government] and used by [him] at trial to cross-examine
Slone and make closing arguments.” Gov’t Br. 45 (citing App.
772–75, 824–28, 837, 842–43, 846–54). Carey argues that the
Government withheld notes and recordings of an earlier
meeting with Slone during which it solicited information from
her. But “no such notes or recordings exist because no
preindictment proffer or interview was conducted.” Gov’t Br.
45. The District Court noted that Carey’s suggestion that the
Government violated its constitutional disclosure obligations
was “without merit,” Dist. Ct. Dkt. No. 264, at 1, and we agree.
6
Court held suppression hearings and heard testimony.
Ultimately, it suppressed the photographs taken at Carey’s
residence by the investigator before the issuance of the search
warrant but denied his suppression motions in all other
respects.
The grand jury issued its final superseding indictment
on March 31, 2021. It alleged that “[o]n or about April 6, 2018,
in Dauphin County, within the Middle District of
Pennsylvania,” Carey (1) possessed with intent to distribute
500 grams or more of cocaine hydrochloride, in violation of 21
U.S.C. § 841(a), and (2) possessed with intent to distribute
marijuana, in violation of 21 U.S.C. § 841(a). Dist. Ct. Dkt.
No. 178. It further charged that on or about April 6, 2018, in
Dauphin County “and elsewhere,” Carey (3) possessed a
firearm in furtherance of a drug-trafficking crime, in violation
of 18 U.S.C. § 924(c), and (4) conspired to possess with intent
to distribute marijuana and 500 grams or more of cocaine
hydrochloride, in violation of 21 U.S.C. § 846. Id. Carey
pleaded not guilty and proceeded to trial.
At trial, Slone testified against Carey. 4 Among other
things, she: detailed Carey’s drug-trafficking operation; gave a
first-hand account of Carey cooking powder cocaine and
cutting cocaine freebase with Benzocaine; admitted to making
straw purchases of cutting agents for Carey; outlined the
methods Carey used to evade detection; recollected at least six
large-scale cocaine deals in Lancaster and Philadelphia during
4
Carey argues that Slone committed perjury at trial and that
the Government withheld exculpatory evidence from its prior
interviews with her. Our review of the record reveals no clear
error in the District Court’s refusal to credit these contentions.
7
which Carey purchased significant quantities of the drug
packaged in 220–250-gram “flat cardboard, rectangular
[boxes], with tape wrapped around [them],” 5 App. 730;
testified that Carey was traveling to Lancaster to purchase
additional cocaine or settle a prior cocaine debt at the time of
his arrest—and that the $79,320 recovered by police from the
trunk of the rental car was to be used for that purpose; and
admitted that Carey, after being arrested, solicited her help in
recovering some of his drug debts.
Regarding the gun and ammunition police recovered
during the search of Carey’s residence, Slone testified that
Carey paid for their purchase. She noted that the gun was kept
loaded on the nightstand next to where the couple slept—and
that it was otherwise “always out.” App. 836–37. Her
testimony implied that Carey loaded the gun because she did
not know how to do it herself. According to Slone, Carey
instructed her to bring the gun to drug transactions for
protection. Slone admitted to using a holster to carry the gun
that was different from the holster police found during their
search of Carey’s residence.
The jury also heard testimony from Pennsylvania State
Trooper Shawn Wolfe, an expert investigator of drug
trafficking. He noted that the drugs and the paraphernalia
recovered by police—the press, cutting agents, grinders,
sifters, strainers, baking soda, and measuring cups—evidenced
large-scale drug distribution.
5
The cardboard box recovered in Carey’s house on April 6,
2018, weighed 222 grams. Carey understood these boxes to
contain, on average, 250 grams of cocaine.
8
On April 22, 2021, the jury convicted Carey on all
counts. Following his conviction, the probation office
conducted a presentence investigation and issued a presentence
report (PSR). Based on the PSR and the parties’ arguments at
Carey’s sentencing hearing, the District Court concluded that
the testimony given by Slone and Wolfe, combined with other
direct and circumstantial evidence, provided a sufficient
evidentiary basis to estimate Carey’s drug weight as a Level
30, per U.S.S.G. § 2D1.1. The District Court based its
calculation on the following facts:
Police seized 310 grams of cocaine from the
residence during their search on April 6, 2018.
Slone flushed an estimated 112 grams of cocaine
down the toilet before the search that day.
The money recovered from the crashed rental car
was intended to purchase or settle a debt for at
least two kilograms of the drug.
The $92,700 recorded on an “owe sheet”
recovered from Carey’s residence reflected the
sale of at least two kilograms of cocaine.
Carey, accompanied by Slone, participated in at
least six cocaine deals in Lancaster and
Philadelphia, each involving roughly five 220- to
250-gram boxes of cocaine. In total, Carey
purchased between 6 and 7.5 kilograms of
cocaine during these transactions. 6
6
Based on this evidence, we reject Carey’s contention that the
District Court miscalculated the drug quantities involved for
sentencing purposes. Even if the Court was wrong to assume
9
After assessing several other enhancements, 7 the
District Court assigned Carey a Total Offense Level of 34 and
a criminal history category of III. It sentenced Carey to 228
months in prison, consisting of 168 months on Counts I and IV
and 120 months on Count II to run concurrently with each
other, followed by a mandatory 60-month consecutive term of
imprisonment for Carey’s § 924(c) violation.
that the owe sheet detailed cocaine transactions only, that error
did not affect Carey’s base offense level and is therefore
harmless. See United States v. Diaz, 951 F.3d 148, 159 (3d
Cir. 2020) (“If a district court makes an error in its drug
quantity determination that does not affect the base offense
level . . . , the error is harmless.”).
7
Relevant to this appeal, the Court applied a two-level
enhancement per U.S.S.G. § 3B1.1(c) based on evidence that
Carey led, organized, or supervised drug-trafficking activity.
That enhancement was proper, as Carey instructed Slone
regarding the collection of drug money and other narcotics-
related activities following his arrest.
In addition, the Court enhanced Carey’s sentence because he
willingly allowed Slone to participate in his drug-trafficking
enterprise while she was pregnant, per U.S.S.G.
§ 2D1.1(b)(16)(B)(iii). Again, the record supports this
enhancement. See PSR Addendum at ¶ 3 (Carey telling his
supervising probation officer that “I have [] two boys on the
way” several weeks before his arrest—which occurred when
Slone was around six months pregnant).
Because we identify no misconduct or reversible error beyond
that noted in Section II, we also reject Carey’s claim of
cumulative error.
10
Carey filed a timely notice of appeal. 8
II.
We begin with Carey’s challenge to Count I. To convict
him for possession with intent to distribute 500 grams or more
of cocaine hydrochloride in violation of 21 U.S.C. § 841(a), the
Government had to prove that he possessed 500 grams or more
of that substance on or about April 6, 2018, in Dauphin County.
Carey contends that even if the record is viewed in the light
most favorable to the Government, no rational trier of fact
could have made that finding. See United States v. Rowe, 919
F.3d 752, 758–59, 761 (3d Cir. 2019). We agree.
Only 310 grams of cocaine were seized from Carey’s
residence on April 6, 2018. The Government attempts to add
up the remaining 190 grams in three ways.
First, it points to the two lime-sized bags of cocaine
Slone flushed down the toilet before the search on April 6,
2018. Though the Government’s narcotics expert estimated
that these bags, together, conservatively contained only 112
grams of cocaine, he also suggested that they might have
weighed up to 200 grams if “recompressed into a powder form
with a press . . . .” App. 924 (Expert testimony). On appeal,
the Government implies that the expert’s latter remark can
sustain Count I.
8
The District Court had subject-matter jurisdiction under 18
U.S.C. § 3231. We have jurisdiction under 28 U.S.C. § 1291
and 18 U.S.C. § 3742(a).
11
The Government’s position on appeal differs from its
approach at trial, which took as granted the expert’s
conservative estimate. See App. 1028 (Gov’t Closing
Argument) (“[W]e’re just going to add what the expert said as
the lowest amount, which would be 112 grams.”). The
Government’s trial approach tracked the evidence: the kilo
press police recovered during the search of Carey’s residence
was only suitable for “pressing 125 to 250 grams of cocaine,”
App. 1019, a weight range exceeding the highest estimate of
the flushed bags.
The Government’s trial approach gave Carey no reason
to elicit testimony from Slone on whether the bags she flushed
contained loose powder or “recompressed” cocaine. See App.
1049 (Defense Closing Argument) (“We don’t know what
allegedly was flushed . . . . But when she held up her fingers
and demonstrated, if [each bag] is 56 grams, it’s still less than
500.”). Principles of forfeiture and fairness thus preclude the
Government from now relying on the expert’s higher estimate.
See, e.g., United States v. D’Amato, 722 F. Supp. 221, 225
(E.D. Pa. 1989) (discussing United States v. Minarik, 875 F.2d
1186, 1189 (6th Cir. 1989)) (“Notably, the government shifted
its position concerning . . . allegations central to its case . . . .
As the district court noted when it granted judgment
notwithstanding the verdict, the government’s changing
theories ‘presented defendants with a moving target as they
attempted to prepare a defense.’”).
Second, the Government casts aspersions, urging us to
condemn Carey just because he is a drug dealer. See Gov’t Br.
42–43. The District Court appears to have accepted this
argument. See App. 1347 (Op. at 16) (“The government’s
expert further testified that an individual operating at the scale
12
of Carey . . . would be operating well in excess of 500 grams
at one time.”). But while Carey’s drug dealing “might be a
basis for speculation” that he possessed 500 grams of cocaine
on or about April 6, 2018, “it is not proof beyond a reasonable
doubt.” Rowe, 919 F.3d at 761. That Carey is generally
“blameworthy” does not authorize his conviction for a specific
crime absent sufficient proof. United States v. Salamanca, 990
F.2d 629, 638 (D.C. Cir. 1993).
Finally, the Government falls back on prior instances of
alleged possession to add up to 500 grams. See, e.g., Gov’t Br.
41–42 (“Slone also testified she previously saw Carey with
multiple cardboard boxes of cocaine on different occasions—
up to 5 at any one time . . . . Slone further testified that she
would accompany Carey to Philadelphia and Lancaster where
Carey regularly purchased multiple boxes of cocaine from his
supplier. One of those cardboard boxes was found in Carey’s
house on April 6, 2018, weighing 222 grams.”) (emphases
added). This line of reasoning implies that the variance
between Count I’s indictment charge and the Government’s
proof of prior possessions at trial is a permissible basis to
convict Carey. 9 We disagree.
9
By attacking the sufficiency of the evidence on Count I, Carey
preserved a challenge to an improper variance. See United
States v. Miller, 527 F.3d 54, 69–70 (3d Cir. 2008) (reviewing
a sufficiency-of-the-evidence challenge to determine whether
there was an impermissible variance); United States v. Kemp,
500 F.3d 257, 287 n.18 (3d Cir. 2007) (recognizing that a “pure
sufficiency of the evidence challenge” may be interpreted as a
claim “alleging a prejudicial variance”).
13
The indictment charged that Carey possessed 500 grams
or more of cocaine “[o]n or about April 6, 2018, in Dauphin
County.” Dist. Ct. Dkt. No. 178. By contrast, the Government
put on evidence at trial showing that Carey possessed 500
grams or more of cocaine in Lancaster and Philadelphia in
October and November 2017. This trial evidence “materially
differ[ed] from [the facts] alleged in the indictment,” United
States v. Daraio, 445 F.3d 253, 259 (3d Cir. 2006), such that
the latter did not “sufficiently inform[] [Carey] of the charges
against him and allow[] him to prepare his defense without
being misled or surprised at trial.” United States v. Vosburgh,
602 F.3d 512, 532 (3d Cir. 2010). “Even when time is not an
element of the charged offense, it nonetheless carries part of an
indictment’s notice load.” United States v. Cochran, 697 F.2d
600, 604 (5th Cir. 1983). And here, the indictment put Carey
on notice only that the Government planned to prove he
possessed 500 grams or more of cocaine in Dauphin County
reasonably near April 6, 2018. See Real v. Shannon, 600 F.3d
302, 308 (3d Cir. 2010). To uphold Carey’s conviction based
on possessions occurring five to six months prior to that date
in a different county would be prejudicial to Carey and would
place him at risk of double jeopardy. Cf. United States v.
Bastian, 770 F.3d 212, 220 (2d Cir. 2014); United States v.
Johnson, 409 F. App’x 688, 690 n.1 (4th Cir. 2011). We
therefore vacate Carey’s Count I conviction insofar as the
Government argues for a permissible variance. See United
States v. Schoenhut, 576 F.2d 1010, 1021–22 (3d Cir. 1978)
(recognizing a defendant’s right to an indictment that
sufficiently informs him of the charges being brought).
14
III.
Turning to Carey’s sufficiency-of-the-evidence
challenge to his § 924(c) conviction, he contends that the
Government “failed to present evidence linking [him] to [a]
firearm” or “to a drug-related offence [sic] on or about the
relevant time period.” Opening Br. 76. We are unconvinced.
At trial, the Government presented three alternative
theories of § 924(c) liability: (1) that Carey constructively
possessed the gun in furtherance of his marijuana and cocaine
dealing; 10 (2) that he aided and abetted Slone’s possession of
the gun in furtherance of the same, and; (3) that he was
responsible for Slone’s possession of the gun because it
furthered the object of their drug trafficking conspiracy, see
United States v. Lopez, 271 F.3d 472, 480 (3d Cir. 2001) (citing
Pinkerton v. United States, 328 U.S. 640, 647–48 (1946)).
Each of these theories is legally valid and constitutional, so we
allow a general verdict on Count III to stand if sufficient
10
There is ample evidence of this drug dealing, which serves
as the predicate for Carey’s § 924(c) charge. Law
enforcement’s seizure of five pounds of marijuana from
Carey’s residence supports his § 841(a) conviction in Count II.
And Carey’s “owe sheet” and Slone’s testimony about his
cocaine dealings in Lancaster and Philadelphia demonstrate his
participation in an ongoing drug-trafficking conspiracy in
violation of § 846, per Count IV. Unlike § 841(a), a § 846
conspiracy is a continuing offense that may be proved by
aggregating weights from multiple distributions and
discontinuous possessions. See United States v. Williams, 974
F.3d 320, 364 (3d Cir. 2020) (citing United States v. Gori, 324
F.3d 234, 237 (3d Cir. 2003)).
15
evidence supports a conviction under any of them. 11 United
States v. Tyler, 732 F.3d 241, 253 (3d Cir. 2013) (citing United
States v. Syme, 276 F.3d 131, 144 (3d Cir. 2002)).
We need not look further than the Government’s first
theory of liability, constructive possession. 12 The record
shows that the recovered gun was kept near Carey’s bed, close
to his drugs and drug-trafficking paraphernalia; that the gun,
when seized, was loaded even though Slone testified she did
not know how to load it; that Slone did not know the make or
model of the gun, even though it was registered in her name;
11
Contrary to Carey’s suggestion, none of the Government’s
alternative theories of possession constructively amended the
indictment. See United States v. Ashley, 606 F.3d 135, 143 (4th
Cir. 2010) (“It is settled that vicarious liability predicated on
having aided or abetted the crimes of another need not be
charged in an indictment. . . . These same principles hold true
in the case of vicarious coconspirator liability.”).
12
Carey was in constructive possession of the gun if he
“knowingly ha[d] both the power and the intention at a given
time to exercise dominion or control over it, either directly or
through another person or persons.” United States v.
Cunningham, 517 F.3d 175, 178 (3d Cir. 2008) (quoting
United States v. Iafelice, 978 F.2d 92, 96 (3d Cir. 1992)). Proof
of constructive possession may be “by either direct or
circumstantial evidence, and it need not be exclusive to a single
person.” United States v. Walker, 657 F.3d 160, 172 (3d Cir.
2011) (citing United States v. Iglesias, 535 F.3d 150, 156 (3d
Cir. 2008)); see also United States v. Sparrow, 371 F.3d 851,
853 (3d Cir. 2004) (“[I]mmediate accessibility [of the gun] at
the time of search or arrest is not a legal requirement for a
§ 924(c) conviction.”).
16
that Carey paid for the gun and bullets; and that police
recovered a holster for the gun during their search of Carey’s
residence that did not belong to Slone. All this substantiates
the Government’s theory that Slone was Carey’s porter. See,
e.g., United States v. Walker, 657 F.3d 160, 174 (3d Cir. 2011).
And it supports the inference “that possession of the firearm
advanced or helped forward [Carey’s] drug trafficking.”
United States v. Sparrow, 371 F.3d 851, 853 (3d Cir. 2004).
Because there is sufficient evidence that Carey
constructively possessed the firearm seized from his residence
in furtherance of his drug trafficking, we uphold his conviction
under Count III.
IV.
Carey also raises a host of challenges to the District
Court’s suppression rulings. We review them for clear error as
to the underlying factual findings and review anew the Court’s
application of the law to those facts. United States v. Perez,
280 F.3d 318, 336 (3d Cir. 2002). His challenges do not
persuade us.
A.
The Court correctly allowed for the introduction of
evidence seized from Carey’s vehicle.
As noted, U.S. Marshals—after viewing Carey leave his
residence and place a bag in the trunk of his rental car—moved
to arrest him as he drove away. Carey, trying to evade arrest,
crashed his car. The Marshals then completed the arrest and
conducted a warrantless sweep of the vehicle. During that
17
sweep, they encountered a shoebox in the trunk that “had a big
opening where you could put your thumb in . . . .” App. 541.
Through that thumb hole, they observed large amounts of U.S.
currency. The Marshals called Harrisburg Police, and the
shoebox was opened, revealing approximately $80,000 in cash.
Suppression of cash was rightly denied. Detectives of
the Harrisburg Police testified that it was standard procedure
to perform an inventory search of any vehicle that was to be
towed or impounded following an accident or arrest. See
Harrisburg Bureau of Police General Order # 07-47 (Aug. 10,
2007); see also App. 100 (testimony about the policy); App.
235 (same); App. 244 (same). Such a procedure complies with
the Fourth Amendment. See Colorado v. Bertine, 479 U.S.
367, 371–72 (1987). And because Carey’s crashed vehicle was
subject to the policy, the inevitable discovery doctrine
applies. 13 See United States v. Stabile, 633 F.3d 219, 245 (3d
Cir. 2011) (citing Nix v. Williams, 467 U.S. 431 (1984)). In
other words, because the District Court correctly determined
13
Carey’s car “constitute[d] a hazard or obstruction to the flow
of traffic.” General Order 07-47 III.D.2. It was disabled from
an accident, Carey was arrested, and no one was immediately
available to take custody of it. See General Order 07-47 II.A.7,
12; id. at III.G–H. City policy thus authorized Harrisburg
Police to impound and inventory Carey’s vehicle and to search
the closed containers in it. See United States v. Salmon, 944
F.2d 1106, 1120–21 (3d Cir. 1991), abrogated on other
grounds by United States v. Caraballo-Rodriguez, 726 F.3d
418 (3d Cir. 2013). We can readily distinguish this case from
United States v. Vasey, where impoundment was an option of
“last resort” to which the defendant objected
contemporaneously. 834 F.2d 782, 790 n.4 (9th Cir. 1987).
18
by a preponderance of the evidence that the Harrisburg Police,
using routine procedures, inevitably would have discovered the
box of cash in the trunk of Carey’s crashed rental car, that
evidence is admissible. See, e.g., United States v. Bullette, 854
F.3d 261, 266–67 (4th Cir. 2017).
B.
Nor did the District Court err in denying suppression of
the items seized from Carey’s residence. After Carey crashed
his rental car, police went to his residence and spoke with Slone
inside the property threshold during a lawful “knock and talk.”
See Haberle v. Troxell, 885 F.3d 170, 176 (3d Cir. 2018). The
officers’ entry into the home was not a pretext “to search for
and seize an object without a warrant.” Contra Opening Br. 39
(quoting Payton v. New York, 445 U.S. 573, 581 (1980)).
Rather, it was to speak with Slone, Carey’s girlfriend,
regarding his suspected criminal activity. When Slone
confirmed Carey’s drug dealing and acknowledged that
marijuana and a firearm were in the home, she gave police
probable cause to obtain a search warrant for the residence. At
this point, the cash seized from Carey’s car was “extra icing on
a cake already frosted.” Van Buren v. United States, 141 S. Ct.
1648, 1661 (2021) (quoting Yates v. United States, 574 U.S.
528, 557 (2015) (Kagan, J., dissenting)).
Slone’s voluntary statements to police during the
“knock and talk” also provided “good reason to fear that,
unless restrained, [she] would destroy the drugs before they
could return with a warrant.” Illinois v. McArthur, 531 U.S.
326, 332 (2001). The police thus acted consistent with the
Fourth Amendment when securing the premises and escorting
Slone to obtain her shoes when she asked to leave.
19
Finally, the minor typographical error in the warrant
noted above does not undermine the officers’ good-faith
reliance on it. And the premature photographs taken of the
interior of Carey’s residence before the warrant’s issuance
were not used to secure the warrant, so their suppression does
not unsettle its legal validity. The District Court thus properly
admitted all the evidence seized from Carey’s residence during
execution of the search warrant.
***
We affirm in part, vacate in part, and remand to the
District Court for a resentencing consistent with this opinion.
20