Legal Research AI

United States v. Jewell

Court: Court of Appeals for the First Circuit
Date filed: 1995-07-21
Citations: 60 F.3d 20
Copy Citations
23 Citing Cases
Combined Opinion
                UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT
                                         

No. 94-2080

                        UNITED STATES,

                          Appellee,

                              v.

                       JOHN M. JEWELL,

                    Defendant, Appellant.

                                         

         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
                                         


          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.

                    
                                

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.

                             -2-


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

                             -3-


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

                             -4-


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

                             -5-


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

                             -6-


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

                             -7-


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

                    
                                

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).

                             -8-


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.
                               

                    
                                

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.

                             -9-