United States v. Agnew

• Court: Court of Appeals for the Third Circuit
• Decided: September 22, 2004
• Docket: 03-2654
• Status: Published

Opinion

Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit

9-22-2004

USA v. Agnew Precedential or Non-Precedential: Precedential

Docket No. 03-2654

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Recommended Citation "USA v. Agnew" (2004). 2004 Decisions. Paper 269. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/269

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University School of Law Digital Repository. It has been accepted for inclusion in 2004 Decisions by an authorized administrator of Villanova University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu. PRECEDENTIAL LORI J. ULRICH (ARGUED) JAMES V. WADE UNITED STATES COURT Federal Public Defender for the OF APPEALS FOR Middle District of Pennsylvania THE THIRD CIRCUIT DANIEL I. SIEGEL Assistant Federal Public Defender 100 Chestnut Street, Suite 306 NO. 03-2654 Harrisburg, PA 17101 __________ Counsel for Appellant

UNITED STATES OF AMERICA THEODORE B. SMITH, III, (ARGUED) JAMES T. CLANCY v. Assistant U.S. Attorney THOMAS A. MARINO AARON AGNEW, United States Attorney Appellant Federal Building ________________ 228 Walnut Street P.O. Box 11754 Appeal from the United States Harrisburg, PA 17108-1754 District Court for the Counsel for Appellee Middle District of Pennsylvania _________ District Judge: Honorable William W. Caldwell OPINION OF THE COURT (D.C. Criminal No. 02-cr-00055)

Argued May 27, 2004 SCHW ARZER, Senior District Judge.

BEFORE: RENDELL and COWEN, Aaron Agnew appeals his Circuit Judges, and conviction for distributing crack cocaine SCHWARZER,* District Judge. and being a felon in possession of a firearm. He contends that the District Court erred in denying his motion to (Filed September 22, 2004) suppress physical evidence, and in preventing him from impeaching a witness with evidence of a sixteen-year-old forgery conviction. The District Court had jurisdiction pursuant to 18 U.S.C. § 3231 and we exercise jurisdiction pursuant to * The Honorable William W Schwarzer, 28 U.S.C. § 1291. We will affirm. Senior United States District Judge for the Northern District of California, sitting by designation. FACTUAL AND PROCEDURAL and six other officers approached the front HISTORY of the residence, and four or five officers were posted around the perimeter and at Agnew was charged in an the rear of the residence. Some of the indictment with distribution of crack officers wore “raid gear,” including cocaine in violation of 21 U.S.C. § bulletproof vests, and carried ballistics 841(a)(1), possession of a firearm by a shields. Duncan testified that when the felon in violation of 18 U.S.C. §§ officers knocked on the front door of the 922(g)(1) and 924(a)(2), and possession of residence and announced, “Police, open a firearm in furtherance of a drug the door,” he saw Agnew pull aside a trafficking crime in violation of 18 U.S.C. curtain in a window of the home. He then § 924(c)(1)(A). heard “what sounded like scuffling inside, running around.” Duncan testified that he Before trial, Agnew moved to “felt that due to the knowledge that suppress the fruits of the search in [Agnew] had a handgun that we were connection with his arrest. At the compromised and we decided to take the suppression hearing, Dauphin County door.” The officers then entered the Sheriff’s Deputy Gary Duncan testified residence and apprehended Agnew as he that he was assigned to the Fugitive Task ran up a flight of stairs. Once inside, Force charged with “the service of all officers noticed in plain view a clear violent felony warrants, drug warrants and plastic bag containing cocaine. They any other cases referred to [it] from thereafter obtained a search warrant and Dauphin County or the surrounding found a .22 caliber revolver and fifteen communities.” Agnew’s case was referred grams of cocaine in the home. to Duncan’s unit because Agnew had twice previously evaded capture by The District Court denied Agnew’s jumping from a second story window and suppression motion. It found that the by holding onto the roof rack of a passing officers acted pursuant to an arrest car for a block and a half. Duncan had wa rrant, a n d he ld that e xig e n t learned from an informant that Agnew circumstances justified the entry into the “was at the residence [at 2740 Ludwig home. Street] and that he was to be in possession of a firearm, a revolver, . . . and that he The day before trial, the was also to be in possession of some government made a motion in limine to narcotics.” Duncan checked with the Drug prevent Agnew from cross-examining a Task Force and learned that it had no government witness, Wyatt Dawson, using investigations pending against Agnew. a sixteen-year-old forgery conviction. The court granted the motion at trial, stating, “I Duncan and a group of other have read the motion and your brief. I am officers went to 2740 Ludwig Street. He going to sustain the objection.” Dawson

2 subsequently testified that he had different ground). purchased crack cocaine from Agnew on numerous occasions and that he rented and We find that the entry into the lived in the residence at 2740 Ludwig residence did not violate Agnew’s Fourth Street. In addition to the testimony of an Amendment rights because the officers officer who searched the residence, the were armed with a warrant for his arrest. government also presented several Payton v. New York, 445 U.S. 573 (1980), witnesses who testified to buying crack establishes that police may enter a from Agnew. Agnew himself took the suspect’s residence to make an arrest stand and testified that the firearm and armed only with an arrest warrant if they drugs were owned by Dawson, who was in have probable cause to believe that the fact the dealer who supplied Agnew with suspect is in the home. Id. at 602-03; see drugs. also United States v. Clayton, 210 F.3d 841, 843 (8th Cir. 2000) (holding that a The jury convicted Agnew of valid misdemeanor arrest warrant “carries distributing crack cocaine and possessing with it the authority to enter the residence a firearm, but acquitted him of possessing of the person named in the warrant in a firearm in furtherance of drug order to execute the warrant so long as the trafficking. Agnew timely appealed. police have a reasonable belief that the suspect resides at the place to be entered and that he is currently present in the DISCUSSION dwelling”). The District Court found that I. the officers entered the residence for the purpose of executing an arrest warrant, and Agnew first argues that the District this finding has not been challenged. Court erred in finding that the officers’ Indeed, Duncan testified that he was entry into 2740 Ludwig Street was assigned to the Fugitive Task Force justified by exigent circumstances. We charged with serving arrest warrants, and review the denial of a suppression motion Agnew testified that he was aware that for clear error as to the underlying facts, there was “a warrant out for [his] arrest” at but exercise plenary review as to its the time of the arrest. Moreover, the legality in light of the court’s properly police had probable cause to believe that found facts. United States v. Givan, Agnew was in the home because they saw 320 F.3d 452, 458 (3d Cir. 2003). We may him through the window. affirm on any ground supported by the record. United States v. Jasin, 280 F.3d We note that Payton only addresses 355, 362 (3d Cir.), cert. denied, 537 U.S. entry by officers into the residence of the 947 (2002); United States v. Belle, 593 subject of the warrant, 445 U.S. at 603, F.2d 487, 499 (3d Cir. 1979) (en banc) and that there was no testimony at the (affirming denial of suppression motion on suppression hearing about whether 2740

3 Ludwig Street was Agnew’s residence. As the Ninth Circuit observed: However, whether the home was Agnew’s residence is ultimately irrelevant because A person has no greater under any of the possible alternatives the right of privacy in another’s entry pursuant to the arrest warrant did not home than in his own. If an violate Agnew’s Fourth Amendment arrest warrant and reason to rights. believe the person named in the warrant is present are If Agnew resided at 2740 Ludwig sufficient to protect that Street, his arrest was lawful under Payton person’s fourth amendment because the police acted pursuant to an privacy rights in his own arrest warrant. See id. at 602-03. If home, they necessarily Agnew did not reside at 2740 Ludwig suffice to protect his privacy Street, he may have lacked a privacy rights in the home of interest in the residence and would have no another. standing to challenge the police officers’ entry. Minnesota v. Olson, 495 U.S. 91, The right of a third party not 95-97 (1990) (holding that only a person named in the arrest warrant with a reasonable expectation of privacy in to the privacy of his home a residence—like an overnight guest—may may not be invaded without complain that an entry into the residence a search warrant. But this was unlawful). In any event, even if right is personal to the home Agnew, although not a resident at 2740 owner and ca nnot be Ludwig Street, did have a privacy interest, asserted vicariously by the the entry did not violate his privacy rights. person named in the arrest The Supreme Court held in United States warrant. v. Steagald, 451 U.S. 204, 211-14 (1981), that the Fourth Amendment does not United States v. Underwood, 717 F.2d permit police to enter a third person’s 482, 484 (9th Cir. 1983) (en banc) home to serve an arrest warrant on a (citations omitted); see also United States suspect. But Steagald protected the v. Kaylor, 877 F.2d 658, 663 n.5 (8th Cir. interests of the third-party owner of the 1989) (“Steagald addressed only the right residence, not the suspect himself. See id. of a third party not named in the arrest at 212 (stating the issue to be “whether an warrant to the privacy of his or her home. arrest warrant—as opposed to a search This right is personal to the homeowner warrant— is adequate to protect the Fourth and cannot be asserted vicariously by the Amendment interests of persons not person named in the arrest warrant.”). named in the warrant, when their homes Thus, even if Agnew was a non-resident are searched without their consent and in with a privacy interest, the Fourth the absence of exigent circumstances”). Amendment would not protect him from

4 arrest by police armed with an arrest Rule [of Evidence] 403 objection and its warrant. reasons for doing so are not otherwise apparent from the record, there is no way Because the officers entered the to review its discretion. In such cases, we residence armed with a warrant for need not defer to the reasoning of the Agnew’s arrest, and had probable cause to district court.” Id. at 781 (citation believe that he was inside, the District omitted). Agnew asks us to extend this Court properly denied the motion to principle to decisions under Rule 609. The suppress. District Court stated, “I have read the [government’s] motion and your brief. I II. am going to sustain the objection.” We believe that this statement adequately Agnew next contends that the reveals the Court’s reasons for sustaining district court erred in preventing him from the objection: it agreed with the arguments cross-examining Dawson using the contained in the government’s brief.2 In witness’s sixteen-year-old forgery any case, we find that the Court’s decision conviction. He argues that we should should be affirmed even under a plenary review the district court’s decision de standard of review. novo, and that the evidence should have been admitted because it would have B. helped resolve a dispute between two witnesses—Dawson and Agnew— about Federal Rule of Evidence 609(a) who owned the gun found in Agnew’s permits parties to use evidence of a past room. conviction to impeach witnesses “if it involved dishonesty or false statement.” A. Forgery, of course, involves dishonesty and false statement. Wagner v. Firestone Agnew concedes that we usually Tire & Rubber Co., 890 F.2d 652, 655 n.3 review decisions to exclude evidence for (3d Cir. 1989). But Rule 609(b) states that abuse of discretion. See United States v. Saada, 212 F.3d 210, 220 (3d Cir. 2000). Evidence of a conviction He contends that we should employ under this rule is not plenary review here, however, because the record does not reflect that the district court actually exercised its discretion. 2 The government’s argument was that Agnew had numerous other avenues for In United States v. Himelwright, 42 cross-examination, including a more recent F.3d 777 (3d Cir. 1994), we stated that conviction for passing a bad check, and “[w]here . . . the district court fails to that the probative value of the forgery explain its grounds for denying a [Federal] conviction was small.

5 admissible if a period of forgery conviction. more than ten years has elapsed since the date of the conviction . . . unless the CONCLUSION court determines, in the interests of justice, that the For the reasons stated, we will probative value of the AFFIRM the conviction. conviction supported by spec ific facts and circumstances substantially outweighs its prejudicial effect.

Here, Dawson’s conviction was more than ten years old.

We find that the probative value of the evidence of Dawson’s forgery conviction was sufficiently small that the “interests of justice” did not warrant its admission, and that any error in refusing to admit the evidence was harmless. See United States v. Colletti, 984 F.2d 1339, 1343 (3d Cir. 1992) (employing harmless- error analysis in the Rule 609(b) context). Two witnesses other than Dawson testified that Agnew sold crack numerous times, and Agnew admitted as much shortly after the crime. The police found cocaine in Agnew’s shoes. Likewise, Agnew admitted that he knew that the gun had “come from” two individuals named “Nature” and “Light,” and a police officer testified that drug dealers commonly keep guns at their disposal. Indeed, the jury had already learned that Dawson used crack cocaine. It would not have resolved the question of ownership of the gun and drugs in favor of Agnew simply because it also learned that Dawson had an old