United States v. James Brown

52 F.3d 415, 1995 U.S. App. LEXIS 8454, 1995 WL 215850
CourtCourt of Appeals for the Second Circuit
DecidedApril 12, 1995
Docket1264, Docket 93-1557
StatusPublished
Cited by95 cases

This text of 52 F.3d 415 (United States v. James Brown) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. James Brown, 52 F.3d 415, 1995 U.S. App. LEXIS 8454, 1995 WL 215850 (2d Cir. 1995).

Opinions

GLASSER, District Judge:

James Brown appeals from a judgment of conviction entered on July 26, 1993 following a jury trial in the United States District Court for the Eastern District of Vermont (Billings, J.). He was convicted of one count of conspiracy to distribute cocaine and heroin in violation of 21 U.S.C. §§ 841(a)(1) and 846; two counts of distribution of cocaine in violation of 21 U.S.C. § 841(a)(1); one count of possession of heroin with intent to distribute in violation of 21 U.S.C. § 841(a)(1); one count of possession of cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1); one count of possession of a firearm by a felon in violation of 18 U.S.C. §§ 922(g) and 924(e); one count of possession of a firearm with an obliterated serial number in violation of 18 U.S.C. § 922(k) and one count of possession of a firearm during a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1). He was sentenced to a total term of imprisonment of 322 months consisting of concurrent terms of 262 months on the first seven counts and a consecutive term of 60 months on count eight (possessing a firearm during a drug trafficking offense). In addition, he was sentenced to a six year term of supervised release and was directed to pay a mandatory special assessment of $400.

Brown contends that the district court erred in denying his pretrial motion to suppress evidence seized from his apartment in violation of 18 U.S.C. § 3109 (the “knock and announce” statute) and the Fourth Amendment to the United States Constitution and in failing to suppress statements obtained which, he contends, were the fruits of the unlawful search. Brown also contends that he was improperly sentenced as an armed career criminal for the reason that the government failed to prove he was a thrice-convicted felon as a basis for invoking § 4B1.4 of the United States Sentencing Guidelines, and that the district court erred in considering him a career offender pursuant to U.S.S.G. § 4B1.1 based upon a finding that he violated 21 U.S.C. § 860(a) (distribution of a controlled substance within 100 feet of a school).

Background

On March 18, 1992, a confidential informant (“Cl”) reported to detective John C. Lewis of the Burlington, Vermont Police Department that co-defendant Timothy Ellison who lived at 11 Cedar Street in Burlington had sold crack and heroin from his apartment, both of which the Cl had seen there. Living in that apartment with Ellison were his cousin “Jimmy” (the defendant Brown) and co-defendant Patricia Miles who was Ellison’s girlfriend, both of whom were also involved in drug trafficking. Detective Lewis also learned from the Cl that Ellison and Brown were associated with a person named Mike who sold heroin from a nearby apartment. The Cl had purchased cocaine from Mike in the past and was once visited by [418]*418Mike, Ellison and another who came with a pump-action shotgun to collect for a drug related debt the Cl owed Mike. Over the course of the next few weeks, the Cl attempted to make several controlled purchases of drugs at the Cedar Street aparta ment. On April 2, 1992, for example, the Cl, wearing a body-wire, attempted to purchase cocaine at the Cedar Street apartment. He was surveilled on that occasion by Detective Lewis, by Joseph Harrington, an agent of the Bureau of Alcohol, Tobacco and Firearms (“BATF”), and another detective. Patricia Miles was in the apartment. Ellison and Brown were not. Miles showed four bundles of heroin to the Cl and told him that Brown was at a laundromat nearby. The Cl located Brown and purchased cocaine from him at a point across the street from an elementary school. The Cl, on subsequent days, also made controlled purchases of heroin and cocaine from Ellison and his associates. On two of those occasions he was in the apartment, secretly recording conversations with the occupants by means of a body-wire he was wearing.

In the course of his investigation, Detective Lewis ascertained that Ellison had a criminal record in New York reflecting arrests for possession of firearms, robberies, assaults, possession of stolen property and drugs. The Cl also related to Detective Lewis his belief that Brown possessed a gun.

On April 6,1992, Detective Lewis made an application to a Vermont state court judge, Matthew I. Katz, for a warrant to search the apartment at 11 Cedar Street and the persons of its occupants, Ellison, Brown and Miles. In a detailed affidavit in support of the application, Detective Lewis set out more fully the facts outlined above. Finding the requisite probable cause, Judge Katz granted the application and authorized the search and seizure between 6:00 A.M. and 10:00 P.M. of illicit drugs, drug paraphernalia, drug money and firearms used to facilitate the drug dealing.

In the early hours of April 7, 1992, Detective Lewis assembled a search team at the Burlington police headquarters made up of one Drug Enforcement Administration Agent; two BATF agents; two federal marshals and three members of the Burlington Police Department. He briefed them on the investigation and assigned them to their respective duties. As part of the briefing, Lewis showed a photograph of Ellison to the team and informed them that Ellison had a criminal record. At approximately 6:00 A.M. the team arrived at the Cedar Street address and positioned themselves outside Ellison’s ground floor apartment. Detective Lewis testified that he elected to execute the warrant so early in the morning to assure the presence of the defendants. The testimony relating to the events that followed was not entirely consistent in all respects as the following summary will demonstrate.

I’m going to deny the motion to suppress on the basis of my finding that the officers in this case did knock, and that because of that knocking, they had good reason to believe that the people who were inside the apartment would be aware of the presence of people outside knocking on the door, even though it may well have been that the knock did not wake anybody in the apartment, and from the officers’ perspective, they could then and I think would be reasonable in believing that the occupants of the apartment might well be engaged in the destruction of drugs, and I think that they also had every right to believe that they were in potential danger and had to act quickly.
So what you really have here is a compliance with the knock and announce rule ...

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Cite This Page — Counsel Stack

Bluebook (online)
52 F.3d 415, 1995 U.S. App. LEXIS 8454, 1995 WL 215850, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-james-brown-ca2-1995.