United States v. Jewell

• Court: Court of Appeals for the First Circuit
• Decided: July 21, 1995
• Docket: 94-2080
• Status: Published

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT

                                 ____________________



        No. 94-2080



                                    UNITED STATES,



                                      Appellee,



                                          v.



                                   JOHN M. JEWELL,



                                Defendant, Appellant.


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                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                          FOR THE DISTRICT OF MASSACHUSETTS



                    [Hon. Michael A. Ponsor, U.S. District Judge]
                                             ___________________



                                 ____________________



                                        Before



                                Torruella, Chief Judge,
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                         Campbell, Senior Circuit Judge, and 
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                                 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.
        _____


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                                    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.



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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


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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


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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


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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


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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
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            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


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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


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            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
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            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).



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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.
                      _________


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            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.



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