United States v. Lyons

338 F. App'x 177
CourtCourt of Appeals for the Third Circuit
DecidedJuly 16, 2009
DocketNo. 06-3303
StatusPublished

This text of 338 F. App'x 177 (United States v. Lyons) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third 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. Lyons, 338 F. App'x 177 (3d Cir. 2009).

Opinion

OPINION OF THE COURT

SCIRICA, Chief Judge.

Omar Lyons was convicted by jury of several drug crimes involving the distribution of cocaine base in violation of 21 [178]*178U.S.C. § 841.1 He was sentenced to a term of 132 months in prison,2 ten years of probation, a $400 criminal assessment, and a fine of $1,500. Lyons challenges his conviction on two grounds. He contends the warrant authorizing the search of his home was not supported by probable cause. Accordingly, he claims the evidence found there should have been suppressed. He also contends his appearance before the District Court as a pro se litigant was not preceded by a proper colloquy. As a result, he claims his waiver of his right to counsel was not knowing and voluntary. We will affirm.

I

Before trial, Lyons moved to suppress evidence gathered during a May 27, 2004, search of his home at 2610 Lehigh Avenue in Philadelphia. A warrant, issued by the Pennsylvania Court of Common Pleas, authorized the search, and it was supported by an affidavit of Philadelphia Police Officer Timothy Bogan, a member of the Narcotics Enforcement Team. The affidavit included facts about events on May 24 and May 26, 2004. On May 24th, a few days after receiving a tip that a man named Omar was selling drugs near 26th Street and Lehigh Avenue, Officer Bogan employed an informant to purchase drugs from Lyons at this location. Bogan searched the informant, and finding no drugs, gave him $250 of pre-recorded money to make a purchase. The informant approached a parked green Oldsmobile, in which Lyons sat in the driver’s seat, and handed Lyons the money. Officer Bogan and other officers watched as Lyons drove around the corner to 2610 Lehigh Avenue, exited the vehicle, entered the property for approximately one minute, then returned to the vehicle and drove back to the informant. Lyons then handed the informant an object, a bag containing 5.4 grams of cocaine base, and the informant returned to Officer Bogan with the contraband.

A similar sequence of events occurred two days later on May 26, 2004. Officers observed Lyons leave 2610 Lehigh Avenue, get into the green Oldsmobile, and drive to the same block at the corner of 26th Street and Lehigh Avenue. There, the confidential informant approached Lyons and handed him another $250 of pre-recorded buy money. Lyons handed the informant a small object, a plastic bag containing approximately seven grams of cocaine base. The affidavit also stated, based on a review of court records, that Officer Bogan believed 2610 Lehigh Avenue was Lyons’s residence and that Lyons had been arrested approximately two weeks earlier, on May 12, for a different drug offense, which had been discovered during a traffic stop.

Executing the warrant for 2610 Lehigh Avenue, officers found Lyons in the residence, shoving plastic bags under the bed. They arrested Lyons and recovered several clear plastic bags with cocaine base, two [179]*179bags containing numerous vials of cocaine base, packaging paraphernalia, a scale, and several hundred dollars. In total, the police recovered 81 grams of cocaine from the residence. Lyons challenged the sufficiency of the warrant, contending there was not probable cause to search his home. The District Court denied Lyons’s motion to suppress.

At the conclusion of the suppression hearing, which took place on January 18, 2006, Lyons’s lawyer asked for a continuance, which was granted until January 30. On January 30, Lyons moved for another continuance, and he also moved to dismiss his lawyer and represent himself pro se.3 Lyons was dissatisfied with his lawyer’s representation during the suppression hearing, believing his lawyer did not sufficiently contest the affidavit.4 The court denied Lyons’s motion for a second continuance, and Lyons repeated his request to represent himself pro se. The court cautioned Lyons about representing himself, advising him that he would need to abide by the Federal Rules of Evidence and describing some of the evidentiary challenges Lyons would face during his trial. For example, the court explained to Lyons that he would not be able to ask questions of witnesses without laying a proper foundation. The court also cautioned Lyons in general terms against representing himself pro se, telling Lyons he was about to “launch [himself] off the deck of the ship, so to speak,” and that “[i]t’s been said that he who represents himself has a fool for a client.” The District Court did not specifically discuss the charges or the penalties Lyons might receive, but during the colloquy, counsel mentioned that Lyons had been considering a change of his plea and had reviewed a plea agreement that morning. That plea-agreement contained information detailing the charges against Lyons and the penalties he faced.

Lyons represented himself during his trial with the assistance of standby counsel. The jury found him guilty of the drug counts related to the events in late May— those involving the purchases by the informant on May 24 and 26, and the evidence found in Lyons’s home on May 27. Lyons appeals from the judgment.5

II

Lyons contends the District Court should have suppressed the evidence found in his home at 2610 Lehigh Avenue because there was not probable cause to support the warrant. Specifically, he notes there was not direct evidence of drugs in the home — no officer observed drugs on his person when he exited the home on May 24- — and the May 26 drug deal took place without Lyons returning to the residence.6 Probable cause does not require such direct evidence, however, but [180]*180may be established by fair inferences. United States v. Burton, 288 F.3d 91, 103 (3d Cir.2002). “To find probable cause to search, there needs to be a ‘fair probability that contraband or evidence of a crime will be found in a particular place.’ ” Id. (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)). “[P]robable cause can be, and often is, inferred by considering the type of crime, the nature of the items sought, the suspect’s opportunity for concealment and normal inferences about where a criminal might hide the fruits of his crime.” United States v. Hodge, 246 F.3d 301, 305 (3d Cir.2001) (internal quotation marks omitted).7

During the May 24 transaction, Lyons made a one-minute stop into his home immediately after receiving money from a purchaser and immediately before delivering contraband to that purchaser. This conduct provided a substantial basis to infer that drugs were kept in the house. “While we generally accept the common sense proposition that drug dealers often keep evidence of their transactions at home, that inference is much stronger when the home is the first place a drug dealer proceeds following such a transaction.” Burton, 288 F.3d at 104 (internal citation omitted). A similarly strong inference may be drawn when the dealer stops in his home during the transaction.

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Bluebook (online)
338 F. App'x 177, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-lyons-ca3-2009.