U.S. v. Burton

Decision Date29 April 2002
Docket NumberNo. 00-2789.,00-2789.
Citation288 F.3d 91
PartiesUNITED STATES of America, v. Marco BURTON, Appellant.
CourtU.S. Court of Appeals — Third Circuit

Brian J. McMonagle (Argued), McMonagle, Perri & McHugh, Philadelphia, PA, for Appellant.

Michael L. Levy, United States Attorney, Robert A. Zauzmer, Assistant United States Attorney, Chief of Appeals, M. Taylor Aspinwall (Argued), Assistant United States Attorney, Philadelphia, PA, for Appellee.

Before ROTH, BARRY and AMBRO, Circuit Judges.

OPINION OF THE COURT

AMBRO, Circuit Judge.

Following his conditional guilty plea to the illegal possession of various firearms and narcotics, Marco Burton appeals the District Court's denial of his motion to suppress evidence based upon alleged violations of his Fourth Amendment rights. He argues that the Government arrested him without probable cause and searched his house without a warrant supported by probable cause. We affirm, though on grounds different than those of the District Court. See United States v. Burton, 193 F.R.D. 232 (E.D.Pa.2000). We find that Burton's arrest was justified by probable cause and that, even if it was not, the subsequent warrantless seizure of his vehicle was independently justified under either the automobile exception or the Place exception, see United States v. Place, 462 U.S. 696, 703, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983), to the warrant requirement. We further conclude that the warrant for the search of the house was supported by probable cause, even assuming an earlier protective sweep of the house was unreasonable under the Fourth Amendment.

I. FACTS AND PROCEDURAL HISTORY

It is an understatement to describe January 26, 1999 as an unlucky day for Marco Burton. On that day, officers of the Philadelphia Police Department and agents of the Drug Enforcement Administration ("DEA"), in a combined effort known as the DEA Task Force (the "Task Force"), were investigating the activities of a group the Task Force named the Darien Street Drug Organization. The Task Force was using a confidential informant to purchase drugs from Melvin Santiago on the 2800 block of Darien Street in Philadelphia. Santiago was suspected by the Task Force to be a distributor of cocaine, cocaine base and heroin. The informant had been involved in a prior attempt to purchase drugs from Santiago and had previously provided intelligence to the Task Force on the Darien Street Drug Organization. While that informant attempted to purchase drugs from Santiago, he and the Task Force inadvertently interrupted what appeared to be a major drug transaction between Santiago and Burton, thereby leading to Burton's arrest on the current charges.

According to the evidence presented at the District Court's suppression hearing, the confidential informant was equipped with a microphone that permitted the Task Force to listen to his conversations as they occurred. Other members of the Task Force were stationed in a position to observe the events on Darien Street. After the informant arrived on Darien Street and queried where he might find Santiago, he was informed that Santiago was inside the house at 2851 Darien Street. The informant went to that address, where he requested to meet with Santiago but was rebuffed by persons outside the residence. Those persons told him that Santiago was busy conducting business and that he should wait. Loathe to linger outside for more than a few minutes on a cold January afternoon, the informant knocked at the entrance to the residence and again requested an audience with Santiago. Santiago appeared at the door and told him to continue waiting. During that encounter the informant saw stacks of money being counted inside the residence. He later informed the Task Force that he observed one Hispanic male and one African American male meeting with Santiago.

After being denied entrance, the informant was told by the individuals outside the residence that Santiago was involved in a "five brick" deal involving "big money" with a "big boy." Following a lengthy wait, during which he related to the Task Force what he saw inside 2851 Darien Street, the informant eventually was able to negotiate with Santiago a price for an ounce of cocaine. Santiago instructed an associate to sell it to the informant at another location, presumably to avoid disturbing the larger transaction taking place inside. The sale occurred shortly thereafter.

Over forty minutes elapsed during the informant's attempt to purchase drugs from Santiago. At the end of that period, Task Force officers in a surveillance van observed an African American male, later identified as Marco Burton, exit 2851 Darien Street with an opaque plastic bag, place the bag in the trunk of a black Nissan Maxima, make a cellular phone call, and drive away.1 Santiago also left shortly thereafter.

The Task Force agents followed the Maxima for several blocks and eventually requested assistance. Officer Dennis Bauer, a veteran officer of the Philadelphia Police Department on routine patrol in a marked police vehicle, responded and followed the Maxima to the 2500 block of North Garnet Street. Burton parked the Maxima on that block and began walking down the street. With his firearm drawn, Officer Bauer approached Burton and instructed him to stop. Burton stuck his hand in his jacket, as if he "might have a gun," in the words of Officer Bauer, and then continued for three to five steps. At that point, as various Task Force officers reached the scene, Burton stopped and put his hands up. Officer Bauer conducted a pat down search and requested identification. Burton was initially evasive and refused to give Officer Bauer his name or address. He had no identification, but told officers he lived at various addresses in the area. Eventually, Burton gave his name and admitted he lived at 2543 North Garnet Street with his grandmother.2 He could produce no registration or other documentation for the car, instead explaining that he had "just picked the car up." Following this initial conversation, Officer Bauer placed Burton in the back of his police car, where Burton waited while the Task Force continued their investigation on North Garnet Street. Task Force officers checked both the license plate number and vehicle identification number on the Maxima; neither was listed in Burton's name. They also requested a drug-sniffing dog to inspect the Maxima.

Meanwhile, Officer Bauer noticed a man, later identified as Maurice Smith, peeking from a second floor window of Burton's purported address. While looking from a window is not ordinarily suspicious behavior according to Bauer, he characterized the observant's behavior as "real strange" because he was "peeking out" of the window rather than "com[ing] very close to the window," as most bystanders would do. Officer Bauer called the Task Force's attention to Smith and two DEA agents proceeded across the street to that address. They called to Smith and he eventually stepped out onto the building's stoop to speak with the Task Force agents. Smith talked to the agents for fifteen minutes, during which time he told them that he stayed at 2543 North Garnet Street "sometimes" and identified "Marco" as living at the house. Eventually, Smith acceded to the agents' request to look inside the house to ensure that he was its only inhabitant. While quickly surveying the interior of the house and finding no one else, the Task Force agents discovered, in plain view, drug paraphernalia — including a scale, plate, razor blade and box of baking soda, all covered in a white residue believed by the agents to be cocaine. The officers left the property and continued to converse with Smith. After Burton had spent thirty to forty-five minutes in the back of the police vehicle, the canine unit arrived on the scene. The trained drug-sniffing dog examined the Maxima and alerted to its trunk. Based on the information established up to this time, the Task Force sought search warrants for both the Maxima and 2543 North Garnet Street. In a signed affidavit, Philadelphia Police Officer Daniel McEwen, who was assigned to the Task Force, recounted many of the facts noted above, including the investigation on Darien Street, the pursuit and seizure of Burton, the quick search of the North Garnet Street house and the dog's alert to the Maxima. He also included various facts relating to his knowledge of drug trafficking in general, including a recitation of how drug traffickers use "stash houses" to store drugs, drug proceeds, firearms and related evidence.

Based on the information contained in the McEwen affidavit, both search warrants were approved. The Task Force executed the warrants and discovered $45,608 and a Ruger 9mm handgun in the trunk of the Maxima. After searching the North Garnet Street residence, the Task Force discovered a package containing 742 grams of cocaine under a bed. Another handgun and a second package containing 7.9 grams of cocaine were discovered between the mattress and box spring of the second floor bedroom from which Smith had been observing the events unfolding on North Garnet Street.

On the basis of this evidence, Burton was indicted for one count of possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1), and a second count of possession with intent to distribute cocaine base, in violation of the same statute. He was also charged with three firearms counts, including a count of possession of a firearm in furtherance of a drug trafficking crime, 18 U.S.C. § 924(c), and two counts of being a felon in possession of a firearm, 18 U.S.C. § 922(g)(1). He pleaded guilty to all five charges, but did so conditionally under Federal Rule of Criminal Procedure 11(a)(2) to preserve appellate review of the denial of his motion to suppress.3

Burton argues on appeal that both search warrants were invalid because they rested on illegally-obtained evidence. He does...

To continue reading

Request your trial
277 cases
  • United States v. St. Rose
    • United States
    • U.S. District Court — Virgin Islands
    • April 21, 2016
    ...of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.’ " United States v. Burton , 288 F.3d 91, 99 (3d Cir.2002) (quoting Wong Sun v. United States , 371 U.S. 471, 488, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963) ) (ellipsis omitted). When considering......
  • United States v. Cain
    • United States
    • U.S. District Court — Western District of Pennsylvania
    • August 12, 2021
    ...down”. Even “view[ing] these facts through the lens of the Task Force's significant experience, ” they were not enough to arrest Mr. Cain. Id. at 99 omitted). At most, the facts were such that a brief, investigatory stop- one involving a lesser degree of intrusion than that which actually o......
  • U.S.A v. Dupree
    • United States
    • U.S. Court of Appeals — Third Circuit
    • August 6, 2010
    ...of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.’ ” United States v. Burton, 288 F.3d 91, 99 (3d Cir.2002) Wong Sun, 371 U.S. at 488, 83 S.Ct. 407) (ellipsis omitted); see also United States v. Perez, 280 F.3d 318, 338 (3d Cir.2002) (“[E......
  • U.S. v. Williams
    • United States
    • U.S. Court of Appeals — Third Circuit
    • July 1, 2005
    ...into probable cause, and the officers thus had justification to conduct a search of the van and arrest Williams. See United States v. Burton, 288 F.3d 91, 100 (3d Cir.2002) ("The automobile exception to the warrant requirement permits law enforcement to seize and search an automobile withou......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT