597 F.3d 540 (3rd Cir. 2010), 08-3230, United States v. Stearn

Docket Nº:08-3230.
Citation:597 F.3d 540
Opinion Judge:ALDISERT, Circuit Judge.
Party Name:UNITED STATES of America, Appellant v. Edward STEARN, aka Extra, Joseph Doebley, aka Maxi, and Michael Doebley, aka MIV, Appellees.
Attorney:David J. Ignall (Argued), Kathy A. Stark, U.S. Attorney's Office, Philadelphia, PA, for Appellant. Arnold C. Joseph (Argued), Joseph & Associates, Bluebell, PA, for Appellee Edward Stearn. Elliot M. Cohen (Argued), Louis T. Savino, Jr., Louis T. Savino and Associates, Philadelphia, PA, for Appell...
Judge Panel:Before: SCIRICA, Chief Judge, RENDELL and ALDISERT, Circuit Judges.
Case Date:March 09, 2010
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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Page 540

597 F.3d 540 (3rd Cir. 2010)

UNITED STATES of America, Appellant

v.

Edward STEARN, aka Extra, Joseph Doebley, aka Maxi, and Michael Doebley, aka MIV, Appellees.

No. 08-3230.

United States Court of Appeals, Third Circuit.

March 9, 2010

Argued Sept. 9, 2009.

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David J. Ignall (Argued), Kathy A. Stark, U.S. Attorney's Office, Philadelphia, PA, for Appellant.

Arnold C. Joseph (Argued), Joseph & Associates, Bluebell, PA, for Appellee Edward Stearn.

Elliot M. Cohen (Argued), Louis T. Savino, Jr., Louis T. Savino and Associates, Philadelphia, PA, for Appellee Michael Doebley.

Gerald A. Stein (Argued), Philadelphia, PA, for Appellee Joseph Doebley.

Before: SCIRICA, Chief Judge, RENDELL and ALDISERT, Circuit Judges.

OPINION

ALDISERT, Circuit Judge.

The United States Government appeals the order of the District Court for the Eastern District of Pennsylvania granting in part motions to suppress evidence in favor of Defendants Joseph Doebley, Michael Doebley and Edward Stearn.1 In its memorandum and order, the District Court suppressed evidence seized pursuant to seven warrants because (1) four warrants lacked probable cause and three additional warrants were " fruits of the poisonous tree," and (2) the warrants' " bare bones" supporting affidavits rendered inapplicable the Leon exception for " good faith" reliance on a search warrant. See United States v. Leon, 468 U.S. 897, 926, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). Moreover, although the Government objected that each defendant lacked a legitimate expectation of privacy in some of the searches, the District Court suppressed evidence as to each defendant without resolving the Government's so-called " standing" challenges.2 See Rakas v. Illinois, 439 U.S. 128, 140, 143, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). On appeal, the Government contends that the District Court erred in all three respects.

Except for the search of 5020 Homestead, from which no evidence was seized, 3

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we will reverse the District Court's order in its entirety. As set forth below, the magistrate judge had a substantial basis for determining that probable cause existed to search 4049 Higbee, the apparent residence of a confirmed drug dealer, and we will uphold the search on that basis. Closer probable cause questions are presented by the searches of 5019 Homestead, 5022 Homestead, 5034 Homestead and 5038 Homestead, which had discernible, but less direct connections to the defendants' alleged drug activities. Without deciding these probable cause questions, we will uphold each search under the Leon good faith exception, as each warrant was sufficiently colored in probable cause to justify the executing officers' good faith reliance. Finally, because we reject Stearn's Fourth Amendment challenge to the search of 5019 Homestead-his only challenge to the property searches-we also reverse the District Court's suppression of Stearn's saliva sample as " fruit of the poisonous tree," as he failed to prove a " primary" invasion of his own Fourth Amendment rights. See United States v. Smith, 522 F.3d 305, 306 n. 2 (3d Cir.2008).

Because this appeal requires a considered study of Fourth Amendment precepts-a study driven by complicated facts involving three defendants and warrant-based searches of six residences, a garage and two motor vehicles-our analysis, of necessity, is protracted.

I.

On October 6, 2005, Officer Ryan, a veteran of the Philadelphia Police Department's narcotics unit, submitted an affidavit in support of search warrants for six locations in Philadelphia, Pennsylvania. Officer Ryan submitted a second affidavit on October 7, 2005, seeking search warrants for additional locations. Because no party presented evidence outside the affidavits themselves, our " factual" discussion is drawn almost entirely from the affidavits.4 (App. 158-160.)

A.

According to his October 6 affidavit, Officer Ryan received a tip from a confidential informant on September 28, 2005 that implicated Joseph Doebley, Michael Doebley and Edward Stearn in drug distribution crimes in the city of Philadelphia.5 Specifically, the informant told Ryan that Joseph Doebley sells cocaine powder in weight with his brother Michael Doebley and that Edward Stearn was Joseph Doebley's supplier. (App. 88.) The informant also told Ryan that Joseph Doebley operated his cocaine business from his house on the 4000 block of Higbee Street and a garage on the 4800 block of Comly Street,

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which he had converted to a gym. According to the informant, Joseph Doebley operated a rust-colored Chevrolet Impala and blue-and-white pickup truck with fancy rims.

In the subsequent week, officers corroborated many details of the informant's tip through investigation and surveillance. On September 28, the day Ryan received the tip, officers located the gym at 4808 Comly and observed a blueand-white pickup truck with fancy rims parked in the gym's side yard. Police officers additionally verified that Joseph Doebley was the listed owner of 4808 Comly and learned that Jane Betty Doebley owned 4049 Higbee. That evening, officers observed Joseph Doebley exit 4808 Comly and depart in the Chevrolet Impala. Soon thereafter, officers watched Doebley sell a 3.5-gram baggie of cocaine, in a controlled buy, from the inside of his Impala.

During surveillance on October 4 and 5, police officers confirmed Joseph Doebley's drug involvement and tracked his movements among several properties in the neighborhood. On October 4, a white male exited 4808 Comly, spoke with Joseph Doebley in the side yard, drove to the intersection of Cheltenham and Hegerman, and completed a sale of approximately 3.5 grams of cocaine from inside his car. The white male returned to 4808 Comly and counted out and delivered currency to Doebley, who entered 4808 Comly and departed after a brief stay. Later that evening, Doebley left 4808 Comly in the blue-and-white pickup truck, and approximately two hours later, arrived at 5038 Homestead. He remained there for two hours. After a brief stop at 4808 Comly, Doebley was next observed as he parked in a rear driveway near 4049 Higbee at approximately 11:50 p.m. He entered the rear yard of 4049 Higbee, which contained a pit bull, and entered the attached garage through a rear door. Police terminated surveillance shortly thereafter, but at 7:15 a.m. the next morning, officers observed that the pickup truck remained parked in the rear of 4049 Higbee. According to the affidavit, property records listed Ruth Nolan as the owner of 5038 Homestead, and listed 4049 Higbee as a co-owner address. The affidavit did not name the co-owner. Police also learned that the water bill for 5038 Homestead was mailed to 4049 Higbee.

The affidavit next recounts the officers' October 5 observations of Joseph and Michael Doebley as they moved among several properties on Homestead Street and the 4808 Comly gym. That afternoon, officers observed Michael Doebley leave 5019 Homestead, drive to 4808 Comly, depart with Joseph Doebley, and arrive at 5019 Homestead, which both men entered. Joseph Doebley then left 5019 Homestead, entered 5022 Homestead and returned to 4808 Comly with an unidentified white male. Joseph Doebley then drove back to Homestead Street and entered 5019 and 5017 Homestead, subsequently using keys to enter both 5022 and 5028 Homestead. Doebley then met with a white female, entered 5030 Homestead and remained there for approximately one hour. Thereafter Doebley returned to 5022 Homestead. According to real estate records, 5019 Homestead was owned by Edward Stearn, who had three prior drug distribution arrests. Michael Doebley had two prior drug distribution arrests.

Officer Ryan submitted an affidavit on October 6, alleging that the foregoing facts established probable cause to search 4049 Higbee, 4808 Comly, 5017 Homestead, 5019 Homestead, 5022 Homestead and 5038 Homestead. A judge of the Pennsylvania Court of Common Pleas reviewed the affidavit and issued each of the warrants requested. On October 6, officers

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executed all warrants, except for the warrant to search 5017 Homestead. ( See App. 96.) The results were reported in Officer Ryan's second affidavit, the details of which follow.

B.

On October 7, 2005, Officer Ryan submitted a second affidavit seeking warrants to search 5020 Homestead and 5034 Homestead, the rust-colored Chevrolet Impala and the blue-and-white pickup truck. This affidavit incorporated the first affidavit, detailed the results of additional surveillance, and reported the results of the October 6 searches. (App. 95-97.)

On the morning of October 6, FBI and IRS agents raided Dangerous Curves Gentlemen's Club at Homestead Street and State Road, adjacent to the 5000 block of Homestead Street. At 3:15 p.m., a confidential informant arranged another controlled purchase from Joseph Doebley, but the purchase was not consummated. At approximately 3:30 p.m., federal agents left the Gentlemen's Club, and " [s]hortly after that," Edward Stearn, Michael Doebley, and one Chris Simon left 5019 Homestead and entered 5020 Homestead. (App. 96.) Thereafter, Michael Doebley entered and exited 5022, 5038 and 5034 Homestead in a short span of time, and he returned to 5022 Homestead. Edward Stearn then departed 5022 Homestead, entered 5019 Homestead, exited carrying clothes and a bag, and entered a black truck. At the same time, Michael Doebley left 5022 Homestead carrying white trash bags and entered a grey Jeep Cherokee. Both vehicles departed at the same time. According to the affidavit, young white males exited 5019 Homestead and 5038 Homestead, and...

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