United States v. Butler, 122810 FED3, 05-2100

Docket Nº:05-2100
Opinion Judge:CHAGARES, Circuit Judge.
Party Name:UNITED STATES OF AMERICA v. FRANKLIN BUTLER, Appellant.
Attorney:Guillermo L. Bosch, Esq. (Argued) Counsel for Appellant. Jose R. Arteaga (Argued) Assistant United States Attorney, Eastern District of Pennsylvania Counsel for Appellee.
Judge Panel:Before: CHAGARES, HARDIMAN, and TASHIMA, Circuit Judges.
Case Date:December 28, 2010
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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UNITED STATES OF AMERICA

v.

FRANKLIN BUTLER, Appellant.

No. 05-2100

United States Court of Appeals, Third Circuit

December 28, 2010

         NOT PRECEDENTIAL

          Argued May 23, 2007.

         On Appeal from the United States District Court for the Eastern District of Pennsylvania (No. 02-cr-00300-1) District Judge: Hon. Bruce W. Kauffman.

          Guillermo L. Bosch, Esq. (Argued) Counsel for Appellant.

          Jose R. Arteaga (Argued) Assistant United States Attorney, Eastern District of Pennsylvania Counsel for Appellee.

          Before: CHAGARES, HARDIMAN, and TASHIMA, [*]Circuit Judges.

          OPINION

          CHAGARES, Circuit Judge.

         Franklin Butler was tried and convicted of various drug-related offenses arising out of a warrantless police search of an Allentown, Pennsylvania apartment. On appeal, Butler contends that this search, which led to his arrest and to the discovery of significant amounts of inculpatory evidence, violated his Fourth Amendment rights. The dispositive issue is whether the police created the exigent circumstances on which they relied for executing the warrantless search Butler now challenges. We hold that they did not, and will affirm Butler's conviction.

         I.

         The facts pertinent to this appeal are largely undisputed and may be stated succinctly. After receiving a report that drug trafficking activity was taking place at an apartment building located at 941 Hamilton Street in Allentown, Pennsylvania, undercover Allentown Police Officers Christopher Cruz, Michael Faulkner, and Pete McAfee went to that address. Appendix (App.) 396. Once on location, Officer Cruz spoke with the complainant, who identified Apartment #304 as the likely locus of the drug dealing. App. 401. She also cautioned that one of the occupants was armed and often kept a handgun in his waistband. Cruz then called for backup, and Allentown Police Officers William Reinik, Michael Mancini, and Kyle Hough responded to Cruz's request. App. 403. The officers placed Apartment #304 under surveillance for approximately fifteen minutes, but their efforts proved fruitless, as they did not observe anyone entering or departing the apartment.

         The officers next decided to employ the so-called "knock and talk" technique to investigate further. The officers split into two groups. The first group, which consisted of Officers Cruz, Reinik, and Mancini, proceeded to the front door of Apartment #304. The remaining officers covered a separate door which led to a different part of the apartment. App. 405-06. Officers Reinik and Mancini flanked either side of the front door, while Officer Cruz positioned himself directly in front of the front door.

         Officer Cruz knocked on the front door. When a voice from inside asked who was there, Officer Cruz responded, "Chris." App. 406-07. A man later identified as Butler opened the door slightly, holding a pistol at hip level in his left hand, aimed at Officer Cruz.1 Seeing the handgun pointed at him, Officer Cruz yelled, "Go, go, go, gun, " and directed Officer Mancini to enter the apartment. App. 254, 409-10. The three officers simultaneously identified themselves as police, and Butler attempted to slam the door. App. 253-54. Officer Reinik stuck his foot in the doorway, preventing Butler from slamming the door. Id. Butler fled into the apartment, and Officer Cruz instructed Officer Mancini and the other officers to enter the apartment. The officers pursued Butler into a bedroom, where they found him lying under a blanket on a makeshift mattress on the floor. App. 412. Butler's co-defendant, Bill Murray, was also in the bedroom. Police found Murray using a razor to cut a large white rock that was later determined to be crack cocaine. App. 412, 421, 617. Five crack pipes were present on the table next to Murray. App. 639. Police secured both men and searched the room for weapons. When Butler failed to respond to the officers' inquiries about where the gun he had pointed at Cruz was located, Officer Hough picked up the blanket that had been covering Butler, and a loaded nine-millimeter pistol fell to the floor. App. 413-15.

         A search of Butler led to the discovery of $672 in cash, and thirty-seven ziploc bags, each containing crack cocaine. Murray and Butler both waived their Miranda rights, and Murray (the lessee) consented to a search of the apartment, which turned up further drug-related paraphernalia, including Inositol, commonly used as a cutting agent for cocaine, and numerous unused plastic baggies. App. 416-22. Butler also told the police that he possessed the gun to protect his product, and that he made approximately $5, 000 in a good week selling drugs from Apartment #304. App. 420.

         Thereafter, Butler was charged with conspiracy to distribute crack cocaine and possession of crack cocaine with intent to distribute, in violation of 21 U.S.C. § 846 and § 841, and with carrying a firearm in connection with a drug trafficking crime, in violation of 18 U.S.C. § 924(c). Butler moved to suppress the evidence the government obtained from the search at issue. The District Court denied Butler's motion, and a jury later convicted him on all three counts. Butler now appeals.2 We have jurisdiction pursuant to 28 U.S.C. § 1291.

         II.

         A.

         At the outset, we must address the government's contention that Butler lacks standing to challenge the search of Apartment #304. The government argues that because Butler was merely a temporary guest at Apartment #304, he lacks standing to contest the legality of the government's search.

         The short answer to this is that the government has waived its right to challenge Butler's standing. By its own admission, the government failed to raise this argument to the District Court, and we therefore will not consider it here. Unlike Article III standing, which cannot be waived, Fourth Amendment standing can be waived if not raised and properly preserved. See Rakas v. Illinois, 439 U.S. 128, 140 (1978) ("[T]his Court's long history of insistence that Fourth Amendment rights are personal in nature has already answered many of these traditional standing inquiries, and we think that definition of those rights is more properly placed within the purview of substantive Fourth Amendment law than within that of standing."); see also United States v. Washington, 380 F.3d 236, 240 n.3 (6th Cir. 2004) ("'Standing to challenge a search or seizure is a matter of substantive Fourth Amendment law rather than of Article III jurisdiction, meaning that the government can waive the standing defense by not asserting it.'" (quoting United States v. Huggins, 299 F.3d 1039, 1050 n.15 (9th Cir. 2002))); United States v. Dewitt, 946 F.2d 1497, 1499-1500 (10th Cir. 1991) ("[T]he issue of [F]ourth [A]mendment standing could be waived if the government has failed to raise it in a timely fashion during the litigation." (quotation marks and alterations omitted)). Accordingly, our analysis properly proceeds to the merits of Butler's challenge.

         B.

         We begin our analysis with the pertinent constitutional text. The Fourth Amendment to the United States Constitution states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

U.S. Const. amend. IV.

         This provision limits government action in two related ways. First, it requires that the government conduct only reasonable searches and seizures. Second, it sets out (albeit at a high level of generality) the prerequisites that government officials must complete before executing a search or seizure, which include obtaining a warrant. "The Supreme Court has read the Amendment's twin commands in tandem, holding that...

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