U.S. v. Heath

Citation455 F.3d 52
Decision Date10 July 2006
Docket NumberDocket No. 04-4599-CR.
PartiesUNITED STATES of America, Appellant, v. Jerrell HEATH, Defendant-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Bradley E. Tyler, Assistant United States Attorney, for Michael A. Battle, United States Attorney for the Western District of New York, Rochester, NY, for the Appellant.

Robert G. Smith, Assistant Federal Public Defender (Jay S. Ovsiovitch, of counsel), Rochester, NY, for the Defendant-Appellee.

Before CALABRESI and CABRANES, Circuit Judges, and HALL, District Judge.*

Judge JOSÉ A. CABRANES filed a separate opinion, concurring in part and dissenting in part.

Judge JANET C. HALL filed a separate opinion, concurring in part and dissenting in part.

CALABRESI, Circuit Judge, delivering the majority opinion with respect to Part II, in which CABRANES, Circuit Judge, joins, and the majority opinion with respect to Part III, in which HALL, District Judge, joins.

I.

Sometime in the early afternoon of November 8, 2003, local law enforcement officials executed a search warrant at 205 Glenwood Avenue in Rochester, New York ("the Glenwood residence"). The warrant, which had issued on the basis of reports by two confidential informants that they had separately bought dime bags of cocaine from persons at that address, authorized a no-knock entry and search of the Glenwood residence for cocaine, for records showing the sale and trafficking of cocaine, for proceeds from such sales, and for documents indicating the occupancy, residency and/or ownership of the premises. The warrant did not, however, authorize any arrests, nor was there evidence suggesting the involvement of any specific individuals.

Lieutenant Eric Paul ("Paul") of the Rochester Police Department was one of the first law enforcement officials to enter the Glenwood residence.1 Upon entering the residence, Paul observed Lionel Summersett ("Summersett") step out of the bathroom at the top of the home's stairwell. From the bottom of the stairs, Paul ordered Summersett to lie on the floor. With gun drawn, Paul held Summersett in that position until the other officers completed an initial safety sweep of the home's ground floor.2

Paul then went up the stairs. While other officers took Summersett into custody, Paul went into the upstairs bedroom closest to the stairwell. There he found defendant-appellee Jerrell Heath ("Heath") sitting on the bed, talking on a cell phone. Paul placed Heath in handcuffs, ordered him to lie on a pile of clothes, and pat-frisked him. The frisk revealed nothing incriminating. Paul and other officers then searched the bedroom. Behind a dresser, concealed from plain view, Paul discovered a small bag with one-half ounce of marijuana. The dresser was approximately five feet from where Heath was found sitting on the bed talking on the phone.

Once Paul discovered the marijuana, other members of the Rochester Police Department took Heath from the bedroom and formally arrested him. A search attendant to that arrest revealed that Heath had $3,073 in cash.

While Heath was being arrested in the hallway, Paul continued to search the bedroom and discovered a loaded 9mm handgun in the top dresser drawer. Paul then left the bedroom and was informed that other officers had found several small bags of cocaine in plain view in the residence.

Ultimately, Heath was charged with the following offenses: possession of a firearm in furtherance of drug trafficking, in violation of 18 U.S.C. § 924(c)(1)(A); being a felon in possession of a firearm, in violation of 18 U.S.C. 922(g)(1); possession of marijuana, in violation of 21 U.S.C. § 844; and possession of cocaine base with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). Thereafter, in proceedings before Magistrate Judge Marian W. Payson, Heath argued that he had been arrested without probable cause, and moved to suppress the seized currency. In due course, the magistrate judge issued a report recommending that, because the only evidence linking Heath to the marijuana was his proximity to that hidden contraband, the police lacked probable cause for his arrest. The magistrate judge based this conclusion on three Fourth Amendment cases discussing "premises" and "proximity" liability: United States v. Di Re, 332 U.S. 581, 68 S.Ct. 222, 92 L.Ed. 210 (1948), Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968), and Ybarra v. Illinois, 444 U.S. 85, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979). The magistrate judge further held that the Supreme Court's recent decision in Maryland v. Pringle, 540 U.S. 366, 124 S.Ct. 795, 157 L.Ed.2d 769 (2003), did not justify Heath's arrest, as Heath was arrested in a "fixed residence," not in an automobile. Finally, the magistrate judge determined that the currency found on Heath's person was not admissible under the "inevitable discovery" doctrine.

The district court (Telesca, J.) agreed with the magistrate judge's recommendation and ordered that the evidence found on Heath be suppressed. In so doing, the district court declared its unwillingness to extend Pringle to the situation in this case, because "Fourth Amendment jurisprudence recognizes a distinct difference between a passenger in an automobile and an occupant of a fixed premises."

In this interlocutory appeal, the government argues that the district court erred by suppressing the evidence. We need not, at this time, address the government's primary contention on appeal—that Heath's arrest was constitutional under Pringle—because, assuming arguendo that Heath was arrested without probable cause, we find that the evidence at issue may well have been admissible under the inevitable discovery doctrine, notwithstanding the putative Fourth Amendment violation. In so doing, we emphasize that the inevitable discovery doctrine is available only where there is a high level of confidence that each of the contingencies required for the discovery of the disputed evidence would in fact have occurred. In circumstances such as those before us, where the government contends that the challenged evidence would inevitably have been discovered during a search incident to a valid arrest, one of the contingencies that must be resolved in the government's favor involves a police officer's discretionary decision to arrest and search the person on whom the evidence would presumably have been found.

On the record before us, we believe that the district court erred in reaching a firm conclusion that the currency seized on Heath's person would not have been inevitably discovered, and we conclude that further consideration of that issue is needed. At the moment of Heath's arrest, Paul and the arresting officers knew only that Heath was in the same room as a small, concealed quantity of narcotics. Even if this was not an adequate basis upon which to arrest him—and we assume, arguendo, that it was not—a sufficient reason to justify the arrest and a search attendant to the arrest arguably became evident a few moments later. But whether the relevant officers would have acted on that reason, and would then have arrested Heath, thereby bringing the inevitable discovery doctrine into play, is not clear to us. Nor do we have findings by the district court on the matter. We therefore remand the case for further findings.

* * *

Under the "inevitable discovery" doctrine, evidence obtained during the course of an unreasonable search and seizure should not be excluded "if the government can prove that the evidence would have been obtained inevitably" without the constitutional violation. Nix v. Williams, 467 U.S. 431, 447, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984); see also United States v. Eng, 997 F.2d 987, 990 (2d Cir.1993) (inevitable discovery doctrine "requires the district court to determine, viewing affairs as they existed at the instant before the unlawful search, what would have happened had the unlawful search never occurred" (emphasis in original) (internal quotation marks omitted)). In essence, the inevitable discovery doctrine's application turns on a central question: Would the disputed evidence inevitably have been found through legal means "but for" the constitutional violation? If the answer is "yes," the evidence seized will not be excluded. In the case before us, this inquiry requires the government to prove: (a) that law enforcement officers could have validly arrested Heath on the basis of evidence that became available moments after Heath was (arguably improperly) arrested, and (b) that law enforcement officers would have acted on that evidence and, given the circumstances, would have arrested Heath. That is, the currency should not be excluded if there is sufficient proof that a later arrest was valid and sufficiently likely to occur as to qualify as "inevitable."

II. Validity of a Later Arrest

The arguably valid reason for a later arrest, and hence for inevitable discovery came about in the following way. As soon as Paul emerged from the bedroom, he learned that other officers had discovered several "loose dime bags of crack cocaine" on the landing of the stairwell, on the stairwell itself, and at the bottom of the stairwell. At that point, Paul observed what appeared to be small bags of cocaine in plain view in each of these locations. Three of the small bags of cocaine were at the bottom of the stairs. The magistrate judge determined that Summersett must have dropped the bags of cocaine on the stairwell and on the landing (which were found underneath or around Summersett) when Paul initially commanded him to lie down. The magistrate judge's factual finding—that the "logical inference" to be drawn from the circumstances was that the cocaine found underneath or immediately around Summersett was dropped by him upon exiting the bathroom—was not clearly erroneous. And so we cannot say that the cocaine assertedly dropped by Summersett created probable cause to arrest Heath, because these facts...

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