U.S. v. Herrold
| Decision Date | 02 June 1992 |
| Docket Number | No. 91-5781,91-5781 |
| Citation | 962 F.2d 1131 |
| Parties | UNITED STATES of America, Appellant, v. Gene Allen HERROLD. |
| Court | U.S. Court of Appeals — Third Circuit |
James J. West, U.S. Atty., George J. Rocktashel (argued), Asst. U.S. Atty., Lewisburg, Pa., for appellant.
James V. Wade, Federal Public Defender, D. Toni Byrd (argued), Harrisburg, Pa., for appellee.
Before GREENBERG, SCIRICA, and ROSENN, Circuit Judges.
This matter is before the court on an appeal by the government from an order entered by the United States District Court for the Middle District of Pennsylvania denying reconsideration of its previous order suppressing evidence. The procedural history and the essentially undisputed historical facts are as follows. The defendant-appellee, Gene Allen Herrold, a previously convicted felon, was indicted on April 9, 1991, for possession of a firearm in violation of 18 U.S.C. §§ 922(g) and 924(e), and for using and carrying a firearm during and in relation to a drug trafficking offense in violation of 18 U.S.C. § 924(c)(1). On May 28, 1991, Herrold filed a motion to suppress evidence in the district court which, on June 26, 1991, conducted an evidentiary hearing on the motion. On July 3, 1991, the court filed an order and opinion granting the motion. The court concluded that, although the police had probable cause to arrest Herrold, there was no exigent circumstance to permit them to enter his trailer home without a warrant as they originally had done. Accordingly, even though the police within hours of their original entry searched the trailer under the authority of a search warrant, the court held that a gun, cocaine, and cocaine paraphernalia discovered in Herrold's trailer in plain view during the warrantless entry were inadmissible.
On July 8, 1991, the government moved for reconsideration of the order of July 3, 1991, on the ground that, without regard to the illegal entry, the officers would have inevitably discovered the evidence when executing the search warrant. The government further asserted that there was an independent basis for the warrant without regard to the discoveries made during the warrantless entry. The court denied the government's motion for reconsideration on August 22, 1991, holding that the "inevitable discovery" doctrine did not apply. The government has filed a timely appeal from the August 22 order and we have jurisdiction under 18 U.S.C. § 3731.
The case may be said to have originated on August 22, 1990, when a confidential informant met with Herrold to arrange a cocaine purchase. Herrold told the informant that he had recently obtained a large quantity of cocaine and could make the sale. The informant relayed this information to the Region IV Narcotics Strike Force based in State College, Pennsylvania, which developed a plan to survey the drug transaction and arrest Herrold.
Later that day, the informant met with Herrold and paid him $300.00 towards the purchase. The informant and Herrold agreed to complete the sale on August 24. On that day the informant called Herrold to make final arrangements, telling him to bring the drugs to the informant's home in Selinsgrove, Pennsylvania, so that they would complete the sale there.
The surveillance team, comprised of Trooper Hill, Detective Gerringer, Sergeant Berthelson, Sergeant Garlock and Chief Ramer, met between 5:00 and 5:30 p.m. Hill then went to the informant's house where he strip-searched him, and, in a further effort to ensure that any drugs which the informant might produce were obtained from Herrold, Gerringer and Berthelson searched the informant's vehicle. The searches did not uncover any drugs. In accordance with their plan, Garlock and Ramer, who were in constant radio communication with Hill and Berthelson, sat in a police vehicle at an assigned location near the informant's home.
When the informant called Herrold, Herrold's girlfriend, Barbara Crowther, came to the phone and indicated that she and Herrold would go to the informant's home shortly. The informant relayed this information to Hill, who decided to change the location of the purchase to Herrold's trailer. Accordingly, the informant called Herrold again and asked another woman who answered the phone to inform Herrold that he would come to Herrold's trailer. Hill then notified the other members of the surveillance team of the change in plans and of the new location.
At around 8:09 p.m., the informant arrived at Herrold's trailer. The surveillance team then observed Herrold leave the trailer and enter the informant's car, which the informant, followed by Hill, drove away. But in a very short time, the informant drove back to the trailer. Herrold then left the vehicle and re-entered his trailer alone.
The informant then drove to Hill's surveillance location and gave his purchase to Hill who determined in a field test that it was positive for cocaine. The informant advised the surveillance team that he had paid Herrold $650.00 for the drugs, and also informed the officers that Herrold planned to go out to a bar that evening. He also stated that Herrold had been smoking crack-cocaine earlier that evening and was "squirrely." The informant had earlier advised the police that Herrold had a gun.
Although the surveillance team had originally intended to obtain a search warrant prior to searching Herrold's trailer, the district court found that they decided to arrest Herrold in his trailer without first doing so based on the following facts:
(a) Herrold had more cocaine and was going to go to a bar; (b) The officers knew, based on discussions with [the informant] that Herrold would very likely take cocaine with him out of the house to the bar for sale to other persons; (c) Because of the trailer's proximity to neighboring residences, the officers were concerned that they would not be able to maintain an effective surveillance on the residence for the approximately three or four hours they thought it would take to obtain a search warrant or arrest warrant, without being detected, Herrold alerted, and the evidence destroyed.... The officers also knew that Herrold had previously been convicted of two violent felonies involving weapons, specifically armed robberies.... [The informant] had also advised the officers that Herrold was "squirrely" and that caution should be exercised in dealing with him.
Accordingly, Hill approached Herrold's trailer as the other officers surrounded it. Hill then knocked on the door, and, when Herrold answered, Hill recognized Herrold as the man who sold the drugs to the informant. Hill asked him if he was "Gene Herrold" and Herrold responded that he was not. Hill then asked if Herrold knew where to locate Gene Herrold and Herrold responded that he did not. At that point, Hill informed Herrold that he was a state trooper and that he was under arrest.
Herrold yelled out an obscenity and attempted to slam the door, but Hill forced it open and entered Herrold's trailer. Herrold fled down the hallway with an object in his hand. Hill then yelled in a loud voice for Herrold to surrender. Eventually Herrold moved towards the table in the living room, placed the object on the table, and lay on the floor, submitting to arrest. The object was a .25 caliber Raven Arms semi-automatic pistol, loaded with four live rounds.
Hill secured the pistol and Herrold, and then secured the rest of Herrold's home with the assistance of the other officers. Though the officers observed drug paraphernalia and cocaine in plain view, they did not then search the trailer. Rather, Hill left with another officer to obtain a search warrant from a district justice while other surveillance team members remained at Herrold's residence to ensure that the evidence was not destroyed.
In his application for a warrant, Hill swore to the following facts with respect to the events that occurred before he entered the trailer:
On 08-24-90, at approx. 1940 hrs.... Officer [Hill] searched a Confidential Informant (C.I.) and found C.I. to be free of any controlled substances. The vehicle to be operated by C.I. was also searched by ... Raymond GE[R]RINGER and Sgt. Jay BERTHELSON, Mahoning Twp P.D., the vehicle was also free of controlled substances. C.I. was then followed to the residence of Gene A HERROLD. C.I. parked at the residence, HERROLD was observed exiting the mobile home and walking towards C.I. C.I. & HERROLD then drove in C.I.'s vehicle a short distance West on T-404 (Sholley Rd.) HERROLD then sold the C.I. a quantity of cocaine. Both subjects then immediately returned to the mobile home where HERROLD was dropped off by the C.I. HERROLD entered the residence while C.I. met with your affiant and turned over the cocaine purchased from HERROLD.
This officer performed a field test using the Modified Scott Reagent and noted a positive reaction to the presence of cocaine. During this period surveillance was maintained on HERROLD's residence by Sgt. T. GARLOCK, SUNBURY, p.d., Chief RAMER, Riverside P.D. and Det. GERRINGER. No other persons were observed entering or leaving the HERROLD residence.
The transaction between HERROLD & C.I. OCCURRED between 2008 and 2009 hrs.
In addition, the affidavit set forth the events that took place following Hill's forced entry into Herrold's residence:
At 2040 hrs. this officer approached the front door of the trailer and knocked on same. Gene A. HERROLD answered the door with his left hand hidden. This Officer asked if he was Gene HERROLD. HERROLD denied his identity. This officer then identified himself and advised HERROLD he was under arrest. HERROLD immediately slammed the door on this officer's hand and attempted to keep the door shut while screaming 'Get the fuck out of here.' This officer was...
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