U.S. v. Hromada

• Decision Date: 06 April 1995
• Docket Number: No. 93-4717,93-4717
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Paul Edward HROMADA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 685

49 F.3d 685

UNITED STATES of America, Plaintiff-Appellee, v. Paul Edward HROMADA, Defendant-Appellant.

No. 93-4717.

United States Court of Appeals Eleventh Circuit.

April 6, 1995.

Bonnie Phillips-Williams, Asst. Federal Public Defender, Miami, FL, for appellant.

Kendall Coffey, U.S. Atty., James M. Hopkins, Linda Collins Hertz, Dawn Bowen, Asst. U.S. Attys., Miami, FL, for appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before KRAVITCH and CARNES, Circuit Judges, and HILL, Senior Circuit Judge.

HILL, Senior Circuit Judge:

A federal grand jury charged Appellant Paul Edward Hromada in a two-count indictment with possession of marijuana plants and a mixture and substance containing marijuana with intent to distribute, in violation of 21 U.S.C. Sec. 841(a)(1) (Count I), and knowingly maintaining a place for the purpose of manufacturing and distributing marijuana, in violation of 21 U.S.C. Sec. 856(a) (Count II). Hromada pled guilty to both counts, but reserved his right to appeal the district court's denial of his motion to suppress and for review of his sentencing. See Fed.R.Crim.P. 11(a)(2). For the reasons that follow, we affirm the district court's ruling and Hromada's sentence.

I. BACKGROUND

A. Factual Background

A confidential informant tipped Broward County, Florida authorities that Hromada sold marijuana that he grew in his Lauderdale Lakes home. The informant told police that he had seen the plants, but that it had been "some time" ago. ¹ As a result, Detective Robert Diekmann, Jr. of the City of Margate (Florida) Police Department began an undercover investigation of Hromada through visual surveillance and recorded telephone conversations, ending in hand-to-hand drug deliveries. ² During November 1991, Hromada made two quarter-ounce sales of marijuana to Diekmann (totalling $140) at a Lauderdale Lakes Sports Authority parking lot. Each time Hromada arranged delivery at the parking lot and not at his home.

There were strong indications that Hromada did not operate alone. On the day of the first drug transaction, Hromada was observed leaving and returning to his home with a woman companion who was present during the sale. Also, during one recorded telephone call to Hromada's home, Diekmann overheard Hromada consult with a male at his home about the price he should charge for the drugs.

Although there were negotiations for a larger "buy," Hromada and Diekmann could not agree on price and Hromada indicated that he could not supply the quantity of marijuana the agent wanted. At this point, Diekmann ended his investigation and obtained a warrant for Hromada's arrest.

On the morning of the arrest, Detective Sherie McKeon of the Broward County Sheriff's Department briefed participating officers. She told them that the arrest involved narcotics and that the suspect had at least one roommate. McKeon also outlined the layout of the house. ³

About 6:00 a.m., Special Response Team (SRT) Officer Mark Davis knocked loudly on the front door of Hromada's house and shouted "Sheriff's Office, arrest warrant." Several seconds later a man (later identified as Hromada) appeared at the large picture window next to the front door. Davis shouted at him to open the door. Hromada did not respond to Davis' demand but continued to stand at the window. After that the SRT broke the front door open and entered the house.

Once Hromada was secured in the living room, the officers fanned out through the house to check all other rooms and areas. They discovered Hromada's girlfriend in one room, and the roommate in another, and brought them to the living room. During their passage through the house, officers observed an abundance of marijuana plants, high intensity lights, and cultivation equipment in plain view in the master bedroom and closet, the master bathroom, and a second bedroom. ⁴

B. Procedural Background

Hromada was arrested on December 6, 1991, and released on a $25,000 personal surety bond while awaiting trial, requiring him to submit to random urinalysis for drug testing. In January 1992, Hromada tested positive twice for drug use. ⁵

Hromada moved to suppress the 126 marijuana plants and other physical evidence seized by law enforcement officers from his house and backyard greenhouse. After an evidentiary hearing, the district court granted the motion in part, as to the greenhouse, and otherwise denied it. ⁶ Thereafter, Hromada entered his conditional plea of guilty to the indictment.

At sentencing, the district court refused to adjust Hromada's sentence for acceptance of responsibility and sentenced him to sixty-three months' imprisonment.

II. ISSUES ON APPEAL

Hromada raises three issues on appeal: (1) whether the district court erred in denying his motion to suppress on the grounds that the arresting officers had not failed to comply with the knock and announce rule pursuant to 18 U.S.C. Sec. 3109; (2) whether the district court erred in denying his motion to suppress evidence seized incident to his arrest and in plain view during a protective sweep of his house; and (3) whether the district court erred in refusing to grant him a two-level downward adjustment for acceptance of responsibility under the Sentencing Guidelines.

III. STANDARDS OF REVIEW

A. Motion to Suppress

Because ruling on motions to suppress involve mixed questions of fact and law, we review the district court's factual findings for clear error, and its application of the law to the facts de novo. United States v. Ramos, 12 F.3d 1019, 1022 (11th Cir.1994). Further, when considering a ruling on a motion to suppress, all facts are construed in the light most favorable to the party prevailing in the district court, i.e., in this case, the Government. United States v. Behety, 32 F.3d 503, 510 (11th Cir.1994).

B. Sentencing Guidelines

Whether a defendant is entitled to a sentencing reduction for acceptance of responsibility is a factual determination that must be affirmed on appeal unless clearly erroneous. United States v. Campbell, 888 F.2d 76, 78 (11th Cir.1989), cert. denied, 494 U.S. 1032, 110 S.Ct. 1484, 108 L.Ed.2d 620 (1990). A district court occupies the unique position to evaluate whether a defendant has accepted responsibility for his acts; its determination is entitled to great deference on appeal. U.S.S.G. Sec. 3E1.1, comment. (n. 5); United States v. Pritchett, 908 F.2d 816, 824 (11th Cir.1990).

IV. DISCUSSION

A. Motion to Suppress

1. Knock and Announce.

Hromada moved to suppress evidence seized from his home claiming that the arresting officers failed to comply with the knock and announce provision of 18 U.S.C. Sec. 3109. ⁷ The statute provides:

The officer may break open any outer or inner door or window of a house, or any part of a house, or anything therein, to execute a search warrant, if, after notice of his authority and purpose, he is refused admittance or when necessary to liberate himself or a person aiding him in the execution of a warrant.

18 U.S.C. Sec. 3109 (1948).

Hromada claims that the arresting officers illegally entered his house because they violated the "language and spirit" of Sec. 3109. In the same breath Hromada appears to concede that the officers did knock on the door and announce their purpose. Asserting that they gave him less than a minute to open the front door (before they broke it down), he contends that he never had the opportunity to refuse them admittance. The Government claims that because Hromada exhibited no sign that he intended to open the door, taking no step to do so, they were constructively refused admittance, so it was reasonable to conclude that forcible entry was required.

We characterize Hromada's inaction more as a failure to admit than a constructive refusal to admit. However, semantics aside, in a drug bust of this sort, if a suspect's resistance to arrest places the arresting officer in the position of being a target, the officer need not linger there unduly long. The officers knew this was a narcotics arrest. They knew Hromada had at least one roommate, whose whereabouts was unknown. The officers also had been tipped that the house was more than just a place to go to buy marijuana, that it was a place for marijuana cultivation and distribution. Granted, there was not sufficient probable cause to support a search warrant, but one does not have to have probable cause or proof beyond a reasonable doubt before protecting himself or herself from potential or likely violence. It would be reasonable for a prudent officer, undertaking this arrest, to provide for more than his customary escort. Guns and violence go hand-in-hand with illegal drug operations. ⁸ Any further delay may well have involved great risk to the officers undertaking the arrest.

There is no clear error in the district court's findings, and, the facts do not support Hromada's Sec. 3109 claim.

2. Search of the House Incident to Arrest.

Next Hromada claims that the officers violated his Fourth Amendment rights by illegally searching his home while executing his arrest warrant. He concedes that the officers possessed a valid arrest warrant but asserts that their warrantless search and subsequent seizure of his marijuana plants and narcotics paraphernalia did not fall within the protective sweep exception set forth by the Supreme Court in Maryland v. Buie, 494 U.S. 325, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990).

In Buie, the Court examined the constantly competing values of personal privacy and efficient police investigation in the warrantless search of an arrestee's home, and held, that under certain circumstances, a protective search does not violate the Fourth Amendment. The Court found a protective sweep, incident to a lawful arrest, valid, if it was "a quick and limited search of a premises, ... conducted to protect the safety of police officers or others. It is narrowly confined to a cursory visual inspection of those places in which a person might...