U.S. v. Jones, No. 92-7360

• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
• Writing for the Court: GREENBERG
• Citation: 994 F.2d 1051
• Parties: UNITED STATES of America; Government of the Virgin Islands, v. Elson A. JONES; Dwayne D. Hunte; Neil F. Daniel, United States Attorney for the Virgin Islands, Appellant.
• Docket Number: No. 92-7360
• Decision Date: 28 May 1993

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994 F.2d 1051 25 Fed.R.Serv.3d 1331 UNITED STATES of America; Government of the Virgin Islands,
v.
Elson A. JONES; Dwayne D. Hunte; Neil F. Daniel, United
States Attorney for the Virgin Islands, Appellant. No. 92-7360. United States Court of Appeals,
Third Circuit. Argued April 26, 1993.
Decided May 28, 1993.

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H. Peter Mabe, U.S. Atty., James R. Fitzner (Argued), Asst. U.S. Atty., Christiansted, St. Croix, U.S. Virgin Islands, for appellants.

Mark E. Davis (Argued), Christiansted, St. Croix, U.S. Virgin Islands, for Elson A. Jones.

George W. Cannon, Jr. (Argued), Ross & Cannon, Frederiksted, St. Croix, U.S. Virgin Islands, for Dwayne D. Hunte.

Maurice Cusick (Argued), Christiansted, St. Croix, U.S. Virgin Islands, for Neil F. Daniel.

Before: GREENBERG, SCIRICA, and GARTH, Circuit Judges.

OPINION OF THE COURT

GREENBERG, Circuit Judge.

I.

BACKGROUND

The United States Attorney for the Virgin Islands appeals from an order of the district court suppressing the evidence taken from the residences of defendants Elson A. Jones, Dwayne D. Hunte, and Neil F. Daniel during searches conducted on April 9, 1992, pursuant to three separate search warrants. A United States magistrate judge issued the search warrants on the basis of an affidavit of Virgin Islands police officer Arthur Hector, Jr. In its memorandum and order of July 6, 1992, the district court held that the affidavit did not establish probable cause to search the defendants' homes because it did not link the crime to the places to be searched. The district court further held that the searches were not saved by the good-faith exception to the probable cause requirement as set forth in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), because the affidavit was so lacking in probable cause that the executing officers could not have reasonably relied on the warrants. Because we conclude that the magistrate judge had a substantial basis for concluding that there was probable cause, see Illinois v. Gates, 462 U.S. 213, 238-39, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983), we will reverse.

The relevant facts are as follows. On March 26, 1992, three men wearing dark clothing and ski masks and carrying firearms robbed Luis and Juliana Euristhe at their check cashing van. The men drove off with about $275,000, ¹ a black cellular phone, and the van. Initially, the police arrested three individuals other than Jones, Hunte, and Daniel and charged them with committing the crime. Although one of these original suspects confessed, he later denied his involvement and passed a polygraph. At that point, the original suspects were released.

On or about April 3, 1992, Hector received a phone call from a person he described as a "concerned citizen." This person told Hector that the robbers were the three defendants, Elson Jones, Neil Daniel, and Dwayne Hunte, and he gave Hector their approximate addresses. He also told Hector that a

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cellular phone taken in the robbery would be found in Daniel's residence. Finally, the person told Hector that Marba Sutton, Jones's girlfriend, had some of the cash taken in the robbery. Hector did not know the person's name and never had talked to him before and, indeed, never has spoken to him again. However, Hector stated in his affidavit that this person had no connection with the robbery or any other crimes, a conclusion he apparently reached based on the person's demeanor on the phone.

On April 8, Sergeant Ismael Ramirez of the Virgin Islands Police Department told Hector that a second "concerned citizen" told him that Jones was involved in the crime and that shortly after the robbery he had seen Elson Jones "in the bush" on Clifton Hill with a lot of cash and that Jones was tearing up checks and envelopes. This person showed Ramirez where Jones lived, 86 Clifton Hill.

On April 8, Ramirez drove by Jones's residence and saw three new Honda motorcycles parked outside. According to Hector's affidavit, Ramirez learned that Jones, Daniel, and Hunte each had registered a 1992 Honda motorcycle with the Virgin Islands Department of Motor Vehicles that same day. Later that day, Ramirez called the owner of A & B Honda in St. Croix who told him that Bella International Honda in Puerto Rico told him that each of the motorcycles recently had been purchased with $6000 cash. Insofar as appears from Hector's affidavit, the police did not investigate further before Hector applied for the warrants.

Based on Hector's affidavit, ² on April 8, 1992, a United States magistrate judge for the District of the Virgin Islands issued three warrants to search the residences of Jones, Hunte, and Daniel for "U.S. Currency, hand guns, shot guns, black cellular telephone, ski masks, dark T. shirts, inked fingerprint impressions and photographs." The searches were largely successful and, based on evidence recovered in these searches, the defendants were arrested. ³ The defendants

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subsequently were charged in an original and then a superseding indictment with first degree robbery, possession of a firearm during the robbery, unauthorized use of a vehicle, and transporting stolen money in interstate commerce. V.I.Code Ann. tit. 14, §§ 1862, 2253(a) and 1382 (Supp.1990); 18 U.S.C. § 2314. Before the start of trial, the defendants jointly moved to suppress the evidence recovered during the searches. As noted, the district court granted this motion, and the government appealed. ⁴

II.

DISCUSSION

This case requires us to consider the nexus between the crime and the place to be searched that must be set forth in an affidavit to allow the issuance of a search warrant. Because of the limited nature of our review, we do not determine whether the affidavit actually established probable cause, but simply whether it provided a "substantial basis" for finding probable cause. However, before we reach the merits of this appeal, we first must consider our jurisdiction.

A. Jurisdiction

Pursuant to 18 U.S.C. § 3731, we have jurisdiction to review interlocutory appeals made from orders of a district court suppressing evidence. However, Daniel has challenged our jurisdiction on other grounds. In particular, he asserts that a defect in the notice of appeal filed by the United States Attorney deprives us of jurisdiction. He first points out that the second amended notice of appeal states that it is being filed on behalf of the Government of the Virgin Islands. He then notes that the superseding indictment which was returned before the entry of the July 6, 1992 suppression order was brought in the name of the United States. Daniel argues, therefore, that the notice of appeal violates Rule 3(c) of the Federal Rules of Appellate Procedure because it fails to indicate the actual party appealing, the United States. We reject Daniel's argument.

The purpose of Rule 3(c), insofar as it states that "[t]he notice of appeal shall specify the party or parties taking the appeal," is to provide notice to the court and the appellee of the parties participating in the appeal. Torres v. Oakland Scavenger Co., 487 U.S. 312, 318, 108 S.Ct. 2405, 2409, 101 L.Ed.2d 285 (1988); Cruz v. Melendez, 902 F.2d 232, 235 (3d Cir.1990). Thus, we have deemed Rule 3(c) satisfied when the circumstances surrounding the appeal clearly indicate who is participating in the appeal. See, e.g., Masquerade Novelty, Inc. v. Unique Indus., Inc., 912 F.2d 663, 664-66 (3d Cir.1990). Here the purpose of Rule 3(c) has been satisfied because there can be no doubt as to who is participating in this appeal.

Moreover, while the superseding indictment was brought on behalf of the United States, the substantively identical original indictment was brought in the name of the Government of the Virgin Islands. Furthermore, the prior motions and orders were captioned with the "Government of the Virgin Islands" as the plaintiff, and the original notice of appeal was captioned in both the names of the United States and the Government of the Virgin Islands. Thus, the persons preparing the orders and pleadings treated the United States and the Government of the Virgin Islands as interchangeable plaintiffs. It is clear, therefore, that the United States Attorney substantially complied with Rule 3(c). See Torres, 487 U.S. at 316, 108 S.Ct. at 2408 (" 'mere technicalities' should not stand in the way of consideration

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of a case on its merits"). Therefore, we have jurisdiction and address the merits.

B. The Merits

The district court found that on its face the affidavit did not provide a substantial basis for a finding of probable cause to search the defendants' residences. See Illinois v. Gates, 462 U.S. at 238-39, 103 S.Ct. at 2332. In reaching this conclusion, the court did not question the facts contained in the affidavit. Accordingly, our review of the magistrate judge's probable cause determination is identical to that of the district court. ⁵ Additionally, we confine our review to the facts that were before the magistrate judge, i.e., the affidavit, and do not consider information from other portions of the record.

When faced with a challenge to a magistrate's probable cause determination, a reviewing court must remember that its role is limited. It is not to conduct a de novo review. Rather, it simply ensures that the magistrate had a substantial basis for concluding that probable cause existed. Illinois v. Gates, 462 U.S. at 238-39, 103 S.Ct. at 2332; United States v. Kepner, 843 F.2d 755, 762 (3d Cir.1988). Of course, such deference "does not mean that reviewing courts should simply rubber stamp a magistrate's conclusions." United States v. Tehfe, 722 F.2d 1114, 1117 (3d Cir.1983), cert. denied, 466 U.S. 904, 104 S.Ct. 1679, 80 L.Ed.2d 154 (1984). But it does mean that "the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be...