United States v. Glover

Decision Date06 July 2012
Docket Number08–3083,08–3084.,Nos. 08–3082,s. 08–3082
PartiesUNITED STATES of America, Appellee v. Ernest Milton GLOVER, Appellant.
CourtU.S. Court of Appeals — District of Columbia Circuit

OPINION TEXT STARTS HERE

Appeals from the United States District Court for the District of Columbia (No. 1:07–cr–00152).

Jenifer Wicks, Allen H. Orenberg, appointed by the court, and Marcia G. Shein argued the causes for appellants Glover, Suggs, and Price, respectively, and filed the briefs for appellants.

Patricia A. Heffernan, Assistant U.S. Attorney, argued the cause for appellee. With her on the brief were Ronald C. Machen Jr., U.S. Attorney, and Roy W. McLeese III, John K. Han, and Anthony Scarpelli, Assistant U.S. Attorneys. Mary B. McCord, Assistant U.S. Attorney, entered an appearance.

Before: HENDERSON, BROWN, and KAVANAUGH, Circuit Judges.

Opinion for the Court filed by Circuit Judge KAVANAUGH.

KAVANAUGH, Circuit Judge:

Ernest Glover, Anthony Suggs, and Helery Price were convicted for their roles in a PCP-distribution enterprise. We affirm the judgments of conviction.

I

In 2007, the Federal Bureau of Investigation and the Metropolitan Police Department conducted a joint investigation of a PCP-distribution conspiracy operating in the District of Columbia. Investigators obtained approval from a federal district judge to wiretap Suggs's cell phone. Investigators also obtained a search warrant from a D.C. Superior Court judge and searched Suggs's house pursuant to that warrant. Glover, Suggs, and Price were ultimately arrested and indicted. A federal jury found Glover, Suggs, and Price guilty of a PCP-distribution conspiracy offense. See21 U.S.C. § 846. The jury also found Suggs guilty of unlawful possession with intent to distribute PCP. See21 U.S.C. § 841(a)(1), (b)(1)(A)(iv). The District Court sentenced Glover and Price to life imprisonment for the conspiracy offense and sentenced Suggs (who did not have quite as extensive a prior felony drug record as Glover and Price) to two 20–year terms for the conspiracy and possession with intent to distribute offenses.

II

Defendants challenge their convictions on various grounds. We find none of their arguments convincing.

A

Before trial, Price moved under Federal Rule of Criminal Procedure 14 to sever his trial from that of his co-defendants. The District Court denied the motion.

On appeal, Price asserts that he should have been tried separately because there was less evidence against him than against co-defendants Glover and Suggs. We review for abuse of discretion a district court's denial of a motion to sever. See United States v. Celis, 608 F.3d 818, 844 (D.C.Cir.2010).

In interpreting Rule 14, the Supreme Court has stated that joint trials ‘play a vital role in the criminal justice system’; they “promote efficiency and ‘serve the interests of justice by avoiding the scandal and inequity of inconsistent verdicts.’ Zafiro v. United States, 506 U.S. 534, 537, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993) (quoting Richardson v. Marsh, 481 U.S. 200, 209, 210, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987)). A defendant is therefore not entitled to severance under Rule 14 unless there is “a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence.” Zafiro, 506 U.S. at 539, 113 S.Ct. 933.

Here, there was no such “serious risk.” The Government presented extensive evidence not just against Glover and Suggs but also against Price, including numerous wiretapped conversations. Moreover, the District Court instructed the jury to consider each defendant's guilt or innocence separately based on the evidence pertaining to that defendant. As this Court has said, jury instructions of that sort mitigate the potentially negative impact of a joint trial. See United States v. Moore, 651 F.3d 30, 95 (D.C.Cir.2011) ( “absent a dramatic disparity of evidence, any prejudice caused by joinder is best dealt with by instructions to the jury to give individual consideration to each defendant) (brackets and citation omitted).

In short, the District Court did not abuse its discretion by denying Price's motion to sever.

B

In searching Suggs's house pursuant to a search warrant that was issued by a D.C. Superior Court judge, law enforcement officers recovered 13 bottles of PCP, containing a total of 7.7 kilograms of PCP. The officers also seized four buckets with PCP residue, a measuring cup, a funnel, air freshener, $7,000 in cash, and a corresponding cash withdrawal receipt signed Anthony M. Suggs.”

Before trial, Suggs moved to suppress the evidence seized from his house. The District Court denied the motion.

On appeal, Suggs raises two alternative arguments that the District Court erred in denying his suppression motion: (1) the law enforcement officers' initial entry into his house was warrantless; and (2) the affidavit in support of the search warrant issued by the D.C. Superior Court judge did not establish probable cause. On those issues, we review the District Court's legal conclusions de novo and its factual findings for clear error. See United States v. Bailey, 622 F.3d 1, 5 (D.C.Cir.2010).

While listening by wiretap to one of Suggs's cell phone conversations, law enforcement officers learned that an odor consistent with PCP was emanating from Suggs's house. Law enforcement and fire department personnel then went to the exterior of Suggs's house. Investigator Eames of the Metropolitan Police Department smelled an odor consistent with PCP. Before the law enforcement officers obtained a search warrant, law enforcement and fire department personnel entered Suggs's house and looked around to make sure that no evidence was destroyed and that there was no fire or hazardous materials risk. The officers seized no evidence at that time.

The law enforcement officers sought a search warrant. Investigator Kyle of the Metropolitan Police Department prepared the supporting affidavit. The affidavit did not rely on what the officers observed during their initial entry into Suggs's house. Rather, the affidavit stated among other things that while outside Suggs's house, Investigator Eames smelled an odor consistent with PCP coming from the house. A D.C. Superior Court judge issued a search warrant. Acting pursuant to the search warrant, the officers then seized evidence from Suggs's house.

Suggs contends that the law enforcement officers' initial entry into his house was unlawful and that the evidence later seized from his house therefore should have been suppressed. But even assuming for the sake of argument that the initial entry was unlawful, evidence subsequently seized pursuant to a valid search warrant is admissible when “there was an independent source for the warrant under which that evidence was seized.” Segura v. United States, 468 U.S. 796, 814, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984). Here, the officers had such an independent source—namely, before the law enforcement officers' initial entry into Suggs's house, Investigator Eames detected an odor consistent with PCP coming from the house. Suggs thus cannot use the initial entry as the hook to suppress evidence later seized pursuant to a valid and independently obtained search warrant. See id. at 813–14, 104 S.Ct. 3380;see also Hudson v. Michigan, 547 U.S. 586, 126 S.Ct. 2159, 165 L.Ed.2d 56 (2006); Murray v. United States, 487 U.S. 533, 108 S.Ct. 2529, 101 L.Ed.2d 472 (1988).

Suggs also challenges the issuing judge's probable-cause determination and on that basis says that the evidence seized from his house should have been excluded.

The Fourth Amendment provides that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation.” U.S. Const. amend. IV. When police obtain evidence by way of an unlawful search, the exclusionary rule may require exclusion of that evidence in some circumstances. As the Supreme Court has instructed, however, the exclusionary rule has limited force in cases involving a search with a search warrant. In particular, reviewing courts may not exclude evidence “when an officer acting with objective good faith has obtained a search warrant from a judge or magistrate and acted within its scope.” United States v. Leon, 468 U.S. 897, 920, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). The reason is evident: “In the ordinary case, an officer cannot be expected to question the magistrate's probable-cause determination or his judgment that the form of the warrant is technically sufficient.” Id. at 921, 104 S.Ct. 3405. The “exclusionary rule was adopted to deter unlawful searches by police, not to punish the errors of magistrates and judges.” Massachusetts v. Sheppard, 468 U.S. 981, 990, 104 S.Ct. 3424, 82 L.Ed.2d 737 (1984) (citation omitted). In this case, therefore, even assuming that probable cause was lacking for the search warrant—which is not in any way clear—the evidence seized from Suggs's house was properly admitted under Leon.

To get around Leon, Suggs invokes one of the recognized exceptions to the Leon principle. Under Leon, suppression “remains an appropriate remedy if the magistrate or judge in issuing a warrant was misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard of the truth.” Leon, 468 U.S. at 923, 104 S.Ct. 3405 (citing Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978)).

In the affidavit here, Investigator Kyle stated that Investigator Eames had smelled an odor consistent with PCP coming from Suggs's house. According to Suggs, Investigator Eames lied. But the District Court specifically believed Investigator Eames on that point. Suggs presents no persuasive basis for us to disturb the District Court's credibility finding.

Suggs separately asserts that the affidavit improperly failed to disclose the wiretapped...

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