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United States v. Miller

February 24, 2009

UNITED STATES
v.
MARK MILLER



The opinion of the court was delivered by: Schiller, J.

MEMORANDUM AND ORDER

Defendant Mark Miller is charged in a three-count indictment, arising out of two separate incidents, with possession with the intent to distribute cocaine and cocaine base. Currently before the Court is Miller's motion to suppress the 126 grams of cocaine and 81.17 grams of cocaine base recovered from a search of 1727 Harrison Street in Philadelphia on June 28, 2007, which form the bases for Counts Two and Three of the Indictment.*fn1 For the following reasons, Miller's motion is denied.

I. BACKGROUND

On June 28, 2007, police procured a search warrant for 1727 Harrison Street in connection with an investigation into a shooting that took place on June 17, 2007. (Def.'s Mot. to Suppress Ex. A [Search Warrant].) The supporting affidavit, sworn to by Detective Harrigan, establishes the following facts. The victim was sitting inside his car with his girlfriend when he was approached by eight to twelve men. One of the men pointed a handgun through the front passenger window and shot the victim in the hip as he tried to get out of the car. The victim was treated for his wounds and police recovered two .38 shell casings from the scene.

Police interviewed and re-interviewed the victim and his girlfriend. The girlfriend identified the shooter as a man she knew as "Diamond." She stated that Diamond and another man walked up to the car and that Diamond subsequently fired two or three shots at her boyfriend. The victim corroborated his girlfriend's rendition of the events and added that the two men fled into the Whitehall Housing Development after the shots were fired. In her second interview, the girlfriend stated that she knew both men from the Whitehall Housing Development. She again identified Diamond Brown as the shooter and identified Kenny Jenkins as the man who fled with Diamond Brown. Accordingly, police prepared photo arrays from which the victim identified Diamond Brown as the shooter and Kenny Jenkins as his accomplice.

Police arrested Diamond Brown on June 27, 2007, pursuant to an arrest warrant. After being advised of his rights, Brown admitted to the shooting. He told police that he was given the gun by a man he knows as "Bucket" and that after the shooting Brown immediately met up with Bucket in the rear of the Whitehall Housing Development. At that point, Bucket took back the gun and fled the scene. Since the investigating detectives knew "Bucket" to be a street name for James Magnum, they showed Brown a photograph of Magnum. Brown identified Magnum as the individual who had given him the gun. Based on this information, Detective Harrigan believed that weapons, ballistics, ammunition and other "fruits of the crime," would be found at 1727 Harrison Street, Magnum's registered address according to a check of Magnum's criminal history and Bureau of Motor Vehicles records.

A search warrant for 1727 Harrison Street was issued the following day based on Harrigan's affidavit. The warrant identified the following items to be searched for and seized: (1) "any and all evidence of an Aggravated Assault/Shooting"; (2) "Any and all guns, ammunition, ballistics"; (3) "Proof of Residency"; (4) "All paperwork in name of James Magnum"; and (5) "Any and all proof of narcotic activity, contraband, narcotic paraphrenalia [sic]." (Search Warrant.) Detectives Harrigan, Christopher Casee, and another officer executed the warrant that day. The officers found a large safe in the basement and carried it up the stairs and outside the house so that they could search it without damaging the property. During the suppression hearing, Detective Harrigan testified that the safe was approximately two or three feet square. The search of the safe uncovered plastic bags containing cocaine and cocaine base and a scale with residue on it. Police also recovered a scale from a second floor bedroom closet and documents in Miller's name and in the names of James Magnum, Melvia Miller and Vernon Riggins.

II. STANDARD OF REVIEW

On a motion to suppress, the movant bears the burden of establishing a violation of his constitutional rights by a preponderance of the evidence. See United States v. Johnson, 63 F.3d 242, 245 (3d Cir. 1995); United States v. Acosta, 965 F.2d 1248, 1257 n.9 (3d Cir. 1992). Where a search is conducted pursuant to a warrant, a reviewing court must uphold that warrant provided that there is a "substantial basis" for the magistrate's finding of probable cause. United States v. Hodge, 246 F.3d 301, 305 (3d Cir. 2001); United States v. Conley, 4 F.3d 1200, 1205 (3d Cir. 1993). "In making this determination, the Court confines itself 'to the facts that were before the magistrate judge, i.e., the affidavit, and [does] not consider information from other portions of the record.'" Hodge, 246 F.3d at 305 (quoting United States v. Jones, 994 F.2d 1051, 1055 (3d Cir. 1993)) (alterations in original). The affidavit must be read in a "common sense and non-technical manner," Conley, 4 F.3d 1206 (quoting Illinois v. Gates, 462 U.S. 213, 230-31 (1983)), and "great deference" should be afforded to the magistrate's decision. Hodge, 246 F.3d at 305; see also United States v. Ventresca, 380 U.S. 102, 109 (1965) ("[T]he resolution of doubtful or marginal cases in this area should be largely determined by the preference accorded to warrants.").

III. DISCUSSION

A. A Substantial Basis Existed for the Magistrate's Finding of Probable Cause

Miller attacks the warrant for lack of the requisite probable cause. He asserts that the information supplied by Diamond Brown could not establish probable cause because Brown "had been arrested and had a motive to falsely implicate Magnum and others to deflect attention from himself" and because Brown "provided no information that the fruits of an attempted murder would be found inside 1727 Harrison Street." (Def.'s Mem. of Law in Supp. of Def.'s Mot. to Suppress [hereinafter "Def.'s Mem."] at 2.) Miller acknowledges that the police were able to associate Magnum with that address but argues that "there is no indication as to when [Magnum lived there] or if he still lived at that address at the time of the attempted murder." (Id.) The Government counters that the warrant is sufficiently supported by probable cause and, irrespectively, the police relied upon the warrant in good faith.

Probable cause exists where "the known facts and circumstances are sufficient to warrant a man of reasonable prudence in the belief that contraband or evidence of a crime will be found." Ornelas v. United States, 517 U.S. 690, 696 (1996) (citations omitted). Probable cause should be evaluated based on the "totality of the circumstances" with reference to "the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act."

Gates, 462 U.S. at 230-31. "[D]irect evidence linking the place to be searched to the crime [being investigated] is not required for the issuance of a search warrant." Conley, 4 F.3d at 1207. A magistrate judge may infer the existence of probable cause to search a location by the type of crime, the nature of the items sought, ...


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