2012 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

3-30-2012

USA v. Bernard McMillion

Precedential or Non-Precedential: Non-Precedential

Docket No. 11-3444

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 11-3444

_____________

UNITED STATES OF AMERICA

v.

BERNARD MCMILLION,

 Appellant

_______________

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. No. 1-08-cr-00205-01)

District Judge: Hon. William W. Caldwell 

_______________

Submitted Under Third Circuit LAR 34.1(a)

March 29, 2012

Before: FUENTES, SMITH, and JORDAN, Circuit Judges.

(Filed: March 30, 2012)

_______________

OPINION OF THE COURT

_______________

JORDAN, Circuit Judge.

Bernard McMillion pled guilty to drug and firearm offenses in the United States 

District Court for the Middle District of Pennsylvania. McMillion’s plea agreement 
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provided that he could appeal the District Court’s ruling denying his pre-trial motion to 

suppress evidence, which he now challenges before us. For the following reasons, we 

will affirm.

I. Background

In the late evening of August 17, 2007, two members of the Swatara Township 

Police Department, Ronald Soutner and Dennis Krahling, were assigned to patrol 

apartment complexes in high crime areas, as part of the Dauphin County Drug Task 

Force. During that patrol, Soutner and Krahling entered building number 103 of the East 

Ridge Apartments on Worchester Avenue. Once inside, Soutner detected the smell of 

marijuana coming from the second floor, and the officers followed the odor up the stairs

to apartment number three. 

After Soutner knocked on the door of that apartment, someone inside asked who 

was there, and the officers identified themselves. There was a brief delay before the 

apartment’s tenant, Schkira Washington, opened the door. When she did so, the officers 

detected a much stronger marijuana odor. The officers advised Washington that they 

were investigating the marijuana smell in the building, informed her that they could smell 

it in the apartment, and asked her if there were any drugs in the apartment. At that point, 

McMillion, who was Washington’s boyfriend, approached the officers, and the officers 

explained their investigation to him. While the chronology of events is not entirely clear 

from the record, at some point during the conversation the officers entered the apartment, 

handcuffed Washington and McMillion, advised them that they were being detained for 

the investigation of drug activity, and read them their Miranda rights. McMillion became 
3

agitated, and admitted to the officers that the marijuana in the apartment had belonged to 

him but said that all of it had already been smoked. The officers removed him from the 

scene.

Soutner left to obtain a search warrant, while Krahling stayed in the apartment

with Washington. During that time, Krahling observed a bag of marijuana on the kitchen 

counter and reported it to Soutner so that it could be included in the probable cause

affidavit. After receiving approval from a magistrate judge, the officers executed the 

warrant just after midnight on August 18, 2007. The officers found a .22 caliber 

revolver, $8,000 in cash, approximately 15 ounces of marijuana, and drug paraphernalia. 

McMillion was charged in a three-count indictment with, among other things,

possession with intent to distribute marijuana, in violation of 21 U.S.C. § 841(a) (“Count 

One”), and possession of a firearm by a felon, in violation of 18 U.S.C. § 922(g) (“Count 

Three”). He responded by filing a motion to suppress the evidence seized from the 

apartment by the police officers, arguing primarily that there were no exigent 

circumstances to justify the officers’ initial entry into the apartment. The District Court 

denied that motion, concluding that McMillion’s “warrantless arrest was supported by 

probable cause and the exigencies of the situation warranted intrusion into the residence 

to secure the scene.” (App. 104.) McMillion subsequently pleaded guilty to Count One 

and Count Three. The plea agreement permitted him to file a direct appeal of the District 

Court’s order denying the suppression motion. He was sentenced to sixty months’ 

imprisonment and three years’ supervised release, and he timely appealed. 
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II. Discussion1

McMillion argues that the District Court erred in concluding that the warrantless 

entry was justified by exigent circumstances and in concluding that the officers had 

probable cause to arrest him. We disagree.

The Fourth Amendment provides: 

The right of the people to be secure in their persons, houses, papers, and 

effects, against unreasonable searches and seizures, shall not be violated, 

and no Warrants shall issue, but upon probable cause, supported by Oath or 

affirmation, and particularly describing the place to be searched, and the 

persons or things to be seized.

U.S. Const. amend. IV. In United States v. Coles, we held that “[w]arrantless searches 

and seizures inside someone’s home ... are presumptively unreasonable unless the 

occupants consent or probable cause and exigent circumstances exist to justify the 

intrusion.” 437 F.3d 361, 365 (3d Cir. 2006) (citations omitted).

One well-recognized exception to the warrant requirement “applies when the 

exigencies of the situation make the needs of law enforcement so compelling that [a] 

warrantless search is objectively reasonable under the Fourth Amendment.” Kentucky v. 

King, 131 S.Ct. 1849, 1856 (2011) (alteration in original) (citation and internal quotation 

marks omitted). One such exigency, “[t]he need ‘to prevent the imminent destruction of 

 1 The District Court had jurisdiction pursuant to 18 U.S.C. § 3231, and we have 

jurisdiction pursuant to 28 U.S.C. § 1291. We review “the District Court’s denial of a 

motion to suppress for clear error as to the underlying factual findings and exercise[] 

plenary review of the District Court’s application of the law to those facts.” United 

States v. Perez, 280 F.3d 318, 336 (3d Cir. 2002).
5

evidence,’ has long been recognized as a sufficient justification for a warrantless 

search.” Id. (quoting Brigham City, Utah v. Stuart, 547 U.S. 398, 403 (2006)). 

Here, the exigency of the circumstances provided the officers with an objectively 

reasonable belief that a warrantless entry was justified. The officers followed the odor of 

marijuana to Washington’s apartment, knocked on the door and, when Washington 

opened the door, the odor was even stronger. It was thus reasonable for the officers to 

suspect that there was ongoing drug activity, and, particularly in light of McMillion’s 

admission to smoking marijuana, it was also reasonable for the officers to conclude that 

contraband was being destroyed and would continue to be destroyed or removed if they 

did not act immediately. 

For the same reasons, there was probable cause to believe there was criminal 

activity in the apartment. “Probable cause exists where the facts and circumstances 

within the arresting officer’s knowledge are sufficient to warrant a reasonable person to 

believe an offense had been committed.” United States v. McGlory, 968 F.2d 309, 342 

(3d Cir. 1992) (citation omitted). “It is well settled that the smell of marijuana alone, if 

articulable and particularized, may establish ... probable cause.” United States v. Ramos,

443 F.3d 304, 308 (3d. Cir. 2006) (citation omitted). Again, the officers smelled the odor 

of marijuana in the building’s hallway, and they followed the smell up to Washington’s 

apartment where, when she opened the door, they perceived the smell even more 

strongly. Those facts indicate that the smell was “articulable and particularized” so as to 

establish probable cause. Id. Accordingly, exigent circumstances and probable cause
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existed to justify the warrantless entry and, given his admissions, McMillion’s arrest. 

Coles, 437 F.3d at 365.

III. Conclusion

For the foregoing reasons, we will affirm.