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# U S A v . M a y P r e c e de n t i al or N on-P r e c e de n t i al : N on-P r e c e de n t i al D ocke t N o . 02-2996

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w . v i l l a no va . e du/thir dc ir c uit_2003/69NOT PRECEDE NTIAL UNITED STATES COURT OF APPEALS FO R T HE TH IRD CIR CU IT 

### No. 02-2996
UNITED STATES OF AMERICA

v. GREGORY MAY, Appellant

APPEAL FROM THE UNI TED STATES DIST RICT COURT FO R T HE MID DL E D ISTR ICT O F PE NN SY LV AN IA

D.C. Crim. No. 01- cr-00127 Distri ct Judge: The Honorable Will iam J. Neal on
Submitte d Under Third Circ uit LAR 34.1(a)

November 19, 2003

Be for e: R EN DE LL , BA RR Y, a nd C HE RT OF F, Circuit Judges (Opinion Fi led: December 8, 2003)

OPI NION

BA RR Y, Circuit

Judge The parti es are fami liar with the f

acts of t his cas e. As a res ult, we will provi de only a brief

summary of t

hose fact s at t

he outset and will i ncorporate additional f acts as2

they a re re leva nt to our disc uss ion of th e issu es. On Novem ber 12, 2000, Lewis Kunzman (“Kunzman”) was discovered de ad in a bathro om at the h om e of C urtis an d D onn a W illiams. A ccord ing to th e auto psy repo rt, the cause of death was “morphi ne/heroi n toxici ty .” An invest igati on reveal ed that appell ant, Gregory May (“May”), was with Kunzman when he died, and was an overnight guest i n the Will iams’ house . May had sol d the Will iamses her oin earl ier t hat eveni ng, and while the Willi amses were working t he night s hift at a manufacturing pl ant, May inv ited h is frie nd K unz ma n to their hou se. Up on re turning hom e, the W illiamse s (alon g w ith their a dult ch ild and his girl friend) found May in one bat hroom and Kunzman lyi ng on the fl oor of thei r other bathroom, unconscious . Curti s Willi ams call ed 911. May was paci ng nervousl y out side the house when the paramedics and polic e arri ved. Pennsy lvania State Pol ice Trooper Jeffrey Sredenschek and Bra dford County Assist ant DeputyCoroner Thomas Carmen entere d the house. Trooper Sredens chek saw that Kunzman’s face was purple and red; the upper l eft si de of his l ip appear ed swollen; he had at l east two puncture marks on t he left insi de arm regi on by the elbow; hi s right arm was extended, as ri gor morti s had set in; hi s l ef t arm w as ex te nde d ou t f ro m hi s b ody ; a nd h e h ad wha t appe ar ed to be two EKG leads on hi s abdominal area. Carmen’s prel iminary opinion was t

hat Kunzman had died fr om the in ge stio n of

a n ar co ti c. Sr ed en sc he k kn ew tha t Ma y was a d ru g de al eran d s aw a syring e on the k itche n co unt er to p.3

Sreden schek su bmitted an a ffidavit of p robable ca use and an app lication for a search warr ant to Dis tri ct Magistr ate Jonat han Wilcox in Troy

Borough, and i t was signe d. Th e item s sou ght w ere de scribe d as f ollow s: An y and all item s that m ay have contrib uted to the de ath of Lew is W esly Kunzman, DOB : 05/18/ 67, inc luding but not li mited t o any i llega l narcot ic; drug; drug parapherna lia; prescripti on medicati on; over t he counter medicati on; bags or

bottl es contai ning anydrug or nar cotic ; anyweapon, including, but not l imited to, anycutting inst rument; knife or knives; firearm(s); bl unt objects; wires and /or cor ds; blood; hair; hair fibers; fluids; bod ily fluid s; clo thin g; m ateri al; ch em icals ; har dw are. The place s to be search ed w ere de scribe d as f ollow s: Single-story , double wide residential trail er, y ellow in color with reddish brow n shu tters and an atta ched storag e she d loca ted at 1 62 W est So uth Ave., Canton Twp., Bradford County , PA. Additi onally , anyand all out buildi ngs/st orage sheds includi ng a wooden barn, re d in color with gray shingl es and white door s and an att ached stor age shed, green in col or with a metal r oof; a gra y storage shed wit h a red roof; a brown wooden outbuil ding/s torage s hed; a gray col ored st orage shed wit h blue shi ngled roof and white door; a ci nderblock s torage s hed with white door; a 1984 Pontiac Fi ero 2M4, VIN: 1G2AM 37R4EP232036, bearing PA regi stration CAX- 632 2, whi te in co lo r; a 1 984 Pon ti ac Fi er o 2M$ , V IN: 1G2 AM 37R 5EP 26937 1, bearing P A registration B FG -2936, black in color; a D odg e Po we r W ago n 15 0, m aro on i n co lor. Upon ex ecuting the warrant, t roopers found over 100 ba ggies and items used to ingest her oin ; som e of the b agg ies te sted pos itive for her oin resid ue. On No vem ber 1 4 and 15, 20 00, M ay called th e state p olice se veral tim es, ask ing to speak to the police abo ut Kun zman ’s death. On Nov embe r 15, 2000 , Troope rs Sred ensc hek, K errick a nd S hipo sh w ent to M ay’s hou se. W hen th ey arrived , Ma y said: “All ri ght. Here Iam. Take me, go ahead and t ake me.” The tr oopers re plied “ Greg,4

we ’re no t here to arrest you . Yo u calle d us h ere to s peak to you. W e’re he re to talk to you. ” After May cal med down, the tr oopers aske d, “Can we talk to you?” and May repli ed, “Yeah, y eah, we can ta lk.” The troop ers w ere dre ssed in plain c lothes a nd h ad w eapo ns tha t wer e only visib le if the ir j ackets were off. Pri or to begi nning the i ntervi ew, the t roopers e xplaine d to May that he was not under ar rest , that he was free to ask the t roopers to leave at

any time, and that he did not have to answer anyof thei r questions. May said he unde rstood. The troopers did not advise May of his Miranda righ ts at th is tim e. The trooper s int erviewed May at his ki tchen t able. Among other things , May admitt ed having done drugs with Kunzman on the ni ght Kunzman died. The deci sion was then made to ar

rest him for del iveryof a contr olled s ubstance a nd, aft er the arrest , he was advised of his Miranda righ ts. On April 10, 2001, a federalgrand jury r eturned a two-count i ndictment , chargi ng May with conspi racy to dis tri bute and poss ess with i ntent to dist ribut e heroin a nd cocaine base, i n violat

ion of 21 U.S.C. § 846, and with the dis tri bution of he roin, in viol ation of 21 U.S.C. § 841(a )(1). May moved to suppres s both the evidence retri eved in the search and cert ain of hi s statements. Following a hearing, the moti on was denied, and May therea fter pl eaded guil ty to a one-c ount super ceding i nformati on charging hi m with the distribu tion of hero in and poss ession with intent to distribu te. Th e plea wa s con ditiona l, however, with May reser ving the right t o appeal the District Court ’s deni al of hi s motion5

to su ppr ess. May was sentenced to 132 months impri sonment, a nd now appeals. The Dis tri ct Court had jurisdi ction pur suant t o 18 U.S.C. § 3231, and we have juri sdiction under 28 U.S.C. § 1291. We review the Dist rict Court’s de nial of

May’s moti on to suppre ss for “clear error as to t he underlying fact s, but exerci se plenary r eview as to i ts l egali ty in li ght of the court’s pr operlyfound facts. ” United Stat es v. I nigo , 925 F.2d 641, 656 (3d Cir. 1991) (ci ting Un ited Sta tes v. M itlo , 714 F.2 d 29 4, 29 5-9 6 (3 d C ir. 19 83) , cert. denied , 464 U.S. 1018 (1983) ). With respect to whether pol ice conduct consti tutes custodi al inter rog ation , our rev iew is ple nar y. United States v. Leese , 176 F.3d 740, 741 (3d Cir. 199 9).

I. In claiming that t

he search warrant issued was overly broad and otherwise defici ent, May argues ( 1) the af fidavi t did not

demonstrate probablecause; a nd (2) the warrant was over

broad. We easi ly dispose of both argument s through our applic ation of the g ood faith exc eptio n to the e xclu sion ary rul e. Pursuant to United Stat es v. Leon , 468 U .S. 897 (198 4), unless nov el issues are present , revi ewing courts may by pass the issue of probable c ause and examine whether the e xec utin g of fice rs op erate d in goo d fa ith. United Stat es v. $92, 422.57 , 307 F.3d 137, 145 (3d C ir. 2002 ). This c ase p resen ts no n ovel q uestion s of law , and w e turn d irectly to6

the o ffic ers’ g ood faith
. In United Stat

es v. Hodge , 246 F.3d 301 ( 3d Cir. 2001) , we stated that the “t est for whether the good faith excepti on applie s is whethe r a reas onablywell tr ained offi cer would have known that t he search was i llega l despi te the magistr ate’s authori zati on.” Id. at 307 (quoting United Stat es v. Loy , 191 F.3d 360, 367 (3d Cir. 1999)). We continued: “[t]he mere existence of a warrant ty pical ly suffices to prove t hat an offi cer conduct ed a search i n good faith and justifie s appli cati on of the good fai th exception.” Hodge , 246 F.3d at 307- 08 (citing Leon , 468 U.S. at 922, a nd Uni te d St at es v. Wil li ams , 3 F.3d 69, 74 (3d Cir . 199 3)). We cautioned, however, that an offi cer’s reli ance on a warrant would not be

reaso nable : (1) [when] the magistr ate [j udge] is sued the warr ant in relia nce on a delibe rately or rec klessly fals e aff idavit; (2) [w hen] the m agistrate [judg e] aba ndo ned h is judicia l role an d faile d to perfo rm h is neu tral and detac hed f unctio n; (3) [when] the warrant was bas ed on an affidavi t ‘so l acking i n indici a of prob able c ause as to re nder offic ial belief in its existe nce e ntirely unreasonabl e’; or (4) [when] the warrant was s o facial ly defici ent that it fail ed to part

icularize the pla ce to be se arched or t he things to be sei zed. Hodge , 246 F.3d at

308 (quoti ng Wil li ams , 3 F.3d at 74 n.4). May does not cl aim that Trooper Sredens chek’s affi davit was del iberatelyor reckle ssly false o r that the issuing judg e w as oth er than neutra l and d etach ed. A s to number (3), probable c ause must be def ined befor e it c an be determined whether or not7

the w arrant w as so “ lackin g in ind icia of prob able c ause ” that a n “of ficial be lief in its exist ence [was] entirel y unr easonable .” In United Stat es v. Jone s , 994 F.2d 1051 (3 d Cir. 1993), we expla ined the standar d to be used when revi ewing a probabl e cause fi nding by a magistrate as foll ows: “W hen faced w ith a challenge to a magistr ate’s probable cause determ ination , a revie win g cou rt mus t reme mb er that its ro le is limited . It is not to conduct a de novo review. Rat her, i t si mply ens ures that the magistr ate had a s ubstantial basis f or concludi ng that pr obable caus e existed.” Id. at 1055 (citations o mitted). In defini ng probable c ause, we note d in Hodge , that “[a ] mag istrate jud ge m ay find p roba ble cause when, vi ewing the t otali ty of the ci rcumstance s, there is a fair probabil ity

that contraba nd or evidenc e of a cri me will be found i n a parti cular pl ace.” Hodge , 246 F.3d at 305 (internal qu otations om itted). Here, it was surelynot “entirel y unreasonable” to beli eve there was probable cause and that there was a “ fair pr obabili ty that c ontraband or evidence of a c rime [would] be found on the pre mises. ” The Magistrate had a “subst antia l basi s” for determining t hat pro bab le ca use exis ted. As for number (4), not only must the magi strate have er red, but his er ror must ha ve been so obvious that a

law enforcement

offici al shoul d have real ized the mistake just by reading the w arrant. Num ber (4) basically boils dow n to the Fo urth Am endm ent’s req uire me nt th at se arch wa rran ts “p artic ular ly” de scrib e: (1 ) “th e pla ce to be s earc hed ,” and (2) “t

he persons or

things to be sei zed.” See Maryland v. Garri son , 480 U.S. 798

(19 87)
. A warrant particularlydescri bes the pl ace to be s earched “i f the desc ription is such that t he officer

with a search warrant c an, with reasonabl e effort ascert ain and i dentif

y the place i ntended. ” United States v. Bedford , 519 F.2d 50, 655 (3d Cir. 1975) (quoting Steel e v. United State s , 267 U.S. 498, 503 (1925)). Clearl y, the warrant in thi s case parti cularl y des cribed t

he places to be searched. It stat ed the type, color, and address of the res idenc e. Oth er bu ildings to be s earch ed w ere sim ilarly describ ed, an d veh icle locations, makes, models , y ears and VIN numbers were provi ded. As to t he descri ption of the i tems themse lves, in $92,422.57 we upheld a warrant

very simil ar to t

he one at issu e he re. W e up hol d th e w arra nt h ere.

II. May argues t

hat he was in c ustodywhen he was intervi ewed and, because he had not bee n M iran dize d, hi s stat em ents mu st be sup pre ssed . W e dis agr ee. Miranda warnings ar e onlyrequir ed if a st atement was t he product of

“custodi al interrogation.” Miranda v. Arizona , 384 U.S. 436, 444 (1966). Custodialinter rogati on means “que stionin g initiated by law e nfo rcem ent of ficers a fter a p erson has b een ta ken in to custodyor otherwise depri ved of his freedom of acti on in anysigni ficant way.” Id. In determi ning whether a

person i s “in cus tody ”, “t he ulti mate inqui ry is si mply whethe r there i s a ‘formal arre st or restr aint on f reedom of movement’ of t he degree as sociatedwith a formalarres t.” Califor nia v. Beheler , 4 63 U. S. 112 1, 112 5 ( 198 3) (p ercuria m) (quoti ng Oregon v. Mathiason , 429 U .S. 492 , 495 ( 197 7) (pe r curiam )). This determi nation i s objective, based on “how a reasonabl e man in the s uspect’ s position would have underst ood his si tuati on.” Berk em er v. M cCa rty , 468 U.S . 420 , 442 (19 84)
. An objecti ve, rea sonable per son in May’ s position would not have felt restrained to the de gree of formalarres t. The i ntervi ew was conducted at May’ s request , in famili ar

surrou ndin gs–h is hom e. Th e polic e nev er indic ated th ey wo uld n ot hee d a req uest to leave ; on the contra ry, May w as told th at he w as no t und er arres t and th at he c ould terminate the interview at anytime. Moreover, May’s freedom of movement, as the Dis trict C our t fou nd, w as n ot re stricte d.

III. The judgment of sentence willbe affirmed.

TO THE CLERK OF THE CO URT: Kin dly file the f ore goi ng O pin ion
.

M ar yan ne Tr um p B ar ry Circuit Judge