2009 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-28-2009

USA v. Kevin Abbott

Precedential or Non-Precedential: Precedential

Docket No. 08-1623

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 08-1623

 

UNITED STATES OF AMERICA,

v.

KEVIN ABBOTT,

 Appellant

 

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. No. 05-cr-00333)

District Judge: Honorable Cynthia M. Rufe

 

Argued March 3, 2009

Before: SCIRICA, Chief Judge, SLOVITER and

HARDIMAN, Circuit Judges.

(Filed: July 28, 2009)
2

Mark S. Miller [Argued] 

Elizabeth F. Abrams

Office of United States Attorney

615 Chestnut Street

Suite 1250

Philadelphia, PA 19106-0000

Attorneys for Appellee

Jennifer A.L. Battle [Argued]

Joseph Anclien

Elizabeth K. Ainslie

1600 Market Street

Suite 3600

Philadelphia, PA 19103-0000

Attorneys for Appellant

 

OPINION OF THE COURT

 

HARDIMAN, Circuit Judge.

Kevin Abbott appeals his conviction and sentence

following a jury trial. Abbott seeks a new trial, claiming the

District Court erred when it denied his motion to suppress

evidence and granted the Government’s motion in limine to

admit his prior conviction into evidence. Abbott also claims the

District Court erred by imposing consecutive mandatory

minimum sentences of fifteen years pursuant to 18 U.S.C.
We recount the facts in the light most favorable to the 1 

Government, as the verdict winner. See United States v. Voigt,

89 F.3d 1050, 1080 (3d Cir. 1996).

3

§ 924(e) and five years pursuant to 18 U.S.C. § 924(c). For the

reasons that follow, we will affirm.

I.1

Acting on a tip that a black male was selling illegal drugs

on the 1700 block of Fontain Street, the Philadelphia Police

Department arranged for a confidential informant to make

controlled purchases of heroin. On September 21 and 22, 2004,

the informant approached a man later identified as Michael

Grant, who was standing in front of 1739 Fontain Street (the

Premises), and offered cash to Grant in exchange for drugs.

Grant then entered the Premises and returned with heroin.

Also on September 22, 2004, but before the controlled

purchase that day, police obtained a warrant to search the

Premises that authorized them to seize drugs, drug

paraphernalia, money, and weapons. The warrant also

authorized the search of “all persons present who may be

concealing narcotics or other illegal contraband.” In the

affidavit of probable cause, a police officer described the

controlled purchase on September 21 in detail and stated that in

his experience, “defendants [] frequently sell and stash narcotics

from inside a location.”
4

Before police executed the warrant, they arranged a third

controlled purchase for September 23, 2004. On that day, Grant

said he had no heroin, so the informant requested crack cocaine,

which Grant retrieved from an abandoned lot. Shortly after the

exchange, police returned to execute the search warrant and they

found Grant in front of the Premises. As Grant was being

arrested, Appellant Abbott — who was standing in the doorway

of the Premises as police approached — slammed the door when

officers identified themselves. The police broke down the door,

entered the house, and arrested Abbott as he was trying to

escape through a kitchen window. At the time of his arrest,

Abbott had $617 in cash (including $20 in prerecorded buy

money) as well as a key to the front door of the Premises, a

small bag of marijuana, and a false driver’s license. In addition,

ultraviolet light revealed residue from the marked bills on

Abbott’s hands.

A search of the Premises uncovered drugs, drug

paraphernalia, and two handguns. Much of the contraband and

tools of the drug trade were in plain view in a front room,

including codeine syrup, empty bottles, a scale, and crack

cocaine. The handguns were found hidden behind furniture and

inside a closet.

II.

On June 14, 2005, a federal grand jury returned a fourcount indictment against Abbott and Grant, charging them with:

(1) conspiracy to possess with intent to distribute a controlled

substance in violation of 21 U.S.C. § 846; (2) possession of

more than five grams of cocaine base with intent to distribute,

and aiding and abetting, in violation of 21 U.S.C. §§ 841(a)(1)
5

and (b)(1)(B), and 18 U.S.C. § 2; (3) possession of a firearm in

furtherance of a drug trafficking crime, and aiding and abetting,

in violation of 18 U.S.C. §§ 924(c)(1) and (c)(2); and (4)

possession of a firearm by a convicted felon in violation of 18

U.S.C. §§ 922(g) and 924(e).

Grant pleaded guilty, but Abbott went to trial. Before the

jury was empaneled, Abbott filed a motion to suppress evidence,

arguing that the search was illegal because the “all persons”

warrant was overbroad. For its part, the Government filed a

motion in limine to admit Abbott’s prior felony conviction into

evidence under Federal Rule of Evidence 404(b). The District

Court denied Abbott’s motion to suppress and granted the

Government’s motion in limine.

At trial, the Government called Grant as a witness against

Abbott. Grant testified that he and Abbott sold drugs together

for several months, and that he had seen Abbott carry one of the

handguns recovered from the house. In addition, the

Government called a police officer who had arrested Abbott

three years earlier for selling cocaine in front of the Premises as

evidence of Abbott’s knowledge or intent pursuant to Rule

404(b). The District Court issued a cautionary instruction to the

jury before the officer testified in this regard. The jury

convicted Abbott of all four charges.

The District Court sentenced Abbott to what it deemed

the statutory mandatory minimum: a total of 240 months

imprisonment, comprised of 180 months on Count 4 (possession

of a firearm by a convicted felon in violation of §§ 922(g) and

924(e)); and 60 months on Count 3 (possession of a firearm in
Abbott was also sentenced to terms of imprisonment of 2

120 months for violating 21 U.S.C. § 846 and 120 months for

violating 21 U.S.C. § 841(a)(1). Because the District Court

ordered these sentences to run concurrently, they are not at issue

on appeal. 

6

furtherance of a drug trafficking crime in violation of

§§ 924(c)(1)(A) and (c)(2)).2

Abbott did not dispute that his 180-month sentence on

Count 4 was mandated by the Armed Career Criminal Act, 18

U.S.C. § 924(e) (ACCA), because he had three previous

convictions for “violent felon[ies] or [] serious drug offense[s].”

§ 924(e)(1). The District Court found that Abbott faced an

additional 60 months incarceration on Count 3 for possession of

a firearm in furtherance of a drug trafficking crime pursuant to

§ 924(c)(1)(A), which must be imposed “in addition to the

punishment . . . for [the] drug trafficking crime.” Id. (emphasis

added). As the District Court also noted, § 924(c) provides that

“no term of imprisonment imposed on a person under [§ 924(c)]

shall run concurrently with any other term of imprisonment

imposed on the person.” § 924(c)(1)(D)(ii).

Despite this language, Abbott objected to his sentence on

the basis of § 924(c)’s prefatory clause, which begins: “Except

to the extent that a greater minimum sentence is otherwise

provided by this subsection or by any other provision of law . .

. .” § 924(c)(1)(A). Because ACCA subjected him to a 180-

month minimum sentence, see § 924(e), Abbott argued that he

was exempt from the consecutive minimum sentence imposed
7

by § 924(c). The District Court rejected Abbott’s argument,

noting that several other courts of appeals have held that “the

plain meaning of section 924(c) clearly states that a term of

imprisonment imposed under section 924(c) cannot run

concurrently with any other term of imprisonment imposed for

any other crime, including a sentence under [ACCA].” United

States v. Abbott, No. 05-333-1, 2008 WL 540737, at *2 n.8

(E.D. Pa. Feb. 27, 2008). Abbott filed this timely appeal and we

have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742.

III.

A.

Although Abbott assigns error to the District Court both

at trial and sentencing, we turn first to the sentencing issue

because it is the issue of most precedential import as it is the

subject of disagreement among courts of appeals.

Several other courts of appeals have interpreted § 924(c)

in circumstances similar to Abbott’s. See United States v.

Easter, 553 F.3d 519 (7th Cir. 2009); United States v. Parker,

549 F.3d 5 (1st Cir. 2008); United States v. Whitley, 529 F.3d

150 (2d Cir. 2008); United States v. Collins, 205 Fed. Appx. 196

(5th Cir. 2006); United States v. Studifin, 240 F.3d 415 (4th Cir.

2001); United States v. Jolivette, 257 F.3d 581 (6th Cir. 2001);

United States v. Alaniz, 235 F.3d 386 (8th Cir. 2000). For the

reasons that follow, we join the majority of these courts in

holding that a sentence imposed for a separate offense cannot

supplant or abrogate a § 924(c) sentence under the statute’s

prefatory clause.
8

As in all cases of statutory interpretation, our inquiry

begins with the language of the statute and focuses on Congress’

intent. See United States v. Whited, 311 F.3d 259, 263-64 (3d

Cir. 2002). In this case, we must examine the relevant

subsection in its entirety:

(A) Except to the extent that a greater minimum

sentence is otherwise provided by this subsection

or by any other provision of law, any person who,

during and in relation to any crime of violence or

drug trafficking crime . . . uses or carries a

firearm, or who, in furtherance of any such crime,

possesses a firearm, shall, in addition to the

punishment provided for such crime of violence or

drug trafficking crime – 

(i) be sentenced to a term of imprisonment of

not less than 5 years;

(ii) if the firearm is brandished, be sentenced

to a term of imprisonment of not less than

7 years; and

(iii) if the firearm is discharged, be sentenced

to a term of imprisonment of not less than

10 years.

(B) If the firearm possessed by a person convicted of

a violation of this subsection – 

(i) is a short-barreled rifle, short-barreled

shotgun, or semiautomatic assault weapon,

the person shall be sentenced to a term of

imprisonment of not less than 10 years; or
9

(ii) is a machinegun or a destructive device, or

is equipped with a firearm silencer or

firearm muffler, the person shall be

sentenced to a term of imprisonment of not

less than 30 years.

(C) In the case of a second or subsequent conviction

under this subsection, the person shall –

(i) be sentenced to a term of imprisonment of

not less than 25 years; and

(ii) if the firearm involved is a machinegun or

a destructive device, or is equipped with a

firearm silencer or firearm muffler, be

sentenced to imprisonment for life.

(D) Notwithstanding any other provision of law –

(i) a court shall not place on probation any

person convicted of a violation of this

subsection; and

(ii) no term of imprisonment imposed on a

person under this subsection shall run

concurrently with any other term of

imprisonment imposed on the person,

including any term of imprisonment

imposed for the crime of violence or drug

trafficking crime during which the firearm

was used, carried, or possessed.

§ 924(c)(1) (emphasis added). 
The prior version of § 924(c)(1) merely prohibited using 3 

or carrying a firearm “during and in relation to” a predicate

offense. In Bailey v. United States, 516 U.S. 137 (1995), the

Supreme Court held that “using” a firearm meant actively

employing it. In response, Congress superseded Bailey by

amending the statute to prohibit possession of a firearm “in

furtherance of” a predicate offense. See Studifin, 240 F.3d at

420-21; Alaniz, 235 F.3d at 386-90 (both discussing legislative

history). 

10

The context of § 924(c)(1) reflects significant structural

alterations made in 1998, when Congress added the “possesses

in furtherance” clause to broaden the statute’s reach. The prior 3

version of the statute read:

Whoever, during and in relation to any crime of

violence or drug trafficking crime . . . uses or

carries a firearm, shall, in addition to the

punishment provided for such crime of violence or

drug trafficking crime, be sentenced to

imprisonment for five years, and if the firearm is

a short-barreled rifle, short-barreled shotgun, or

semiautomatic assault weapon, to imprisonment

for ten years, and if the firearm is a machinegun,

or a destructive device, or is equipped with a

firearm silencer or firearm muffler, to

imprisonment for thirty years. In the case of his

second or subsequent conviction under this

subsection, such person shall be sentenced to

imprisonment for twenty years, and if the firearm
11

is a machinegun, or a destructive device, or is

equipped with a firearm silencer or firearm

muffler, to life imprisonment without release.

Notwithstanding any other provision of law, the

court shall not place on probation or suspend the

sentence of any person convicted of a violation of

this subsection, nor shall the term of

imprisonment imposed under this subsection run

concurrently with any other term of imprisonment

including that imposed for the crime of violence

or drug trafficking crime in which the firearm was

used or carried.

§ 924(c)(1) (1996) (emphasis added). 

A comparison of the current and prior versions of

§ 924(c) demonstrates that the statute has consistently specified

a minimum additional sentence that must be imposed

consecutively to any other term of imprisonment when a “crime

of violence or drug trafficking crime” involves a firearm. But

what is the scope of the prefatory clause in the current version

of § 924(c)(1)(A)? Read in context, the most cogent

interpretation is that the prefatory clause refers only to other

minimum sentences that may be imposed for violations of

§ 924(c), not separate offenses. See Studifin, 240 F.3d at 423-24

(“Examining the statute as a whole, particularly in light of the

language of § 924(c) and the purpose behind the 1998

amendments, we do not believe that Congress intended to

narrow § 924(c) by eliminating mandatory consecutive

sentences where another provision imposes a higher mandatory

minimum sentence for conduct other than that described in
12

§ 924(c).”); Easter, 553 F.3d at 525-26. The prefatory clause

was added in 1998 to reflect the reorganization of the statute,

which moved alternative minimum sentences into separate

subsections. See Studifin, 240 F.3d at 423 (“We agree with the

Alaniz court that in light of the structure and language of

§ 924(c)(1), it is clear that the ‘except to the extent’ language is

designed to ‘link the remaining prefatory language in (c)(1)(A)

to’ the other subdivisions.”) (quoting Alaniz, 235 F.3d at 389).

For example, the 1998 amendment made brandishing a weapon

during a predicate offense subject to a seven-year minimum

sentence under its own subsection, § 924(c)(1)(A)(ii). But if the

weapon happens to be a short-barreled rifle, § 924(c)(1)(A)(i)

prescribes a ten-year minimum. The prefatory clause simply

makes clear that the ten-year minimum applies. 

In referring to alternative minimum sentences, the

prefatory clause mentions “any other provision of law” to allow

for additional § 924(c) sentences that may be codified elsewhere

in the future – in the same way, for example, that 18 U.S.C.

§ 924 prescribes a sentence for violations of 18 U.S.C. § 922.

See § 924(a)(2) (“Whoever knowingly violates subsection (a)(6),

(d), (g), (h), (i), (j), or (o) of [18 U.S.C § 922] shall be fined as

provided in this title, imprisoned not more than 10 years, or

both.”). See also Collins, 205 Fed. Appx. at 197-98 (“[This

language] provides a safety valve that would preserve the

applicability of any other provisions that could impose an even

greater minimum consecutive sentence for a violation of

§ 924(c).”) (quoting Studifin, 240 F.3d at 423). 

Our interpretation is not only consistent with the

overwhelming majority of courts that have addressed the
13

question, but more importantly, ameliorates confusion arising

from Congress’ failure to state explicitly the offenses to which

the prefatory clause refers. In Whitley, the Second Circuit

emphasized this silence in diverging from our sister circuits and

holding that the prefatory clause refers to any offense. See

Whitley, 529 F.3d at 158. To test our interpretation of § 924(c),

we turn to Whitley and other possible interpretations.

B.

Reading the prefatory clause literally and in isolation

from its surrounding language, defendants have argued that

§ 924(c) does not apply when a predicate offense carries a

minimum sentence greater than the relevant minimum imposed

by §§ 924(c)(1)(A)(i)-(iii) or (B)-(C). See, e.g., Parker, 549

F.3d at 10-11; Alaniz, 235 F.3d at 386. Under this

interpretation, a defendant who brandishes a firearm during a

drug trafficking offense with a ten-year minimum sentence is

not subject to § 924(c) because, even though the elements of the

statute are satisfied, the drug crime’s ten-year minimum

constitutes “a greater minimum sentence” than the seven-year

minimum of § 924(c)(1)(A)(ii).

 

This interpretation is “suspect on its face” for several

reasons. Parker, 549 F.3d at 11. Initially, the prefatory clause

refers to, inter alia, greater minimum sentences “provided by

this subsection,” not for predicate offenses. Second, the

minimum sentences specified by § 924(c)(1) apply “in addition

to the punishment provided for” a predicate offense. Thus, the

prefatory clause requires a comparison between the minimum

sentences specified in §§ 924(c)(1)(A)(i)-(iii) and (B)-(C), and,
14

at a minimum, others associated with using, carrying, or

possessing a firearm — not the predicate offense itself. Third,

reading the prefatory clause to refer to the minimum sentence

for a predicate offense would narrow the scope of § 924(c) in

derogation of Congress’ intent to broaden the statute’s reach

through the 1998 amendment.

That the prefatory clause cannot refer to a predicate

offense is borne out by the following hypothetical. Suppose

defendant A is convicted of a drug trafficking crime that carries

a minimum sentence of seven years imprisonment while

defendant B is convicted of a more serious drug trafficking

crime that mandates at least ten years imprisonment. Assume

also that both defendants are convicted of brandishing a firearm

under § 924(c)(1)(A)(ii), which carries a seven-year minimum

sentence. Defendant A — who committed the less serious drug

trafficking crime — will spend at least fourteen years in jail (a

seven-year minimum sentence for the drug offense followed by

at least a seven-year consecutive sentence under § 924(c)). Yet

defendant B — who committed the more serious drug

trafficking crime — would face a mandatory minimum sentence

of only ten years. As this hypothetical illustrates, a defendant

convicted of a predicate offense with a minimum sentence one

day longer than the relevant minimum under § 924(c) would

escape any further punishment while a defendant whose

predicate offense carries exactly the same minimum sentence

provided by § 924(c) sees his total sentence at least doubled.

We are confident that Congress did not intend such a bizarre

result. Indeed, every court to consider this argument has

rejected it. See Easter, 553F.3d at 525-27; Parker, 549 F.3d at
15

10-12; Alaniz, 235 F.3d at 389-90; Studifin, 240 F.3d at 420-24;

Jolivette, 257 F.3d at 586-87; Collins, 205 Fed. Appx. at 197-98.

Although it is clear that a sentence imposed for a

predicate offense cannot supplant or abrogate the minimum

sentence specified for a violation of § 924(c), Abbott’s case is

complicated by the fact that in addition to drug trafficking and

possession of a firearm in furtherance of that offense, he was

also convicted of possession of a firearm by a convicted felon

under § 922(g) and ACCA. ACCA imposes its own fifteen-year

minimum sentence which, for purposes of § 924(c), might be

construed as “a greater minimum sentence [] otherwise provided

by this subsection or by any other provision of law.” Therefore,

we next consider whether the prefatory clause may refer to

sentences imposed under ACCA or another statute. 

As the Second Circuit Court noted in adopting such an

interpretation, it would be logical for Congress to “provide[] a

series of increased minimum sentences [under § 924(c)] and also

to [make] a reasoned judgment that where a defendant is

exposed to two minimum sentences . . . only the higher

minimum should apply.” Whitley, 529 F.3d at 155. Interpreting

the prefatory clause to refer to higher minimum sentences

imposed by ACCA or another statute avoids some of the

problems cited above. Like the minimum sentences specified in

§ 924(c), ACCA’s minimum may be deemed “in addition to” the

sentence imposed for a §924(c) predicate offense. Moreover,

reading the prefatory clause to encompass such sentences would

not narrow the scope of predicate offenses eligible for enhanced

punishment under § 924(c). As we shall explain, however, this
16

interpretation also leads to highly anomalous results, illustrating

why it has been widely rejected.

In this case, as in Whitley, the incongruity caused by

interpreting the prefatory clause to refer to separate offenses is

not readily apparent. The minimum sentence imposed by ACCA

happens to be exactly five years more than the sentence Abbott

received for his predicate drug offenses, which guarantees that

Abbott will serve at least the minimum amount of time beyond

his predicate sentences called for by § 924(c) — five years —

even without a separate sentence under § 924(c). But what if

Abbott had brandished the firearm, which would subject him to

a seven-year minimum under § 924(c)? Abbott would face a net

minimum sentence of only fifteen years, despite the fact that

§ 924(c) dictates a minimum of seven years beyond his ten-year

drug sentences. Even more incongruously, a defendant situated

identically to Abbott but who was not an armed career criminal

would be subject to a harsher minimum sentence than Abbott —

ten years for the drug offense plus at least seven consecutive
As a final example, what if Abbott had been sentenced

4

to thirty years for his drug offense? Under the Second Circuit’s

interpretation, ACCA’s fifteen-year minimum would still

preempt § 924(c)’s five-year minimum. Abbott would thus

escape any additional punishment merely because his predicate

sentence far exceeded the alternative minimum provide by

ACCA. This would be contrary to Congress’ clear intent in

§ 924(c) to guarantee a minimum amount of additional jail time

beyond that served for a predicate offense.

17

years under § 924(c). See Studifin, 240 F.3d at 423 (noting this

anomaly).4

In Whitley, the Second Circuit was undaunted by these

anomalous consequences because district judges have discretion

to increase a sentence. 529 F.3d at 158. This view asks too

much because it fixes the statute as illogical and anomalous,

then posits an ad hoc solution in each individual case.

Moreover, the purported “solution” was impossible in 1998

when the prefatory clause was written into the statute; Congress

could not have intended to create such sentencing disparities

with the clairvoyant expectation that seven years later the

Supreme Court would, in United States v. Booker, 542 U.S. 220

(2005), grant district judges the discretion to cure such

injustices. 

Nevertheless, the Second Circuit justified departing from

our sister circuits because, in its mind, the result is dictated by

the “plain” language of the statute. See Whitley, 529 F.3d at 156

(concluding that other courts have “rewritten the ‘except’ clause
18

in different ways to escape its plain meaning”). Even if the

language of the statute plainly supported this interpretation, we

would be loathe to adopt it because “statutory interpretations

‘which would produce absurd results are to be avoided if

alternative interpretations consistent with the legislative purpose

are available.’” First Merchants Acceptance Corp. v. J.C.

Bradford & Co., 198 F.3d 394, 403 (3d Cir. 2000) (quoting

Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 575 (1982)).

See also Lamie v. United States Trustee, 540 U.S. 526, 534

(2004) (“It is well established that when the statute’s language

is plain, the sole function of the courts – at least where the

disposition required by the text is not absurd – is to enforce it

according to its terms.”) (emphasis added and internal quotation

omitted).

We emphasize, however, that the language of the statute

does not plainly support the Whitley court’s interpretation.

Although it is obvious that the prefatory clause has some

limiting effect, its language does not plainly suggest that a

sentence under § 924(c) may be abrogated or supplanted by a

greater minimum sentence that happens to be imposed for an

entirely separate offense. According to the prefatory clause, the

sentences enumerated in § 924(c)(1)(A)-(C) do not apply when

“a greater minimum sentence is otherwise provided” by law.

This does not necessarily mean “when a greater minimum

sentence for any other crime is otherwise provided by law.” 

See Parker, 549 F.3d at 11 (“The [prefatory] clause . . . does not

say ‘a greater minimum sentence’ for what; yet it has to have

some understood referent to be intelligible. Here, the referent

could be ‘any other crime related to this case’ or ‘the underlying

drug crime or crime of violence.’ Either of those readings . . .
Nor can the prefatory clause be viewed as authorizing 5

incremental sentencing enhancements. First, such an

interpretation is impossible to reconcile with the mandate that

§ 924(c)sentences must run consecutively to all other sentences.

See § 924(c)(1)(D)(ii). If Congress wanted to establish a net

minimum sentence combining predicate offenses and § 924(c)

offenses, it would have required § 924(c) sentences to run

consecutively to their predicates, rather than all other sentences.

Second, there is no basis in the text of § 924(c) to impose

incremental minimum sentences less than those specifically

enumerated in §§ 924(c)(1)(A)-(C). The language of the statute

makes clear that § 924(c) defines a separate offense with its own

minimum sentence, independent of any other offense or its

minimum sentence and prohibited from running concurrently.

See Easter, 553 F.3d at 526 (“[Section] 924(c) does not define

an enhancement, it defines a standalone crime, and the penalty

imposed under it must be imposed to run consecutively to any

19

require reading into the clause a referent not literally

expressed.”). To the contrary, at least one court has found that

the language of the prefatory clause plainly refutes the Second

Circuit’s interpretation. See Easter, 553 F.3d at 526 (“In the

contest between reading the [prefatory] clause to refer to

penalties for the offense in question or to penalties for any

offense at all, we believe the former is the most natural.”). 

Reading the prefatory clause in context as we must, we

agree with the majority of courts that the “except” language

connotes a comparison between alternative minimum sentences

for a violation of § 924(c), not between sentences for separate

violations of § 924(c) and another statute.5
other sentence.”) (citing Harris v. United States, 536 U.S. 545,

553 (2002)). 

20

C.

In light of the aforementioned problems associated with

any other reading of § 924(c)(1)(A), we conclude that the

prefatory clause refers only to alternative minimum sentences

for violations of § 924(c). Therefore, the District Court did not

err by imposing a consecutive five-year sentence.

IV.

We turn now to the constitutionality of the search

warrant. In Ybarra v. Illinois, 444 U.S. 85 (1979), the Supreme

Court held that police executing a warrant authorizing the search

of a bar for narcotics lacked probable cause to search individual

patrons within the bar. The Court stated: 

Where the standard is probable cause, a search or

seizure of a person must be supported by probable

cause particularized with respect to that person.

This requirement cannot be undercut or avoided

by simply pointing to the fact that coincidentally

there exists probable cause to search or seize

another or to search the premises where the

person may happen to be.

Id. at 91. 
21

Seizing on this language, Abbott argues that police

lacked probable cause to search him because this case is

“perfectly analogous to Ybarra.” However, the search warrant

in Ybarra referred only to the premises itself and the Court

expressly declined to consider a situation like Abbott’s, where

“the warrant . . . authorizes the search of unnamed persons in a

place and is supported by probable cause to believe that persons

who will be in the place at the time of the search will be in

possession of illegal drugs.” Id. at 92 n.4. Moreover, Abbott

was searched in a private residence, not in a public business.

Although the Supreme Court has not addressed the issue,

this Court has previously intimated that warrants authorizing the

search of all persons present may be constitutional in certain

circumstances. See Doe v. Groody, 361 F.3d 232, 239 (3d Cir.

2004) (concluding that if a search warrant was read in light of

the officer’s request to search “all occupants” of the residence,

“then police had legal authority to search anybody that they

encountered inside the house when they came to execute the

warrant”). Consistent with Doe and two of our sister courts of

appeals, we now hold that a warrant may authorize the search of

all persons present if there is probable cause to believe that a

premises is dedicated to criminal activity. See Owens v. Lott,

372 F.3d 267, 276 (4th Cir. 2004) (“An ‘all persons’ warrant can

pass constitutional muster if the affidavit and information

provided to the magistrate supply enough detailed information

to establish probable cause to believe that all persons on the

premises at the time of the search are involved in the criminal

activity.”); cf. Marks v. Clarke, 102 F.3d 1012 (9th Cir. 1997)

(“An all persons present warrant might be appropriate for a

different kind of locale – one dedicated exclusively to criminal
22

activity – for example, a building or apartment used as a crack

house, a barn used as a methamphetamine lab, or a warehouse

used exclusively as a storage place for arms.”).

The issue on appeal is not whether the search warrant

was facially invalid, but whether it was supported by probable

cause with respect to all persons present. See Owens, 372 F.3d

at 276 (“In our view, the inclusion of ‘all persons’ language in

a warrant presents probable cause issues rather than particularity

problems.”). Here, the affidavit supporting the search warrant

for 1739 Fontain Street described Grant loitering in front of the

house, meeting with the informant, taking his money, entering

the house, returning with heroin, and giving it to the informant,

all under police surveillance. The officer who completed the

affidavit stated that in his experience, “defendants [] frequently

sell and stash narcotics from inside a location.” Because this is

sufficient to establish probable cause that the house was being

used for a criminal enterprise, the search of all persons present

inside the house was justified.

Abbott argues that the potential for family or guests to be

present negates probable cause with respect to every person who

could be in the house. See Marks, 102 F.3d at 1029 (“[W]e

believe that a warrant to search ‘all persons present’ for

evidence of a crime may only be obtained when there is reason

to believe that all those present will be participants in the

suspected criminal activity. That . . . would not be the case with

respect to a raid on any family home where innocent family

members or friends might be residing or visiting.”); Owens, 372

F.3d at 276 (“Th[e] generalization [that subjects present at the

scene of an illegal drug distribution commonly have drugs in
23

their possession] was and is undoubtedly true, but it did not

provide the kind of particularized information that would have

permitted the magistrate to reasonably conclude that there was

a fair probability that any person seen by officers on the

premises was there to partake in one side of a drug transaction

or another.”). We disagree.

The cases upon which Abbott relies are factually

distinguishable from the present case. Marks involved a search

for stolen property (electronics equipment) in two residences

housing a large extended family with many children, and it was

unlikely that the subject of the search would be found on a

person. 102 F.3d at 1019-20. By contrast, the search warrant

for 1730 Fontain Street was targeted at drugs which could easily

be concealed on the person of anyone present as well as in the

Premises. Owens involved the search of a single-family home

based on an informant’s unsubstantiated tip that drugs were

being sold there, without police surveillance of illegal

transactions. 372 F.3d at 271-72. Indeed, Owens specifically

noted that probable cause to search all persons present might

have arisen if “[t]here was [an] indication, for example, that this

particular residence had a history of drug-related activities or

that known drug dealers or users were frequenting the place.”

372 F.3d at 278. That was precisely the case here. 

Finally, to the extent that Marks and Owens may be read

to suggest that observing a drug dealer retrieve drugs from

inside a private residence does not establish probable cause to

obtain a warrant to search those present in that residence, we

reject that implication. To hold otherwise would eviscerate the

utility of “all persons present” search warrants, allowing drug
We also reject Abbott’s argument that evidence of his 6

prior arrest for selling drugs at the same location, which the

Government offered to show knowledge or intent under Rule

404(b), was unfairly prejudicial. The District Court did not

abuse its discretion in determining that the probative value of

this testimony outweighed its potential prejudice. See FED. R.

EVID. 403; United States v. Givan, 320 F.3d 452, 460-61 (3d

Cir. 2003) (upholding the admission of evidence of prior drug

conviction under Rule 404(b)). 

24

dealers to ply their wares as Grant and Abbott did here. Drug

dealers could set up shop in any house, confident in the

knowledge that their contraband is not subject to seizure so long

as it is possessed by unidentifiable individuals inside the house.

Because the police had probable cause to search persons

inside the Premises, the District Court did not err in denying

Abbott’s motion to suppress physical evidence found on his

person.6

IV.

For the foregoing reasons we will affirm the judgment

of the District Court.