UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 94-5901

ANTHONY D. HAWKS,

Defendant-Appellant.

Appeal from the United States District Court

for the District of Maryland, at Baltimore.

Frederic N. Smalkin, District Judge.

(CR-94-206-S)

Argued: July 14, 1995

Decided: January 17, 1996

Before NIEMEYER, HAMILTON and MICHAEL, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished opinion. Judge Niemeyer wrote the opinion

of the court except on part IV, in which Judge Hamilton and Judge

Michael join. Judge Michael wrote the opinion of the court on part

IV, in which Judge Hamilton joins and from which Judge Niemeyer

dissents.

_________________________________________________________________

COUNSEL

ARGUED: Robert Charles Bonsib, MARCUS & BONSIB, Greenbelt, Maryland, for Appellant. Jamie M. Bennett, Assistant United

States Attorney, Baltimore, Maryland, for Appellee. ON BRIEF:

Lynne A. Battaglia, United States Attorney, Baltimore, Maryland, for

Appellee.
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

NIEMEYER, Circuit Judge, writing the opinion of the court except

on part IV; part IV is a dissenting opinion:

Anthony Hawks was convicted of violating drug and firearms laws

based on evidence obtained during police surveillance and seized during searches of his residence and his automobile. He was sentenced

as an armed career offender to 322 months imprisonment. On appeal,

Hawks contends that (1) the warrant to search his residence in January 1994 was not supported by probable cause; (2) the warrantless

search on the same day of his Nissan Pathfinder was illegal; (3) his

consent to search his residence a second time in May 1994 was

obtained through improperly coercive tactics; and (4) his sentence

was calculated improperly because he is not an armed career offender.

Finding his arguments unpersuasive, we affirm.

I

In December 1993, the Baltimore City Police began to investigate

Hawks' activities after receiving information from a confidential

informant. The informant told the police that Hawks was delivering

drugs to street dealers at the corner of Abington and West Baltimore

Streets between 9:30 and 10:00 every morning and that Hawks stored

drugs in his residence at 2712 West Baltimore Street. The police

knew the area surrounding Abington and West Baltimore to be an

"open air drug market where cocaine and heroin[could] be purchased

seven days a week." The police also knew that Hawks had previously

been convicted for handgun and drug violations.

Based on this information, the police maintained surveillance of

Hawks' residence, beginning in late December 1993. On two occasions, they observed Hawks leave 2712 West Baltimore Street early

in the morning and drive his black Nissan Pathfinder to the corner of

Abington and West Baltimore Streets, as the informant had described.

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Each time, the officers observed Hawks remove a brown paper bag

from his car and hand it to an unidentified person whom the officers

identified as "Johnny." While the officers never saw the contents of

the brown paper bag, they observed "Johnny" retreat into a nearby

alley and reappear several times to conduct transactions which the

police believed to be drug transactions. The officers also recovered

drugs from the alley to which this unidentified person returned after

each sale.

Based on the results of this surveillance, the police obtained a warrant in January 1994 to search Hawks' residence. Before executing

the warrant, the officers waited outside Hawks' residence to see if he

would make his daily journey so that they could make a "felony stop."

At about 9:30 a.m., Hawks stepped outside of his house but quickly

retreated when he noticed the officers. At that point, the officers executed the warrant, entering Hawks' house by force. Once inside, the

officers found Hawks flushing baggies of crack down the toilet, but

they were able to recover four baggies of crack. The officers placed

Hawks under arrest and searched the house. They seized drug paraphernalia, over $15,000 in cash, and two loaded guns. The officers

also seized the Nissan Pathfinder and two other automobiles owned

by Hawks and his wife, pursuant to Baltimore Police Department regulations governing forfeiture of property suspected in connection with

a drug felony. Before towing the vehicles, the officers conducted an

inventory of the vehicles' contents and found four baggies of crack

in the Nissan Pathfinder.

After his arrest and release by state authorities, Hawks was indicted

by a federal grand jury on drug charges on May 27, 1994, and a bench

warrant was issued for his arrest. The following day, Hawks was

arrested outside of his home. While he was being transported in a

police vehicle, ATF Special Agent James Tanda radioed and asked

that Hawks be returned to his house so that his consent could be

obtained to search his residence. At that time, the police did not have

probable cause to obtain a search warrant.

Once back at 2712 West Baltimore Street, Agent Tanda again read

Hawks his Miranda warnings and then asked him to sign a consentto-search form. There is conflicting testimony over what happened

next. According to Hawks' testimony, Hawks initially refused to give

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his consent to search his home, but instead requested permission to

go inside his house, unaccompanied, to see his young child who was

asleep. The child, four years old, supposedly had been in the house

alone for several hours. According to Hawks, Agent Tanda refused to

let Hawks see his son unless Hawks signed the consent-to-search

form. Hawks also testified that his twenty-year-old niece was available to check on the child, but that the police would not let anyone

into the house unless Hawks signed. Hawks ultimately agreed to sign

the consent form because he was concerned about his son. Hawks also

consented to a search of his Nissan Pathfinder and one other automobile.

As a result of this search of Hawks' residence and automobiles, the

officers recovered over $17,000 in cash, a gun cleaning kit, ammunition of various calibers, and a scale with white powder residue. After

the search was completed, Hawks was taken to the ATF office where

once again he was read his Miranda rights. He signed a written

waiver of his rights and then made various self-incriminating statements to Agent Tanda which were used at his trial.

Prior to trial, the district court held a suppression hearing on

Hawks' motion to suppress the fruits of (1) the January 1994 search

of his house; (2) the search of his Nissan on the same day; and (3)

the May 1994 search of his residence and two cars. After the district

court denied the motions, Hawks was convicted by a jury. The court

sentenced Hawks to a total term of imprisonment of 322 months,

which included a mandatory enhancement under the Armed Career

Criminal Act, 18 U.S.C. § 924(e).

II

Hawks first challenges the sufficiency of the affidavit offered by

the police to support their application for a warrant to search Hawks'

residence in January 1994. He asserts that the affidavit did not demonstrate probable cause to search the house.

Based on our review of the application for the warrant, we conclude that the magistrate judge was provided with probable cause to

believe that contraband or evidence of criminal activity would be

found in Hawks' residence.

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First, the tip of the confidential informant, who told the police of

Hawks' daily excursions to the open air drug market, was corroborated by the surveillance team, which observed Hawks on two early

morning trips, behaving exactly as the informant predicted. See

United States v. Miller, 925 F.2d 695, 698 (4th Cir.) (holding that reliability of informant may be established through corroborating information), cert. denied, 502 U.S. 833 (1991). Second, the affidavit

included information, supplied by the informant, specifically linking

the location to be searched to the possibility of finding contraband,

i.e. the affidavit reports that the informant told police that Hawks

stored drugs in his house. See United States v. Lalor, 996 F.2d 1578,

1583 (4th Cir.), cert. denied, 114 S. Ct. 485 (1993) (finding that affidavit failed the "nexus" requirement).

Finally, we reject appellant's contention that the affidavit was

insufficient because the surveillance team could only observe transactions involving brown paper bags, but could not know for sure

whether any of the bags actually contained drugs. The police knew

that area surrounding Abington and West Baltimore Streets was "an

open air drug market." On two mornings at around the same hour, the

police observed Hawks drive up to that intersection in his black Nissan Pathfinder, exit his vehicle, wait for a man identified as "Johnny"

to approach him, remove a brown paper bag from his vehicle, hand

that bag to "Johnny," and then drive off. The police then observed

"Johnny" walk into a nearby alley and return to the corner a few minutes later. During the next hour, the police saw"Johnny" repeatedly

receive currency from various passersby while another unidentified

man would hand the buyer a small object. These circumstances provide ample evidence for the police, drawing upon their experience

and common sense, to surmise that they were observing drug transactions even if they could not get close enough to identify the actual

objects being exchanged. Accordingly, we conclude that probable

cause supported the application for a search warrant.

III

Hawks next challenges the constitutionality of the January 1994

warrantless search of his Nissan Pathfinder. While the government

acknowledges that the police possessed insufficient information to

justify a search of the vehicle for incriminating evidence, it notes that

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the police seized the Nissan with the intent of forfeiting it under state

law. Following established police regulations, the officers conducted

an inventory search of the seized Nissan.

It has long been settled that the government may conduct a warrantless, routine "inventory" search pursuant to standardized police

procedures without violating the Fourth Amendment. See South

Dakota v. Opperman, 428 U.S. 364 (1976); Florida v. Wells, 495 U.S.

1 (1990); United States v. Brown, 787 F.2d 929 (4th Cir.), cert.

denied, 479 U.S. 837 (1986). For an inventory search of a vehicle to

be valid, (1) the vehicle must be in the lawful custody of the police;

(2) the inventory search must be routine and conducted pursuant to

standard police procedures; and (3) the purpose of the inventory

search must be to secure the car or its contents and not to gather

incriminating evidence. See Brown, 787 F.2d at 932.

The Baltimore City Police regulations on vehicle forfeiture are

intended to implement § 297, Article 27, of the Maryland Code which

directs the seizure of vehicles that are "used, or intended for use, to

transport, or in any manner to facilitate the transportation, sale,

receipt, possession, or concealment of [controlled substances]." These

regulations require the seizure of a vehicle when (A) controlled substances are sold from that vehicle; or (B) controlled substances are

found in the vehicle in an amount reasonably indicating that sale is

contemplated; or (C) the total circumstances of the case dictate that

seizure is justified. Baltimore City Police Dep't, Gen. Order 3-84,

§ I(A)-(C) (Feb. 1, 1984). The regulations go on to state:

Officers shall inventory all personal and detachable property

not removed from the vehicle by the owner prior to being

transported to the storage facility. . . . All inventoried property shall be processed according to established departmental procedures.

Id. at II(A).

On appeal, Hawks contends, first, that the seizure of the vehicles

was not justified under the Baltimore City Police regulations, and second, that even if the seizure was justified, the need to inventory the

contents of the vehicles was merely a pretext for conducting an illegal

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warrantless search for evidence. Hawks does not challenge the legitimacy or constitutionality of the Baltimore City Police regulations.

Hawks' first contention is without merit, as the"total circumstances of the case" dictated that the police seize Hawks' Nissan Pathfinder for possible forfeiture. See Gen. Order 3-84, § I(C). Indeed,

approximately one week before Hawks was arrested, the police had

observed Hawks using the Nissan Pathfinder on two occasions to distribute what the police reasonably understood to be controlled substances. These observations, coupled with the "circumstances of

[Hawks'] arrest"--i.e. Hawks' hurrying back into his house to attempt

to flush baggies of crack down the toilet--justified the seizure of the

Nissan Pathfinder. There would be less grounds for seizing the other

two vehicles owned by Hawks and his wife because the police did not

actually observe those vehicles being used in suspected drug transactions. But Hawks challenges only the seizure of the Nissan, the only

car in which incriminating evidence was found. When this case was

pursued in federal court, all three cars were returned to their owners.

Once the seizure of the vehicles was justified, the unchallenged

police regulations require that the officers enter the passenger sections

of the vehicle to inventory the contents. Accordingly, the inventory

search of the Pathfinder was constitutional.

IV

Hawks also contends that he was coerced into consenting to a second search of his residence when he was arrested by federal authorities on May 27, 1994. Hawks claims that after officers arrested him

outside of his house and started driving him downtown, Hawks turned

to one of the officers and asked them if he could return to his house

to see his four-year-old son:

I said to the officer, I said, my four-year-old son is in the

house upstairs by himself, asleep. I said, when he wakes up,

he is going to be startled because nobody is in the house

with him . . . . [The officer] said we'll go back if we can

search your house.

 7
Although Hawks had not yet agreed to authorize a search, the officers

took Hawks back to his house. Hawks does not deny that once back

at his house, the officers re-read him his Miranda rights, explained

that he was not required to give his consent, and informed him that

he could force the officers to obtain a search warrant first. The officers told Hawks that no one would be allowed to enter the house to

check on his son unless he signed the form. Hawks concedes that he

eventually did give his consent, but only because he believed that it

was the only way that he could check on his son.

ATF Special Agent Tanda, the officer supervising the arrest, contradicted key aspects of Hawks' testimony. Most importantly, Agent

Tanda testified that when he was arrested, Hawks was not wearing a

shirt and that Tanda allowed Hawks to enter his house, unaccompanied and without handcuffs, to change clothes and take care of his

son. Agent Tanda further testified that Hawks was taken back to his

residence not at the request of Hawks, but at Tanda's request, because

Tanda wanted to try to convince Hawks to give his consent. Agent

Tanda denied that any further discussion about Hawks' son took

place, or that the officers told Hawks that no one else could enter the

house.

Rather than choose between these conflicting versions of events,

the district court assumed arguendo that Hawks' story was accurate,

but concluded nevertheless that Hawks' decision was"voluntary" for

purposes of Fourth Amendment analysis.

According to Hawks, he asked to be taken to his house to see his

son. While the police were under no obligation to grant Hawks'

request, they offered Hawks a "bargain": he could see his son if he

agreed to let the police search his house. Hawks was free to reject this

offer, in which case he would be in exactly the same position as he

was before he made the request. While I see little difference in the

decision facing Hawks and the decision which defendants face regularly when offered a plea bargain--they must choose whether to plead

guilty and forsake their constitutional right to a trial in return for a

benefit--if improper coercion produced Hawks' agreement, the taint

was harmless. In light of the strong evidence otherwise obtained, I

conclude the jury would have convicted Hawks nevertheless.

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In sum, even if I assume arguendo that Hawks' testimony is true,

I question whether the search was the product of a coercive offer and

conclude in any event that any error was harmless.

V

Finally, Hawks asserts that it was error for the district court, in calculating his sentence, to consider his prior conviction for attempted

burglary as a "crime of violence" for purposes of sentencing him

under the Armed Career Criminal Act, 18 U.S.C. § 924(e). We have

recently decided, however, that attempted burglary is a "crime of violence" that may trigger sentence enhancement under 18 U.S.C.

§ 924(e). See United States v. Custis, 988 F.2d 1355, 1363 (4th Cir.

1993), aff'd on other grounds, 114 S. Ct. 1732 (1994).

VI

For the reasons given in parts I, II, III, and V, above and in part

IV written by Judge Michael, we affirm Hawks' conviction and sentence.

AFFIRMED

MICHAEL, Circuit Judge, writing the opinion of the court on Part IV,

in which Judge Hamilton joins:

IV.

Hawks also contends that he was coerced into consenting to a second search of his house when he was arrested by federal authorities

on May 27, 1994. This claim cannot support a reversal of Hawks'

conviction.

According to Hawks, after officers arrested him in front of his

house and started driving him to ATF offices downtown, Hawks told

them he was concerned about his four-year-old son, who had been left

alone in the house. Hawks testified as follows at the suppression hearing:

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I said to the officer, I said, my four-year-old son is in the

house upstairs by himself, asleep. I said, when he wakes up,

he is going to be startled because nobody is in the house

with him, right. He [the officer] said we'll go back if we can

search your house. I said all I want to do is wait until my

niece comes back. She is at the store. So, he said, can we

search your house.

Hawks did not then agree to a search, but the officers took him

back to his house. Hawks testified that when they arrived, Hawks'

niece, who was waiting outside, told him that officers would not let

her into the house to check on the boy until Hawks first consented to

a search. The officers then re-read Hawks his Miranda rights and told

him he was not required to give consent. Hawks said the officers also

told him no one would be allowed to enter the house to check on his

son unless he signed the consent form. According to Hawks, he

signed the form because of concern for his son.

ATF Special Agent Tanda, the officer supervising the arrest, contradicted some of Hawks' testimony. According to Tanda, Hawks was

not wearing a shirt when he was arrested, and Tanda let Hawks go

inside the house to change clothes. According to Agent Tanda, he

decided to have Hawks returned to the house so that the officers could

try to get Hawks' consent for a search. Agent Tanda said that Hawks

never asked to be returned home and that he (Tanda) never heard

Hawks express any concern about his young son.

The district court concluded that, even if it accepted Hawks' testimony as true, Hawks was simply presented with a difficult choice and

was not coerced. The suppression motion was denied and the fruits

of the May 27, 1994, search, including $17,000 in cash and a scale

with white powder residue, were admitted into evidence.

We need not reach the question whether coercion produced Hawks'

agreement to the search of his house on May 27, 1994. Assuming

arguendo both that Hawks' testimony is true and that it was error for

the district court to admit evidence of the May 27 search, we are convinced that any error was harmless beyond a reasonable doubt. In

light of the other strong evidence against Hawks, including the crack,

cash, drug paraphernalia, and guns seized during the first search of his

 10
house in January 1994, we conclude the jury would have convicted

him nevertheless.

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