2005 D e c i sion s O p inion s of the U nit e d S t at e s C our t of Appe al s for the Thir d C ir c uit 1-6-2005 

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w . v i l l a no va . e du/thir dc ir c uit_2005/1574NOT PRECEDE NTIAL UNITED STATES COURT OF APPEALS FO R T HE TH IRD CIR CU IT

_________ No. 04-1721

_________ UNITED S TATES OF AMERI CA

v . NEFTA LI LAMAR PATR ICK , Appellant

_________ On A ppeal from the Un ited States District Co urt for the M iddle D istrict of P enns ylvania (D.C. Crim. No. 3:CR-03-212) Distri ct Judge: Honorable Will iam J. Neal on

_________ Submitte d Pursuant to Third Circ uit LAR 34.1(a)

December 6, 2004 BE FO RE : AM BR O a nd V AN AN TW ER PE N, Circuit Judges , and SH AD UR , Senior Distri ct Judge * (Fil ed January6, 2005)

__________ OPI NION

__________

__________ * Hono rable Milton I. Shadur, U.S. Distri ct Court for the Northern District of Illinoi s, sitting by designation.2

VA N A NT W ER PE N, Circuit Judge Follo win g a jury trial, de fend ant N eftali L ama r Patrick (“Pa trick”) a ppea ls his conviction under 18 U.S. C. § 924(c), possessi on of a fire arm in furt herance of a dr

ug traffi cking cri me. He alle ges (1) t he evidence was i nsuffici ent to s ustai n his convi ction, and (2) phy sicalevidence and s tate ments to pol ice supporting t hat convi ction s hould have bee n su ppr es se d. We ha ve j ur is di ct io n pu rs uan t to 28 U.S .C. § 12 91 a nd wi llaff irm. I. On J ul y 17 and 1 8, 200 3, pol ic e i n Lu ze rn e Co unt y , P en ns y lv an iamad e t wo control led purcha ses of her oin from Patrick. At about 5:00 p. m. on July30, 2003, pol ice, who had a warrant for Pat rick’ s arre st, stopped and ar rest ed him immediatelyafter he left his re sidence. Upon a search of Patr ick’s person i ncident

to arrest, policefound four grams of cocai ne base packaged i n eighte en bags ins ide a l arger Zi ploc bag. Patri ck was then ta ken to the W ilkes-B arre po lice station , wh ere an offic er orally ad vised him o f his Miranda rights. Patrick was also shown his Miranda right s in writ ing. Pat rick s tate d that he could re ad his rights , that he unders tood them, and that he was willi ng to answer questi ons. I n response to one questi on, he st ated that he had stopped sell ing “dope, ” or heroin, and was now dealing cr ack obtai ned from a suppli er in New York. When Patri ck
wa s aske d fo r con sent to s earch his ho me, h e said n o, telling p olice th ey wo uld n eed to get a w arrant. The police prepared a se arch warrant affidavi t sworn bya detective with s even3

year s of experi ence in t he narcotics uni t. The aff idavit detai led thecontrol led purcha ses on July17 and 18 and a two-week peri od of survei llanc e of Patri ck entering and le aving his resid ence at all ho urs of the da y and ev ening . Afte r leavin g his re siden ce, he wo uld proceed t o one of thre e locations, includi ng the loc ation where the controll ed purchases were made. At thes e locations, Patri ck would meet bri eflywith unknown persons and then ret urn to hi s resi dence. The detecti ve stated, based on hi s training and e xperienc e, that t he meetings between Patrick and unknown persons were consis tent wit h drug transactions. Th e affidav it also recited Patrick’s arrest earlier that day and the seizure from his per son of cocai ne base packed i n small bags . In addi tion, the affi davit c ontaine d information about t

he informant

used by policeto set

up the controll ed purchases from Patrick on July17 and 18. The inform ant had given past information that l ed to the arrest and convictions of fi ve drug tr afficker s, and t he polic e had been able to corr oborate t he information about Patrick through surveil lance and the controlled purchases. Abo ut 9:00 p.m . that night, police execu ted a court-au thorized search of Patrick’s reside nce, a nd a s earch und er a m attress in Patrick ’s bed room revea led ap prox imate ly $4,000 in c ash and three guns: a l oaded short -barr eled shotgun, a l oaded NEF .22 revolver , and an unl oaded Jennings .22 pis tol. Within a few feet of the weapons and the cash un der the m attress were ap proxima tely fortygrams o f crack co caine in a m an’s sneaker, two scales, ammunition, and boxes of baggies. Pol ic e r etur nedfr om the s earch o f Pa tric k’ s r es id enc e at app ro xi mat el y 11: 15 p .m.1 Pat rick doe s no t app eal h is co nvi ction s un der 21 U .S.C . § 84 1(a )(1), 2 1 U .S.C . §

841 (a)(1) a nd 8 41(b )(1)(B ), or 18 U.S .C. § 9 22(g )(1). A lthoug h Pa trick ap peals h is conviction under § 924( c)(1) (A) for car ry ing a fi rearm duri ng and in rel ation to a drug traffi cking cri me, we need not di scuss t his offens e furthe r because we fi nd that t he evide nce s upp orts a c onv iction u nder the sam e Sec tion fo r poss ession of a f irearm in further ance of a drug t

raffic king cri me. 4 and told Patrick what they had found. An officer orallyreminded Patrick of his Miranda righ ts, an d P atric k sa id ag ain th at he und ersto od t hem and wa s w illing to b e qu estio ned
. When asked where he obtai ned the guns found i n his re sidence, Patri ck said he ha d obtaine d them from his dr ug customers , but he refused to identi fy who they were. Prior to his t

rial , Patrick moved to suppress both t he phys ical evidence recovered from the search of his resi dence and the s tate ments he made aft er his arres t. Afte r an evidentiaryhearing, the Dist rict Court denie d both moti ons on November 18, 2003. At trial, a ju ry conv icted P atrick o f (1) d elivery of a con trolled su bstan ce, in violat ion of 21 U.S.C. § 841(a)( 1); ( 2) posses sion of a cont roll ed substance (cocai ne base) in excess of 5 grams with t he inte nt to di stribute, in viol ation of 21 U.S.C. § 841(a )(1) and 841 (b )( 1) (B) ; ( 3) car

ry in g a f irearm durin g an d i n r el at io n t o a d ru g tra ffi cki ng c ri me and/or pos sessi on of a fire arm in furt herance of a dr

ug traffi cking cri me, in vi olati on of 18 U.S.C. § 924(c )(1)( A)(I) and ( B)(1); and (4) poss ession of a fire arm after

being convicted of a felon y, in violation of 18 U .S.C. § 922 (g)(1). 1 II. Patri ck’s bri ef firs t claims ins uffici ent evi dence exis ted to s ustai n his convi ction for pos sess ion of a fire arm in fu rthe ran ce o f a d rug traf fick ing felo ny, 18 U.S .C. § 924 (c).2 Sectio n 92 4(c) p rovid es in p ertinen t part: [A]ny per son who, duri ng and in rel ation to any crime of violenc e or drug t

raffic king cri me . . . for which the person may be pros ecuted i n a court of the Unite d States , uses or carr ies a fire arm , or who, in f urtheranc e of any such c rime, possesses a firearm , shal l, i n additi on to such puni shment pr ovi dedfor

suc h crime of v io le nce ordr ug t ra ffi cki ng c ri me – [be sente nced to a certain number of year s depending on t he fac ts of the c rime ] . . . 18 U .S.C . § 92 4(c ) (em pha sis ad ded ). 5 In reviewing whether the evidence was sufficient to support a finding of guilt, we mu st consider the e vidence “ in the light most fa vorable to the g overnm ent,” as verdict w inner, and the j udgment should be affirmed “i f there is subs tanti al evi dence from which any rati onal trier of fa ct coul d find bey ond a reasonabl e doubt. ” Uni te d St ates v. Wil liams , 344 F.3d 365, 369- 70 (3d Cir. 2003). Here, the jur y found Pat

rick gui lty

of “possess ing” a firearm “in f urtherance o f” a drug trafficking crim e. 18 U .S.C. § 924 (c). 2 Because the predicate drug t

raffic king cri me is satisfi ed by Pat rick’ s uncontes ted convi ction of pos sess ion wit h in tent t o di strib ute in exc ess o f fiv e gr am s of coc aine bas e, 21 U.S .C. § 841(a)(1) an d 841(b )(1)(B), the only issue is wh ether the evide nce is sufficien t to support a findi ng that Pat

rick pos sessed a f

irearm in furthe rance of t hat cri me. Patri ck’s bri ef argues t

hat thi s Court has ne ver dete rmined theprecis e boundarie s of the “i n further ance of” ele ment of Secti on 924(c). Since thefili ng of Patri ck’s bri ef, we explained i n United Stat es v. Sparrow , 371 F.3d 851, 853 (3d Cir. 2004), t hat “[u] nder § 924(c), the mere pr esence of a gun i s not enough. What is ins tead re quired i s evidence3 Congress amended § 924(c) in 1998, a dding the “ in furt herance of any

such cri me, poss ess a f irearm ” pro ng o f the sta tute in re spon se to the Sup reme Co urt’s de cision in Bailey v. United Stat

es , 516 U.S. 137, 147 (1995). Prior to the amendment, the gov ernm ent w as req uired to prov e that th e def enda nt use d or c arried th e firea rm in connecti on with a cri me. In Ba iley, the C ourt o f A ppea ls for th e D istrict of C olum bia Circuit had affirmed a convicti on for “use” of a weapon in rel ation to a drug cri me based on a gun lock ed in a tru nk. United Stat es v. Bai ley , 36 F.3d 106 ( D.C.Cir. 1994). The Supreme Court rej ected suc h a broad interpret ation of “use,” hol ding that

“use” required som e ac tive e mp loym ent. Bailey , 516 U.S. at 144. Congre ss then responded by adding the “in furtheran ce of” p rovision to § 9 24(c).6 mo re spe cific to th e partic ular de fend ant, sho win g that h is or he r poss ession actua lly furthered the drug trafficki ng offense . . . . Put another way , the evidence must demonstrate that

possessi on of the fi rearm advanced or helped for ward a drug tr afficki ng crime. ” Id. (inte rna l citati ons and quo tatio ns o mitte d). Sparrow also di scussed what t ype of fa ctors m ay be rele vant to the “in furthe rance of” e leme nt:

the type o f dru g activ ity that is being cond ucted , acces sibility of the firearm , the type of the w eapo n, w hethe r the w eapo n is stolen, the status of the p ossession (legitimate o r illegal), whether the gun is loaded, proximityto drugs or drug profits, and the time and circumstances unde r which the gun i s found. Id. at 853. 3 In Sparrow , we found that one loaded . 22 cali ber pis tol found i n a conceale d floor compartment al ong with nine Zi ploc bags of marijuana and $140 in cash was “possess ed in furt

herance of Spar

row’s drug act

ivities. ” Sparrow , 371 F.3 d at 8 52- 54. This res ult, we observed, was cons ist ent with opi nions fr om other court s upholdi ng § 924 (c) con viction s wh ere “th e firea rm in q uestion wa s not so easily or im med iately accessible. ” Id. at 853 (discu ssing cases). The evidence here simil arlysupports the § 924(c) conviction of Patrick. Patri ck7

possesse d not one weapon, as in Sparrow , but rath er three we apon s, and he po ssesse d all three o f them illegally as a c onv icted f elon. T wo of the m w ere loa ded, in cludin g a sh ortbarrele d sho tgun . All thre e w eapo ns w ere fo und und er a m attress n ext to a bou t $4,00 0 in cash, a s um far great er than t he $140 found in Spa rrow. Finall y, within a f ew feet, i n the same room, were fortygrams of crac k cocaine, two scales , othe r drug par aphernal ia,
amm unition , and b oxes of b aggie s. “Ev en as sum ing . . . the f irearm [s] [w ere] no t easily
ac ce ss ib le, [th ey] w er e s tra teg ica lly lo ca ted . T he gu n[ s] [ w er e] pl ac ed so th at [ th ey] would be immediat elyavail able for [Patri ck’s] protection whenever he r etri eved drugs or
mo ney f rom ” his bed roo m. Sparrow , 371 F .3d at 8 54. T he fa cts of th is case thus e asily sati sfy us that

there e xist ed suffici ent evi dence to suppor t the “ in furt

herance of” el ement required for Patrick’s § 924(c) convi ction. III. Patri ck next contends the guns and the st atement he made about them should have been suppres sed. We revi ew the denialof a motion t o suppress for cle ar err or as t o the und erlying fac tual f ind ing s an d ex ercis e ple nar y revie w o ver que stion s of law
. United Statesv. Perez , 280 F.3d 318, 336 (3d Cir. 2002) (ci ting United Stat es v. Ri ddick , 156 F.3 d 50 5, 50 9 (3 d C ir. 19 98) ). Patri ck contends e vidence of t he guns should have been suppres sed because t he
warra ntto se ar ch h is re si den ce l ack ed p ro bab le cau se . Al th oug h he con ced es som e degree of probable cause existed because of hi s drug sal es on July 17 and 18, 2003, and8

the discovery of baggies of drugs on his person on July30, he contends probable cause was neverthel ess la cking to c onnect hi s resi dence to those drug activities. We disagree. Ou r review of an initial pro bable caus e dete rmina tion un derlying a wa rrant to
sea rch is de fere ntial
. United Stat es v. Whit

ner , 21 9 F
. 3d 28 9, 29 6 ( 3d Ci r . 20 00 )
. We must “determine whether the magistrate who issued the warrant had a ‘substantial basi s’ for dete rmining t

hat probabl e cause exi sted. ” United Stat es v. Zimmerman , 277 F.3d 426, 432 (3d Cir. 2002 ). Here, given Patrick’s conc essions and our review of the reco rd evidence, the affi davit of probable c ause readi ly linked Pat rick’ s drug tr afficki ng acti viti es to hi s resi dence. Fi rst, survei llanc e of Patri ck demonstrated tri ps in and out of his residence, da y and night, to cond uct wh at experience d and trained narcotics off icers believ ed to b e dru g trans action s. The y observ ed P atrick re peate dly going to and from his resi dence to one of t

hree loc ations to meet peopl e for bri ef peri ods of ti me. Patrick used his re side nce as a hub , as h e w as o bse rve d re turn ing to h is res iden ce a fter eac h sh ort trip
. Seco nd, on the da y of Pa trick’s ar rest an d sea rch inc ident to arrest, w hich re veale d his poss ession of d rugs p acka ged f or distrib ution, h e w as ob serve d to h ave c om e direc tly fro m h is res iden ce, a nd h ad n ot sto ppe d an ywh ere e lse b efo re h is arr est. While Patrick ass erts this evidence pr ovides no di rect l ink between hi s resi dence and his drug acti viti es, we have st ated that “di rect e vidence l inking t he crime t o the location to be s earched i s not re quired to support a search warr ant. ” Whitner , 219 F.3d at 297. “Probabl e cause can be, and often i s, i nferred by considering the t

ype of crime, the9

nature of the items sought, the suspe ct’s opportuni ty for conceal ment, and normal infe ren ces abo ut w her e a c rimi nal m igh t hid e” c ont rolle d su bsta nce s. Id. Here, each of thes e fa ctor s, in lig ht o f the abo ve in for ma tion , sup por ted a con clus ion of p rob able cau se. Indeed, we have previousl y found t hat, in drug cas es, “evi dence . . . is likel y t o be found where drug deal ers re side. ” United Stat es v. Burt

on , 288 F.3 d 91 , 103 (3d Cir . 200 2). A suffici ent nexus between the items to be searched and the pl ace to be s earched maybe esta blish ed b y direc t evid enc e or infe ren ces . United Stat es v. Martinson , 811 F.Supp. 1097, 11 05 (E.D .Pa. 1993). A s such, the D istrict Court did not err in de nying Patrick’s
mo tion to s upp ress the evide nce f oun d in h is reside nce, a s there wa s a sub stantial b asis for dete rmining t

hat probabl e cause exi sted. Sim ilarly, the Dis trict Co urt did n ot err in d enying P atrick’s m otion to supp ress his statement about t

he guns found at hi s resi dence. Pat rick contends his s tate ment was obtaine d in viol ation of Miranda v. Arizona , 384 U.S. 436 ( 1966), because (1) pol ice failed to re-advi se him of his Miranda rights approximatelyfive hours after he had first been advise d of them earl ier t he same evening, and (2) pol ice det ained hi m for a tot al of app rox ima tely sev en h our s. In determining whether Patrick’s waiver of his Miranda rig ht s w as vo lu nt ar y, knowing, and i ntell igent, we must firs t ask whether the waiver

was voluntary “‘ in the sense that it

was the product

of a free and del iberate choice r ather t han inti midati on, coerci on, or dece ption. ’” United Stat es v. Velasquez , 885 F.2d 1076, 1084 (3d Cir. 1989)10

(quoti ng Moran v. Burbine , 475 U.S. 412, 421 (1986)). We must then ask whether the waiver was “‘made with a full awareness both of the nature of the right being abandoned and the conse quences of the decisi on to abandon i t.’ ” Id. In so doing, we must examine the to tality of the c ircu ms tanc es. United Stat es v. Dickens , 695 F.2d 765, 778 (3d Cir. 198 3). See also Mil ler v. Fenton , 796 F.2 d 59 8, 60 4 (3 d C ir. 19 86)
. Here, therecord s upports t he District Court ’s fi ndings that Patrick was advis ed of his Miranda right s both at the ti me of his arrest and again some fivehours later, after the search of Pat

rick’ s resi dence. The fi rst t ime, Pat rick was advi sed of his right s oral ly and in writing from an officer’s Miranda card; th e seco nd tim e, he w as rem inded of h is rights orally. Bo th time s, the D istrict Co urt fou nd, P atrick w as suf ficien tly advised of h is rights and he understood those rights . For exampl e, duri ng the fi rst pe riod of ques tioni ng, Patri ck demonstrated awareness of hi s right s and the cons equences of abandoni ng them wh en he with held h is con sent to th e searc h of his resid ence , telling po lice they w ould have to get a wa rrant. Sim ilarly, during the fin al que stionin g sess ion, Pa trick de clined to identi fy hi s sources for the guns discovered in his bedroom. These i nterac tions occurred within a seven hour period during which the District Court found, and the record shows, no evidence of del iberate delay , expl oitat ion, t hreats , promis es, or

other i mproper actions on the part

of the pol ice t o overcome Patrick’s free wil l. Moreover, Patri ck does not
con tend , nor doe s the reco rd in dica te, tha t he a ttem pted to in vok e his righ t to co uns el. Under the tot alit

y of t hese circumstances, the Dist rict Court did not

err i n concludi ng that11

the st atement Pat

rick s ought to s uppress was “t he product of

an essentiall y free and
unc ons train ed c hoi ce” by Pa trick to an sw er se lecte d qu estio ns. Dickens , 695 F.2d at 778 (fin din g co nfe ssio n vo lun tary de spite , inter alia , del ay of ni ne hours between arrest and confessi on). As such, we find no error with the Dis tri ct Court’ s conclus ions of l aw or find ing s of fac t un der lying th e de nial o f Pa trick ’s m otio n to sup pre ss h is sta tem ent. Finall y, to the e xtent Pat rick’ s brie f rais es other

contentions about

his st atement, we have considered those arguments and concl ude that theyare without

merit and no further disc uss ion is ne ces sary. For th e fore goin g reas ons, w e w ill affirm the jud gm ent of the D istrict Co urt.