2004 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

9-22-2004

USA v. Agnew

Precedential or Non-Precedential: Precedential

Docket No. 03-2654

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Recommended Citation

"USA v. Agnew" (2004). 2004 Decisions. Paper 269.

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PRECEDENTIAL

UNITED STATES COURT

 OF APPEALS FOR

THE THIRD CIRCUIT

 

NO. 03-2654

__________

UNITED STATES OF AMERICA

v.

AARON AGNEW,

 Appellant

________________

Appeal from the United States

District Court for the 

Middle District of Pennsylvania

District Judge: 

Honorable William W. Caldwell

(D.C. Criminal No. 02-cr-00055)

Argued May 27, 2004

BEFORE: RENDELL and COWEN,

Circuit Judges, and

SCHWARZER,* District Judge.

(Filed September 22, 2004) 

 

LORI J. ULRICH (ARGUED)

JAMES V. WADE

Federal Public Defender for the

Middle District of Pennsylvania

DANIEL I. SIEGEL

Assistant Federal Public Defender

100 Chestnut Street, Suite 306

Harrisburg, PA 17101

 Counsel for Appellant

THEODORE B. SMITH, III, (ARGUED)

JAMES T. CLANCY

Assistant U.S. Attorney

THOMAS A. MARINO

United States Attorney

Federal Building

228 Walnut Street

P.O. Box 11754

Harrisburg, PA 17108-1754

 Counsel for Appellee

_________

OPINION OF THE COURT

 

SCHWARZER, Senior District Judge.

Aaron Agnew appeals his

conviction for distributing crack cocaine

and being a felon in possession of a

firearm. He contends that the District

Court erred in denying his motion to

suppress physical evidence, and in

preventing him from impeaching a witness

with evidence of a sixteen-year-old forgery

conviction. The District Court had

jurisdiction pursuant to 18 U.S.C. § 3231

and we exercise jurisdiction pursuant to

28 U.S.C. § 1291. We will affirm.

 

*The Honorable William W Schwarzer,

Senior United States District Judge for the

Northern District of California, sitting by

designation.
2

FACTUAL AND PROCEDURAL

HISTORY

Agnew was charged in an

indictment with distribution of crack

cocaine in violation of 21 U.S.C. §

841(a)(1), possession of a firearm by a

felon in violation of 18 U.S.C. §§

922(g)(1) and 924(a)(2), and possession of

a firearm in furtherance of a drug

trafficking crime in violation of 18 U.S.C.

§ 924(c)(1)(A).

Before trial, Agnew moved to

suppress the fruits of the search in

connection with his arrest. At the

suppression hearing, Dauphin County

Sheriff’s Deputy Gary Duncan testified

that he was assigned to the Fugitive Task

Force charged with “the service of all

violent felony warrants, drug warrants and

any other cases referred to [it] from

Dauphin County or the surrounding

communities.” Agnew’s case was referred

to Duncan’s unit because Agnew had

twice previously evaded capture by

jumping from a second story window and

by holding onto the roof rack of a passing

car for a block and a half. Duncan had

learned from an informant that Agnew

“was at the residence [at 2740 Ludwig

Street] and that he was to be in possession

of a firearm, a revolver, . . . and that he

was also to be in possession of some

narcotics.” Duncan checked with the Drug

Task Force and learned that it had no

investigations pending against Agnew.

Duncan and a group of other

officers went to 2740 Ludwig Street. He

and six other officers approached the front

of the residence, and four or five officers

were posted around the perimeter and at

the rear of the residence. Some of the

officers wore “raid gear,” including

bulletproof vests, and carried ballistics

shields. Duncan testified that when the

officers knocked on the front door of the

residence and announced, “Police, open

the door,” he saw Agnew pull aside a

curtain in a window of the home. He then

heard “what sounded like scuffling inside,

running around.” Duncan testified that he

“felt that due to the knowledge that

[Agnew] had a handgun that we were

compromised and we decided to take the

door.” The officers then entered the

residence and apprehended Agnew as he

ran up a flight of stairs. Once inside,

officers noticed in plain view a clear

plastic bag containing cocaine. They

thereafter obtained a search warrant and

found a .22 caliber revolver and fifteen

grams of cocaine in the home.

The District Court denied Agnew’s

suppression motion. It found that the

officers acted pursuant to an arrest

wa rrant, and held that exigent

circumstances justified the entry into the

home.

The day before trial, the

government made a motion in limine to

prevent Agnew from cross-examining a

government witness, Wyatt Dawson, using

a sixteen-year-old forgery conviction. The

court granted the motion at trial, stating, “I

have read the motion and your brief. I am

going to sustain the objection.” Dawson
3

subsequently testified that he had

purchased crack cocaine from Agnew on

numerous occasions and that he rented and

lived in the residence at 2740 Ludwig

Street. In addition to the testimony of an

officer who searched the residence, the

government also presented several

witnesses who testified to buying crack

from Agnew. Agnew himself took the

stand and testified that the firearm and

drugs were owned by Dawson, who was in

fact the dealer who supplied Agnew with

drugs.

The jury convicted Agnew of

distributing crack cocaine and possessing

a firearm, but acquitted him of possessing

a firearm in furtherance of drug

trafficking. Agnew timely appealed.

DISCUSSION

I.

Agnew first argues that the District

Court erred in finding that the officers’

entry into 2740 Ludwig Street was

justified by exigent circumstances. We

review the denial of a suppression motion

for clear error as to the underlying facts,

but exercise plenary review as to its

legality in light of the court’s properly

found facts. United States v. Givan,

320 F.3d 452, 458 (3d Cir. 2003). We may

affirm on any ground supported by the

record. United States v. Jasin, 280 F.3d

355, 362 (3d Cir.), cert. denied, 537 U.S.

947 (2002); United States v. Belle, 593

F.2d 487, 499 (3d Cir. 1979) (en banc)

(affirming denial of suppression motion on

different ground).

We find that the entry into the

residence did not violate Agnew’s Fourth

Amendment rights because the officers

were armed with a warrant for his arrest.

Payton v. New York, 445 U.S. 573 (1980),

establishes that police may enter a

suspect’s residence to make an arrest

armed only with an arrest warrant if they

have probable cause to believe that the

suspect is in the home. Id. at 602-03; see

also United States v. Clayton, 210 F.3d

841, 843 (8th Cir. 2000) (holding that a

valid misdemeanor arrest warrant “carries

with it the authority to enter the residence

of the person named in the warrant in

order to execute the warrant so long as the

police have a reasonable belief that the

suspect resides at the place to be entered

and that he is currently present in the

dwelling”). The District Court found that

the officers entered the residence for the

purpose of executing an arrest warrant, and

this finding has not been challenged.

Indeed, Duncan testified that he was

assigned to the Fugitive Task Force

charged with serving arrest warrants, and

Agnew testified that he was aware that

there was “a warrant out for [his] arrest” at

the time of the arrest. Moreover, the

police had probable cause to believe that

Agnew was in the home because they saw

him through the window. 

We note that Payton only addresses

entry by officers into the residence of the

subject of the warrant, 445 U.S. at 603,

and that there was no testimony at the

suppression hearing about whether 2740
4

Ludwig Street was Agnew’s residence.

However, whether the home was Agnew’s

residence is ultimately irrelevant because

under any of the possible alternatives the

entry pursuant to the arrest warrant did not

violate Agnew’s Fourth Amendment

rights.

If Agnew resided at 2740 Ludwig

Street, his arrest was lawful under Payton

because the police acted pursuant to an

arrest warrant. See id. at 602-03. If

Agnew did not reside at 2740 Ludwig

Street, he may have lacked a privacy

interest in the residence and would have no

standing to challenge the police officers’

entry. Minnesota v. Olson, 495 U.S. 91,

95-97 (1990) (holding that only a person

with a reasonable expectation of privacy in

a residence—like an overnight guest—may

complain that an entry into the residence

was unlawful). In any event, even if

Agnew, although not a resident at 2740

Ludwig Street, did have a privacy interest,

the entry did not violate his privacy rights.

The Supreme Court held in United States

v. Steagald, 451 U.S. 204, 211-14 (1981),

that the Fourth Amendment does not

permit police to enter a third person’s

home to serve an arrest warrant on a

suspect. But Steagald protected the

interests of the third-party owner of the

residence, not the suspect himself. See id.

at 212 (stating the issue to be “whether an

arrest warrant—as opposed to a search

warrant—is adequate to protect the Fourth

Amendment interests of persons not

named in the warrant, when their homes

are searched without their consent and in

the absence of exigent circumstances”).

As the Ninth Circuit observed:

A person has no greater

right of privacy in another’s

home than in his own. If an

arrest warrant and reason to

believe the person named in

the warrant is present are

sufficient to protect that

person’s fourth amendment

privacy rights in his own

home, they necessarily

suffice to protect his privacy

rights in the home of

another.

The right of a third party not

named in the arrest warrant

to the privacy of his home

may not be invaded without

a search warrant. But this

right is personal to the home

owner and cannot be

asserted vicariously by the

person named in the arrest

warrant.

United States v. Underwood, 717 F.2d

482, 484 (9th Cir. 1983) (en banc)

(citations omitted); see also United States

v. Kaylor, 877 F.2d 658, 663 n.5 (8th Cir.

1989) (“Steagald addressed only the right

of a third party not named in the arrest

warrant to the privacy of his or her home.

This right is personal to the homeowner

and cannot be asserted vicariously by the

person named in the arrest warrant.”).

Thus, even if Agnew was a non-resident

with a privacy interest, the Fourth

Amendment would not protect him from
5

arrest by police armed with an arrest

warrant.

Because the officers entered the

residence armed with a warrant for

Agnew’s arrest, and had probable cause to

believe that he was inside, the District

Court properly denied the motion to

suppress.

II.

Agnew next contends that the

district court erred in preventing him from

cross-examining Dawson using the

witness’s sixteen-year-old forgery

conviction. He argues that we should

review the district court’s decision de

novo, and that the evidence should have

been admitted because it would have

helped resolve a dispute between two

witnesses—Dawson and Agnew—about

who owned the gun found in Agnew’s

room.

A.

Agnew concedes that we usually

review decisions to exclude evidence for

abuse of discretion. See United States v.

Saada, 212 F.3d 210, 220 (3d Cir. 2000).

He contends that we should employ

plenary review here, however, because the

record does not reflect that the district

court actually exercised its discretion.

In United States v. Himelwright, 42

F.3d 777 (3d Cir. 1994), we stated that

“[w]here . . . the district court fails to

explain its grounds for denying a [Federal]

Rule [of Evidence] 403 objection and its

reasons for doing so are not otherwise

apparent from the record, there is no way

to review its discretion. In such cases, we

need not defer to the reasoning of the

district court.” Id. at 781 (citation

omitted). Agnew asks us to extend this

principle to decisions under Rule 609. The

District Court stated, “I have read the

[government’s] motion and your brief. I

am going to sustain the objection.” We

believe that this statement adequately

reveals the Court’s reasons for sustaining

the objection: it agreed with the arguments

contained in the government’s brief.2 In

any case, we find that the Court’s decision

should be affirmed even under a plenary

standard of review. 

B.

Federal Rule of Evidence 609(a)

permits parties to use evidence of a past

conviction to impeach witnesses “if it

involved dishonesty or false statement.”

Forgery, of course, involves dishonesty

and false statement. Wagner v. Firestone

Tire & Rubber Co., 890 F.2d 652, 655 n.3

(3d Cir. 1989). But Rule 609(b) states that

Evidence of a conviction

under this rule is not

 

2The government’s argument was that

Agnew had numerous other avenues for

cross-examination, including a more recent

conviction for passing a bad check, and

that the probative value of the forgery

conviction was small.
6

admissible if a period of

more than ten years has

elapsed since the date of the

conviction . . . unless the

court determines, in the

interests of justice, that the

probative value of the

conviction supported by

spec ific facts a n d

circumstances substantially

outweighs its prejudicial

effect.

Here, Dawson’s conviction was more than

ten years old. 

We find that the probative value of

the evidence of Dawson’s forgery

conviction was sufficiently small that the

“interests of justice” did not warrant its

admission, and that any error in refusing to

admit the evidence was harmless. See

United States v. Colletti, 984 F.2d 1339,

1343 (3d Cir. 1992) (employing harmlesserror analysis in the Rule 609(b) context).

Two witnesses other than Dawson testified

that Agnew sold crack numerous times,

and Agnew admitted as much shortly after

the crime. The police found cocaine in

Agnew’s shoes. Likewise, Agnew

admitted that he knew that the gun had

“come from” two individuals named

“Nature” and “Light,” and a police officer

testified that drug dealers commonly keep

guns at their disposal. Indeed, the jury had

already learned that Dawson used crack

cocaine. It would not have resolved the

question of ownership of the gun and

drugs in favor of Agnew simply because it

also learned that Dawson had an old

forgery conviction.

CONCLUSION

For the reasons stated, we will

AFFIRM the conviction.