2004 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

9-22-2004 

# U S A v . Agnew
P r e c e de n t i al or N on-P r e c e de n t i al : P r e c e de n t i al D ocke t N o . 03-2654

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w . v i l l a no va . e du/thir dc ir c uit_2004/269PRECE DENTI AL

UNITED S TATES COURT OF APP EALS F OR TH E TH IRD CIR CU IT

NO. 03-2654

__________ UNITED S TATES OF AMERI CA

v. AARO N AGN EW, Appellant

________________ Appeal from the United State s Distri ct Court f

or the M iddle D istrict of P enns ylvania Distric t Judg e: Ho nora ble W illiam W . Cald we ll (D.C. Crimi nal No. 02-cr -00055) Argued May 27, 2004
BEFOR E: RENDEL L an d COWEN, Circuit Judges , and SCHWARZER, * Distri ct Judge

.
(Filed Septem ber 22, 20 04) LORI J. ULRI CH ( ARGUED) JAMES V. WADE Federal Publ ic Defender for the M iddle D istrict of P enns ylvania DANIEL I. SIEGEL Assist ant Federa l Publi c Defender 100 Chestnut St

reet, Suite 306 Harrisburg, PA 17101 Counsel for Appell ant
THEODORE B. SMIT H, III, (AR GUED) JAMES T. CLANCY Assist ant U.S. Attorney THOMAS A. MARINO United States Attorney Federal Bui lding 228 Walnut Stre et P.O. Box 11754 Harrisburg, PA 17108-1754 Counsel for Appell ee

_________ OPINI ON OF THE COURT

SC HW AR ZE R, Senior Dist rict Judge

. A aro n Agnew appeals hi s conviction for d ist ributing crac k cocaine and being a fel on in posses sion of a fi re ar m. He conte nds th at the Distri ct Cou rt erred in denying his mot ion to suppress physical e viden ce, an d in preventi ng him from impeaching a w itness with evidence of a sixteen -year-old forgery conviction

. The Distri ct Court ha d juri sdiction pu rsu ant to 18 U. S.C. § 3231 and we exerc ise ju r isdiction pursu ant to 28 U. S. C. § 129 1. We wil l a ffirm. * The Honorable Will iam W Schw arzer, SeniorUnited States Distri ct Judge for the N orthern Distric t of C aliforn ia, sittin g b y designation.2

FACTUAL AND P ROCEDURAL

HIS TORY Agnew was charged in an indict ment with dis tri bution of c rack cocaine in viol at ion of 2 1 U .S.C . § 8 41(a) (1), po ss es sio n o f a fir ea rm by a felon in viol ation o f 18 U.S.C. §§ 922(g)(1) and 924(a)( 2), andpossessi on of a fi rear m in furthe rance of a drug traffi cking crime i n violat ion of 18 U.S .C. § 924(c )(1)(A).
Befo re tri al, Agnew m ove d t o s uppress the fruits of the sea rc h i n con necti on with his arres t. At t he suppress ion hearin g, D auph in Co unty Sheriff’s D ep ut y G ary Duncan testi fied that he was assigned to the Fugitive Task Force ch arged with “the se rvice o f all violent felon y warra nts, dru g w arrants and any other ca ses ref

erred to [ i t] fr om Da uph in County or the su r rounding com mu nitie s.” Agn ew’s case was referred to Duncan’s unit

bec ause Agnew had twice previous ly evaded capture by ju mpi ng f

ro m a second st ory window and by holding onto the roof rack of a pass ing car for a block and a hal f. Duncan had learne d from an informant that Agnew “wa s at theresi dence [at 2740 Lud wi g Street] and that

he was to be in pos sessi on of a fire arm, a r evolver,

. . . and that he was also t o be i n pos se ss io n of som e nar cotic s.” Duncan checked with the Drug Task For ce and learne d that i t had no in ve stig atio ns pe ndi ng a ga in st Agn ew.
Duncan and a group of other officers wen t to 27 40 L udw ig Stre et . H e and six other off icers approached the front of t he r esidence, an d four o r five officers were poste d aro und the pe rimete r and at the rear of the re sidence. Some of the officers wo re “r aid g ear,” in cluding bullet proof vests, and carri ed ball istics shields. Du ncan test

ifie d that when the officers knocked on the fr ont doorof th e resi dence and anno un ced, “Pol ice, open the doo r, ” h e s aw Agne w pull asi de a curtain in a win dow of

th e h ome . H e then heard “what sounded li ke scuffli ng insi de, running around.” Duncan testi fied that he “felt that dueto the know ledge that [Ag ne w] had a handgun that we w ere co mp romised and we decided to t ake the doo r.” The officer s then entered the resi dence and apprehended Agnew as he ran up a flight of stair s. On ce insi de, officers notice d in plai n view a clear plastic bag contai ning cocai ne. They therea fterob taine d a search warr ant and found a .22 cal iber revolver and fift een grams of cocai ne in thehome.
The District Cou rt denied A gnew ’s supp res sion motion. It found t hat the officers acted pur su ant to an arrest wa rrant, and held tha t exi gen t circumst ances ju sti fied the entry into t he home.
The day b efo re tria l, t h e gove rn me nt mad e a m otion in limine to preventAgn ew from cross- examining a gove rnmen t witness, Wyatt Dawson, using a sixte en- year-o ld fo rge ry con victi on. The court granted t

he motion at

trial, stating, “ I have read the motion and your brief. I am going to sust ain theobjection.” Daw son3

subsequent ly te sti fied that he ha d purchasedcrack cocai ne fro m Agnew on numerous occasions and that he rented and livedin the re siden ce at 2 740 Lud wig Street. In ad diti on to the testi mony of an officer who searched the resi de nc e, the government also p resen te d s evera l witnesse s who t esti fied t o buyi ng crack from Agnew. Agn ew himself took the stand and test ifie d that t he fire arm and drugs were owned by Dawson, who was in factthe deal er who supp lied A gnew with drugs.
The juryconvict ed Agnew of dist ributing crack cocai ne and possess ing a firearm, butacquitted him of possessi ng a firearm in furthe ran ce of dru g traffi cking. Agnew timely appealed.

DIS CUSS ION I. Agnew firs t argues that t he Distri ct Cou rt erred i n finding t hat theof ficers’ entry in t o 2740 Ludwig Street was justifie d byex i ge nt

ci r cu ms t an ce s. We review the deni al of a suppression motion for clear e rror as to th e und erly ing facts, b ut exerci se plenary r eview as to it s legality in li ght of

the cour t’s prop erly found fac ts. Un ited S tates v. G ivan , 320 F.3d 45 2, 458 (3d Cir. 200 3). We may affirm on any grou nd supp ort ed by the recor d. Un ited Sta tes v. Ja sin , 280 F.3 d 355, 362 (3d Cir .), cert. de nie d , 537 U. S. 947 (200 2); Un ited Sta tes v. B elle , 593 F.2d 487, 499 (3d Cir . 1979) ( en banc) (affirming denial of suppress ion m oti on on different gro und).
We find that the e ntryinto t he resi dence did not vi olate Agne w’s F ourth Amendment rights because the officers were arme d w ith a w arrant f or his a rrest. Payton v. New York , 445 U. S. 573 (19 80), establ ishes that police ma y enter a suspect’s resi dence to ma ke an arrest arm ed o nly with an arrest warr ant if they have probable c ause to bel ieve that the su spectis in th e ho me . Id . at 602-0 3; se e also Uni te d St

at es v. Cl ayt on , 210 F.3d 841, 843 (8th C ir. 2000) ( ho lding th at a valid misdemeanor arrest warrant “c arri es with it the authority t o enter t

he resi dence of the pers o n nam ed in th e w arrant in orderto exe cute the warrant so long as t

he policehave a reas onable b elie f that t he suspect resi des at t

he place to be ent er ed and that he is curre ntly presen t i n the dwe lling”). The D istrict Court found that th e o fficer s entered the re sidence f or the purpose of executi ng an a rres t warrant , and this finding ha s not been cha llenge d. Indeed, Duncan t esti fied that he was assigne d t o the Fugitive Task Force charged wit h s erving ar rest warrants , and Agnew testifie d that hewas awar e tha t there was “a warrant out for [his ] arr est” at the time of the arrest

. Moreover, the policehad probable cause to be lievethat Agnew was in th e ho me because they s aw him thro ugh the w ind ow . We note that Payton only addresse s entry by off

ice rs into the res idence of t he subject of the war ran t, 445 U.S. at 603, and that there was n o testimony at the suppress ion hearing ab out wh ether 27 404

Lud wig St reet was Agnew’s res idence. How ever, whe ther the hom e was A gnew ’s resi de nce is ulti mately i rrelevant because under an y of t

he possibl e alt ernati ves the entry pursuant

to the arrest

warrant di d not violate Ag new ’s Fo urth A mendment rights.
I f A gnew reside d at 27 40 L udw ig Street, his ar

rest was lawful under Payton because the poli ce acted pur suant t o an arrestwa rran t. Se e id . at 602-03. If Agnew did n ot resid e at 27 40 L udw ig Street, he may hav e lacked a privacy interest in the residence and would have no standi ng to cha llenge the po li ce officers’ en try. Minnesota v. Olson , 49 5 U. S. 91, 95 -97 (1990) (ho lding that only a pers o n with a reasonabl e expectat ion of privac y in a resi dence—like a n ov ernigh t gue st —ma y com plain tha t an entry into t he resi dence was unl aw ful) . In a ny ev ent, e ven if Agn ew, althoug h n ot a res ident at 2740 Lud wig Street, did have aprivac y interest, the entry did not vi olatehis pri vacy rights. The Suprem e Cou rt held in United Stat es v. Steag ald , 451 U .S. 204, 211 -14 (198 1), that the Fourt

h Amendment does not perm it poli c e to enter a third pe rson’s home to se r ve an arre st warrant on a susp ect. Bu t Steag ald protected the interests of the third

- partyowner of the resi dence, not the suspe ct himsel f. See id

. at 212 (stating the is sue to be “whether an arrestwarrant—as opposed to a sea rch wa rrant— is adeq uate to protec t the Fo urth Amendment interest s of perso n s not na med in the wa rrant, when their h ome s are search ed w ithout th eir con sent an d in the absence of exi gent circum stances”). As the Ninth Circuit obs erved:
A p erson has no greater right of privac y in another’s home than in h is ow n. If an arrest w arrant a nd re ason to belie ve the person nam ed in the warrant i s present a re suffici ent to protec t that pers o n’s fourth amendment privacy ri ght s i n hi s o wn h ome, they nec essaril y suffice to protect

his pri vacy rights in the home of another.
The right of a th ird pa rty not named in the arrest

wa rrant to th e priv acy

of h is home may not beinvaded without a search wa rrant. B ut th i s right is per sonal to th e ho me o wner a nd ca nno t b e asserted vicari ouslyby the person named i n the arrest wa rrant.
United Sta tes v . U nder wood , 717 F.2d 482, 484 (9th Cir . 1983) ( en banc) (cit ations omitted); see als o United States v. Kaylor , 877 F.2d 658, 663 n.5 (8th C ir. 1989) (“ Steagald addresse d only the ri ght of a th ird pa rty n ot na med in the arrest warrant to the privacy

of his or her home. This right

is per sonal t o the ho m eowner and cannot be as sert ed vicariousl y bythe person named in the ar rest war r ant.”). Thus, ev en if Agnew was a non-resi dent with a pri vacy inte rest, the F ourth Amendm ent would not protect hi m from5

arrest by p olice armed with an arrest wa rrant.
Because the officers e nt ered the resi dence ar m ed with a warrant for Agn ew’s arrest, and h ad pr obab le caus e to belie ve that he wa s inside , th e D ist rict Cou rt pr ope rl y den ie d the mo ti on to suppress. II. Agnew next cont ends that the dist rict court erred i n preventi ng him from cr oss-exami ning Daw so n usin g th e witness’s sixt een-y ear-ol d forger y conviction. He arg ues that w e sho uld review t he dist

rict court’ s decis ion de novo, and th at th e e vidence shoul d have been admitt ed because i t w ould have helped re sol ve a d is pute b et wee n t wo witnesse s—D awson and Agnew— about who owne d the gun found in Agn ew’s ro om. A. Agnew concedes t hat we usua lly revi ew decisi ons to excl ude evidence for abuse of discret ion

. See United St ates v. Saada , 212 F.3d 210, 220 (3d Cir. 200 0). He contends t

hat we s houl d employ plenary review here, however, becaus e the record does not ref lect that t he di stri ct court ac tuall y exercised i ts di scretion.
In United

Statesv. Himelwright , 42 F.3d 777 (3d Cir. 1994), we st ated that “[w]h ere . . . the dis tri ct court fails to expla in its grounds fordenyi ng a [F edera l] Ru le [ of E viden ce] 40 3 ob jection and its re asons for doing s o are not ot her wis e apparent from the re cord, t

here is no way to review its disc retio n. In su ch ca se s, we need not defer

to the reasoning of t he dist rict court. ” Id . at

781 (cit ation om it ted). Agnew asks us to exte nd t hi s princip le to deci sions under Rule 609. The Distri ct Court st at ed, “I have re ad the [government’s] mo tion and your b rief . I am go i ng t o s us t ai n the ob j ec t i on . ” We belie ve that this sta teme nt ade quate ly revea ls the Court’ s reas ons for sust aining the objection: it agree d w ith the a rgum ents contai ned in the gove rnment’s brief. 2 In any case, we find that the Court ’s deci sion shou ld be affirmed even under a plenary stan dar d of rev iew

. B.
Federal Rule o f Evidence 609(a) perm its parti es to useevi dence of a past conviction to impeach witnesses “i f i t involveddish one sty or f alse state me nt.” Fo rg er y, o f

cour se, invo lves d ishon esty and f a lse st atem ent. Wagner v. Fire stone Tire & Rubber Co. , 890 F.2 d 65 2, 65 5 n.3 (3d Cir. 1989). But Rul e 609(b) st ates that
Evidence of a con vi ction under this rule i s not

2 T he go vernment’s argument was that Agnew had numerous other avenues for cross- examinati on, incl uding a more re ce n t co nvicti on for passi ng a bad check, and that the pr o bative value o f the forge ry conv iction w as sm all.6

ad m issible if a period of more than te n year s has elapsedsince th e date of the conviction

. . . unless t he co u rt determi nes, i n the interests of ju stice , th at the probat ive value of th e conviction sup p orted by spec ific fact s a n d circumst ances subs tantially outweighs its prejudi cial effe ct. Here, Dawson’s conviction was more than ten ye ars o ld.
We find that the probati ve value of the evidence of Dawson ’s forge r y conviction wa s suff iciently sm all th at the “i nteres ts of justice” di d not warrant it s admissi on, and th at any erro r in refusi ng to adm it the evidence was harmless

. Se e United States v . Colle tti , 984 F.2d 1339, 1343 (3d Cir. 1992) (employing harmlesserror analysis in the Rule 60 9(b) contex t). Two witnesse s other

than Dawson t est ifie d that Ag new sold crack num erous times, and Agnew admitted as much shortly after the crim e. Th e polic e fou nd co caine in Agn ew’s shoes. Likewise, Agnew admitt ed tha t he knew that the gun had “co me from” two indi viduals named “Nature” and “Light, ” and a policeofficer testifie d that

drug dealer s commonly kee p guns at the ir di sposal. Indeed, t he jury had alrea d y le arned that Dawson used crack cocaine. It would n ot have re s olved the questi on of ownership of t he g un and drugs in favor of Agn ew simply because it also learne d that D aw son h ad an old forgeryconviction.

CONCLU SI ON
For the rea s ons s tated, w e w ill AFFI RM the convi ction.