NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

________________ No. 15

- 3243

________________
UNITED STATES OF AMERICA

v. KENYATTA ROBINSON ,

Appellant

________________ Appeal from the United Sta tes District Court for the Wes tern District of Pennsylvania (D.C. Criminal Action No. 2

- 14

- cr - 00 0 6 4

- 00 1 ) District Judge: Honorable Terrence F. McVerry

________________ Submitted Under Third Circuit LAR 34.1(a)

September 2 7 , 2016 Bef ore: AMBRO, SMITH , and FISHER , Circuit Judges (Opinion filed : September 28, 2016 )

________________ OPINION *

________________ AMBRO, Circuit Judge

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent.2

Kenyatta Robinson appeals his conviction of two counts of drug possession with i ntent to distribute. F or the reasons that follow, we affirm the judgment of the District Court. I. In August 2011, Robinson was paroled to a halfway house while serving an eight

year sentence for cocaine and heroin distribution. Robinson absconded fro m the halfway house in December 2011 , and a warrant was issued for his arrest. In November 2013, the Pittsburgh Police Department received a tip that Robinson was staying at his mother’s house. Pittsburg h Police Detective and FBI Task Force Officer Se a n Rattigan

— who was familiar with Robinson based on a previous arrest

— set up surveillance and observed Robinson getting into a Chevrolet Tahoe , driving to another location , and returning to his mother’s house after fifteen or twenty minutes. When Robinson got out of the Tahoe, Rattigan saw Robinson reach into a shopping bag and remove what appeared to be a small, white bag and place it in his right front pants pocket. Rattigan believed the bag contained cocaine. Shortly thereafter, members of the U.S. M arshals Service Task Force arrested Robinson on the porch of his mother’s house. Robinson dropped the keys to the Tahoe before being arrested and during a pat

- down search officers found a bag containing white residue in his pocket . A field test of the re sidue w as positive for cocaine. O fficers also called for a K

- 9 unit and the dog alerted to the presence of drugs on the driver’ s side of the vehicle . At that point, Rattigan decided to seek a search warrant for the Tahoe and
tow it to Police h eadquarters . As he awaited the tow truck, Rattigan entered the unlocked3

Tahoe, put the key in the ignition, rolled up the windows, locked the doors from the inside, and shut the door. After it was towed, a Judge of the Allegheny County Court of Common Pleas issued a search warrant for its contents

. Officers searched the vehicle at Police h eadquarters and found United States currency, a digital scale, crack cocaine, powder cocaine, heroin, and marijuana. Officers also found Robinson’s wallet with his identification on the center console and documents showing that the Tahoe was registered to Robinson’s mother. Robinson was arrested and charged with one count of possession with intent to distribute 280 grams or more of crack cocaine and one count of possession with intent to distribute l ess than 500 grams of cocaine. 21 U.S.C. § 841(a)(1). He moved to suppress the evidence seized from the Tahoe , arguing the search warrant application contained false statements and the police had twice searched the vehicle without probable cause

—
once in a “sneak peek” search before the warrant was issued and once more at Police h eadquarters

. The District Court held a suppression hearing and denied Robinson’s motion. It assumed Robinson had standing to challenge th e sea rch and held that it was lawful under the automobile excepti on notwithstanding any alleged false statements in the warrant application

. The Court also rejected Robinson’s claim of a sneak peek search and found the officers did not search the Tahoe before towing it to Police h eadquarters. Robinson p roceeded to a bench trial. The Court convicted him o f all counts and , after post

- trial motions , sentenced him to 360 months’ imprisonment. This appeal followed , in which Robinson argues that the District Court should ha ve suppressed4

evidence seized from the Tahoe and that the admission of hearsay testimony at the suppression hearing violated his rights under the Confrontation Clause. II. The District Court had jurisdiction under 18 U.S.C. § 3231 and we have appellate jurisdiction per 28 U.S.C. § 1291. “ We review factual determinations made on a motion to suppress for clear error and legal determinations de novo .” United States v. Harrison , 689 F.3d 301, 306 (3d Cir. 2012)

. Because Robinson did not raise his Confront ation Clause argument below, we review it for plain error. United States v. Moreno , 809 F.3d 766, 773 n.3 (3d Cir. 2016)

. Under this standard, Robinson must show (1) an error, (2) that is plain, and (3) that affects substantial rights. United States v. Mussare , 405 F.3d 161, 168 (3d Cir. 2005) . If he makes this showing, we will review a forfeited error if (4) it seriously affects the fairness, integrity, or public repu tation of judicial proceedings. Id. III. We begin with the motion to suppress . I n sum, we agree with the District Court that the search of the Tahoe f ell within the automobile exception to the warrant requirement. 1 This “ permits vehicle searches without a wa rrant if there is probable cause to believe that the vehicle contains evidenc e of a crime.” United States v. Donahue , 764 F.3d 293, 299

– 300 (3d Cir. 2014) (internal quotation omitted). Before police searched the Tahoe, Rattigan observed Robinson reach into a shopping bag inside the vehicle and

1 We assume for purposes of this appeal that Robinson

— a convicted felon who had absconded from a halfway house and was not the own er of the Tahoe

—had standing to challenge the search. We note, however, that a fugitive may not possess a legitimate expectation of privacy when he is hiding from law enforcement. See United States v. Donahue , 764 F.3d 293, 299 (3d Cir. 2014 ).5

remov e a small white bag , the conten ts of which tested positive for cocaine

. These facts alone provided probable cause for a search of the Tahoe because there was a “fair probability that contraband or evidence of a crime” would be found. I d. at 301 ( quoting Illinois v. Gates , 462 U.S. 213 , 238 (1983)). Robinson ’s arguments on appeal boil down to claiming that the officers who testified at the suppression hearing lied about what they

saw . But the District Court found the officers’ testimony coherent, plausible, and, most critical for our purposes, credible . A pplying clear error review, we se e no reason to disturb these findings. Accordingly , Robinson has not shown that the Court erred in denying his motion to suppress. We next address Robinson’s Confrontation Clause argument. At the suppression hearing, Rattigan testified that another officer told him that the K

- 9 unit had alerted to the presence of drugs in the Tahoe. Robinson argues that the admission of this testimony violated his Sixth Amendment right to confront witnesses

. The Supreme Court has n ever suggested , however, that the Confrontation Clause applies during a pre - trial suppression hearing. See Crawford v. Washington , 541 U.S. 36, 53

- 54 (2004) (noting that Confrontation Clause bars admission of testimonial statements of “ a witness who did not appear at trial unless he was unavailable to testify ”) (emphasis added); United States v. Raddatz, 447 U.S. 667, 679 (1980) (“ T his Court on other occasions has noted that the interests at stake in a suppression hearing are of a lesser magnitude than those in the criminal trial itself. At a suppression hearing, the court may rely on hearsay and other evidence, even though that evidence wo uld not be admissible at trial .”) ; Barber v. Page, 390 U.S. 719, 725 (1968) (“T he right to confront ati on is basically a trial right.”)

. Indeed,6

at least one court has explicitly rejected the notion of confrontation rights at a suppression hearing. Ebert v. Gaetz , 610 F.3d 404, 414 (7th Cir. 2010)

. Accordingly , even if we accept Robinson’s argument th at he was entitled to confront the source of Rattigan’s testimony, it was not plain error for the District Court to permit Rattigan to testify about what another officer told him.

* * * * * For these reasons, we affirm the judgment of the District Court

.