*1 836, 350, Bаss, 404 U.S. v. States United See (1971) 515, 524, 30 L.Ed.2d 92 S.Ct. urged by the Gov-
(“[T]he construction broad criminal traditionally local renders
ernment enforcement a matter for federal
conduct extension a substantial involve also proof of Absent police resources.
federal in each nexus commerce interstate
some upon dramatically intrudes ease, statute] [the (cita- jurisdiction.” criminal
traditional state omitted)). this fact that does the Nor
tions vitriolic labor during a
tragedy occurred for federal a basis provide somehow
strike has Supreme Court
jurisdiction. The against this:
cautioned language statutory require
[I]t would us that before explicit than more
much that Con- the conclusion to lead to
here Govern- put the Federal
gress intended to policing the order- in the business
ment lan- Neither the strikes.
ly conduct of legislative nor its statute]
guage [the Con-
history justify the conclusion can such an extraordi- to work
gress intended such an labor law or
nary change in federal criminal into the incursion
unprecedented
jurisdiction of the States. Enmons, 410 U.S. United (1973). 35 L.Ed.2d reasons, respectfully I of these
For all
dissent. America, STATES
UNITED
Plaintiff-Appellee, HYPPOLITE, Defendant-
Terveus
Appellant.
No. 94-5587. Appeals, States Court
Fourth Circuit. 2,May
Argued 1995. Sept.
Decided
H53 *3 Kohlman, Kohl- Gary Warren ARGUED: DC, Roberts, Washington, man, & Rochon Benjamin Clarke Captain appellant. for Attor- Hall, States Special Assistant United NC, appellee. ON Lejeune, ney, Camp Cole, McKenzie BRIEF: Janice Attorney, Lejeune, NC, Camp ap- for the picked estimate he had up Rodney in pellee. front of a townhouse at Countrywood Boulevard and had returned him to that loca- RUSSELL, WIDENER, Before tion. HALL, Judges. Circuit performed officers then a “knock and by published Affirmed opinion. Judge talk” canvassing of the block around 1910 majority opinion, RUSSELL wrote the Countrywood Boulevard in an effort to find which Judge Judge WIDENER concurred. Rodney’s drug-trafficking associates. Officer dissenting opinion. HALL wrote Timothy Malfitano of the JPD Hyp- noticed polite yard in the front Countrywood
OPINION Boulevard. He also noticed a blue car with Michigan plates in front of the house. Hyp- RUSSELL, Judge: DONALD Circuit polite told the officer that he visiting was and Defendant Hyppolite appeals Terveus the owners of the residence were not denial suppress of his motion to evidence home. When the officer knocked on the during apartment obtained a search of his He door, Deborah Cedeno answered and claimed appeals also aspects various of his sentencing that she too visiting. was drug for firearm and offenses. We affirm.
Hyppolite freely gave his name when I. by Malfitano, asked Officer but go refused to inside and talk. Commander Toth arrived investigation, After mоnths of officers from with other officers and informed Hyppolite (“JPD”) the Jacksonville Police Department that he had target become a investiga- of the Carolina, in North working conjunction in tion because of his Rodney. association with federal, state, with county and law enforce- Hyppolite explained that had he allowed departments, suspected ment Steven Rodney Rodney to borrow his pick-up truck. Com- of supplying military personnel cocaine to at mander Toth then asked Hyppolite where he Camp Lejeune, Carolina, North and to civil- worked. Hyppolite responded that he in- 1, 1993, ians. On June the officers executed vested money in stocks with his friends in C, search Apartment warrant at 132 Old Upon Miami. questioning, further he re- Maplehurst (“Apartment 132-C”), Road fused to disclose his sources of income and Jacksonville, Rodney’s only known residence. very became nervous. When Commander The Rodney officers arrested and seized Toth asked him there were controlled sub- drugs, gun, drug paraphernalia and during residence, stances at asserted the search. The officers pick- also noticed a that he say would not anything to incriminate up truck plates with Florida license in a himself. He also declared that he did not рarking adjacent lot apartment to the build- want speak to further lawyer, without a and ing. They learned that the truck regis- was he refused to consent to a search of 1914 Hyppolite Miami, tered to Terveus Flori- Countrywood Boulevard, which he now ad- da. Selogy Detective Steven of the JPD mitted was his residence. When recognized Hyppolite’s name from the inves- became loud aggressive, and began tigation shooting December 1992 at a away walk premises, from the Commander registered Rodney. mobile home Hyppol- Toth “freezed” by the scene arresting Hyp- ite’s driver’s license had been found in the polite for the misdеmeanor resisting, ob- mobile home. structing, delaying police officer. Af- The officers found a local security being ter placed arrest, Hyppolite under system Apartment installer inside 132-C dur- yelled to Cedeno and advised say her not to ing the search. The installer told Command- anything to incriminate herself. er Robert Toth the JPD that he given had Rodney an system estimate for an alarm Meanwhile, recognized Detective Selogy be apartment installed in an Country- at 1954 the blue car and advised Commander Toth wood Boulevard. The explained installer that he had it in Apartment seen front of that when he had inspected apartmеnt May 27, 1993, 132-C and that he had 2, 1994, denied the district court August occu- The through Jacksonville. it followed presentence re- objections to the Hyppolite’s pager dealers went car pants impris- him Detec- to life court sentenced drug port. dealer. convicted of a house term, forty-year Cedeno Hyppolite and and a concurrent onment Selogy identified tive Rodney.1 for the fire- five-year with term riding in the car couple followed as also fined charge. The court arm Selogy Detective Toth and Commander $300,000. while warrant a search procure left then yard. in the About detained Hyppolite was Magistrаte later, County Onslow hours two II. a search warrant issued Padgett James challenge to Hyppolite’s address We first on Com- based Countrywood Boulevard of his motion denial district court’s ensuing During the affidavit. Toth’s mander matter, we find preliminary As a suppress. the officers apartment, Hyppolite’s search of court’s the district necessary to set out of co- kilograms 2.4 approximately recovered found that before ruling.2 The court precise base, of cocaine grams powder, caine proba- no Hyppolite, encountered the officers guns. and two drug paraphernalia, be- warrant for a seаrch existed ble cause jury grand August On facts, best, merely a supported cause the *5 returned of North Carolina District Eastern Rodney’s involved in he was “hunch” that and Hyppolite against indictment a ten-count drugs be operation and that drug charged Hyppolite indictment Rodney. The The court Hyppolite’s apartment. found at possess to with conspiracy of one count with magistrate also consid- the determined in violation base cocaine distribute intent to Hyppolite’s refusal such as ered factors 841(a)(1) 846; one count §§ and of 21 U.S.C. to consent his refusal questions and answer cocaine to distribute intent possession of with search, of his as the manner as the well of 21 U.S.C. in violation cocaine base and that, al- then noted The court refusals. using a firearm 841(a)(1); count one of § and of constitutional though assertion the in violation trafficking drug offense during a proba- finding support usually not should 924(e). § 18 U.S.C. ques- cause, open left the had this Court ble 1998, 10, States United December On suspect the which whether tion of form conduct- Dixon Judge Wallace W. Magistrate considered properly can be asserts sup- motion to Hyppolite’s hearing on aed States United a seizure. See the context the search obtained from press evidence Cir.1991). (4th 116, 126 953 F.2d v. 24,1994, Mag- the March apartment. On court, however, from refrained The district Hyppol- denying Judge recommended istrate prop- magistrate could deciding whether the because, warrant the even motion ite’s Hyppolite in which the erly form consider evidence should the lacked Therefore, rights. his constitutional asserted exception good faith the admitted under be and belief court, contrary Hyppolite’s the exclusionary district court rule. The to the concession, never apparent government’s the Judge’s recommen- Magistrate adopted the affi- Toth’s Commander whether determined sup- motion Hyppolite’s dеnied dation and the probable cause established trial, davit on and proceeded to press. Instead, conclud- the court warrant. search 1994, him on all 12, jury the convicted April pursuant seized that the evidence hearing only ed sentencing During the three counts. ruling the appealed the court's polite has not hearing, suppression Cedeno testi- During the 1. alleged was with violation. Franks other than fied that someone government conceded that in the car. her car because in the not have been could Judge the Magistrate Although submitted the court The district found Miami. had been in he adopted by district order reсommended had what he Selogy had believed Detective district court, to the order as will refer objective therefore that facts and seen the federal between avoid confusion court’s to the kind was tainted search warrant suppression hear- magistrate who conducted necessary or recklessness deliberate falsehood issued county who ing Delaware, 438 U.S. of Franks for a violation warrant. search (1978). Hyp- 2674, 154, 667 L.Ed.2d 57 98 1156 unreasonable; should be admitted under the its entirely warrant existence exception exclusionary
good to the rule. faith The court reasoned that: (4)the facially deficient, warrant was so by failing particularize place Hyppol- improper it was consider
While
seized,
be
things
searched
to be
possibly
rights,
ite’s assertion
executing
that the
cannot
officers
rea-
assertions,
made
which he
these
manner
sonably presume it to be valid.
as to whether
such factors
decision
essentially
legal
was
could be considered
923,
3421;
at
Id.
104 S.Ct. at
see United
situation,
sought
In this
the officers
one.
Clutchette,
(4th
States
24 F.3d
581
magistrate.
from a neutral
The Cir.1994).
warrant
magistrate may
improp-
fact that the
Leon,
proper
Under
test of an
erly
which factors he could
determined
good
officer’s
faith is
a reasonably
“whether
determining probable
rely
[cause]
well trained officer would have known that
not matter that can be laid at the offi-
illegal
the search
despite
magis
was
they
charged
cers’ feet. Nor should
Leon,
trate’s authorization.”
that was so in proba- indicia of mander Toth’s lacking affidavit was so ble cause as probable to render official belief indicia cause that no officer could magistrate’s objectively hold that an reasonably We reason relied have have applied able officer would the same search warrant.3 Because issuance suspi to the principle pertaining facts reasonable found that the assert- the district court requirement merely a hunch cion for seizures enunciated supported ed in the affidavit Rodney’s drug opera- Bostick and Wilson to determination of that contraband As Hyppolite’s apart- probable cause for searches. the Elev found tion would be observed, “a ment, argues that enth Circuit defendant’s refusal no reasonable prob to consent to search cannot establish on the warrant. officer could relied contrary A ruling. able cause to search. rule would argument the court’s This misreads above, protections of that the vitiate the the Fourth Amend As the court found discussed Alexander, ment.” United States 835 F.2d “background” facts in the affidavit—facts (11th Cir.1988); n. 3 see before the officers encountered that occurred Prescott, probable cause. 581 F.2d Hyppolite—did not establish (9th Cir.1978) However, noted, (stating “passive making a 1351 the court without determination, to a mag- refusal to consent warrantless search probable cause Hyp- privileged as conduct which cannot be cоnsid considered other factors such istrate as questions wrongdoing”). to ered evidence of criminal polite’s refusal to answer or Indeed, search, request an the Fourth Amendment would mean to a attor- consent ney, aggressive probable little officers could manufacture his nervousness and be- by asking rights. questions suspect cause until a he asserted his havior while constitutional noted that the law was either consents exercises court further rights. magistrate could consider clear whether making probable cause factors when
these
Although
objectively
we hold that an
Therefore,
ques-
narrow
determination.
officer should have known that
reasonable
tion
this Court is whether
reason-
before
of constitutional
the mere assertion
officer would have believed
ably well trained
question
cannot establish
such factors.
that a
could consider
of the assertion of those
of whether
form
be considered as a factor is
could
less
agree with the district court that
We
con
expressed
In
our
settled.
suspect’s
mere assertion of constitutional
if an
cern that
officer could consider the
*7
rights
the
for
cannot constitute
sole basis
suspect
maimer
in which a
asserted his
establishing probable
for a search war
cаuse
suspect
deny
to
rights, a
could never
consent
Bostick,
429,
In
501
rant.
Florida
creating
suspi
a search without
reasonable
437, 111
trate when the officers the warrant to an stop). The Fourth Hyppolite’s apartment. search Because the generally Amendment requires than more an unclear, objec an law was conclude that interpretation officer’s of the reactions of an tively reasonable officer could relied on uncooperative suspect to probable establish magistrate’s probable determination of cause. Commander Toth’s cause this case. affi relationship davit had established a between III. Rodney. Hyppolite Although evidence challenges several relationship sup of was this insufficient aspects of sentencing. Hyppolite his first port drugs reasonable inference contends that the court district lacked suffi Rodney’s operation be Hyp- found at cient all evidence to convert of the cocaine polite’s apartment,4 see United States v. La powder apartment found into cocaine (4th Cir.) lor, 1578, 1582 (“In F.2d 996 deter purpose base calculating his sen mining sup whether search warrant is tence. When drugs the amount of attributed cause, ported by probable the crucial element in dispute, a defendant is the district court target
is
whether the
the search is
must
drugs
determine
amount of
based
crime,
suspected of a
but
whether
is rea
upon
preponderance
the evidence.
that the items
be
sonable
believe
seized
Ricco,
(4th
United States v.
52 F.3d
62
place
searched.”),
will
found in the
be
Cir.1995).
—
denied,
U.S. -,
We review the district
485, 126
court’s de
cert.
drug
termination
(1993),
amounts for clear error.
L.Ed.2d 436
the affidavit also detailed
Id. When a defendant is convicted of a con
Hyppolite.
the officers’ encounter with
Be
spiracy involving the
reasonably
manufacture of
cause the officers
cocaine
could have re
base, the
magistrate’s
district court must
lied
estimate
determination that
quantity
total
the manner in which
cocaine base that
asserted his
could be
support
any
powder
made from
finding
probable
could
cocaine
seizеd. Id. at
Paz,
(citing
we affirm the
n. 5
district
denial
United States v.
court’s
927 F.2d
(4th
suppress.
Cir.1991));
Hyppolite’s motion to
see also U.S.S.G.
comment,
2D1.1,
(n.12) (“Where
§
there is no
finding
In addition to our
of good
drug seizure or the amount seized does not
faith, we address the issue of whether the
offense,
reflect the scale
the court shall
suspect
form which a
asserts constitutional
approximate
quantity of
the controlled
can establish
cause because
substance.”).
particular
“the resolution of [this]
Fourth
question
necessary
Amendment
guide
participating
was convicted for
future action
law enforcement
conspiracy
officers and
pоssess
and distribute
Leon,
magistrates.”
468 U.S. at
quantities
base.
cocaine
Police found
of co-
*8
although
S.Ct. at 3421. We
that
hold
powder
there
caine
and cocaine
in Hyppolite’s
base
may be some cases where
apartment. Rodney Arnold,
the form of a
government
a
suspect’s
rights may support
witness,
assertion
a
testified at
Hyppolite
trial that
and
finding
probable cause,
magis
Stephen
officers and
Rodney
pow-
would cook the cocaine
rely solely
trates cannot
on the form in
they
which der that
received from Haiti in order to
a suspect
constitutional rights
asserts
to
base,
es manufacturе cocaine
which was in much
tablish
cause for a
greater
search warrant.
demand.
the
Because
district court
Nor
'prominent
should such factors be the
testimony credible,
could find Arnold’s
we
supporting
factors
a warrant. See
conclude that the court
not
did
commit clear
(reversing
H59 offense, scope of the nature and the Hyppolite next contends $300,000 degree erroneously illegal activity, of control imposed and district court findings specific making factual over others. fine without exercised listed in 18 factors regarding relevant comment, 3B1.1, (n.4); § see United U.S.S.G. 3572(a). require factual § We U.S.C. Chambers, (4th 1263, v. F.2d 1268 985 reviewing findings provide a basis for — denied, Cir.), -, 114 cert. U.S. its court abused discretion whether a district (1993). 107, 73 126 L.Ed.2d We review the Walker, assessing a fine. United States court’s factual determination a de district (4th Cir.1994). 489, Hyppolite 492 39 F.3d clearly in an fendant’s role offense under the argues failed demon evidence United States v. erroneous standard. See large ability fine.5 pay such a his strate (4th Cir.1992). Melton, 1328, F.2d 1334 970 however, guidelines, “The court Under Hyppolite government’s contends that the eases, except in all where impose a fine shall bought only that and evidence established he that he is unable the defendant establishes drugs participants, other not sold pay likely to become able to pay and is not partici- he control over those exercised 5E1.2(a). Therefore, § any fine.” U.S.S.G. Arnold, however, testified that Rod- pants. bears the burden demon the defendant partners drug in the ney and were inability to strating present his and future years two that Arnold trade about Hairston, F.3d pay. United States persons drugs and at least seven other sold — (4th denied, -, Cir.), cert. U.S. earlier, also them. As noted Arnold testi- - — (1995). L.Ed.2d 116 S.Ct. Rodney fied that manufac- personal complete declined to the cocaine base for distribution. Be- tured re presentence for the financial statement cause the district court could find Arnold’s provide any not evidence at port and did credible, testimony find that the court did inability to sentencing hearing to his show enhancing Hyppol- error in not commit clear (hold at 377 pay a financial sanction. See id. aggravating based on his role ite’s sentence cannot his ing that a “defendant meet burden organizer or leader. as an proof by simply frustrating the court’s condition”). ability to assess his financial Finally, Hyppolite contends that necessary the court considered Because departed the distriсt court should down 3572(a), § be under 18 factors U.S.C. guidelines from the based on status ward ina Hyppolite did not demonstrate his cause Court, however, deportable alien. This as a bility pay, we find that court did jurisdiction to refusal review court’s lacks $300,000 imposing abuse its discretion correctly depart an calcu from otherwise fine. guideline range the record re lated unless challenges Hyppolite incorrectly concluded the court veals that orga finding that he was an ability depart court’s factual downward. lacked activity or a criminal Bayerle, nizer leader of 898 F.2d 30-31 States v. finding (4th Cir.), denied, participants, involved five more cert. (1990). case, four 65, 112 his base level
which increased offense In this L.Ed.2d 39 3Bl.l(a). § departing pursuant levels U.S.S.G. court considered merits distinguishing the roles range. When between The court com guideline from the activity, in a a court participants country’s taxpayers criminal to this pared cost *9 following factors: should consider the life the cost of imprisoning and had ille making authority, deporting him. Because of decision the exercise country past, in the this will participation gally of in the entered the nature commis- compelled offense, it was ac- the court concluded that sion the the of of recruitment departing largеr impose a life sentence instead complices, right the claimed crime, the district court clear degree the downward. Because the fruits of the share of downward, ability depart organizing recognized its planning ly participation (the range) guidelines he report prison end presentence deter- low We that 5. note $19,600 ability pay fine. 360 months have mined that if served 1160 jurisdiction
we lack to review the court’s dicial officers should be reluctant to sanc- to depart refusal downward.6 any tion conduct that premise rests only
that
guilty
protect
wish to
their
homes
police
searches.
IV.
Notwithstanding these
foregoing reasons,
findings
For the
holdings,
we affirm the
the district court held
district
court’s
Toth and
Hyppolite’s
denial
motion
other officers
duty
had no
suppress
“second-guess”
and we affirm his sentence.
magistrate’s
probable cause determina-
AFFIRMED.
tion. But
do;
of course they
otherwise, Leon
would not have any exceptions at all.
HALL,
K.K.
Judge,
Circuit
dissenting:
It bears reiterating that the district court
I believe that the warrant lacked sufficient
found —and
government
does not dis-
probable
indicia of
cause to make reliance on
pute
Toth’s belief that drugs were in
—that
it objectively reasonable. Consequently, I
”
the house “was
entirely
based
on the asser-
would vacate the conviction.1
tion of Hyppolite’s constitutional rights. A
Hyppolite relies primarily on the third
reasonable officer should know
per-
that a
exception
Leon2
warrant affidavit is so
—the
son’s refusal to surrender
his
is not
lacking
indicia of
cause as to
evidence of wrongdoing.
Bostick,
Florida v.
render reliance on
objectively
unreason
501
111
2382, 2387-88,
able. He cites the district court’s3 findings
(1991)
L.Ed.2d 389
(reviewing the
after
hearing
on the motion to suppress Court’s “consistent”
effect).
holdings to that
that the affidavit
only “specula
established
Toth wrote the affidavit and led the team
tion” or a “hunch” that evidence would be
that executed the warrant. He has the rank
found at
Countrywood
and that
Commander
the Jacksonville Police De-
primary
partment
[t]he
difficulty with
this
heads two
warrant
divisions of that
is
department.
then
the undeniable fact
This case is hardly
para-
Toth’s
digm
premises
belief
that prompted
contained contra-
Leon —officers of low or
band, was
rank,
entirely
middling
based
on Hyppolite’s
some,
with
though insuffi-
cient,
refusal
questions
answer
cause to
concerning
believe
his
contraband will be
income,
sources of
discovered,
his
relying
statement
judgment
he
wise
would not
magistrate.
himself,”
“incriminate
Instead,
his re-
this case is the
quest
lawyer,
pаradigm
his
and his
of the third
refusal
exception
Leon
—a
search,
consent to
(emphasis added)
officer,
high-ranking
with a hunch but no
valid
seeking to exploit the remark-
The district court then held that consider-
ably inept judgment of
magistrate.
ation of such factors
is
impermissi-
course
ble, discussing, among others, our opinion in
The majority pins its
premise
decision on a
Wilson,
United States v.
(4th
H61 with and remand the conviction vacate case would decide a was in Wilson we did All that suppress the evidence. do, and instructions ever all we controversy, which held neither today. Wilson doing are all we dissent. respectfully I his asserting of manner suspect’s that probable cause provided case rights scenario hypothetical suggested nor majority con- Similarly, the it would. which Hyp- which the manner here cludes establish did asserted polite may be some there but that probable play might in which case somewhere role.
proper America, STATES UNITED the existence out to rule reluctance Plaintiff-Appellee, Our ground awfully thin is an ease an oddball v. reason- conduct these officers’ label which little MURRAY, the existence rule out Defendant- I cannot able. Wise William plan- distant watching from a Appellant. me men green did, they my affairs as arranged et; Iif America, reasonably? UNITED STATES acting I be Plaintiff-Appellee, our ever find we will skeptical I am cre- is the v. government case. oddball retained people, of the ation JOHNSON, Misjaanda Diszelle vigorously, may exercised people by the Defendant-Appellant. are There contemptuously. distastefully, or 94-5500, 94-5627. Nos. See, e.g., Texas etiquette. no rules 2533, 105 Johnson, 109 S.Ct. U.S. Appeals, Court States United (1989). L.Ed.2d Circuit. Fourth hasHe Hyppolite. sympathy no I have 3,May 1995. Argued years illegally for country in this been or less more the law with in trouble has been Sept. Decided Fourth Amend- old tattered constantly. The is raised its beating shield when takes ment be breach- ought not But it a man.
ed. say history to summary of is a fair
It liberty often safeguards involving not in controversies forged been so, arewe while people. And very nice defrauder, shabby awith here concerned in the context case with his must deal themes of really great are
of what Amendment.
Fourth Rabinowitz, (Frank- (1950) L.Ed. 653
70 S.Ct.
furter, J., dissenting). objective- it was then, sum, I think In rely officers for the
ly unreasonable Country- for 1914 affidavit warrant search sufficient lacked
wood, the affidavit because I Accordingly, cause. indicia