Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-8-2005

USA v. Miller
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-3524




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                                                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                     No. 04-3524


                          UNITED STATES OF AMERICA

                                           v.

                            MICHAEL JEROME MILLER,

                                                      Appellant



                     Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                       (D.C. Criminal Action No. 03-cr-00187)
                    District Judge: Honorable William W. Caldwell


                      Submitted Under Third Circuit LAR 34.1(a)
                                    June 7, 2005


           Before: AMBRO, STAPLETON and ALARCÓN*, Circuit Judges


                              (Opinion filed June 8, 2005)


                                       OPINION




       * Honorable Arthur L. Alarcón, Senior United States Circuit Judge for the Ninth
Circuit Court of Appeals, sitting by designation.
AMBRO, Circuit Judge

       Michael Jerome Miller was indicted and he filed a motion to suppress physical

evidence and statements, which the District Court denied. Miller then entered a

conditional guilty plea to a superseding information charging him with possession of

crack cocaine with intent to distribute, 21 U.S.C. § 841(a)(1), and possession of a firearm

by a convicted felon, 18 U.S.C. § 922(g)(1). Miller reserved his right to appeal the

District Court’s denial of his suppression motion, and he now appeals that denial. He also

challenges his sentence. We affirm the denial of the suppression motion and remand as to

the sentencing issue.

       Because we write exclusively for the benefit of the parties who are well acquainted

with the facts and procedural posture of this case, we recount only those matters relevant

to the issue before us. On January 29, 2003, Detective James McBride, of the York,

Pennsylvania, Police Department, obtained a search warrant from a Pennsylvania district

justice. The warrant authorized search of the home located at 607 Dallas Street, York, as

well as Miller, believed to be the owner, occupant, or possessor of the home. Later that

day, McBride and other officers conducted the search of 607 Dallas Street.

       Miller entered the home while the search was in progress. McBride asked Miller if

he had any weapons and he responded that he had a gun in his waistband, which was then

seized. McBride also seized three grams of crack cocaine from Miller’s pocket. The

officers then arrested Miller and read him his rights. Miller said that he lived in the third



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floor front bedroom. The officers seized eight grams of marijuana from that bedroom and

forty-two grams of crack cocaine from elsewhere in the residence. Miller argues that the

evidence seized during the search should be suppressed because the warrant was not

supported by probable cause.

       A.     Suppression of Evidence

       The task of a magistrate reviewing an application for a warrant “‘is simply to make

a practical commonsense decision whether, given all the circumstances set forth in the

affidavit before him . . . [,] there is a fair probability that contraband or evidence of a

crime will be found in a particular place.’” United States v. Williams, 

, 72 (3d

Cir. 1993) (quoting Illinois v. Gates, 

, 238-39 (1983)). “‘[T]he duty of a

reviewing court is simply to ensure that the magistrate had a “substantial basis for . . .

concluding” that probable cause existed.’” 

determination of

probable cause should be paid great deference by reviewing courts.’” 

(quoting 

). We confine ourselves “to the facts that were before

the magistrate judge, i.e., the affidavit, and [do] not consider information from other

portions of the record.” United States v. Hodge, 

, 305 (3d Cir. 2001)

(internal quotation omitted).

       The first fact McBride’s affidavit states is that “neighbors called and complained

that they suspected that drugs were being sold from [607 Dallas Street] by several young

bl[ac]k males.” While such telephone complaints would certainly not be enough by



                                               3
themselves to establish probable cause, they are nevertheless some evidence that drugs

were being sold from 607 Dallas Street. While the affidavit does not give the names of

the callers or the factual basis for their concerns, there is no indication that the complaints

were anything other than calls from actual neighbors who were genuinely concerned

about drug dealing at 607 Dallas Street.

       The affidavit next states that on January 28, 2003, the day before the warrant

application and search, McBride “picked up the trash placed out in front of 607 Dallas St.

for . . . pick up” and recovered “mail addressed to 607 Dallas St.” Under the

commonsense approach of Williams and Gates, this statement suggests that the trash had

likely been placed outside recently by a resident of 607 Dallas Street.

        The affidavit further states that McBride recovered from the trash “over [two]

dozen sandwich baggies with the corners missing. Many of th[ese] baggies had white

residue on them.” It is common knowledge that some illegal drugs could leave a white

residue. Further, it is reasonable to infer that drug dealers might use corners of sandwich

bags to package their product. McBride’s statement that he recovered baggies with white

residue from trash in front of 607 Dallas Street is thus additional support for the probable

cause determination.

       The affidavit goes on to state that the sandwich baggies “were . . . field tested

positive for cocaine.” While this statement does not say who did which test in what way,

it is still some support for probable cause. The justice reviewing the affidavit could



                                               4
reasonably infer that McBride or another officer properly conducted a test that revealed

that there was a significant chance that the residue on the bags contained cocaine.

       McBride’s affidavit then connected Miller to 607 Dallas Street by stating that he

“checked out [the] police data system and learned that a Michael Jerome Miller was

living at [607 Dallas Street].” While the affidavit does not state how reliable the police

data system was, the commonsense inference is that likely it was reasonably accurate and

that Miller resided at 607 Dallas Street.

       Finally, the affidavit states that “Miller had been arrested for [a] drug violation in

1998.” It is reasonable to infer that someone who was arrested for involvement with

illegal drugs in the past is somewhat more likely to be currently involved with illegal

drugs than someone who was not arrested for involvement with illegal drugs in the past.

Thus, this statement provided a small amount of additional support for the theory that

Miller was dealing drugs at the time of the warrant application.

       In sum—recognizing that our review is deferential and using the common sense,

totality of the circumstances approach required by Williams and Gates—we conclude that

the affidavit provided the justice reviewing it with a substantial basis to conclude that

there was probable cause to support a search warrant.1 We thus affirm the District



       1
        Miller also argues that the good faith exception to the exclusionary rule does not
apply. The exclusionary rule permits admission of evidence that results from executing a
defective search warrant when the police acted in reasonable, good faith reliance on the
validity of the warrant. United States v. Leon, 

, 919-21 (1984). However,
the rule does not apply when the police rely on a warrant “based on an affidavit so lacking

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Court’s denial of Miller’s motion to suppress.

       B.     Sentencing

       Miller also challenges his sentence under United States v. Booker, 

(2005), and we have determined that the sentencing issues Miller raises are best

determined by the District Court in the first instance. Accordingly, we vacate Miller’s

sentence and remand for sentencing in accordance with Booker. See United States v.

Ordaz, 

, 239 (3d. Cir. 2005).




in indicia of probable cause as to render official belief in its existence entirely
unreasonable.” 

(internal quotation omitted). Even if the warrant in this case
was defective—i.e., it was not, in fact, supported by probable cause—the good faith
exception would apply. Because we conclude that the affidavit provided the justice
reviewing it with a substantial basis to conclude that there was probable cause to support
a search warrant, we also conclude that affidavit was not so lacking in indicia of probable
cause as to render official belief in its existence entirely unreasonable.

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