USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________

No. 94-2080

UNITED STATES,

Appellee,

v.

JOHN M. JEWELL,

Defendant, Appellant.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Michael A. Ponsor, U.S. District Judge]

___________________

____________________

Before

Torruella, Chief Judge,

___________

Campbell, Senior Circuit Judge, and

____________________

Cyr, Circuit Judge.

_____________

____________________

Stuart P. Feldman with whom Thomas J. Dougherty was on brief

__________________
____________________
appellant.
Andrew Levchuk, Assistant
_______________

U.S.

Attorney, with

whom

Stern, United States Attorney, was on brief for appellee.

_____

Donald
_______

____________________

July 21, 1995

____________________

CAMPBELL, Senior Circuit Judge.

____________________

Defendant John M.

Jewell

court

was tried and convicted by a jury in federal district

on one

count

of being

a felon

firearm, in violation of 18 U.S.C.

of

receiving a stolen firearm,

in

possession of

922(g)(1), and one count

in violation of

18 U.S.C.

922(j).

On appeal he argues that the district court erred in

denying

his motion to suppress

his

apartment at 162 Linden

affidavit

He

basis for

also argues

under

Street on the

supporting the application

failed to establish probable

adequate

the issuance

that he

the search at

grounds that the

for the search warrant

cause and failed to

of a

was denied

the Federal Magistrate Act

We affirm.

all fruits of

provide an

"no-knock" warrant.1

procedural due

of 1979, 28

U.S.C.

process

636.

The evidence at trial,

not

disputed, showed that on

the sufficiency of which is

November 22, 1992, officers of

the Pittsfield Police Department executed a state

"no-knock"

search warrant on the residence of Jewell and his girlfriend,

Brandee Richards, at

Pittsfield.

the first floor

Found and

of 162 Linden

seized during the

Street,

search were crack

cocaine, cocaine processing paraphernalia, marijuana, $473 in

cash, and a

stolen Ruger .22

caliber revolver, S/N

191220.

____________________

1.

Jewell also made a

motion to suppress certain statements

made by him at his apartment and later

at the police station

on the ground that he was not properly advised of

under

Miranda.
_______

Jewell has

not appealed from

that motion.

-2-

his rights

the denial of

Jewell

and

Richards

were

arrested and

processed

at

the

Pittsfield Police Station.

Jewell

challenges the

district court's

denial of

his motion to suppress the physical evidence seized from

his

apartment

on the

not

supported

by

amend.

IV.

grounds that

probable cause,

In particular,

the search

as

warrant was

required

he asserts

that

by U.S.

Const.

the affidavit

supporting

deficient.

the

application

The search

Clerk-Magistrate Leo

Granger.

for

the

search

warrant was issued

Evans upon the

was

by Massachusetts

affidavit of

The affidavit stated, in sum:

an anonymous tip on October

warrant

Detective

that police received

6, 1992 that an African-American

male named "Radar" was

engaged in a drug transaction

vicinity of 168 Linden

Street; that information was received

the

following

week

from

"concerned

citizen"

in the

in

the

neighborhood that Radar was

distributing drugs from the pink

house

the 1st

with maroon

trim in

floor apartment

on the

right side; that subsequent surveillance by Pittsfield Police

Investigator Decker of Radar's residence confirmed that Radar

was

an individual known to

Jewell was living in

Decker as John

Jewell, and that

the first floor right apartment

of 162

Linden Street with Brandee

individuals entered

and left;

that a

longtime

resident

Richards, and also confirmed that

the apartment for short

periods of time

reliable confidential informant

of Pittsfield

who

(CI-3), a

had previously

given

-3-

information leading to drug arrests

and convictions, advised

that Jewell was living

be

dealing

at 162 Linden Street and

cocaine out

of

observed Jewell exchanging

for

small, light-colored

traffic in and

and

short

night, with

most

Granger's

distribution);

location, and

that

money with individuals

objects, and

visitors entering

and leaving

view,

CI-3

in return

reported substantial

out of the apartment at all

periods of time

Detective

that

appeared to

hours of the day

the apartment

(which behavior

consistent

with

for

was, in

narcotics

that a second reliable confidential informant

(C1), who had previously

provided information leading to the

arrest and indictment of two individuals, advised that it had

purchased crack

William Shepard,

cocaine from

Jewell; and finally,

an informant of untested

that one

veracity, visited

the Pittsfield

Police Department

provided a sworn

statement to

on November 21,

the effect that

1992, and

he had

seen

crack cocaine in Jewell's apartment at 162 Linden Street that

afternoon,

and

that

clothing and other

had

smoked

Jewell

had stolen

various

personal property from

crack cocaine

obtained

from

items

of

him, and that

he

Jewell some

time

before coming to the police station.

The

district

sufficient

probable

affidavit,

finding that

the

court

cause

information provided

determined

stated

on

the

"[t]he affidavit,

by William

-4-

that

there

face

of

was

the

and particularly

Shepard, is

more than

adequate to provide probable

States
______

cause for the search."

United
______

v. Jewell, Cr. No. 93-30036 (D. Mass. April 28, 1994)

______

(memorandum andorder denying defendant'smotions to suppress).

We review the

the warrant for clear

983

F.2d

1160,

1167

district court's decision

error only.

(1st

Cir.

United States
_____________

1993);

Nocella, 849 F.2d 33, 39 (1st Cir. 1988).

_______

to uphold

v. Garcia,
______

United States
_____________

In evaluating

v.

the

sufficiency of an affidavit, we

magistrate's

afford great deference to

determination of probable

Gates, 462 U.S.

_____

213, 236 (1983)

cause.

Illinois v.
________

(citing Spinelli v.
________

United
______

States, 393 U.S. 410, 419 (1969)).

______

We apply a "totality of the circumstances" standard

in determining

U.S. at 238.

the sufficiency of an affidavit.

Gates, 462
_____

The affidavit is to be interpreted in a common-

sense rather than

a hypothetical

See id.;
_______

United States
______________

(1965);

United States v.
_____________

or hypertechnical

v. Ventresca,
_________

Cochrane, 896
________

Cir.), cert. denied, 496 U.S. 929 (1990).

____________

380

U.S.

F.2d 635,

manner.

102,

109

637 (1st

Jewell

argues that

the fact

that no

warrant was

obtained in mid-October shows that the police lacked probable

cause at that time, and that Shepard's statement, he being an

admitted drug user and high at the time it was

enough to make up for

this

contention.

piecemeal examination

the deficiency.

Appellant

would

There is no

have

of the affidavit, and

-5-

made, was not

us

merit to

engage in

base our review

of

the clerk-magistrate's

information

action

in isolation.'"

(quoting Massachusetts
_____________

on "'bits

and pieces

See Cochrane, 896

___ ________

v. Upton, 466 U.S.

_____

than

adequate

information

presented

F.2d at 637

727, 732 (1984)).

Viewing the affidavit as a whole, as it should be,

more

of

to

magistrate from which to find probable cause that

there was

the

clerk-

drugs were

present at Jewell's apartment.

Probable cause means

the circumstances gives rise

search

crime.

of

the target

simply that

the totality

of

to a "fair probability" that

premises will

United States v. Jordan,

_____________
______

uncover evidence

999 F.2d 11, 13

of a

(1st Cir.

1993)

(citations

probability

omitted).

was shown

by

In this

the reports

case,

such

of two

reliable confidential informants that Jewell

fair

demonstrably

was trafficking

in drugs; Shepard's statement that he had observed cocaine in

Jewell's

apartment on the day

before the search warrant was

issued; the statements of the concerned citizen; and finally,

the

trained

discounting

observations

Shepard's

affidavit still

ongoing

Investigator

reliability, the

provides probable

drug trafficking

Street.

of

operation

See United States

___ _____________

Decker.

Even

information

in the

cause to believe

existed

v. Hershenow, 680
_________

(1st Cir. 1982) (citation omitted) ("[W]here

points

to

illegal

activity

at 162

of a

that an

Linden

F.2d 847, 853

the information

continuous

nature,

the

passage

of several

months between

the observations

in the

-6-

affidavit and the issuance of the warrant will not render the

information stale.").

Appellant

also

argues

that

the

district

court

should have excluded the physical evidence seized pursuant to

the search because the clerk-magistrate lacked probable cause

to authorize

service of the

warrant without knocking.

government correctly responds

The

that the Federal

Constitution

does not require state authorities, before they

issue a "no-

knock" warrant,

to have probable cause to believe that entry

without knocking is required.

it

be

reasonable

unannounced entry.

under

the

All that is required

circumstances

See Wilson v. Arkansas,

___ ______
________

1918 (1995) (holding that

to

is that

allow

an

115 S.Ct. 1914,

in some circumstances an officer's

unannounced entry into a home might be unreasonable under the

____________

Fourth Amendment) (emphasis added).

to

the

lower

courts

"the

task

The Court in Wilson left

______

of

determining

circumstances under which an unannounced entry is

the

reasonable

under the Fourth Amendment."

The

affidavit here

had personal knowledge of

violent

offenses, and

Jewell possessed

apartment at

that

stated that

162 Linden

Detective Granger

Jewell's record of convictions for

that he

a grey

"the affiant's

potentially

Id. at 1919.
___

had personal

knowledge that

pit bull

dog that

Street.

The district

personal

violent tendencies

-7-

knowledge of

and

of the

he kept

at the

court found

the defendant's

existence of

pitbull on the

justify

premises was,

again, more

a 'no-knock' warrant."

No. 93-30036 (D. Mass. April

than adequate

to

United States v. Jewell, Cr.

_____________
______

28, 1994) (memorandum and order

denying defendant's motions to suppress).

In

Wilson, the
______

Court made

clear that

not "every

entry must be preceded by an announcement," Wilson, 115 S.Ct.

______

at 1918, and

in

favor

noted the common-law rule that "the presumption

of announcement

presenting a threat

would

of physical

yield

under circumstances

violence."

Id.
___

at

1918-

19.2

We must

presented

warrant

therefore

in support

reasonably

determine

of

whether the

the application

described

for a

"circumstances

affidavit

"no-knock"

presenting

threat of physical violence."

Like

the

district court,

we

hold

Detective Granger

stated that

he had personal

the

a pit

dog in

existence of

searched.

risk

bull

the

that it

did.

knowledge of

apartment to

be

The Fourth Amendment did not require the police to

having to

fight

off a

forewarned

attack dog

before

____________________

2.

In a footnote,

Sabbath
_______

v.

115 S.Ct. at 1918

United States,
_____________

391

n. 3, the

U.S.

585

Court cited

(1968), for

the

proposition that both the common-law rule of announcement and

entry and its exceptions were
__________________

codified in the federal "knock

and announce" statute, 18 U.S.C.

3109.

Appellant suggests

that

service of

the warrant in

this case did

not meet the

requirements of that statute. However, the threat of physical

violence is an established common-law exception to the "knock
and
3109.

announce"

principle and,

Section

investigations by

3109,

as such,

moreover,

state officers.

is recognized

does not

apply

to

in
state

United States v. Andrus,

______________
______

775 F.2d 825, 844 (7th Cir. 1985).

-8-

executing

their

Buckley, 4 F.3d

warrant.

552, 557

See, e.g.,
__________

(7th Cir. 1993)

United States
______________

v.

(presence of

pit

_______

bull and

firearms sufficient to

That, and the

and

fact of Jewell's

conviction

for violent

physical safety of the

entirely reasonable.

justify "no-knock"

entry).

extensive history of

arrest

crimes,

made

concern for

the

officers executing the search warrant

The

"no-knock" provision was justified

in this instance.

We affirm

the denial of the motion to suppress the

evidence

seized pursuant

Jewell's

apartment.

other

arguments and

to the

state search

We have carefully

find them

to be

considered Jewell's

without merit.3

judgment of the district court is therefore

Affirmed.
_________

warrant from

The

____________________

3.

In particular,

we find

no merit in

Jewell's contention

that he was denied procedural due process when District Judge

Ponsor,

who

had

concerning Jewell's
magistrate

presided
motions to

judge, denied

appointment

to

Magistrate

Act

over

the

suppress as a

those

district

provides

pre-trial

motions
court.

that

proceedings
United States

shortly after
While

the

magistrate judges

his

Federal
"may"

be

designated to

conduct hearings and submit "proposed findings

of

recommendations"

fact

U.S.C.
the

and

on

636(b)(1)(A),(B), the

assignment

jurisdiction

to

the

suppression motions,

district court judge who made

magistrate

over the motion

judge

retains

to suppress.

Judge

Judge

Freedman

recalled the

Ponsor on March 14,

Ponsor on March

17, 1994.

the

Judge

case,

suppress,

and

were merely

primary

In re Worksite
_______________

Inspection of Quality Products, 592 F.2d 611,

_______________________________
1979).

28

613 (1st Cir.

case from

Magistrate

1994, and reassigned

it to Judge

Judge Freedman, in

transferring

Ponsor,
acting

district judges.

-9-

in

denying

pursuant to

the

motion

to

their powers

as