filed: August 9, 1993; As Corrected August 19, 1993.
On Appeal from the United States District Court for the Western District of Pennsylvania. (D.C. Crim. Nos. 92-00005-01 and 03).
Before: Becker, Hutchinson and Roth, Circuit Judges.
This appeal from a judgment in a criminal case presents questions of search and seizure law and of the sufficiency of the evidence to sustain a conviction for drug possession. Co-defendants Rufus Brown and Ama Baltimore were each convicted of three counts of possession with intent to distribute various controlled substances. The convictions rest entirely on evidence obtained in the course of a search of Brown's home pursuant to a warrant.
Brown's sole argument on appeal arises from the district court's denial of the defendants' motion to suppress the evidence seized pursuant to the warrant. Asserting that the warrant was procured by false information that was recklessly or intentionally supplied by the police officer-affiant, he contends that the district court abused its discretion in refusing to grant his request for in camera disclosure of the identity of the informant who allegedly provided the police with the information that was the basis for the warrant. Without such disclosure, Brown argues, he was unfairly prevented from establishing that the warrant was based on an untruthful affidavit. Baltimore joins this argument and argues further that, even without disclosure of the informant's identity, the defendants' request for an evidentiary hearing on the veracity of the warrant affidavit should have been granted pursuant to Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978). We find these suppression arguments without merit and will therefore affirm Brown's conviction.
We do find merit, however, in Baltimore's argument that the evidence is insufficient to support her conviction. At best, the evidence supports a finding that Baltimore resided in the Brown home and knew that drugs were present therein. However, the evidence does not support the jury's finding that she had dominion and control over the drugs. Hence, we will reverse Baltimore's conviction.
I. FACTS AND PROCEDURAL HISTORY
On June 27, 1991, police executed a search warrant for Brown's home in Monroeville, Pennsylvania. The warrant was supported by the affidavit of Detective Anthony Hildebrand. The affidavit related that a confidential informant had told police that he was in the Brown residence within the previous 48 hours and had observed Brown and several other individuals therein packaging and preparing cocaine and heroin for sale. The affidavit also stated that the informant had proven to be reliable in the past by supplying information that had led to the arrest and conviction of several individuals for drug-related offenses.
When police arrived at the Brown home to execute the search warrant, they saw Rodney Franklin peering out of an upstairs window. Franklin attempted to flee the house from the rear, but was detained and then arrested after the search. Searching the house, the police seized large quantities of cocaine powder, cocaine base,*fn1 and heroin, as well as assorted drug paraphernalia.
While the search was in progress, two detectives positioned outside of the house observed Ama Baltimore arrive at the house in a taxi. Unaware of the police, Baltimore walked up to the house and inserted a key in the door. As she was about to enter, police arrested her and informed her of her Miranda rights. She was brought inside, where she was shown a pair of shorts that the police had found in an upstairs sewing room. Baltimore stated that the shorts were hers. The police then removed a switchblade knife from the shorts' pocket, which Baltimore also admitted was hers. She then stated, "but you can't arrest me because I am in my own house." Subsequently, Brown arrived at the house in his car and was placed under arrest.*fn2
In total, the police seized from the Brown home some 6.10 grams of heroin, 57.13 grams of crack, and 1,020.38 grams of cocaine powder. The heroin was found in the refrigerator in the kitchen. Cocaine powder was found in a box in the kitchen closet and in various locations in the upstairs rear bedroom. Crack was also found in that bedroom. On a table in the same bedroom, police found a coffee grinder with cocaine residue on the blades, strainers with cocaine residue, and a balancing pan with a residue of cocaine, heroin, and quinine. Another coffee grinder with cocaine residue on the blades was found in the bedroom closet. Two respirator masks (which are commonly used to shield against dust generated by drug preparation) were found in a plastic garbage bag in the bedroom. One of the masks had lipstick marks on it, but no evidence linked the lipstick to any particular individual. Assorted plastic baggies, balloons, and other drug packaging materials, as well as various cutting agents, were also found in the rear bedroom. No drugs or drug paraphernalia were found in the upstairs sewing room in which Baltimore's shorts and switchblade were found.
Based on this evidence, a Grand Jury returned a four count indictment against Brown, Baltimore, and Franklin. Count 1 charged that on June 27, 1991, the trio conspired to distribute and to possess with intent to distribute cocaine, crack, and heroin, in violation of 21 U.S.C. §§ 841(a)(1) & 846(16). Count 2 charged the three with possession with intent to distribute cocaine, in violation of 21 U.S.C. §§ 841(a)(1) & 841 (b)(1)(B)(ii)(17). Count 3 charged the defendants with possession with intent to distribute cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) & 841(b)(1)(A)(iii)(18). Count 4 charged them with possession with intent to distribute heroin, in violation of 21 U.S.C. §§ 841(a)(1) & 841(b)(1)(C)(19).
All three defendants pleaded not guilty and were tried before a jury in the District Court for the Western District of Pennsylvania. Prior to trial, the defendants moved to suppress the fruits of the search, alleging that the search warrant affidavit contained material falsehoods which were made either recklessly or intentionally by the affiant, Officer Hildebrand. Brown requested, at a minimum, that the court conduct an in camera review to determine the identity of and the precise information provided by the informant, whose tips were the basis for the warrant. After a hearing on all of the pretrial motions, the district court declined to order the in camera disclosure, and denied the defendants' motion to suppress. The three defendants proceeded to trial.
After all of the evidence was presented, the district court dismissed the conspiracy count as to all defendants and granted Franklin's Rule 29 motion for judgment of acquittal. The jury returned guilty verdicts as to Brown and Baltimore on the three remaining counts. The court denied Baltimore's post-trial motion for judgment of acquittal, and sentenced her to 120 months on count 3 and 87 months on counts 2 and 4, all three sentences to run concurrently. Brown was sentenced to 120 months on all three counts, the sentences to run concurrently.*fn3 Both defendants filed timely notices of appeal. We have jurisdiction pursuant to 28 U.S.C. § 1291.
II. THE SUPPRESSION ARGUMENTS
A. Denial of the Franks hearing
Baltimore argues that the district court erred in denying the defendants' request for an evidentiary hearing pursuant to Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978) (a ...