United States of America v. Alice Charles

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 00-4352
UNITED STATES OF AMERICA
v.
ALICE CHARLES,
Appellant
On Appeal from the District Court
of the Virgin Islands - St. Croix
(D.C. Criminal No. 99-cr-00051)
District Judge: Hon. Thomas K. Moore
Argued December 6, 2001
BEFORE: BECKER, Chief Judge, NYGAARD and COWEN, Circuit Judges
(Filed March 8, 2002 )
George W. Cannon, Jr., Esq. (Argued)
Law Offices of George W. Cannon, Jr.
70 & 70-A (115) Queen Street
Frederiksted, St. Croix
USVI, 00840
Counsel for Appellant Tracey Christopher, Esq. (Argued)
Office of the United States Attorney
1108 King Street, Suite 201
Christiansted, St. Croix
USVI, 00820
Counsel for Appellee
OPINION
COWEN, Circuit Judge.
Alice Charles appeals from the judgment of conviction of the District Court of the
Virgin Islands finding her guilty of knowingly and intentionally manufacturing
marijuana, in violation of 21 U.S.C. 841(a)(1) and (b)(1)(C). Charles contends that
the District Court erred in denying her motion to suppress the evidence of drugs allegedly
seized in violation of the Fourth Amendment. We will affirm the judgment of the
District Court.
I.
On May 4, 1999, Officers Angel Diaz and Christopher Howell, members of the
Virgin Islands High Intensity Drug Trafficking Area Task Force, received an anonymous
tip from a "concerned citizen" that the renter of No. 8 Catherine’s Rest Estates, St. Croix,
United States Virgin Islands ("No. 8"), was growing marijuana in her residence and

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selling it at a local school. The officers had no prior contact or experience with the
informant. On three occasions over a period of approximately two weeks the officers
surveilled No. 8, which was located on land known as Martin Farm, a fenced-in property
containing No. 8 and several other rental houses. The fence surrounding Martin Farm
had an opening which allowed car access to a dirt road known as Martin Farmer’s Road.
No. 8 was located approximately one quarter of a mile from the entrance of Martin Farm
on Martin Farmer’s Road. During the three visits to No. 8, the officers observed that the
air conditioning was always running, all of the windows were shut, and no one appeared
to be in the house, except on May 20, 1999, when Charles was arrested.
On May 18, 1999, the same concerned citizen contacted Officer Diaz and stated
that the renter at No. 8 came to the residence for only a few hours each day, but that the
air conditioning remained on at all times and that the windows were always shut.
Officers Diaz and Howell went to the house at 4:45 a.m. on May 19, 1999, and again
observed that the air conditioning was running and that no one appeared to be at the
house. Officer Diaz ran a swab across the outside door latch attached to the screen door
that led to the screened-in front porch. An Ionscan was performed on the swab revealing
a high presence of marijuana.
The next morning, Officer Diaz and INS Special Agent David Levering (assigned
to the same task force as Officer Diaz) returned to No. 8. A blue car was parked outside
the house, which had not been present on any previous visit. All of the windows to the
house were closed. Officer Diaz opened the unlocked screen door, walked
approximately eight or ten feet through the screened-in porch, and knocked on the front
door. Charles answered from inside the house, without opening the front door. The
officers stated that it was the police. Charles opened the door and stepped onto the
porch. The officers observed that the air conditioning was on inside the house, and
almost immediately also detected the smell of growing marijuana. The officers asked
Charles if any illegal activity was going on inside the house, to which Charles answered
in the negative. The officers then asked if they could go into the house. Charles refused
and told the officers that they needed a warrant to go inside.
Officer Diaz told Charles that she could not go back inside the house because of
his fear that she would destroy evidence. Charles told Officer Diaz that she needed to
use the bathroom. Officer Diaz told her to go to a neighbor’s house or that he would take
her to the police station to use the facilities, but that she could not go into the house.
Charles then bolted to inside the house locking the door behind her. Within moments,
the officers heard the sound of a flushing toilet. Officer Diaz unplugged the water pump
outside the house and started to use a masonry block to knock the front door down. At
one point Charles yelled from behind the door for Officer Diaz to stop and she would
open the door. But too much damage had been done to the door and Officer Diaz had to
break it down. Once inside the house, the officers arrested Charles and surveilled each
room to make sure no one else was inside. During their surveillance of the house, they
observed live marijuana plants in the bedroom and in the toilet bowl.
Officer Diaz provided the affidavit used to obtain the search warrant for No. 8.
He included in the affidavit: the informant’s tip on May 18, 1999; his observations of
No. 8 made on the morning of May 19, 1999, which corroborated the informant’s
information; the results of the Ionscan; the smell of fresh marijuana upon Charles
opening the door on the morning of May 20, 1999. Also included was the chain of
events on May 20, 1999, when Charles ran back into the house and the officers secured
the house as well as detained Charles.
A Magistrate Judge granted a search warrant which included No. 8 and the blue
car parked outside of the house. In executing the warrant, forty-six live marijuana plants
were seized. The officers used the information from the search of No. 8 and Charles’ car
to obtain a second warrant for Charles’ other residence, No. 11E Estate Pleasant, St.
Croix, Virgin Islands ("No. 11E"). Officers seized drying marijuana from this second
house.
II.
A grand jury returned a three-count indictment. It charged Charles with the
manufacture of a controlled substance, marijuana, in violation of 21 U.S.C. 841(a) &
(b)(1)(C), possession with intent to distribute marijuana, in violation of 21 U.S.C.
841(a)(1) & (b)(1)(B)(vii), and operation and maintenance of a manufacturing facility for
marijuana, in violation of 19 V.I.C. 608b. Charles moved to suppress the evidence

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seized during the searches of the two houses and her car. Officers Diaz and Levering
testified, and Charles presented two witnesses to dispute the officers’ testimony
regarding the odor of marijuana plants. Following the hearing on the motion to suppress,
the government offered a demonstration in order for the District Court to observe the
smell of growing marijuana. The next day the District Court observed forty-seven live
marijuana plants in a holding cell in the basement of the courthouse. Charles’ counsel
suggested that No. 8 would be a better location for the demonstration but he did not
object to the demonstration which the government put forth.
The District Court issued a memorandum and order suppressing the results of the
Ionscan but denied Charles’ motion to suppress the evidence that resulted from the
execution of the two search warrants for No. 8, Charles’ car, and No. 11E. With regard
to the results of the Ionscan, the District Court determined that the doorknob fell within
the curtilage of the house, and held the swabbing of the doorknob to be an
unconstitutional search.
The District Court denied the Motion to Suppress for No. 8 and Charles’ car based
upon "[t]he information the agents obtained from an informant, as verified by the agents’
own observations of the exterior of the house and their plain smell of marijuana." App.
at 180. Based upon the demonstration with growing marijuana plants, the District Court
found that "[w]ithin a second or two of opening the door to the room containing the
plants, the fragrance was noticeable. Within another two or three seconds, the strong and
distinctive odor permeated the hallway outside the room. The viewing thus confirmed
the government’s evidence that green, growing marijuana plants have a very strong and
distinctive odor." App. at 170-71. The District Court explained that despite the fact that
Diaz’s affidavit contained the results of the Ionscan (which the District Court
suppressed), there was a "sufficient independent basis for probable cause that marijuana
cultivation was taking place inside the house." App. at 180. The District Court also
denied the Motion to Suppress the evidence seized at No. 11E. Charles entered a
conditional plea of guilty to Count One of the indictment, for the unlawful manufacture
of marijuana.
Charles appeals the District Court’s finding that Officers Diaz and Levering were
lawfully present at No. 8 on May 20, 1999, from which the District Court found probable
cause for the first search warrant issued based upon the plain smell doctrine. Charles
asserts that but for the Ionscan results obtained on May 19, 1999, the officers would not
have returned the following morning to No. 8 nor smelled the marijuana when she
opened the door. Charles also asserts that the District Court erred in finding that
probable cause existed for the two search warrants independent of the alleged
unconstitutional Ionscan.
We agree with the District Court that there is sufficient basis to justify the search
warrants, independent of the Ionscan which was suppressed. The officers were lawfully
present at No. 8 on May 19th and 20th. We conclude that the results of the Ionscan did
not taint the evidence obtained through the knock and talk on May 20, 1999, or the
subsequent execution of the search warrants. The investigation by the officers of No. 8
was ongoing and had not been resolved as of May 20, 1999. We are reasonably
confident that the officers would have returned to No. 8 on May 20th or thereafter, either
with or without the results of the Ionscan. Under a totality of the circumstances analysis,
there was probable cause for the issuance of the search warrant on May 20, 1999. The
subsequent warrant for No. 11E was therefore also valid. It is unnecessary on the record
before us to reach the constitutionality of the Ionscan and we reserve that question for
another day.
III.
We review the District Court’s findings of the underlying facts for clear error but
exercise plenary review as to conclusions of law. See United States v. Acosta, 965 F.2d
1248, 1250 (3d Cir. 1992); United States v. Inigo, 925 F.2d 641, 656 (3d Cir. 1991). In
reviewing the Order of the District Court upholding the Magistrate Judge’s probable
cause determination, we exercise a deferential review. Illinois v. Gates, 462 U.S. 213,
236, 103 S.Ct. 2317, 2331. We must determine only "that the magistrate judge had a
’substantial basis’ for concluding that probable cause existed to uphold the warrant."
United States v. Whitner, 219 F.3d 289, 296 (3d Cir. 2000) (citing Gates, 462 U.S. at
238, 103 S.Ct. at 2331).
IV.

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Charles contends that the District Court erred by determining that the officers’
presence at No. 8 on May 20 was legal. She asserts that but for the allegedly illegal
Ionscan results, the officers would not have knocked on the front door of No. 8 on May
20th, the officers would not have been exposed to the alleged smell of growing marijuana,
and there would have been no basis for the Magistrate Judge to make his probable cause
determination.
We resolve this issue without addressing the constitutionality of the Ionscan. The
Fourth Amendment protects against "unreasonable searches and seizures." U.S. Const.
amend. IV. But not all encounters with law enforcement officials implicate the Fourth
Amendment. Only when the encounter restrains the person’s liberty is the Fourth
Amendment triggered. So long as the encounter on May 20th was consensual and fell
short of an investigative stop, the officers were lawfully present at No. 8 on that date and
did not need to make a showing of reasonable suspicion or probable cause. Contrary to
Charles’ position, the officers needed neither reasonable suspicion nor probable cause to
knock on No. 8 on May 20th because the encounter fell short of an investigative stop and
was consensual. See United States v. Kim, 27 F.3d 947, 950 (3d Cir. 1994) (citing
Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 2386 (1991)); see also United
States v. Jones, 239 F.3d 716, 720 (5th Cir. 2001) ("knock and talk" is "a reasonable
investigative tool"); United States v. Hardeman, 36 F.Supp.2d 770, 777 (E.D. Mich.
1999) (noting that the "knock and talk" is "generally upheld as a legitimate method of
investigation, designed to obtain a suspect’s consent to search"); Davis v. United States,
327 F.2d 301, 303 (9th Cir. 1964) ("Absent express orders from the person in possession
against any possible trespass, there is no rule of private or public conduct which makes it
illegal per se, or a condemned invasion of the person’s right of privacy, for anyone
openly and peaceably, at high noon, to walk up the steps and knock on the front door of
any man’s ’castle’ with the honest intent of asking questions of the occupant
thereof whether the questioner be a pollster, a salesman, or an officer of the law.").
In United States v. Kim, we held that an encounter between an officer and an
occupant of a roomette on a passenger train was consensual where the "totality of the
circumstances" demonstrated that the exchange between the officer and defendant was
voluntary and cooperative. Kim, 27 F.3d at 954. We explained that the location
contributed very little to the argument that a reasonable person would not have felt free
to terminate the encounter because a person "can reject an invitation to talk in a private,
as well as a public space." Id. at 952 (quoting Bostick, 501 U.S. at 437, 111 S.Ct. at
2387). The "high expectation of privacy, alone, does not destroy the otherwise
consensual nature of the encounter." Kim, 27 F.3d at 953. We also explained that asking
potentially incriminating questions is permissible and does not make the encounter
coercive the standard is whether an innocent reasonable person would feel compelled to
cooperate. Id. (citing Bostick, 501 U.S. at 438, 111 S.Ct. at 2388).
Because the law is clear that the officers did not need reasonable suspicion or
probable cause on May 20th to knock at No. 8, the issue is whether the encounter became
coercive in the few seconds that passed from the moment Charles opened the door until
the officers smelled marijuana. The standard by which we determine whether the
encounter between Charles and the police on May 20th was consensual depends on where
the encounter took place. See Kim, 27 F.3d at 951. A distinction is made between an
encounter in a public place, such as on a public street or in an airport terminal, where a
person is free to simply walk away from inquiries, and Charles’ situation where she was
at her own home when the officers knocked on her door. See, e.g., Bostick, 501 U.S. at
430-34, 111 S.Ct. at 2384-86 (Bostick was confined on a bus and was not free to leave
when officers approached him). Because the encounter occurred at Charles’ home, the
test is "whether a reasonable person would feel free ’to disregard the police and go about
his business,’ id. at 434, 111 S.Ct. at 2386, or ultimately ’whether a reasonable person
would feel free to decline the officers’ requests or otherwise terminate the encounter,’ id.
at 436, 111 S.Ct. 2387, ’taking into account all of the circumstances surrounding the
encounter.’" Kim, 27 F.3d at 951. There is no evidence that the encounter between
Charles and the two officers rose to a coercive exchange.
The fact that Charles did not consent to a search of her house shows that she did
not feel coerced or pressured into allowing a search. In addition, the exchange between
the officers and Charles was short, and there is no evidence of repeated questioning or
badgering behavior by the officers. The officers asked approximately 3 questions before

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they became aware of the scent of the marijuana.
The District Court, in affirming the Magistrate Judge’s probable cause
determination, correctly considered the odor of fresh growing marijuana in its probable
cause determination. We will not disturb the District Court’s factual findings that the
officers detected the scent of the marijuana plants from where they stood on the porch
during their exchange with Charles. Where there are two permissible views of the
evidence, the factfinder’s choice between them cannot be clearly erroneous.
While Charles recognizes that the officers did eventually obtain search warrants,
she still asserts that the evidence discovered upon execution of those warrants to search
her residences and car is inadmissible as "fruits of the poisonous tree," as stemming from
the allegedly unconstitutional Ionscan.
Under a totality of the circumstances analysis, there was probable cause for the
search warrant on May 20, 1999, given the informant’s information, the officers’
surveillance of No. 8, and the plain smell of marijuana observed during the knock and
talk on May 20, 1999. The results of the Ionscan did not taint the evidence obtained
during the knock and talk, as we are reasonably confident that the officers would have
returned on May 20, 1999, or thereafter, despite the results of the Ionscan given that their
investigation was ongoing.
For the foregoing reason, the District Court’s judgment of November 11, 1999 will
be affirmed.
TO THE CLERK:
Please file the foregoing opinion.
/s/Robert E. Cowen
United States Circuit Judge

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