United States of America v. Bret Sobolewski

*
The Honorable John T. Noonan, Jr., United States Circuit Judge for the Ninth Judicial
Circuit, sitting by designation.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 05-3014
UNITED STATES OF AMERICA
v.
BRET SOBOLEWSKI,
Appellant
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
D.C. Criminal No. 03-cr-0830-1
(Honorable J. Curtis Joyner)
Submitted Pursuant to Third Circuit LAR 34.1(a)
March 1, 2007
Before: SCIRICA, Chief Judge, McKEE and NOONAN * , Circuit Judges.
(Filed: March 29, 2007)
OPINION OF THE COURT

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1 The following facts are based on Agent Scanzano’s testimony.
2
SCIRICA, Chief Judge.
Defendant Bret Sobolewski appeals his judgment of conviction. Sobolewski
contends the District Court erred in denying his motion to suppress and his trial counsel
provided ineffective assistance. We will affirm.
I.
In October 2003, FBI Agent Thomas Scanzano began investigating a Commerce
Bank robbery in Philadelphia committed by a white male and a black male.1 Later that
month, Agent Scanzano learned of similar robberies of Commerce Banks in
Pennsylvania. On October 29, 2003, Agent Scanzano obtained information about an
anonymous phone call made to the Commerce Bank hotline, and corroborated by bank
security, in which the caller stated he had information about one of the robberies and
sought reward money. Using the bank’s caller ID telephone function, Agent Scanzano
traced the call to a hotel address in South Philadelphia and proceeded to the location to
investigate. In the hotel’s parking lot, Agent Scanzano saw a white Sebring convertible
with a blue top and a license plate starting with “N” that matched the getaway car
previously described by a witness. Agent Scanzano ran the license plate and determined
the car had been stolen.
Agent Scanzano then interviewed the hotel manager, Charles Wattley, and
discovered the Sebring had been driven by a black male and a white male who had been

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3
guests at the hotel for about one month. Wattley informed Agent Scanzano that the men
were registered in room 231, which had been rented by Sobolewski, and provided Agent
Scanzano with Sobolewski’s photo identification card used to rent the room. Earlier that
day, Wattley had reminded Sobolewski about his past due rent and Sobolewski had told
Wattley he would go to the bank that day to get the money. Wattley identified the guests
as the men in bank surveillance photographs from the October 15, 2003, Commerce Bank
robbery, and without hesitation told Agent Scanzano the men were presently in their hotel
room.
At that point, Agent Scanzano radioed FBI dispatch in Philadelphia and dispatch
informed him there was an active outstanding warrant for Sobolewski’s arrest. After
back-up arrived at the hotel, the agents knocked on room 231, announced their presence,
and when nobody answered, forcibly entered the room. The agents found Sobolewski
and Benjamin Cottman in the room, and arrested both men. Soon after, Cottman
confessed that he and Sobolewski had committed the robberies and he had made the
anonymous phone call to the Commerce Bank hotline.
Once inside the hotel room, Agent Scanzano saw in plain view a Philadelphia
Phillies cap, a wig, a leather jacket and other clothing items similar to those in the
surveillance photographs from the robberies, in addition to drug paraphernalia. Soon
thereafter, Agent Scanzano obtained a search warrant, executed the warrant, and seized
evidence from the hotel room. Additionally, Cottman had signed a consent form for
agents to search the hotel room. Unknown to the agents that entered room 231, the

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2 Cottman pled guilty to all counts on August 17, 2004.
4
outstanding arrest warrant, which FBI dispatch had discovered on the FBI’s National
Criminal Information Center (NCIC) database, was a Florida warrant that contained an
instruction for “pickup anywhere in state of Florida only.”
A federal grand jury returned an eight-count superseding indictment of Sololewski
and Cottman2 on July 29, 2004, charging them with conspiracy to commit bank robbery,
in violation of 18 U.S.C. § 371 (count one), and bank robbery and aiding and abetting
bank robbery, in violation of 18 U.S.C. §§ 2113(a) and 2 (counts two through eight). The
District Court denied Sobolewski’s motion to suppress evidence after a hearing. On
October 22, 2004, a jury returned a guilty verdict against Sobolewski on all counts. On
May 31, 2005, the District Court sentenced Sobolewski to 262 months’ imprisonment,
three years supervised release, restitution in the amount of $24,397, and a special
assessment of $800. Sobolewski timely appealed.
II.
We have jurisdiction under 28 U.S.C. § 1291. We review the District Court's
denial of a motion to suppress for “clear error as to the underlying facts,” but we exercise
“plenary review as to its legality in light of the court's properly founded facts.” United
States v. Givan, 320 F.3d 452, 458 (3d Cir. 2003) (internal citations omitted); see also
United States v. Mitlo, 714 F.2d 294, 296 (3d Cir. 1983).
III.

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3 Sobolewski agreed the FBI agent knew there was an active warrant outstanding for
Sobolewski, and that at the time of the arrest, he did not know about any allegedly
limiting language on the NCIC print-out. Even if the NCIC print-out did restrict the
agent’s authority to make an arrest in Pennsylvania, the good faith exception to the Fourth
Amendment, see United States v. Leon, 468 U.S. 897 (1984), is not directly applicable.
The good faith exception permits admission of evidence seized when officers were acting
in good faith reliance on a warrant, even when later found to be unsupported by probable
cause. Id. at 922. “Probable cause exists where the facts and circumstances . . . are
sufficient to warrant a reasonable person to believe an offense had been committed.” See
United States v. McGlory, 968 F.2d 309, 342 (3d Cir. 1992). Here, Sobolewski does not
contend the warrant lacked probable cause, but rather contends the geographic scope of
the warrant was limited. Because we determine that the evidence is admissible under the
independent source doctrine, we need not address whether the search was valid pursuant
to Leon’s good faith exception.
4 The court in United States v. McDonald, 606 F.2d 552, 553–54 (5th Cir.1979), noted
“the cases uniformly recognize that NCIC printouts are reliable enough to form the basis
(continued...)
5
Sobolewski challenges the District Court’s denial of a motion to suppress evidence
seized during the agents’ search, contending the search stemmed from an illegal arrest not
supported by probable cause. Sobolewski contends the agents did not have a proper
arrest warrant because the NCIC print-out describing the outstanding Florida arrest
warrant contained the language “pickup anywhere in state of Florida only,” and
accordingly, the evidence recovered must be suppressed as fruits of the poisonous tree.3
See Wong Sun v. United States, 371 U.S. 471 (1963). At the suppression hearing,
Sobolewski did not provide any evidence to support his interpretation that this language
limited the warrant’s jurisdiction to Florida only and was not valid to support an arrest in
Pennsylvania. The government contends this language relates to extradition payment and
does not impose a geographic restriction on the warrant.4 We need not decide whether

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4
(...continued)
for the reasonable belief which is needed to establish probable cause for arrest.” In Case
v. Kitsap County, 249 F.3d 921, 928–29 (9th Cir. 2000), the court found Washington
State officers could legally make an arrest inside the defendant’s residence based on an
outstanding Oregon State warrant entered in the NCIC database. The court noted it was
unnecessary for officers to obtain a duplicate warrant. Id. In United States v. Munoz, 150
F.3d 401, 411–412 (5th Cir. 1998), the Court of Appeals for the Fifth Circuit found an
NCIC print-out showing an outstanding arrest for Munoz and evidence indicating Munoz
was at home sanctioned a United States Marshall to search Munoz’s home. But see State
v. Bradley, 679 P.2d 635, 637 (Idaho 1983) (holding an out of state warrant “‘has no
effect in this state except to provide the probable cause needed to make an arrest of the
defendant . . ., [which] is not sufficient under Payton v. New York . . . to justify a
warrantless entry into the defendants’ premises in the absence of exigent circumstances
extant and therefore the officers had no authority to enter the premises.’”) (quoting
People v. Coto, 611 P.2d 969 (Col. 1980)). Because the evidence is otherwise admissible
under the independent source doctrine, we do not have to address whether the agents had
authority based on the NCIC hit to enter the residence and arrest the defendants, even
absent the alleged restrictive language.
6
the agents acted under legal authority to enter the hotel room and arrest Sobolewski and
Cottman because we hold the evidence should be admitted under the independent source
doctrine.
Even assuming the agents initially entered Sobolewski’s hotel room without a
valid arrest warrant, the evidence is still admissible under the independent source
doctrine. Under this doctrine, “evidence that was in fact discovered lawfully, and not as a
direct or indirect result of illegal activity, is admissible . . . .” United States v. Herrold,
962 F.2d 1131, 1140 (3d Cir. 1992). If a lawful warrant is obtained subsequent to the
initial illegal search or entry, then the evidence is admissible if the warrant is based upon
probable cause other than facts tainted by the initial illegal act and the “officers were not
prompted to obtain the warrant by what they observed during the initial entry.” Herrold,

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5 Paragraphs 3 and 4 provide sufficient evidence to support finding probable cause.
Assuming the entry was illegal, we excised paragraphs 6 and 7 because they described
information and evidence obtained subsequent to the agents’ entry into the hotel room.
7
962 F.2d at 1141–42; see also United States v. Johnson, 690 F.2d 60, 63 (3d Cir. 1982).
To apply the doctrine, we must determine, “without regard to information obtained during
the original entry,” whether the agents would have applied for the search warrant and
whether there was sufficient probable cause for the warrant to be issued. Herrold, 962
F.2d at 1140.
Here, federal agents secured a search warrant from a United States Magistrate
Judge before seizing any of the evidence previously discovered in plain view in the hotel
room. Agent Scanzano’s affidavit in support of his warrant application included
information he had learned prior to entering the hotel room. The affidavit described the
following: (1) Agent Scanzano traced an anonymous caller, who had called Commerce
Bank about a string of robberies, to the Extended Stay Hotel in South Philadelphia; (2) on
October 29, 2003, Agent Scanzano observed a car outside the hotel room matching the
description of the getaway car; and (3) on October 29, 2003, the hotel manager identified
Sobolewski and Cottman in bank surveillance photographs, matched them to the car, and
advised Agent Scanzano that the men were presently in their rented room. The evidence
obtained by Agent Scanzano prior to entering the hotel room, and included in his
affidavit, is sufficient to establish probable cause to search, even if we excise tainted
portions of his affidavit. 5 See United States v. Burton, 288 F.3d 91, 103 (3d. Cir. 2002)

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8
(“To find probable cause to search, there needs to be a ‘fair probability that contraband or
evidence of a crime will be found in a particular place.’”) (quoting Illinois v. Gates, 462
U.S. 213 (1983)); Herrold, 962 F.2d at 1137–38 (“[W]e need merely excise the
references to the first entry and the fruits thereof in examining the affidavit upon which
the warrant was based to determine if there was probable cause for the warrant.”).
Additionally, we find the agents would have applied for a search warrant to search
Sobolewski’s hotel room, independent of the original entry, because Agent Scanzano had
already learned Sobolewki had been residing at this location for the duration of the bank
robberies. Id. (“‘If there is probable cause to believe that someone committed a crime,
then the likelihood that that person’s residence contains evidence of the crime
increases.’”) (quoting United States v. Jones, 994 F.2d 1051, 1055 (3d Cir. 1993)).
Because of the overwhelming evidence contained in the affidavit to support the search
warrant, we find the agents “were motivated by circumstances independent of their initial
observations” in the hotel room to seek the search warrant, which was otherwise
supported by probable cause. Herrold, 962 F.2d at 1143. Accordingly, the District Court
did not err in refusing to suppress the evidence that resulted from the search.
We do not address Sobolewski’s ineffective assistance of counsel claim on direct
review. United States v. Thornton, 327 F.3d 268, 271–72 (3d Cir. 2003). Such claims are
“best decided in the first instance in a collateral action.” Id. at 272.
IV.
We will affirm the judgment of conviction and sentence.

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