United States of America v. Marco Burton

PRECEDENTIAL
Filed April 29, 2002
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 00-2789
UNITED STATES OF AMERICA
v.
MARCO BURTON,
Appellant
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(No. 99-CR-00109-01)
District Judge: Honorable Jan E. DuBois
Argued: July 24, 2001
Before: ROTH, BARRY and AMBRO, Circuit Judges
(Filed: April 29, 2002)
Brian J. McMonagle, Esq. (Argued)
McMonagle, Perri & McHugh
30 South 15th Street
One Penn Square West; Suite 701
Philadelphia, Pennsylvania 19102
Counsel for Appellant
Michael L. Levy, Esq.
United States Attorney
Robert A. Zauzmer, Esq.
Assistant United States Attorney,
Chief of Appeals
M. Taylor Aspinwall, Esq. (Argued)
Assistant United States Attorney
615 Chestnut Street; Suite 1250
Philadelphia, Pennsylvania 19106
Counsel for Appellee
OPINION OF THE COURT
AMBRO, Circuit Judge:
Following his conditional guilty plea to the illegal
possession of various firearms and narcotics, Marco Burton
appeals the District Court’s denial of his motion to
suppress evidence based upon alleged violations of his
Fourth Amendment rights. He argues that the Government
arrested him without probable cause and searched his
house without a warrant supported by probable cause. We

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affirm, though on grounds different than those of the
District Court. See United States v. Burton, 193 F.R.D. 232
(E.D. Pa. 2000). We find that Burton’s arrest was justified
by probable cause and that, even if it was not, the
subsequent warrantless seizure of his vehicle was
independently justified under either the automobile
exception or the Place exception, see United States v. Place,
462 U.S. 696, 703 (1983), to the warrant requirement. We
further conclude that the warrant for the search of the
house was supported by probable cause, even assuming an
earlier protective sweep of the house was unreasonable
under the Fourth Amendment.
I. FACTS AND PROCEDURAL HISTORY
It is an understatement to describe January 26, 1999 as
an unlucky day for Marco Burton. On that day, officers of
the Philadelphia Police Department and agents of the Drug
Enforcement Administration ("DEA"), in a combined effort
2
known as the DEA Task Force (the "Task Force"), were
investigating the activities of a group the Task Force named
the Darien Street Drug Organization. The Task Force was
using a confidential informant to purchase drugs from
Melvin Santiago on the 2800 block of Darien Street in
Philadelphia. Santiago was suspected by the Task Force to
be a distributor of cocaine, cocaine base and heroin. The
informant had been involved in a prior attempt to purchase
drugs from Santiago and had previously provided
intelligence to the Task Force on the Darien Street Drug
Organization. While that informant attempted to purchase
drugs from Santiago, he and the Task Force inadvertently
interrupted what appeared to be a major drug transaction
between Santiago and Burton, thereby leading to Burton’s
arrest on the current charges.
According to the evidence presented at the District
Court’s suppression hearing, the confidential informant was
equipped with a microphone that permitted the Task Force
to listen to his conversations as they occurred. Other
members of the Task Force were stationed in a position to
observe the events on Darien Street. After the informant
arrived on Darien Street and queried where he might find
Santiago, he was informed that Santiago was inside the
house at 2851 Darien Street. The informant went to that
address, where he requested to meet with Santiago but was
rebuffed by persons outside the residence. Those persons
told him that Santiago was busy conducting business and
that he should wait. Loathe to linger outside for more than
a few minutes on a cold January afternoon, the informant
knocked at the entrance to the residence and again
requested an audience with Santiago. Santiago appeared at
the door and told him to continue waiting. During that
encounter the informant saw stacks of money being
counted inside the residence. He later informed the Task
Force that he observed one Hispanic male and one African-
American male meeting with Santiago.

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After being denied entrance, the informant was told by
the individuals outside the residence that Santiago was
involved in a "five brick" deal involving"big money" with a
"big boy." Following a lengthy wait, during which he related
to the Task Force what he saw inside 2851 Darien Street,
3
the informant eventually was able to negotiate with
Santiago a price for an ounce of cocaine. Santiago
instructed an associate to sell it to the informant at another
location, presumably to avoid disturbing the larger
transaction taking place inside. The sale occurred shortly
thereafter.
Over forty minutes elapsed during the informant’s
attempt to purchase drugs from Santiago. At the end of
that period, Task Force officers in a surveillance van
observed an African-American male, later identified as
Marco Burton, exit 2851 Darien Street with an opaque
plastic bag, place the bag in the trunk of a black Nissan
Maxima, make a cellular phone call, and drive away. 1
Santiago also left shortly thereafter.
The Task Force agents followed the Maxima for several
blocks and eventually requested assistance. Officer Dennis
Bauer, a veteran officer of the Philadelphia Police
Department on routine patrol in a marked police vehicle,
responded and followed the Maxima to the 2500 block of
North Garnet Street. Burton parked the Maxima on that
block and began walking down the street. With his firearm
drawn, Officer Bauer approached Burton and instructed
him to stop. Burton stuck his hand in his jacket, as if he
"might have a gun," in the words of Officer Bauer, and then
continued for three to five steps. At that point, as various
Task Force officers reached the scene, Burton stopped and
put his hands up. Officer Bauer conducted a pat down
search and requested identification. Burton was initially
evasive and refused to give Officer Bauer his name or
address. He had no identification, but told officers he lived
at various addresses in the area. Eventually, Burton gave
his name and admitted he lived at 2543 North Garnet
Street with his grandmother.2 He could produce no
_________________________________________________________________
1. While the District Court’s opinion only mentions Burton, it appears
from the testimony at the suppression hearing and from Officer Daniel
McEwen’s affidavit, submitted in support of the search warrants, that
there was a male passenger in the Maxima with him. The role of this
anonymous passenger cannot be discerned from the record and neither
party ascribes any significance to his participation in the events of that
day.
2. The McEwen affidavit also recounts an evasiveness with respect to
whether Burton resided at 2543 North Garnet Street, but does so
4

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registration or other documentation for the car, instead
explaining that he had "just picked the car up." Following
this initial conversation, Officer Bauer placed Burton in the
back of his police car, where Burton waited while the Task
Force continued their investigation on North Garnet Street.
Task Force officers checked both the license plate number
and vehicle identification number on the Maxima; neither
was listed in Burton’s name. They also requested a drug-
sniffing dog to inspect the Maxima.
Meanwhile, Officer Bauer noticed a man, later identified
as Maurice Smith, peeking from a second floor window of
Burton’s purported address. While looking from a window
is not ordinarily suspicious behavior according to Bauer, he
characterized the observant’s behavior as "real strange"
because he was "peeking out" of the window rather than
"com[ing] very close to the window," as most bystanders
would do. Officer Bauer called the Task Force’s attention to
Smith and two DEA agents proceeded across the street to
that address. They called to Smith and he eventually
stepped out onto the building’s stoop to speak with the
Task Force agents. Smith talked to the agents for fifteen
minutes, during which time he told them that he stayed at
2543 North Garnet Street "sometimes" and identified
"Marco" as living at the house. Eventually, Smith acceded
to the agents’ request to look inside the house to ensure
that he was its only inhabitant. While quickly surveying the
interior of the house and finding no one else, the Task
Force agents discovered, in plain view, drug paraphernalia
-- including a scale, plate, razor blade and box of baking
soda, all covered in a white residue believed by the agents
to be cocaine. The officers left the property and continued
to converse with Smith. After Burton had spent thirty to
forty-five minutes in the back of the police vehicle, the
_________________________________________________________________
differently. It notes that "[o]ne individual initially stated that he resided
at 2543 N. Garnet Street, later he retracted that he resides at that
location." Because it is more detailed and presented an opportunity to be
tested upon cross-examination, the District Court appears to have
credited the testimony given at the evidentiary hearing that Burton was
initially evasive in answering where he resided, but eventually admitted
the location of his domicile. See Burton, 193 F.R.D. at 236.
5
canine unit arrived on the scene. The trained drug-sniffing
dog examined the Maxima and alerted to its trunk. Based
on the information established up to this time, the Task
Force sought search warrants for both the Maxima and
2543 North Garnet Street. In a signed affidavit,
Philadelphia Police Officer Daniel McEwen, who was
assigned to the Task Force, recounted many of the facts
noted above, including the investigation on Darien Street,
the pursuit and seizure of Burton, the quick search of the
North Garnet Street house and the dog’s alert to the
Maxima. He also included various facts relating to his
knowledge of drug trafficking in general, including a

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recitation of how drug traffickers use "stash houses" to
store drugs, drug proceeds, firearms and related evidence.
Based on the information contained in the McEwen
affidavit, both search warrants were approved. The Task
Force executed the warrants and discovered $45,608 and a
Ruger 9mm handgun in the trunk of the Maxima. After
searching the North Garnet Street residence, the Task
Force discovered a package containing 742 grams of
cocaine under a bed. Another handgun and a second
package containing 7.9 grams of cocaine were discovered
between the mattress and box spring of the second floor
bedroom from which Smith had been observing the events
unfolding on North Garnet Street.
On the basis of this evidence, Burton was indicted for
one count of possession with intent to distribute cocaine, in
violation of 21 U.S.C. S 841(a)(1), and a second count of
possession with intent to distribute cocaine base, in
violation of the same statute. He was also charged with
three firearms counts, including a count of possession of a
firearm in furtherance of a drug trafficking crime, 18 U.S.C.
S 924(c), and two counts of being a felon in possession of a
firearm, 18 U.S.C. S 922(g)(1). He pleaded guilty to all five
charges, but did so conditionally under Federal Rule of
Criminal Procedure 11(a)(2) to preserve appellate review of
the denial of his motion to suppress.3
_________________________________________________________________
3. The District Court had jurisdiction pursuant to 18 U.S.C. S 3231. Our
appellate jurisdiction is based on 18 U.S.C. S 3742(a) and 28 U.S.C.
S 1291.
6
Burton argues on appeal that both search warrants were
invalid because they rested on illegally-obtained evidence.
He does not challenge the facts found by the District Court.
Instead, Burton contends that those facts establish that he
was arrested without probable cause and that, as a result
of his arrest, the Task Force searched the Maxima. This
constitutional violation, he argues, is properly remedied by
excising Paragraph Nine4 of the McEwen affidavit (which
recounts the dog-sniffing of the car) from the evidence
submitted in support of a search warrant for the Maxima.
Similarly, Burton argues that the Task Force lacked a
warrant or valid consent to search his residence and that
the fruits of this unlawful search, including the drug
paraphernalia evidence recounted in Paragraph Eight 5 of
the McEwen affidavit, should not be considered in
evaluating whether there was probable cause to issue a
search warrant for the property. Burton contends that
without these paragraphs the McEwen affidavit does not
contain sufficient evidence to support search warrants for
both the Maxima and 2543 North Garnet Street. Because
he does not challenge the District Court’s findings of fact
and instead only argues that the Court erred in finding
probable cause on those facts, we afford plenary review to
Burton’s claims of error. See Ornelas v. United States, 517

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U.S. 690, 697 (1996).
_________________________________________________________________
4. Paragraph Nine states the following:
9. The officers/agents secured the residence and the Maxima. A
Philadelphia Police Department canine officer and his dog arrived at
the location. The canine alerted to the trunk of the Maxima. . . .
This canine has been in service for the past three years as a drug
detection dog and has been involved in over 100 drug investigations.
This canine has alerted to positive indications which have resulted
in the discovery and seizure of drugs.
5. Paragraph Eight states the following:
8. Based upon their security concerns and to determine whether
there were other individuals inside 2543 N. Garnet Street, the
officers/agents conducted a security sweep of the residence. During
this sweep, the officers observed in plain view in the second floor
front bedroom drug paraphernalia, including scales, baking soda,
razors, and a white powdery substance.
7
II. PROBABLE CAUSE TO A RREST BURTON
Burton challenges the seizure of his person by Officer
Bauer and the Task Force, arguing that he was arrested
without probable cause. The Government responds that
Burton was not arrested until the police canine unit alerted
to the presence of narcotics in the trunk of the Maxima.
The intervening seizure, they argue, was nothing more than
a permissible Terry stop supported by the Task Force’s
reasonable, articulable suspicion of illegality. See Terry v.
Ohio, 392 U.S. 1, 30 (1968). The District Court agreed with
the Government. Burton, 193 F.R.D. at 237. It found that
even though Burton was handcuffed in the back of a police
vehicle for the better part of an hour, the nature and
duration of the seizure did not cause the Terry stop to ripen
into an arrest. Id. at 240-41.
We need not address whether the District Court correctly
concluded that Burton’s seizure was "the least intrusive
means reasonably available to verify or dispel the officer’s
suspicion in a short period of time," Florida v. Royer, 460
U.S. 491, 500 (1983) (discussing the outlines of permissible
Terry stops), because we conclude that the Task Force had
probable cause to arrest Burton at the time he was initially
stopped, based on the information taken from the
confidential informant and observed by the officers on
Darien Street. Given our finding that the police had
probable cause, we have no reason to decide whether the
Task Force acted permissibly under Terry. United States v.
Massac, 867 F.2d 174, 177 (3d Cir. 1989) (propriety of
alleged Terry stop need not be reached if police possessed
probable cause to arrest). Furthermore, we conclude that
the Task Force had independent justification for the search
of the Maxima under two exceptions to the warrant
requirement: the "automobile exception" for warrantless

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searches and the Place exception for temporary seizures.
Given these lawful independent rationales, the canine unit’s
inspection results were not the fruit of the poisonous tree
of Burton’s arrest.
The events on Darien Street, to which the Task Force was
both an eyewitness and, for lack of a better term, an
"earwitness," gave the Task Force probable cause to arrest
Burton without a warrant. "Law enforcement authorities do
8
not need a warrant to arrest an individual in a public place
as long as they have probable cause to believe that person
has committed a felony." United States v. McGlory, 968 F.2d
309, 342 (3d Cir. 1992) (citing United States v. Watson, 423
U.S. 411, 421 (1976)). The Supreme Court has explained
that probable cause is a "fluid concept -- turning on the
assessment of probabilities in particular factual contexts --
not readily, or even usefully, reduced to a neat set of legal
rules." Illinois v. Gates, 462 U.S. 213, 232 (1983). The
Court has explained the standard as
whether, at the moment the arrest was made, the
officers had probable cause to make it--whether at that
moment the facts and circumstances within their
knowledge and of which they had reasonably
trustworthy information were sufficient to warrant a
prudent man in believing that the petitioner had
committed or was committing an offense.
Beck v. Ohio, 379 U.S. 89, 91 (1964). We have stated that
this standard "requires more than mere suspicion; however,
it does not require that the officer have evidence sufficient
to prove guilt beyond a reasonable doubt." Orsatti v. New
Jersey State Police, 71 F.3d 480, 482-83 (3d Cir. 1995).
We have previously found probable cause even in the
absence of the actual observance of criminal conduct when
a prudent observant would reasonably infer that a
defendant acted illegally. See Gates, 462 U.S. at 243 n.13
("probable cause requires only a probability or substantial
chance of criminal activity, not an actual showing of such
activity"). For example, in United States v. McGlory we
found that the observation of a transfer of money to a
known drug dealer in certain circumstances was sufficient
evidence to establish probable cause to arrest. McGlory, 968
F.2d at 342.
We find this case to be similar. The Task Force was
aware that its informant had been told a "five brick" deal
was taking place inside 2851 Darien Street. The informant
actually observed a large sum of cash being counted and
confirmed the involvement of Santiago, a known drug
dealer. The significant amount of time taken presumably to
count the money and the secrecy that attended the
9

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transaction (as evidenced by Santiago’s refusal to let the
informant enter the premises) supported the inference that
a drug transaction was taking place. Furthermore, the
informant was actually able to purchase cocaine, at a price
negotiated with Santiago, that afternoon from one of his
lieutenants. We have no doubt that a reasonably prudent
spectator of these events would conclude, as the Task Force
did, that a significant drug transaction was taking place
involving Santiago and the two other men, one African-
American and one Hispanic, observed within 2851 Darien
Street. While Burton’s association with known drug dealers
is insufficient, by itself, to support probable cause, United
States v. Harris, 482 F.2d 1115, 1118 (3d Cir. 1973)
(fraternization with drug dealers itself insufficient to
establish probable cause without other interrelated facts),
the significant accumulation of evidence supporting a drug
transaction justified a reasonable inference that a felony
was being committed. Moreover, we must view these facts
through the lens of the Task Force’s significant experience
with similar transactions. See Ornelas, 517 U.S. at 696
(probable cause should be "viewed from the standpoint of
an objectively reasonable police officer"); United States v.
Cortez, 449 U.S. 411, 418 (1981) ("the evidence thus
collected must be seen and weighed not in terms of library
analysis by scholars, but as understood by those versed in
the field of law enforcement"). From the perspective of an
experienced law enforcement officer, or indeed from the
perspective of any reasonably prudent observant of these
activities, it was evident that Burton was involved in a drug
transaction.
In his briefing to this Court, Burton argues that the
knowledge possessed by Officer Bauer when arresting him
was insufficient to establish probable cause. It is well
established, however, that the arresting officer need not
possess an encyclopedic knowledge of the facts supporting
probable cause, but can instead rely on an instruction to
arrest delivered by other officers possessing probable cause.
"[A]n officer can lawfully act solely on the basis of
statements issued by fellow officers if the officers issuing
the statements possessed the facts and circumstances
necessary to support a finding of the requisite basis."
Rogers v. Powell, 120 F.3d 446, 453 (3d Cir. 1997) (citing
10
United States v. Hensley, 469 U.S. 221, 232 (1985)).
Because we conclude that the Task Force possessed
sufficient facts to support probable cause to arrest Burton
when they radioed for assistance, we have no doubt that
the resulting seizure of him by Officer Bauer was
reasonable and proper.
III. THE SEIZURE AND SEARCH OF THE MAXIMA
Burton has not explained the connection between his
arrest and the canine sniffing of the Maxima or, more
specifically, why evidence obtained from his vehicle is the

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"fruit of the poisonous tree" of his arrest. See Wong Sun v.
United States, 371 U.S. 471, 488 (1963). Instead, he argues
simply that there is a temporal relationship between the
arrest, the seizure and the search, and describes the events
of that day as "an unbroken chain of events."
The Supreme Court has held that the scope of the
exclusionary rule is determined by "whether, granting
establishment of the primary illegality, the evidence to
which . . . objection is made has been come at by
exploitation of that illegality or instead by means
sufficiently distinguishable to be purged of the primary
taint." Wong Sun, 371 U.S. at 488 (citation omitted). This
Court has restated the Wong Sun standard as two separate
inquiries; namely,
(a) the proximity of an initial illegal custodial act to
the [acquired evidence]; and
(b) the intervention of other circumstances
subsequent to an illegal arrest which provide a cause
so unrelated to that initial illegality that the acquired
evidence may not reasonably be said to have been
directly derived from, and thereby tainted by, that
illegal arrest.
Pennsylvania ex rel. Craig v. Maroney, 348 F.2d 22, 29 (3d
Cir. 1965). The first inquiry assesses the measure of
attenuation between illegal police conduct and the evidence
allegedly exploited from it. Justice Powell, concurring in
Brown v. Illinois, 422 U.S. 590, 609 (1975), recognized that
this assessment is "largely a matter of degree" and
11
invariably fact-specific. The second inquiry concerns
whether an independent source exists for that evidence. See
Murray v. United States, 487 U.S. 533, 537 (1988)
(discussing the relationship between the fruit of the
poisonous tree doctrine and the independent source
doctrine). We have explained that, "under the independent
source 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) (emphasis in original).
Because Burton parked the Maxima and walked away
from it before being seized, we have difficulty fathoming
how the canine sniff is the result of the exploitation of his
allegedly illegal arrest. Perhaps the best argument on this
point for Burton, though based on raw conjecture, is that
the Task Force effectively seized6 the Maxima when
arresting him, thereby preventing him from departing the
scene by that means. Cf. Illinois v. McArthur , 531 U.S. 326,
333 (2001) (assuming officers’ warrantless exclusion of a
suspect from his real property was a seizure of that
property for Fourth Amendment purposes). But Burton
does not argue that he intended to use the Maxima had he
not been seized, and thus this conjectural argument goes

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nowhere.
Yet even if we assume, arguendo, that the canine sniff of
the Maxima was a result of the exploitation of Burton’s
allegedly unlawful arrest, we nonetheless cannot conclude
that what ultimately turned up (the money and the gun in
the trunk) should be suppressed as fruit of the poisonous
tree because the Task Force had a lawful independent
source for that search. Because the Task Force observed
_________________________________________________________________
6. We speak here of the "seizure" of the vehicle and not the search of it
because the police did not search Burton’s vehicle before obtaining a
warrant. Burton parked the car on North Garnet Street and exited it
before he was arrested. Thus, even if the Task Force had not arrested
Burton, the Maxima would have remained parked on the street. In these
circumstances, walking a dog around the outside of the vehicle is not a
search. See City of Indianapolis v. Edmond, 531 U.S. 32, 40 (2000) ("The
fact that officers walk a narcotics-detection dog around the exterior of
each car . . . does not transform the [initial] seizure [of the car] into a
search."); Place, 462 U.S. at 707 (canine sniff not a search).
12
Burton leave what they thought to be a drug deal and place
the results of that transaction in his trunk, probable cause
existed to conclude that the Maxima itself was involved in
an illegality, regardless of Burton’s seizure. The automobile
exception to the warrant requirement permits law
enforcement to seize and search an automobile without a
warrant if "probable cause exists to believe it contains
contraband." Pennsylvania v. Labron, 518 U.S. 938, 940
(1996). While a seizure or search of property without a
warrant ordinarily requires a showing of both probable
cause and exigent circumstances, the "ready mobility" of
automobiles permits their search based only on probable
cause. See Maryland v. Dyson, 527 U.S. 465, 466-67
(1999); Labron, 518 U.S. at 940; United States v. Ross, 456
U.S. 798, 809 (1982). Given the events on Darien Street
previously recounted, probable cause existed to believe the
Maxima contained contraband.
In this context, when the Task Force interdicted Burton
on North Garnet Street, it had probable cause to search the
Maxima immediately. Yet it did not do so. Instead, out of
caution the Task Force, at most, seized the Maxima until a
drug sniffing dog could be found to confirm what was
already suspected to be true: that it contained contraband.
Following the dog’s alert, the Task Force sought a search
warrant. As the Supreme Court explained, "[f]or
constitutional purposes, we see no difference between on
the one hand seizing and holding a car before presenting
the probable cause issue to a magistrate and on the other
hand carrying out an immediate search without a warrant.
Given probable cause to search, either course is reasonable
under the Fourth Amendment." Chambers v. Maroney, 399
U.S. 42, 52 (1970). In this case, the Task Force took the
former course -- it seized the Maxima pending a canine
inspection and the subsequent issuance of a warrant.

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Nonetheless, it could just have easily taken the latter
course and immediately searched the vehicle. Given this
independent authority to search the Maxima, separate and
apart from the authority to arrest Burton,7 we believe that
_________________________________________________________________
7. As an aside, while we realize that the Government has not argued that
it arrested Burton prior to the canine sniffing of the Maxima, another
13
the Task Force had an independent source for its seizure of
the evidence inside it. Because that evidence has an
independent source, "exclusion of . . . [it] would put the
police in a worse position than they would have been in
absent any error or violation." Nix v. Williams, 467 U.S.
431, 443 (1984). Such a result is inconsistent with the goal
of the exclusionary rule, i.e., to put the police in the same
position they would have been but for the illegality. Id.
For the sake of completeness, we also note that, even if
we erred in our prior conclusions, the temporary seizure of
the Maxima pending a canine inspection was still
reasonable. Burton himself concedes that the Task Force
possessed a reasonable, articulable suspicion to stop him
on North Garnet Street. The District Court so concluded,
Burton, 193 F.R.D. at 237, and Burton does not contest
this holding on appeal. If the Task Force had a reasonable,
articulable suspicion that Burton was involved in criminal
acts based on his actions on Darien Street, it also had a
similar suspicion that his vehicle hid the proceeds of that
criminal behavior.
In this circumstance, the Supreme Court has held that
police may temporarily seize an item based on "specific and
articulable facts warranting a reasonable belief that" it
contains contraband. Place, 462 U.S. at 703. In Place, the
police seized luggage for ninety minutes based on officers’
suspicions, though not rising to probable cause, that it
contained drugs. Id. at 699. The Court concluded that
ninety minutes was an unreasonable period of time for
seizure given the officers’ lack of diligence in securing a
drug sniffing dog. Id. at 709. We have upheld seizures
under Place lasting as long as eighty minutes when the
_________________________________________________________________
arrow may be in its quiver. It might have argued that it was entitled to
conduct a search of the Maxima’s interior incident to Burton’s arrest
under New York v. Belton, 453 U.S. 454 (1981), because he had parked
his car shortly before being apprehended. Last term, the Supreme Court
accepted certiorari to address the relevancy of the search incident to
arrest rationale in situations in which the defendant was arrested near
a parked vehicle, but did not decide the case because it lacked appellate
jurisdiction. See Florida v. Thomas, 532 U.S. 774, 776 (2001). In the
context of our decision today, we need not address this question.
14

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police acted diligently to bring a trained dog to the seized
property. See United States v. Frost, 999 F.2d 737, 742 (3d
Cir. 1993).
Here the amount of time necessary was only thirty to
forty-five minutes, and we have no indication that the Task
Force proceeded less than diligently in its attempt to bring
the canine unit to North Garnet Street. Thus, given the
seizure’s minimal temporary intrusion on Burton’s ability to
exercise dominion over his vehicle, the pre-warrant seizure
of the Maxima was justified under the Place exception.
In sum, we disagree that the evidence resulting from the
search of the Maxima should be suppressed. The Task
Force possessed probable cause to arrest Burton at the
time it took him into custody. Moreover, because the
seizure of the Maxima was lawful under both the
automobile exception to the warrant requirement and the
Place-exception (and information relating to the canine sniff
was an admissible part of the McEwen affidavit seeking a
warrant to search the Maxima to the extent it was even
necessary to obtain a warrant), the Task Force had
sanctioned sources for the evidence eventually derived from
the vehicle. Hence we will not suppress that evidence.
IV. THE SEARCH OF THE HOUSE.
We know well that a search warrant, supported by
probable cause, is normally necessary before law
enforcement may lawfully search a person’s property.
Searches of a home without a warrant are presumptively
unreasonable under the Fourth Amendment. Payton v. New
York, 445 U.S. 573, 586 (1980). In this case, the
Government concedes that the Task Force lacked a warrant
for its initial self-described "protective sweep" of the interior
of 2543 North Garnet Street. The Government points out,
however, that "[i]t is equally well settled that one of the
specifically established exceptions to the requirements of
both a warrant and probable cause is a search that is
conducted pursuant to consent." Schneckloth v.
Bustamonte, 412 U.S. 218, 219 (1973). The consent in this
case, the Government asserts, was that of Smith, who is
claimed to have had common authority over the property.
15
See Illinois v. Rodriquez, 497 U.S. 177, 186 (1990) (holding
that a warrantless search does not violate the Fourth
Amendment if police officers conclude reasonably, although
incorrectly, that the person giving consent has common
authority over the premises).
Burton argues that Smith could not give a valid consent
to permit the Task Force to search 2543 North Garnet
Street because he admitted he only stayed there
"sometimes" and that the house belonged to"Marco." Thus,
Burton concludes that the Task Force’s initial warrantless
search of the property violated his Fourth Amendment
rights and the results of that search -- namely, the drug

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paraphernalia observed and recounted in the McEwen
affidavit -- should have been excised from the Magistrate’s
consideration when finding probable cause to issue a
warrant for a second, more thorough search of the
property.
We need not decide whether Smith could validly give
consent to the search of the property because we conclude
that even if Paragraph Nine is excised, the Magistrate Judge
still possessed sufficient evidence from the McEwen
affidavit to find probable cause supporting a search warrant
for the property. Thus, the evidence gathered during that
second search need not be suppressed.
"It is settled law in this court that, even assuming that
some factual averments in the affidavit are tainted, they do
not vitiate a warrant which is otherwise validly issued upon
probable cause reflected in the affidavit." United States v.
Johnson, 690 F.2d 60, 63 (3d Cir. 1982); see also Franks v.
Delaware, 438 U.S. 154, 171-72 (1978). Therefore, even if
the drug paraphernalia evidence was illegally obtained, an
issue we do not decide, the search warrant need not be
invalidated if the other evidence in the McEwen affidavit
independently would have established probable cause to
search the house. Johnson, 690 F.2d at 63; Herrold, 962
F.2d at 1138.
With this backdrop, we must resolve whether the
McEwen affidavit, without Paragraph Eight’s recitation of
the Task Force’s discovery of drug paraphernalia on the
second floor, contains sufficient information to support a
16
finding of probable cause to search the North Garnet Street
residence. We conclude that it does. 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." Gates, 462 U.S. at 238. Because this
inquiry focuses on the relation of criminal conduct to a
particular location and not on the activities of any
particular person, "probable cause to arrest does not
automatically provide probable cause to search the
arrestee’s home." United States v. Jones, 994 F.2d 1051,
1055 (3d Cir. 1993). That is not to say that those facts
establishing probable cause to arrest are irrelevant to
probable cause to search the arrestee’s house. "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." Id. at 1055-56.
Under our precedent, direct evidence linking the
residence to criminal activity is not required to establish
probable cause. United States v. Hodge, 246 F.3d 301, 305
(3d Cir. 2001); United States v. Whitner, 219 F.3d 289, 297
(3d Cir. 2000); United States v. Conley, 4 F.3d 1200, 1207
(3d Cir. 1993); Jones, 994 F.2d at 1056."While ideally
every affidavit would contain direct evidence linking the
place to be searched to the crime, it is well established that

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direct evidence is not required for the issuance of a search
warrant." Jones, 994 F.2d at 1056. Instead, probable cause
to search can be based on an accumulation of
circumstantial evidence that together indicates a fair
probability of the presence of contraband at the home of the
arrested. As explained in Jones, probable cause "can be,
and often is, inferred by ‘considering the type of crime, the
nature of the items sought, the suspect’s opportunity for
concealment and normal inferences about where a criminal
might hide stolen property.’ " Id. (quoting United States v.
Jackson, 756 F.2d 703, 705 (9th Cir. 1985)).
Considering these factors, we are convinced that the
evidence contained in the McEwen affidavit, even after
excising the challenged paragraph, is sufficient to establish
probable cause to search 2543 North Garnet Street. Our
Court, and several other courts of appeals, "have held that
evidence . . . is likely to be found where the [drug] dealers
17
reside." Whitner, 219 F.3d at 297-98 (listing cases). As we
explained in Whitner,
evidence associated with drug dealing needs to be
stored somewhere, and . . . a dealer will have the
opportunity to conceal it in his home. After all, a dealer
logically could conclude that his residence is the best,
and probably the only, location to store items such as
records of illicit activity, phone books, address books,
large amounts of cash, assets purchased with proceeds
of drug transactions, guns to protect drugs and cash,
and large quantities of drugs to be sold.
Whitner, 219 F.3d at 298; see also Hodge , 246 F.3d at 306
("It is reasonable to infer that a person involved in drug
dealing on such a scale would store evidence of that dealing
at his home."). Of course, even though we have recognized
that it is a reasonable inference to conclude that drug
dealers often store evidence of drug crimes in their
residences, application of this inference is based on
evidence supporting three preliminary premises: (1) that the
person suspected of drug dealing is actually a drug dealer;
(2) that the place to be searched is possessed by, or the
domicile of, the dealer; and (3) that the home contains
contraband linking it to the dealer’s drug activities. In this
case evidence on each premise is profuse.
For the reasons announced in concluding that the Task
Force had probable cause to arrest Burton, the Task Force
also had probable cause to believe that he was a drug
dealer. See Hodge, 246 F.3d at 307 ("probable cause existed
to arrest him on drug-related charges . . . again making it
more likely that drug-related evidence would be stored at
his home"). The McEwen affidavit recounts all of the facts
supporting probable cause to arrest, including the
informant’s observation of the counting of a large amount
of cash and the indications that Burton and Santiago, a
known drug dealer, were involved in a "five brick" deal. See

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Whitner, 219 F.3d at 298 (association with a known drug
dealer supports probable cause that the defendant is
involved in the drug trade). Given this quantity of narcotics
(the Task Force believed "five brick" to be a street term for
1000 grams), it was reasonable to infer that Burton was a
drug dealer and not simply a user. See Hodge, 246 F.3d at
18
306; Whitner, 219 F.3d at 298. Were the evidence
supporting probable cause insufficient, it should also be
remembered that we have concluded that the canine sniff of
the Maxima was an admissible component of the McEwen
affidavit and also supports the inference that Burton
recently engaged in a transaction involving a large quantity
of drugs.
Ample evidence existed that 2543 North Garnet Street
was Burton’s residence. Not only did Burton tell Task Force
officers that he lived at that property with his grandmother,
but Smith independently confirmed that the house was
"Marco’s." Both of these facts are contained within the
McEwen affidavit and support the inference that the
address was Burton’s home. See Whitner, 219 F.3d at 298.
More importantly, the best evidence that the North Garnet
Street property was Burton’s was that he parked his
Maxima in close proximity to the house. See Jones, 994
F.2d at 1057 (the presence of defendants’ residences near
scene of crime supports inference that the homes would be
repositories of evidence).
Of course, Burton’s travel from Darien Street to North
Garnet Street does not simply support the inference that
Burton’s home was on that street, but tellingly indicates
that his home was the destination for the illegal proceeds of
his drug transaction. While we generally accept the
common sense proposition that drug dealers often keep
evidence of their transactions at home, see Whitner, 219
F.3d at 297-98, that inference is much stronger when the
home is the first place a drug dealer proceeds following
such a transaction. Moreover, the McEwen affidavit relates
that Burton was evasive about telling the Task Force his
address. His equivocation under questioning on a subject
Burton presumed to know readily suggests he was
attempting to deceive the Task Force of his true address,
thereby supporting the inference that contraband was
hidden there. See Whitner, 219 F.3d at 298-99 ("This type
of suspicious and deceptive response to questioning leads
to a reasonable inference that Whitner was attempting to
conceal the existence of the apartment and his association
with the apartment."). Lastly, the McEwen affidavit also
contained the experiences of Officer McEwen, a five-year
19
veteran of the Task Force, that "[p]ersons involved in large-
scale drug trafficking and those who assist them frequently
conceal in locations known as ‘stash-houses’ caches of

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drugs, drug paraphernalia, firearms, large amounts of
currency," and other evidence of drug dealing. His affidavit
suggests, based on his experience and training, that 2543
North Garnet Street was such a stash house. Given the
evidence possessed by the Task Force and taken in light of
Officer McEwen’s training and experience, we believe his
conclusion to be well supported, even without resort to the
drug paraphernalia discovered in the Task Force’s earlier
quick sweep of the property.
Because the Government proffered sufficient evidence in
the McEwen affidavit that there was a "fair probability that
contraband," Gates, 462 U.S. at 238, would be found at
2543 North Garnet Street, the warrant was validly sought
and approved, and we will not suppress the evidence that
resulted from the search of that property.
V. CONCLUSION
The District Court properly denied Burton’s motion to
suppress. Thus, his conviction is hereby affirmed.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
20

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