United States of America v. Aaron Agnew

PRECEDENTIAL
UNITED STATES COURT
OF APPEALS FOR
THE THIRD CIRCUIT
NO. 03-2654
__________
UNITED STATES OF AMERICA
v.
AARON AGNEW,
Appellant
________________
Appeal from the United States
District Court for the
Middle District of Pennsylvania
District Judge:
Honorable William W. Caldwell
(D.C. Criminal No. 02-cr-00055)
Argued May 27, 2004
BEFORE: RENDELL and COWEN,
Circuit Judges, and
SCHWARZER,* District Judge.
(Filed September 22, 2004)
LORI J. ULRICH (ARGUED)
JAMES V. WADE
Federal Public Defender for the
Middle District of Pennsylvania
DANIEL I. SIEGEL
Assistant Federal Public Defender
100 Chestnut Street, Suite 306
Harrisburg, PA 17101
Counsel for Appellant
THEODORE B. SMITH, III, (ARGUED)
JAMES T. CLANCY
Assistant U.S. Attorney
THOMAS A. MARINO
United States Attorney
Federal Building
228 Walnut Street
P.O. Box 11754
Harrisburg, PA 17108-1754
Counsel for Appellee
_________
OPINION OF THE COURT
SCHW ARZER, Senior District Judge.
Aaron Agnew appeals his
conviction for distributing crack cocaine
and being a felon in possession of a
firearm. He contends that the District
Court erred in denying his motion to
suppress physical evidence, and in
preventing him from impeaching a witness
with evidence of a sixteen-year-old forgery
conviction. The District Court had
jurisdiction pursuant to 18 U.S.C. § 3231
and we exercise jurisdiction pursuant to
28 U.S.C. § 1291. We will affirm. *The Honorable William W Schwarzer,
Senior United States District Judge for the
Northern District of California, sitting by
designation.

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FACTUAL AND PROCEDURAL
HISTORY
Agnew was charged in an
indictment with distribution of crack
cocaine in violation of 21 U.S.C. §
841(a)(1), possession of a firearm by a
felon in violation of 18 U.S.C. §§
922(g)(1) and 924(a)(2), and possession of
a firearm in furtherance of a drug
trafficking crime in violation of 18 U.S.C.
§ 924(c)(1)(A).
Before trial, Agnew moved to
suppress the fruits of the search in
connection with his arrest. At the
suppression hearing, Dauphin County
Sheriff’s Deputy Gary Duncan testified
that he was assigned to the Fugitive Task
Force charged with “the service of all
violent felony warrants, drug warrants and
any other cases referred to [it] from
Dauphin County or the surrounding
communities.” Agnew’s case was referred
to Duncan’s unit because Agnew had
twice previously evaded capture by
jumping from a second story window and
by holding onto the roof rack of a passing
car for a block and a half. Duncan had
learned from an informant that Agnew
“was at the residence [at 2740 Ludwig
Street] and that he was to be in possession
of a firearm, a revolver, . . . and that he
was also to be in possession of some
narcotics.” Duncan checked with the Drug
Task Force and learned that it had no
investigations pending against Agnew.
Duncan and a group of other
officers went to 2740 Ludwig Street. He
and six other officers approached the front
of the residence, and four or five officers
were posted around the perimeter and at
the rear of the residence. Some of the
officers wore “raid gear,” including
bulletproof vests, and carried ballistics
shields. Duncan testified that when the
officers knocked on the front door of the
residence and announced, “Police, open
the door,” he saw Agnew pull aside a
curtain in a window of the home. He then
heard “what sounded like scuffling inside,
running around.” Duncan testified that he
“felt that due to the knowledge that
[Agnew] had a handgun that we were
compromised and we decided to take the
door.” The officers then entered the
residence and apprehended Agnew as he
ran up a flight of stairs. Once inside,
officers noticed in plain view a clear
plastic bag containing cocaine. They
thereafter obtained a search warrant and
found a .22 caliber revolver and fifteen
grams of cocaine in the home.
The District Court denied Agnew’s
suppression motion. It found that the
officers acted pursuant to an arrest
wa rrant, a n d held that exig e n t
circumstances justified the entry into the
home.
The day before trial, the
government made a motion in limine to
prevent Agnew from cross-examining a
government witness, Wyatt Dawson, using
a sixteen-year-old forgery conviction. The
court granted the motion at trial, stating, “I
have read the motion and your brief. I am
going to sustain the objection.” Dawson

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subsequently testified that he had
purchased crack cocaine from Agnew on
numerous occasions and that he rented and
lived in the residence at 2740 Ludwig
Street. In addition to the testimony of an
officer who searched the residence, the
government also presented several
witnesses who testified to buying crack
from Agnew. Agnew himself took the
stand and testified that the firearm and
drugs were owned by Dawson, who was in
fact the dealer who supplied Agnew with
drugs.
The jury convicted Agnew of
distributing crack cocaine and possessing
a firearm, but acquitted him of possessing
a firearm in furtherance of drug
trafficking. Agnew timely appealed.
DISCUSSION
I.
Agnew first argues that the District
Court erred in finding that the officers’
entry into 2740 Ludwig Street was
justified by exigent circumstances. We
review the denial of a suppression motion
for clear error as to the underlying facts,
but exercise plenary review as to its
legality in light of the court’s properly
found facts. United States v. Givan,
320 F.3d 452, 458 (3d Cir. 2003). We may
affirm on any ground supported by the
record. United States v. Jasin, 280 F.3d
355, 362 (3d Cir.), cert. denied, 537 U.S.
947 (2002); United States v. Belle, 593
F.2d 487, 499 (3d Cir. 1979) (en banc)
(affirming denial of suppression motion on
different ground).
We find that the entry into the
residence did not violate Agnew’s Fourth
Amendment rights because the officers
were armed with a warrant for his arrest.
Payton v. New York, 445 U.S. 573 (1980),
establishes that police may enter a
suspect’s residence to make an arrest
armed only with an arrest warrant if they
have probable cause to believe that the
suspect is in the home. Id. at 602-03; see
also United States v. Clayton, 210 F.3d
841, 843 (8th Cir. 2000) (holding that a
valid misdemeanor arrest warrant “carries
with it the authority to enter the residence
of the person named in the warrant in
order to execute the warrant so long as the
police have a reasonable belief that the
suspect resides at the place to be entered
and that he is currently present in the
dwelling”). The District Court found that
the officers entered the residence for the
purpose of executing an arrest warrant, and
this finding has not been challenged.
Indeed, Duncan testified that he was
assigned to the Fugitive Task Force
charged with serving arrest warrants, and
Agnew testified that he was aware that
there was “a warrant out for [his] arrest” at
the time of the arrest. Moreover, the
police had probable cause to believe that
Agnew was in the home because they saw
him through the window.
We note that Payton only addresses
entry by officers into the residence of the
subject of the warrant, 445 U.S. at 603,
and that there was no testimony at the
suppression hearing about whether 2740

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Ludwig Street was Agnew’s residence.
However, whether the home was Agnew’s
residence is ultimately irrelevant because
under any of the possible alternatives the
entry pursuant to the arrest warrant did not
violate Agnew’s Fourth Amendment
rights.
If Agnew resided at 2740 Ludwig
Street, his arrest was lawful under Payton
because the police acted pursuant to an
arrest warrant. See id. at 602-03. If
Agnew did not reside at 2740 Ludwig
Street, he may have lacked a privacy
interest in the residence and would have no
standing to challenge the police officers’
entry. Minnesota v. Olson, 495 U.S. 91,
95-97 (1990) (holding that only a person
with a reasonable expectation of privacy in
a residence—like an overnight guest—may
complain that an entry into the residence
was unlawful). In any event, even if
Agnew, although not a resident at 2740
Ludwig Street, did have a privacy interest,
the entry did not violate his privacy rights.
The Supreme Court held in United States
v. Steagald, 451 U.S. 204, 211-14 (1981),
that the Fourth Amendment does not
permit police to enter a third person’s
home to serve an arrest warrant on a
suspect. But Steagald protected the
interests of the third-party owner of the
residence, not the suspect himself. See id.
at 212 (stating the issue to be “whether an
arrest warrant—as opposed to a search
warrant— is adequate to protect the Fourth
Amendment interests of persons not
named in the warrant, when their homes
are searched without their consent and in
the absence of exigent circumstances”).
As the Ninth Circuit observed:
A person has no greater
right of privacy in another’s
home than in his own. If an
arrest warrant and reason to
believe the person named in
the warrant is present are
sufficient to protect that
person’s fourth amendment
privacy rights in his own
home, they necessarily
suffice to protect his privacy
rights in the home of
another.
The right of a third party not
named in the arrest warrant
to the privacy of his home
may not be invaded without
a search warrant. But this
right is personal to the home
owner and ca nnot be
asserted vicariously by the
person named in the arrest
warrant.
United States v. Underwood, 717 F.2d
482, 484 (9th Cir. 1983) (en banc)
(citations omitted); see also United States
v. Kaylor, 877 F.2d 658, 663 n.5 (8th Cir.
1989) (“Steagald addressed only the right
of a third party not named in the arrest
warrant to the privacy of his or her home.
This right is personal to the homeowner
and cannot be asserted vicariously by the
person named in the arrest warrant.”).
Thus, even if Agnew was a non-resident
with a privacy interest, the Fourth
Amendment would not protect him from

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arrest by police armed with an arrest
warrant.
Because the officers entered the
residence armed with a warrant for
Agnew’s arrest, and had probable cause to
believe that he was inside, the District
Court properly denied the motion to
suppress.
II.
Agnew next contends that the
district court erred in preventing him from
cross-examining Dawson using the
witness’s sixteen-year-old forgery
conviction. He argues that we should
review the district court’s decision de
novo, and that the evidence should have
been admitted because it would have
helped resolve a dispute between two
witnesses—Dawson and Agnew— about
who owned the gun found in Agnew’s
room.
A.
Agnew concedes that we usually
review decisions to exclude evidence for
abuse of discretion. See United States v.
Saada, 212 F.3d 210, 220 (3d Cir. 2000).
He contends that we should employ
plenary review here, however, because the
record does not reflect that the district
court actually exercised its discretion.
In United States v. Himelwright, 42
F.3d 777 (3d Cir. 1994), we stated that
“[w]here . . . the district court fails to
explain its grounds for denying a [Federal]
Rule [of Evidence] 403 objection and its
reasons for doing so are not otherwise
apparent from the record, there is no way
to review its discretion. In such cases, we
need not defer to the reasoning of the
district court.” Id. at 781 (citation
omitted). Agnew asks us to extend this
principle to decisions under Rule 609. The
District Court stated, “I have read the
[government’s] motion and your brief. I
am going to sustain the objection.” We
believe that this statement adequately
reveals the Court’s reasons for sustaining
the objection: it agreed with the arguments
contained in the government’s brief.2 In
any case, we find that the Court’s decision
should be affirmed even under a plenary
standard of review.
B.
Federal Rule of Evidence 609(a)
permits parties to use evidence of a past
conviction to impeach witnesses “if it
involved dishonesty or false statement.”
Forgery, of course, involves dishonesty
and false statement. Wagner v. Firestone
Tire & Rubber Co., 890 F.2d 652, 655 n.3
(3d Cir. 1989). But Rule 609(b) states that
Evidence of a conviction
under this rule is not
2The government’s argument was that
Agnew had numerous other avenues for
cross-examination, including a more recent
conviction for passing a bad check, and
that the probative value of the forgery
conviction was small.

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admissible if a period of
more than ten years has
elapsed since the date of the
conviction . . . unless the
court determines, in the
interests of justice, that the
probative value of the
conviction supported by
s p e c i f i c f a c t s a n d
circumstances substantially
outweighs its prejudicial
effect.
Here, Dawson’s conviction was more than
ten years old.
We find that the probative value of
the evidence of Dawson’s forgery
conviction was sufficiently small that the
“interests of justice” did not warrant its
admission, and that any error in refusing to
admit the evidence was harmless. See
United States v. Colletti, 984 F.2d 1339,
1343 (3d Cir. 1992) (employing harmless-
error analysis in the Rule 609(b) context).
Two witnesses other than Dawson testified
that Agnew sold crack numerous times,
and Agnew admitted as much shortly after
the crime. The police found cocaine in
Agnew’s shoes. Likewise, Agnew
admitted that he knew that the gun had
“come from” two individuals named
“Nature” and “Light,” and a police officer
testified that drug dealers commonly keep
guns at their disposal. Indeed, the jury had
already learned that Dawson used crack
cocaine. It would not have resolved the
question of ownership of the gun and
drugs in favor of Agnew simply because it
also learned that Dawson had an old
forgery conviction.
CONCLUSION
For the reasons stated, we will
AFFIRM the conviction.

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