ANTHONY FRANK SAN FILIPPO, PETITIONER V. UNITED STATES OF AMERICA No. 90-6475 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Tenth Circuit Brief For The United States In Opposition OPINION BELOW The memorandum opinion of the court of appeals (Pet. App. 1-4) is not reported. JURISDICTION The judgment of the court of appeals was entered on September 12, 1990. The petition for a writ of certiorari was filed on December 10, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether the search warrant authorizing the search of petitioner's residence was supported by probable cause and by sufficient justification for a "no-knock" provision. 2. Whether there was sufficient evidence to support petitioner's convictions for being a felon in possession of firearms. 3. Whether the district court, in sentencing petitioner under the Sentencing Guidelines, correctly increased his offense level because a weapon involved in the offense was stolen. STATEMENT After a jury trial in the United States District Court for the District of Colorado, petitioner was convicted on two counts of being a felon in possession of firearms, in violation of 18 U.S.C. 922(g)(1). He was sentenced to 33 months' imprisonment. The court of appeals affirmed in an unpublished opinion (Pet. App. 1-4). 1. During a warrant-authorized search on March 4, 1988, officers of the Colorado Springs, Colorado, police department found several pistols and revolvers in petitioner's residence. The search warrant was issued by a Colorado state judge and was based on the affidavit of Police Detective Pat A. Crouch. Part of Crouch's affidavit rested on information that a confidential informant supplied in January 1988 concerning the informant's drug dealings with petitioner in 1986. Aff. 1-3. /1/ The informant also said, however, that his wife was currently buying cocaine from Ann Carey, and that Carey was selling cocaine for petitioner. Id. at 4. At the end of January 1988, the informant arranged a cocaine transaction with Carey for Crouch, who was acting in an undercover capacity. Id. at 7-9. On January 29, Crouch bought approximately eight grams of cocaine from Carey for $575. Id. at 9-12. In early February, the informant arranged a second purchase from Carey, this time for one ounce of cocaine. According to the informant, Carey obtained the cocaine from petitioner. Crouch completed the purchase on February 5. Aff. 12-14. When he went to Carey's house, she placed a telephone call and advised Crouch that petitioner should call her back immediately. Carey received a return call within a minute, after which she said that the caller was petitioner. Id. at 14-15. Carey offered to conduct larger transactions with Crouch in the future. She said that she could always get cocaine from petitioner, but that he would never deal directly with Crouch. Id. at 15-16. Carey then left to get the cocaine; Crouch ultimately paid Carey $2,000 in cash for an ounce of cocaine. Id. at 16-18. Other Colorado Springs police officers on surveillance observed petitioner meet with Carey after she left her house and before she returned with the drugs. Id. at 18-19, 20-21. Crouch and his fellow officers then traced petitioner to a house at 642 North Tower Street; this was the house that they searched on March 4. The house and utilities were registered in the name of a man who in fact lived in Wagon Mound, New Mexico. Id. at 21-23. The remainder of Crouch's affidavit related two further purchases of larger amounts of cocaine from Carey and other negotiations concerning cocaine transactions during February 1988, as well as extensive surveillance by other Colorado Springs police officers and DEA agents. Aff. 23-44. Both times in February that Carey furnished cocaine to Crouch, officers saw Carey meet with petitioner before she delivered the cocaine to Crouch. The officers then followed petitioner to the Tower Street house. Id. at 31-34, 38-39. Carey also told Crouch that she could obtain as much cocaine as Crouch wanted -- including multi-pound quantities -- from petitioner. Id. at 16, 41. During one transaction at Carey's house, Anthony Dominguez warned Crouch that petitioner was dangerous. Id. at 27-28, 31. Carey also said that petitioner had offered her an Uzi submachine gun. Id. at 43. Crouch's confidential informant said that petitioner always carried a weapon with him and was "extremely violent." Id. at 2, 3. Detective Crouch ended the affidavit by requesting a no-knock warrant under Colorado law because Carey told him that petitioner had weapons in his possession. Based on that information, Crouch feared for the safety of the officers who would conduct the search. He also requested a no-knock warrant because he feared that the occupants of the house would destroy evidence if the officers had to announce their purpose. Aff. 44. 2. Petitioner moved to suppress the evidence seized from his residence, arguing that the search warrant was not supported by probable cause and that it impermissibly contained a no-knock provision. The district court refused to suppress the evidence found in the search. Gov't C.A. Br. 1. At sentencing, the district court increased the base offense level by 1, pursuant to Sentencing Guideline Section 2K2.1(b)(1), because one of the firearms involved in petitioner's offenses was stolen. Gov't C.A. Br. App. (Judgment). 3. In an unpublished memorandum opinion, the court of appeals affirmed petitioner's conviction and sentence. Initially, the court rejected petitioner's contention that the warrant was not supported by probable cause. The court stated that although "the information provided by the confidential informant may have been stale, that information was corroborated by subsequent observation" of petitioner. The court pointed out that the affidavit described three separate drug transactions involving petitioner, and that surveillance had connected petitioner to the premises that were the subject of the search. Pet. App. 2. The court also held that the "no-knock" provision of the warrant was justified. The court explained that because the warrant was issued by a state judge to state officers, the provisions of 18 U.S.C. 3109 did not come into play; that statute applies only to execution of federal search warrants by federal officers. /2/ Pet. App. 2. The court went on to find that the "probability of the existence of firearms cited in the affidavit supported the state judge's determination to issue a no-knock unannounced entry warrant" and that "(t)he use of a no knock warrant was not unreasonable under the Fourth Amendment." Id. at 3. The court further rejected petitioner's contention that the evidence was not sufficient to establish his possession of firearms. The court explained that the evidence that the weapons were found in petitioner's residence and that he had admitted purchasing them was sufficient to support the inference that petitioner constructively possessed the guns. Pet. App. 3. Finally, the court disagreed with petitioner's argument that Sentencing Guideline Section 2K2.1(b)(1) requires a showing that petitioner knew that his weapons were stolen before the base offense level could be increased. According to the court, the one level enhancement applies automatically "where the evidence shows that the firearm was stolen." Pet. App. 3-4. ARGUMENT 1. Petitioner renews his contentions (Pet. 8-17) that the search warrant affidavit failed to establish probable cause for the search of his residence and that there was no basis for the "no knock" provision of the warrant. The courts below properly resolved these factbound claims against petitioner, and there is no reason for further review by this Court. a. Petitioner's probable cause claim is meritless. Dectective Crouch, an undercover police officer, three times bought cocaine from Ann Carey, who claimed to work for petitioner. Each time that she furnished the cocaine to Detective Crouch, Carey had left to meet with petitioner before she delivered the cocaine to Crouch. Other officers on surveillance observed the meetings between petitioner and Carey, and they saw petitioner return to the North Tower Street house following those meetings. Under these circumstances, the state judge who issued the search warrant certainly was justified in concluding that petitioner was Carey's cocaine source and that he likely kept his cocaine at his house. Under the totality of the circumstances test of Illinois v. Gates, 462 U.S. 213, 238 (1983), the information in the affidavit furnished probable cause for the search of petitioner's house. b. Contrary to petitioner's contention (Pet. 12-17), the courts below also were correct in upholding the validity of the "no knock" search warrant. Petitioner does not dispute that the constitutional and statutory rules that presumptively require officers to knock and announce before executing a search warrant are subject to an exigent-circumstances exception. /3/ Instead, he claims that the circumstances here were not sufficiently exigent. The court of appeals, however, correctly concluded that the unannounced entry satisfied the reasonableness requirement of the Fourth Amendment because of the danger posed to officers from weapons and because of the risk that evidence might be destroyed. The search warrant affidavit, in its concluding paragraph, explained why a "no knock" warrant was required: Based on the aforementioned information that (petitioner) does carry a weapon and is believed to be armed at all times and that persons known to be associated with (petitioner) may be armed and that (the) evidence * * * being sought by its very nature may be rapidly disposed of, it is requested that authority be granted to execute this warrant without the requirement of prior announcement of identity and purpose (NO KNOCK) in the interest of personal safety of participating officers and of evidence preservation and of those residents living in the neighborhood. Gov't C.A. Br. App. (Exhibit 12A). The affidavit's conclusion was based, in part, on information that petitioner always carried a weapon with him and was prone to violence. Nothing happened between the warrant's issuance and its execution that suggested that petitioner's propensity for violence, or his access to firearms, had diminished. Against that background, the court of appeals' finding that the state judge was justified in issuing a no-knock warrant raises no Fourth Amendment issue. Petitioner's claim to the contrary simply boils down to a dispute over the application of a settled rule of law to the particular facts of this case. 2. Petitioner also claims (Pet. 17-21) that there was insufficient evidence to support his convictions. This claim need not long detain the Court. Not only does petitioner concede -- as he must -- that multiple weapons were found in his home, but also he admits that he made a statement acknowledging ownership of the weapons. Pet. 20. That being so, the court of appeals correctly concluded (Pet. App. 3) that there was sufficient evidence to support petitioner's convictions. /4/ 3. Finally, petitioner argues (Pet. 21-23) that the district court improperly increased his offense level by one level under Sentencing Guideline Section 2K2.1(b)(1) because one of the weapons was stolen. /5/ Petitioner does not dispute that the weapon was stolen; rather, he claims that there must be a showing that he knew the weapon was stolen. The court of appeals, however, held that such knowledge was not a prerequisite to the one-level increase under the Guideline. That view is supported by the plain language of the provision, which does not refer to a knowledge requirement, and is in accord with all the other decisions that have addressed the issue. United States v. Peoples, 904 F.2d 23, 24-25 (9th Cir. 1990); United States v. Amerson-Bey, 898 F.2d 681, 683 (8th Cir. 1990); United States v. Anderson, 886 F.2d 215, 216 (8th Cir. 1989); United States v. Williams, 879 F.2d 454, 457 (8th Cir. 1989). There is no reason for this Court to review that unanimous interpretation. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Assistant Attorney General LOUIS M. FISCHER Attorney FEBRUARY 1991 /1/ The affidavit and search warrant application (identified as Exhibit 12A) are attached to the government's brief in the court of appeals. /2/ Section 3109 states in pertinent part: "The officer may break open any outer or inner door or window of a house, or any part of a house, or anything therein, to execute a search warrant, if, after notice of his authority and purpose, he is refused admittance * * * ." /3/ Because the search here was authorized by a state warrant issued to state law enforcement officers, the federal "knock and announce" statute, 18 U.S.C. 3109, does not apply. See United States v. Andrus, 775 F.2d 825, 844 (7th Cir. 1985); United States v. Valenzuela, 596 F.2d 824, 829-830 (9th Cir.), cert. denied, 441 U.S. 965 (1979). Even if Section 3109 applied, that provision, like the Constitution, recognizes an exigent circumstances exception. See Sabbath v. United States, 391 U.S. 585, 591 n.8 (1968) ("Exceptions to any possible constitutional rule relating to announcement and entry have been recognized, see Ker v. California, (374 U.S. 23, 47 (1963)) (opinion of Brennan, J.), and there is little reason why those limited exceptions might not also apply to Section 3109, since they existed at common law, of which the statute is a codification."); see also United States v. Keene, 915 F.2d 1164, 1168-1169 (8th Cir. 1990); United States v. Tracy, 835 F.2d 1267, 1270 (8th Cir.), cert. denied, 486 U.S. 1014 (1988); United States v. Kovac, 795 F.2d 1509, 1513 (9th Cir.), cert. denied, 479 U.S. 938 (1986). /4/ There is no cause for a different result on petitioner's conviction on Count II, which involved only one handgun. The evidence established that petitioner had the power to direct the movement of that gun. When petitioner used a go-between to transfer that weapon from himself to a gun repairman, he had the go-between come to his house, and the gun was lying on top of a desk in petitioner's office on the lower level of the house, where the other guns were later found. Gov't C.A. Br. 12-13. Petitioner clearly had the requisite dominion and control over the weapon. /5/ The Guideline has since been amended to increase the enhancement factor for stolen weapons to two levels "to better reflect the seriousness of this conduct." Guidelines App. C, Amendment 189, at 465 (West 1990). The commentary to the current provision notes that "(i)ndependent studies show that stolen firearms are used disproportionately in the commission of crimes."