441 F.

3d 290

UNITED STATES of America, Plaintiff-Appellee,

v.
Anthony SINGLETON, Defendant-Appellant.
No. 04-4108.

United States Court of Appeals, Fourth Circuit.

Argued February 3, 2006.
Decided March 23, 2006.

ARGUED: John Hanjin Chun, Assistant Federal Public Defender, Office

of the Federal Public Defender, Baltimore, Maryland, for Appellant. Craig
Michael Wolff, Assistant United States Attorney, Office of the United
States Attorney, Baltimore, Maryland, for Appellee. ON BRIEF: James
Wyda, Federal Public Defender, Denise C. Barrett, Assistant Federal
Public Defender, Baltimore, Maryland, for Appellant. Allen F. Loucks,
United States Attorney, Baltimore, Maryland, for Appellee.
Before NIEMEYER, MOTZ, and KING, Circuit Judges.
Affirmed in part, vacated in part, and remanded by published opinion.
Judge MOTZ wrote the opinion, in which Judge NIEMEYER and Judge
KING joined.
OPINION
DIANA GRIBBON MOTZ, Circuit Judge.

A jury convicted Anthony Singleton of drug trafficking, possession of a firearm

in relation to drug trafficking, and possession of a firearm while a felon, all on
the basis of contraband found in his apartment after a no-knock search. On
appeal, he challenges the district court's denial of his suppression motion, its
admission into evidence of several documents, and its imposition of a sentence
based upon judge-found facts. For the reasons that follow, we affirm
Singleton's convictions but vacate his sentence and remand the case for
resentencing.

I.
2

In 2001, a confidential informant told the Harford County police that two
individuals known as "Eva" and "BK" were selling cocaine inside an apartment
in Edgewood, Maryland. In August of that year, the informant made a
controlled purchase of cocaine from "Eva" inside the Edgewood apartment.
Later, police received a separate tip that two individuals known as "Eva Hall"
and "BK" were selling cocaine in the area. Upon further investigation, the
police discovered that one of the cars near the apartment was registered to a
woman named Eva Mae Hall. The police also learned that "BK" was a
pseudonym for a man named Anthony Singleton. An examination of court
records revealed that Singleton had a fairly extensive arrest record, including
arrests in the mid-1980s for second-degree murder and criminal possession of a
weapon. In September 2001, the confidential informant made a second
controlled purchase of cocaine inside the Edgewood apartment, this time from
Singleton.

On September 26, 2001, the police applied for a search warrant in the Circuit
Court of Harford County, alleging probable cause to believe that the inhabitants
of the Edgewood apartment were selling drugs. The application also sought
authorization for a no-knock entry, averring that "any advance notice given to
the occupants of the above residence would greatly diminish the chance of a
safe and secure entry by law enforcement officers executing the issued search
warrant." The court granted the search warrant and authorized a no-knock
entry.1

On October 3, 2001, the confidential informant made (or attempted to make

the record is unclear) his third and final controlled purchase of cocaine in the
Edgewood apartment, again from Singleton. The express purpose of this
controlled purchase was to verify that Singleton still resided there.

Under Maryland law, the police had fifteen days to execute the issued warrant.
On the morning of October 9, 2001, within the time permitted, law enforcement
officers entered the Edgewood apartment by forcibly breaking down the door
without first knocking and announcing their presence. Inside, they found
Singleton, Hall, and Hall's five-year-old son, whom the police had expected to
be at school. The police also found a locked safe in the apartment's bedroom
that contained 42 grams of crack cocaine in the form of a crack "cookie" and
over 50 plastic bags of crack; $1,400 cash separated into 14 separate $100
bundles; three plastic bags with marijuana; and a loaded Smith & Wesson 9 mm
semi-automatic handgun. The police also recovered a Sprint telephone bill
addressed to Singleton at the Edgewood apartment. After being read his

Miranda rights, Singleton made several incriminating admissions to the police

acknowledging his ownership and possession of the contraband.
6

A grand jury charged Singleton with one count of possession with intent to
distribute five grams or more of crack, in violation of 21 U.S.C. 841(a) (2000)
(Count 1); one count of possession of a firearm in furtherance of a drugtrafficking crime, in violation of 18 U.S.C. 924(c) (2000) (Count 2); and one
count of possession of a firearm by a convicted felon, in violation of 18 U.S.C.
922(g)(1) (2000) (Count 3).

Before trial, Singleton moved to suppress the evidence seized from the
Edgewood apartment, asserting that exigent circumstances did not justify the
police's no-knock entry. The district court denied the motion. During trial,
Singleton objected to the admission of several pieces of evidence introduced by
the Government to prove that he resided in the Edgewood apartment. The
district court overruled those objections. The jury convicted Singleton of all
charges.

During sentencing, which occurred prior to United States v. Booker, 543 U.S.
220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the district court found that
Singleton was responsible for 50 to 150 grams of crack cocaine even though the
jury had only convicted Singleton of intent to distribute five grams or more of
crack cocaine. The court based its calculation on the contents of the safe:
namely, 42 grams of crack cocaine and $1,400 cash that the court converted
into a drug quantity of at least 8 grams. The court sentenced Singleton to 188
months on Counts 1 and 3, to run concurrently, and 60 consecutive months on
Count 2.2

II.
9

Singleton initially argues that the district court improperly denied his motion to
suppress the drugs and gun found in his apartment during the no-knock search.
He contends that exigent circumstances did not justify the search and that the
good-faith exception articulated in United States v. Leon, 468 U.S. 897, 104
S.Ct. 3405, 82 L.Ed.2d 677 (1984), cannot excuse this defect. Although
Singleton may be correct with respect to his first contention, his second fails.

10

The Fourth Amendment generally requires police officers entering a dwelling

to "knock on the door and announce their identity and purpose before
attempting forcible entry." Richards v. Wisconsin, 520 U.S. 385, 387, 117 S.Ct.
1416, 137 L.Ed.2d 615 (1997). However, exigent circumstanceslike "a threat

of physical violence" to officersmay allow officers to conduct a no-knock

entry. Wilson v. Arkansas, 514 U.S. 927, 936, 115 S.Ct. 1914, 131 L.Ed.2d 976
(1995). We review de novo whether exigent circumstances excused the police's
failure to follow the knock-and-announce requirement. United States v.
Mattison, 153 F.3d 406, 410 (7th Cir.1998).
11

In the application for a no-knock warrant, the police listed three reasons to
suspect that knocking and announcing their presence at the Edgewood
apartment would imperil them. First, they cited Singleton's criminal history,
which included several arrests in the 1980s for firearms offenses, an arrest for
second-degree murder in 1987, and then nothing until 2000, when Singleton
was arrested for marijuana possession and importation and for driving with a
revoked license.3 Second, the application explained that the apartment was in
"a known open air drug market, having a history of shootings and weapons
related violence." Third, the application stated that the only way into the
apartment was an open area in which the approaching police would be visible
to the inhabitants of the Edgewood apartment. (The application also relied on
several generalizations about the inherent violence of drug dealers, such as their
tendency to own weapons and to protect their property by force.)

12

It is not clear that these facts sufficiently establish "a particularized basis to
reasonably suspect that knocking and announcing would be met with violent
resistance." United States v. Grogins, 163 F.3d 795, 798 (4th Cir.1998)
(emphasis added). Of the three specific factors cited by the police, only the first
Singleton's criminal historydistinguishes this particular search from many
others that police conduct on a daily basis. The other factors alone would be
insufficient to justify a no-knock search: the Fourth Amendment countenances
neither a blanket rule allowing no-knock searches for drug investigations, see
Richards, 520 U.S. at 394, 117 S.Ct. 1416, nor a marginally narrower rule
allowing no-knock searches for drug investigations in dangerous
neighborhoods.

13

The addition of Singleton's criminal history does not decisively tip the balance
toward forgoing the knock-and-announce requirement. Singleton may have had
a rough past, but his history of violence ended (as far as the police knew) in
1987, with his conviction for second-degree murder. He then managed to avoid
violating the law for fourteen years, until he again ran into trouble in 2000but
even then he was only convicted of driving with a revoked license.
Furthermore, the police had no contemporary evidence that Singleton owned a
firearmeven though the confidential informant had been in the Edgewood
apartment several times. Cf. United States v. Smith, 386 F.3d 753, 759-60 (6th
Cir.2004) (insufficient exigent circumstances even when confidential informant

tells police that firearms are present). Given the lack of any contemporary
evidence that Singleton might prove violent to police, it is unclear whether the
police reasonably believed that knocking and announcing their presence would
be dangerous.
14

However, we need not resolve this question because the police reasonably
relied in good faith upon a properly obtained search warrant that specifically
authorized a no-knock search. More than twenty years ago, the Supreme Court
held that "reliable physical evidence seized by officers reasonably relying on a
warrant issued by a detached and neutral magistrate. . . should be admissible in
the prosecution's case in chief," even if the warrant is ultimately found to be
defective. Leon, 468 U.S. at 913, 104 S.Ct. 3405. "The good-faith exception is
perfectly suited for cases like this, when the judge's decision was borderline."
United States v. Scroggins, 361 F.3d 1075, 1084 (8th Cir.2004).

15

Although neither the Supreme Court nor this Court has previously held that the
Leon good-faith exception applies to a no-knock warrant, we see no persuasive
reason not to apply Leon to the warrant at issue here. Given that the
Constitution allows no-knock warrants, see United States v. Banks, 540 U.S. 31,
36, 124 S.Ct. 521, 157 L.Ed.2d 343 (2003), we believe that applying the goodfaith exception here is most consistent with the "strong preference for
warrants." Leon, 468 U.S. at 914, 104 S.Ct. 3405. As the Supreme Court has
explained, "the detached scrutiny of a neutral magistrate . . . is a more reliable
safeguard against improper searches than the hurried judgment of a law
enforcement officer engaged in the often competitive enterprise of ferreting out
crime." United States v. Chadwick, 433 U.S. 1, 9, 97 S.Ct. 2476, 53 L.Ed.2d
538 (1977) (internal quotation marks omitted). When officers suspect ahead of
time that knocking and announcing their presence would imperil them or risk
the destruction of evidence, they minimize the risk of violating the Fourth
Amendment if they obtain prior judicial approval for a no-knock entry.

16

In addition, applying the exclusionary rule here despite reasonable reliance on a

no-knock warrant would not help deter future police misconduct. When an
officer in good faith seeks prior judicial approval for a no-knock warrant, he is
already doing the most that he canat least prior to the searchto ensure that
the no-knock entry will comply with the Fourth Amendment. There is "nothing
to deter" in such situations. Leon, 468 U.S. at 921, 104 S.Ct. 3405. Even if the
no-knock warrant turns out to be unjustified, "[p]enalizing the officer for the
magistrate's error, rather than his own, cannot logically contribute to the
deterrence of Fourth Amendment violations." Id. Thus, the evidence produced
by the no-knock search of the Edgewood apartment is admissible under Leon's
good-faith exception.

17

18

We note that, in reaching this conclusion, we join every other circuit to

consider the questionall have held that the Leon good-faith exception applies
to no-knock warrants in situations like the one at hand. See, e.g., Scroggins, 361
F.3d at 1083; United States v. Dumes, 313 F.3d 372, 381 (7th Cir.2002); United
States v. Tisdale, 195 F.3d 70, 73 (2d Cir.1999); United States v. Hawkins, 139
F.3d 29, 32 (1st Cir.1998); United States v. Moore, 956 F.2d 843, 851 (8th
Cir.1992); cf. United States v. Nielson, 415 F.3d 1195, 1203 (10th Cir.2005)
(applying Leon but finding that warrant affidavit was too deficient).
The only contrary argument that Singleton offers is that applying Leon to noknock warrants would be inconsistent with the principle that police "are
obligated to assess exigent circumstances at the time they execute the warrant."
Reply Brief of Appellant at 5 (citing Richards, 520 U.S. at 387, 117 S.Ct. 1416
(holding that courts must look to whether exigent circumstances existed at the
time of the entry)). Singleton may be right that exigent circumstances must
exist at the time of the search to justify a no-knock entry. Cf. Ker v. California,
374 U.S. 23, 40 n. 12, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963) ("It goes without
saying that in determining the lawfulness of entry and the existence of probable
cause we may concern ourselves only with what the officers had reason to
believe at the time of their entry." (emphasis in original)). But police often can
(and perhaps should) investigate and assess these exigent circumstances before
the time of the search. As the Supreme Court has recognized, while planning
for a search, police often have "reasonable grounds . . . to suspect that one or
another such exigency already exists or will arise instantly upon knocking."
Banks, 540 U.S. at 36, 124 S.Ct. 521. Particularly with preexisting exigencies
(like a violent criminal history) that are unlikely to change between the issuance
of a warrant and its execution, no purpose is served by requiring officers to
wait until just before a search to determine whether such exigencies support a
no-knock entry.4

III.
19

Singleton next contends that two pieces of evidence admitted by the district
court are hearsay: Sprint phone records (namely, bills and internal company
files) on which his address was printed, and a docket from the Circuit Court of
Harford County that also listed his address. The Government used this evidence
to show that Singleton resided in the Edgewood apartment and therefore had
constructive possession of the drugs and firearm found inside. Even assuming
that both the phone and docket records were hearsay, we find their admission
harmless. See United States v. Iskander, 407 F.3d 232, 240 (4th Cir.2005).

20

"A person has constructive possession over contraband when he has ownership,

dominion, or control over the contraband itself or over the premises or vehicle
in which it was concealed." United States v. Armstrong, 187 F.3d 392, 396 (4th
Cir. 1999). Here, substantial evidence other than the challenged records
established that Singleton had "ownership, dominion, or control" over the
Edgewood apartment and the drugs and gun that were found inside. Most
damningly, Singleton made a series of incriminating admissions to the police
after they burst into his apartment: he admitted to the search party that he lived
there and that he owned the drugs and the gun in the safe; he told the searching
officers that the only contraband in the apartment was in the locked safe a
fact that the officers quickly verified; he told Eva Hall, in the presence of
several officers, that he would take the blame for everything; and finally, while
in jail, he told an officer that "he [couldn't] believe he did something this
stupid."
21

These incriminating statements provided the basis for the Government's case
against Singleton. Of course, as Singleton notes, during closing argument the
Government also discussed the phone and docket records to establish his
residence in the apartment. But the Government spent at least as much, if not
more, time emphasizing Singleton's various admissions about living in the
apartment and owning the drugs and gun in the safe. See J.A. 238F (Singleton
told Hall that he would take the blame), 238G (Singleton admitted that the
drugs and the gun were his; Singleton said, "I can't believe I did something this
stupid"), 238L-M (Singleton said he would take all the blame), 238N
(Singleton correctly told officers that everything was in the safe; Singleton said
he did something stupid), 238O (summarizing the evidence with a heavy focus
on Singleton's admissions). Indeed, the Government ended its closing argument
by telling the jury, "[Singleton's] own statements. . . by themselves are enough
to demonstrate his guilt beyond a reasonable doubt." In light of the
Government's heavy reliance on Singleton's admissions, even if the phone and
docket records were inadmissible hearsay, their admission provides no basis for
reversal.

IV.
22

Finally, Singleton argues that his pre-Booker sentence was unconstitutionally

based on judicial findings of drug quantity. The Government concedes that
there was plain Sixth Amendment error. We agree. Because the district court
found that Singleton intended to distribute between 50 and 150 grams of crack,
it assigned Singleton an offense level of 32, which, combined with Singleton's
criminal history category of V, corresponded to a sentencing range of 188 to
235 months. U.S. Sentencing Guidelines Manual 2D1.1 (2002). However,
based solely on the drug quantity alleged in the indictment and proven to the

jury beyond a reasonable doubt namely, five grams of crack Singleton

would be assigned an offense level of only 26, leading to a sentencing range of
110 to 137 months. Because Singleton's sentence of 188 months for his drugtrafficking conviction exceeds the maximum sentence authorized without
judge-found facts, we vacate and remand his sentence. United States v. Hughes,
401 F.3d 540, 547 (4th Cir.2005). We affirm his conviction for the reasons
given above.
23

AFFIRMED IN PART, VACATED IN PART, AND REMANDED

Notes:
1

Not all states authorize no-knock warrants. Indeed, Maryland's support for such
warrants has waxed and waned over the course of this litigation. At the time
that the police obtained the warrant for the Edgewood apartment, Maryland
permitted no-knock warrantsSee, e.g., State v. Riley, 147 Md.App. 113, 120-21,
807 A.2d 797, 802 (2002). In 2004, however, Maryland's highest court
determined that "a judicial officer in Maryland. . . may not issue a `no-knock'
warrant." Davis v. State, 383 Md. 394, 427, 859 A.2d 1112, 1132 (2004). But
the next year, the Maryland General Assembly stepped in and reauthorized
these warrants. See Md.Code Ann., Crim. Proc. 1-203(a)(2)(ii) (West
Supp.2005). For the purposes of this appeal, the only relevant part of this back
and forth is that no-knock warrants were legal when the police requested the
one at issue here.

The government concedes that the district court erred in imposing a sentence of
188 months for Count 3. Under 18 U.S.C. 924(a)(2) (2000), a violation of
922(g)(1) carries a maximum penalty of 120 months

The warrant application did not designate which arrests led to criminal
convictions. In fact, Singleton was convicted of only some of the charges:
attempted robbery in 1980, attempted second-degree murder and criminal
possession of a weapon in 1987, and driving with a revoked license in 2000

In this case, Singleton concedes that the facts cited in the affidavit were
accurate both when the police applied for the warrant and when they conducted
the actual search. Thus, we need not resolve the question of whether police may
rely on a no-knock warrant underLeon if the exigent circumstances cited in the
warrant affidavit have changed between the issuance of the warrant and the
actual search. Cf. Commonwealth v. Scalise, 387 Mass. 413, 439 N.E.2d 818,
823 (1982) ("[C]hanged circumstances would render ineffective the

magistrate's decision that a no knock entry was justified.").