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  • Jim Chapman

Hit and Hold

Author: Jim Chapman

 

In October 2018, DEA agents met with a confidential informant who told them that Defendant Troy Alexander was involved in drug trafficking and, more specifically, had access to multiple kilograms of cocaine; had sold cocaine to him in the past; and was known to possess firearms. The informant provided the address of Alexander’s home in downtown Wilmington, Delaware (the “Residence”), where Alexander lived with his sister. The informant also informed the agents that Alexander’s girlfriend lived in the same vicinity. Some of the details about Alexander were corroborated by Paul Lawrence, an officer with the Newark, Delaware, Police Department who was assigned to work with the DEA.

A task force created by the DEA arranged for the confidential informant to make a controlled purchase of cocaine from Alexander on November 19, 2018. Before the purchase, there were three phone calls between the informant and Alexander. During the first call, which agents were able to record, the informant asked to buy cocaine, and Alexander said that it would be ready in an hour. The second call was made by Alexander to the informant, who answered it outside of the presence of the task force officers. On the third call, the informant called Alexander, but the officers were only able to record the informant’s end of the conversation


On the day of the sale, the officers outfitted the informant with an audio and video recording device and provided him with $900 to exchange for the drugs. The officers, then, established a surveillance perimeter. Approximately twenty minutes later, agents observed Alexander leave a house located at 722 East 7th Street, which was one block from the Residence, and walk to meet the informant. The officers later learned that this second house was where Alexander’s girlfriend, Venus Nelson, lived, and that Alexander used it as a stash house (the “Stash House”) for his drug trafficking business. The task force officers on the scene witnessed Alexander give the informant what later tested to be almost 115 grams of cocaine in exchange for the $900. Unbeknownst to the task force, the informant had placed the recording device in his pocket during the sale, and so, no video was captured. The device did, however, record the conversation, and during the exchange, Alexander told the informant that the price of the cocaine was $2,300. Therefore, the informant still owed him $1,400.

Nine days later, on November 28, the officers instructed the informant to arrange another purchase of cocaine. The informant did so, and, during a recorded phone call, Alexander explained that he was in Philadelphia and would not return to Delaware until 7:00 p.m. Anticipating Alexander’s return, the task force set up surveillance outside both the Residence and the Stash House.

The officers on surveillance duty made several observations between 6:30 p.m. and 8:30 p.m. that night. They first saw Alexander arrive at the Residence, park his car on the side of the road, and carry a large, heavy, white bag into the house. About two minutes later, Alexander emerged with a smaller, white bag that he appeared to struggle to carry. He took that bag to the Stash House and entered using his own key. After a few minutes, Alexander returned to the Residence empty-handed. At that point, following DEA instructions, the confidential informant called Alexander to offer the money that he still owed on the first transaction. Alexander responded that he would get it from the informant the next day. Alexander also told the informant that he didn’t have anything for him but that something might be ready tomorrow. Alexander then went to the Stash House again and came out carrying a large black trash bag, which he brought back to the Residence.

About an hour later, a Kia Optima pulled up to the Residence, and the passenger went inside. The passenger left the Residence at 8:13 p.m., carrying what appeared to be the same black trash bag that Alexander had brought from the Stash House. The Kia drove off, and officers followed. At 8:21 p.m., when the Kia was far enough away to be out of sight of anyone at the Residence, the officer attempted to make a traffic stop. Although the Kia came to a momentary stop, the car suddenly and successfully fled the scene. As the Kia drove away, it smashed into several of the officers’ vehicles.

Meanwhile and throughout the evening, the officers at the scene had been providing contemporaneous updates to Officer Lawrence, who was at the DEA’s office in New Castle, Delaware. Officer Lawrence began drafting an affidavit in support of search warrants for the Residence and for the Stash House. The basis for the search warrants were Alexander’s movements between the two houses, the monitored calls with the confidential informant, the controlled drug buy, and the task force officers’ general knowledge that Philadelphia is a source of supply for drugs sold in Wilmington. At 8:20 p.m.—just after the Kia had driven away from the Residence—Officer Lawrence emailed a draft affidavit to a federal prosecutor. That draft affidavit was later supplemented to include a description of the car chase. The affidavit also indicated that agents had already entered the residence based on exigent circumstances and had detained its occupants. No further details were included in the affidavit.

After the Kia escaped, the officers who were watching the Residence saw Alexander leave the Residence. The surveillance team believed he may have been tipped off by the Kia occupants. Accordingly, around 8:30 p.m., the officers simultaneously entered both the Residence and the Stash House, although they still had no warrants. An agent on the scene, Anthony Salvemini, later explained the officers’ thought process: “We didn’t know where Alexander was. There had been a car chase, so it was somewhat of an urgent scenario.” The officers’ primary concern, according to agent Salvemini, was preventing the destruction of evidence in the houses. As a result, the officers entered both houses, performed protective sweeps, and handcuffed the occupants to ensure the safety of law enforcement and to prevent the destruction of evidence while search warrants were being obtained.


Up to eight task force officers forcibly entered the Stash House wearing ballistic vests and with guns drawn. Within a few seconds, Ms. Nelson, Alexander’s girlfriend, appeared at the top of the stairs. The officers instructed her to come down, which she did, and they put her in handcuffs and told her to remain in the living room. According to Agent Salvemini, Nelson appeared “naturally surprised” but, eventually, “calmed down.”

Within five minutes of their entry, the officers had checked all three floors of the Stash House, checking for other occupants. Agent Salvemini, then, introduced himself to Nelson, who was still in handcuffs. He told her that they were in the process of applying for a search warrant. When he asked about evidence of drug dealing, Nelson responded that there were some firearms upstairs that belonged to her, but they were legal.

While they were talking, an officer approached Agent Salvemini and whispered that he had seen a large amount of cocaine and drug paraphernalia in plain view in the basement. Agent Salvemini then told Nelson that, although she had a right to refuse, he did not think it would be a problem to get a warrant, and “it would save everybody a lot of time” if she consented to a search. Nelson replied, “go ahead and search the house.” Based upon Nelson’s response, the officers began to search the Stash House, even though no warrant application had yet been submitted for the Stash House. As a result of the search, the officers recovered powder and crack cocaine, cutting agent, two scales, and a kilogram press with molds. The officers also seized two handguns and an extended magazine.

Simultaneous with the hit-and-hold (the United States Court of Appeals for the Third Circuit explained that a “hit-and-hold” occurs when law enforcement officers enter and secure a premises before obtaining a warrant, a tactic sometimes used to respond to emergency circumstances) at the Stash House, another group of officers entered the Residence. There, the officers encountered Alexander’s sister and another person, both of whom they handcuffed. After a safety-sweep of the premises, the officers waited inside the Residence for close to three hours, until a magistrate judge signed a search warrant. During the execution of that warrant, the officers seized cash, two handguns, ammunition, a digital scale, and other items.

Not long after the hit-and-holds were executed, Alexander approached the Stash House on foot. Four officers were stationed in front, and Alexander told them, “I heard you guys were looking for me. I don’t want my sister or anyone else to get in trouble. All that stuff in there is mine.” Officers then arrested Alexander and placed him in a DEA car, where Agent Salvemini read him his Miranda rights.

At around 9:00 p.m., officers brought Alexander to a DEA office where he was placed in a holding cell. Officer Lawrence, who was told that Alexander had already been read his Miranda rights, introduced himself as the primary case agent. Alexander responded: “I don’t want my girl to get in any trouble . . . anything in there is mine.” A little later, Alexander asked to speak to Officer Lawrence again, and he gave a recorded interview taking responsibility for and describing the details of his drug-dealing operations. Before he did that, Alexander was advised of his Miranda rights for a second time. Alexander was released from custody that evening.

A few months later, a federal grand jury returned a four-count indictment that charged Alexander with possession with intent to distribute cocaine base, possession with intent to distribute cocaine, possession of a firearm in furtherance of a drug trafficking crime, and possession of a firearm by a prohibited person, all in violation of federal law. Alexander eventually moved to suppress all of the evidence seized from the Stash House and from the Residence. Alexander first argued that the searches violated the Fourth Amendment because no valid consent was given to search the Stash House and because the warrant for the Residence was based on mere speculation and false statements. Later, Alexander also moved to suppress all custodial incriminating statements made by him to law enforcement as being obtained in violation of the Fifth and Sixth Amendments.

The United States District Court for the District of Delaware held an evidentiary hearing on Alexander’s motion to suppress. Officer Lawrence testified at the hearing to the warrant’s veracity, stating that he had drafted the substance of the affidavit prior to the officers’ warrantless entry and that he had intended to file the same affidavit in support of warrants for both the Stash House and the Residence. He also confirmed that the affidavit was based on the calls between the confidential informant and Alexander, a recording of a controlled buy between those two, and the officers’ surveillance of the Stash House and the Residence.

In addition, DEA agent Antonio Tiberi testified at the suppression hearing. Agent Tiberi was standing outside of the Stash House when Alexander walked towards it and claimed ownership of “all that stuff in there.” Finally, Agent Salvemini testified that both houses were entered by the officers as close to simultaneously as possible, and Agent Salvemini gave the specifics of the hit-and-hold that had occurred at the Stash House.

Conversely, defense counsel called two witnesses at the suppression hearing: Nelson and Alexander. Nelson testified that Alexander stayed with her in her home approximately four days a week. According to Nelson, the officers conducted a search of her home before asking her for consent, and, when she eventually was asked for consent, she was not informed of her right to refuse. On cross-examination, Nelson testified about her relationship with Alexander, agreeing that if he needed anything, she would be right there.

Alexander testified about his dealings with the confidential informant. Alexander testified that the two of them never discussed a drug transaction on the day that Alexander was in Philadelphia. Alexander also claimed that the bag that the officers saw him carrying between the Residence and the Stash House contained jewelry, not drugs. Finally, Alexander testified that he only admitted that the evidence seized from the Stash House was his because an officer told him Nelson was “going down for the stuff found in the house.”

At the conclusion of the hearing, the District Court denied the motion to suppress, finding that there were no misstatements and no omissions in Officer Lawrence’s affidavit. In a subsequent written opinion, the District Court elaborated and concluded that, prior to the hit-and-holds, there was probable cause to believe that Alexander had cocaine and drug-dealing paraphernalia in the Residence and in the Stash House. The District Court further found that the officers had reason to believe that Alexander (and anyone in the Residence or the Stash House) had been tipped off about the officers’ failed attempt to stop the Kia, and thus, the officers had reason to believe that any cocaine or related evidence of drug dealing in the Residence or Stash House could be imminently destroyed. Therefore, the District Court held that there were exigent circumstances justifying the officers to enter without a warrant.


The District Court also held that the search of the Residence was valid because a warrant was subsequently, properly issued. As for the validity of the warrantless search of the Stash House, the District Court upheld that search based on Nelson’s consent.


Alexander subsequently pled guilty to three counts of the indictment and was sentenced to 132 months of imprisonment. Thereafter, Alexander timely appealed the denial of his motion to suppress to the Third Circuit. United States v. Alexander, 54 F.4th 162 (3d Cir. 2022).


On appeal, Alexander continued to challenge the Constitutionality of the hit-and-holds entries into the Residence and the Stash House. However, the Third Circuit stated that the Court did not need to resolve the Constitutionality of hit-and-hold entries because the Court could affirm the District Court’s suppression order on alternative bases: the independent source doctrine and the doctrine of inevitable discovery.


The Third Circuit began its Opinion by explaining that, in order to obtain a search warrant, the government must present probable cause that evidence of criminal activity will be found in the place to be searched. That standard requires that there be a fair probability that contraband or evidence of a crime will be found in a particular place. 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. Determining whether probable cause is met depends on the basis and strength of an officer’s belief that an article subject to seizure can be found at a particular location—in short, whether criminal activity is afoot.

But in this case, the Third Circuit noted that it was not being asked to review a probable cause showing in the first instance. Rather, the Third Circuit had to consider the propriety of the probable cause finding made by the magistrate judge who issued the warrant. Accordingly, the Third Circuit need not determine whether probable cause actually existed, but only whether there was a substantial basis for finding probable cause. Based upon the information submitted to the magistrate judge in Officer Lawrence’s affidavit, the Third Circuit agreed that there was.

The more challenging question (according to the Third Circuit) was whether the search warrant could serve as an independent source for the evidence discovered after the officers’ warrantless entry into the Residence, so as to cleanse the entry of any potential unconstitutionality. Although the Third Circuit noted that there were unanswered questions about whether hit-and-hold procedures adequately respect Constitutional guardrails, the Third Circuit held that the independent source doctrine was sufficient to overcome the general rule that would require suppression of the evidence obtained from the Residence if the entry or search were illegal.

The Third Circuit explained that, under the independent source doctrine, evidence that was discovered lawfully, and that was not discovered as a direct or indirect result of illegal activity, is admissible. The basis for this doctrine is the well-established principle that evidence is not to be excluded if the connection between the illegal police conduct and the discovery and seizure of the evidence is so attenuated as to dissipate the taint. The United States Supreme Court has held that, when a potentially illegal entry is followed by an independently obtained search warrant, the evidence obtained pursuant to that warrant or that is observed in plain view at the time of the prior illegal entry need not be suppressed. The Supreme Court made clear, however, that a subsequent search warrant is not independently obtained if law enforcement decided to seek the warrant due to information gathered from the initial, unlawful entry or if information obtained from the initial unlawful entry influenced the magistrate judge’s decision to issue the warrant. Here, the Third Circuit determined that the search warrant was issued based upon information obtained before the officers entered the building, and therefore, the independent source doctrine applied.

As for the evidence obtained at the Stash House, the Third Circuit opined that the inevitable discovery rule applied, and as a result, the District Court did not err in refusing to suppress that evidence. Because there was probable cause to search the Stash House and because an affidavit was fully drafted and ready to submit at the time of the hit-and-hold, the Third Circuit held that a search warrant was forthcoming, and discovery of the evidence inside the home was inevitable. The key question under the inevitable discovery doctrine is whether the Government has shown by a preponderance of the evidence that routine police procedures inevitably would have led to the discovered evidence. Two factors were most salient in this case: (1) the likelihood of a warrant issuing and (2) how far into the application process the government was when its pursuit of a warrant was cut off. Although inevitability is a high threshold, the Third Circuit held that the threshold was crossed here because the officers consistently pursued lawful means of searching the Stash House and made significant progress towards that end. Therefore, the Third Circuit opined that suppression in this case would not further any deterrence justification.

Finally, the Third Circuit cautioned that its Opinion in this case and the affirming of the District Court’s suppression order should not be interpreted as categorically condoning hit-and-hold procedures that are justified after the fact by an in-progress warrant application. Rather, the Third Circuit confined its Opinion to the specific facts of this case. The Third Circuit warned that the inevitable discovery doctrine is not an open invitation for the government to conduct and, then, justify warrantless searches. It is, instead, a narrow doctrine that the government cannot prospectively plan on accessing.

Accordingly, because a warrant for the Residence was independently and lawfully obtained, the Third Circuit concluded that the evidence found there was not subject to suppression. Similarly, the Third Circuit held that the evidence from the Stash House would have been inevitably obtained regardless of whether Nelson actually gave consent and regardless of the officers’ warrantless entry. Therefore, the Third Circuit held that the evidence found there need not be suppressed, and the Third Circuit affirmed the District Court’s denial of Alexander’s motion to suppress.

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