United States of America v. Kevin Abbott

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-1623
UNITED STATES OF AMERICA,
v.
KEVIN ABBOTT,
Appellant
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 05-cr-00333)
District Judge: Honorable Cynthia M. Rufe
Argued March 3, 2009
Before: SCIRICA, Chief Judge, SLOVITER and
HARDIMAN, Circuit Judges.
(Filed: July 28, 2009)

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Mark S. Miller [Argued]
Elizabeth F. Abrams
Office of United States Attorney
615 Chestnut Street
Suite 1250
Philadelphia, PA 19106-0000
Attorneys for Appellee
Jennifer A.L. Battle [Argued]
Joseph Anclien
Elizabeth K. Ainslie
1600 Market Street
Suite 3600
Philadelphia, PA 19103-0000
Attorneys for Appellant
OPINION OF THE COURT
HARDIMAN, Circuit Judge.
Kevin Abbott appeals his conviction and sentence
following a jury trial. Abbott seeks a new trial, claiming the
District Court erred when it denied his motion to suppress
evidence and granted the Government’s motion in limine to
admit his prior conviction into evidence. Abbott also claims the
District Court erred by imposing consecutive mandatory
minimum sentences of fifteen years pursuant to 18 U.S.C.

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We recount the facts in the light most favorable to the1
Government, as the verdict winner. See United States v. Voigt,
89 F.3d 1050, 1080 (3d Cir. 1996).
3
§ 924(e) and five years pursuant to 18 U.S.C. § 924(c). For the
reasons that follow, we will affirm.
I.1
Acting on a tip that a black male was selling illegal drugs
on the 1700 block of Fontain Street, the Philadelphia Police
Department arranged for a confidential informant to make
controlled purchases of heroin. On September 21 and 22, 2004,
the informant approached a man later identified as Michael
Grant, who was standing in front of 1739 Fontain Street (the
Premises), and offered cash to Grant in exchange for drugs.
Grant then entered the Premises and returned with heroin.
Also on September 22, 2004, but before the controlled
purchase that day, police obtained a warrant to search the
Premises that authorized them to seize drugs, drug
paraphernalia, money, and weapons. The warrant also
authorized the search of “all persons present who may be
concealing narcotics or other illegal contraband.” In the
affidavit of probable cause, a police officer described the
controlled purchase on September 21 in detail and stated that in
his experience, “defendants [] frequently sell and stash narcotics
from inside a location.”

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Before police executed the warrant, they arranged a third
controlled purchase for September 23, 2004. On that day, Grant
said he had no heroin, so the informant requested crack cocaine,
which Grant retrieved from an abandoned lot. Shortly after the
exchange, police returned to execute the search warrant and they
found Grant in front of the Premises. As Grant was being
arrested, Appellant Abbott — who was standing in the doorway
of the Premises as police approached — slammed the door when
officers identified themselves. The police broke down the door,
entered the house, and arrested Abbott as he was trying to
escape through a kitchen window. At the time of his arrest,
Abbott had $617 in cash (including $20 in prerecorded buy
money) as well as a key to the front door of the Premises, a
small bag of marijuana, and a false driver’s license. In addition,
ultraviolet light revealed residue from the marked bills on
Abbott’s hands.
A search of the Premises uncovered drugs, drug
paraphernalia, and two handguns. Much of the contraband and
tools of the drug trade were in plain view in a front room,
including codeine syrup, empty bottles, a scale, and crack
cocaine. The handguns were found hidden behind furniture and
inside a closet.
II.
On June 14, 2005, a federal grand jury returned a four-
count indictment against Abbott and Grant, charging them with:
(1) conspiracy to possess with intent to distribute a controlled
substance in violation of 21 U.S.C. § 846; (2) possession of
more than five grams of cocaine base with intent to distribute,
and aiding and abetting, in violation of 21 U.S.C. §§ 841(a)(1)

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and (b)(1)(B), and 18 U.S.C. § 2; (3) possession of a firearm in
furtherance of a drug trafficking crime, and aiding and abetting,
in violation of 18 U.S.C. §§ 924(c)(1) and (c)(2); and (4)
possession of a firearm by a convicted felon in violation of 18
U.S.C. §§ 922(g) and 924(e).
Grant pleaded guilty, but Abbott went to trial. Before the
jury was empaneled, Abbott filed a motion to suppress evidence,
arguing that the search was illegal because the “all persons”
warrant was overbroad. For its part, the Government filed a
motion in limine to admit Abbott’s prior felony conviction into
evidence under Federal Rule of Evidence 404(b). The District
Court denied Abbott’s motion to suppress and granted the
Government’s motion in limine.
At trial, the Government called Grant as a witness against
Abbott. Grant testified that he and Abbott sold drugs together
for several months, and that he had seen Abbott carry one of the
handguns recovered from the house. In addition, the
Government called a police officer who had arrested Abbott
three years earlier for selling cocaine in front of the Premises as
evidence of Abbott’s knowledge or intent pursuant to Rule
404(b). The District Court issued a cautionary instruction to the
jury before the officer testified in this regard. The jury
convicted Abbott of all four charges.
The District Court sentenced Abbott to what it deemed
the statutory mandatory minimum: a total of 240 months
imprisonment, comprised of 180 months on Count 4 (possession
of a firearm by a convicted felon in violation of §§ 922(g) and
924(e)); and 60 months on Count 3 (possession of a firearm in

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Abbott was also sentenced to terms of imprisonment of2
120 months for violating 21 U.S.C. § 846 and 120 months for
violating 21 U.S.C. § 841(a)(1). Because the District Court
ordered these sentences to run concurrently, they are not at issue
on appeal.
6
furtherance of a drug trafficking crime in violation of
§§ 924(c)(1)(A) and (c)(2)).2
Abbott did not dispute that his 180-month sentence on
Count 4 was mandated by the Armed Career Criminal Act, 18
U.S.C. § 924(e) (ACCA), because he had three previous
convictions for “violent felon[ies] or [] serious drug offense[s].”
§ 924(e)(1). The District Court found that Abbott faced an
additional 60 months incarceration on Count 3 for possession of
a firearm in furtherance of a drug trafficking crime pursuant to
§ 924(c)(1)(A), which must be imposed “in addition to the
punishment . . . for [the] drug trafficking crime.” Id. (emphasis
added). As the District Court also noted, § 924(c) provides that
“no term of imprisonment imposed on a person under [§ 924(c)]
shall run concurrently with any other term of imprisonment
imposed on the person.” § 924(c)(1)(D)(ii).
Despite this language, Abbott objected to his sentence on
the basis of § 924(c)’s prefatory clause, which begins: “Except
to the extent that a greater minimum sentence is otherwise
provided by this subsection or by any other provision of law . .
. .” § 924(c)(1)(A). Because ACCA subjected him to a 180-
month minimum sentence, see § 924(e), Abbott argued that he
was exempt from the consecutive minimum sentence imposed

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by § 924(c). The District Court rejected Abbott’s argument,
noting that several other courts of appeals have held that “the
plain meaning of section 924(c) clearly states that a term of
imprisonment imposed under section 924(c) cannot run
concurrently with any other term of imprisonment imposed for
any other crime, including a sentence under [ACCA].” United
States v. Abbott, No. 05-333-1, 2008 WL 540737, at *2 n.8
(E.D. Pa. Feb. 27, 2008). Abbott filed this timely appeal and we
have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742.
III.
A.
Although Abbott assigns error to the District Court both
at trial and sentencing, we turn first to the sentencing issue
because it is the issue of most precedential import as it is the
subject of disagreement among courts of appeals.
Several other courts of appeals have interpreted § 924(c)
in circumstances similar to Abbott’s. See United States v.
Easter, 553 F.3d 519 (7th Cir. 2009); United States v. Parker,
549 F.3d 5 (1st Cir. 2008); United States v. Whitley, 529 F.3d
150 (2d Cir. 2008); United States v. Collins, 205 Fed. Appx. 196
(5th Cir. 2006); United States v. Studifin, 240 F.3d 415 (4th Cir.
2001); United States v. Jolivette, 257 F.3d 581 (6th Cir. 2001);
United States v. Alaniz, 235 F.3d 386 (8th Cir. 2000). For the
reasons that follow, we join the majority of these courts in
holding that a sentence imposed for a separate offense cannot
supplant or abrogate a § 924(c) sentence under the statute’s
prefatory clause.

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8
As in all cases of statutory interpretation, our inquiry
begins with the language of the statute and focuses on Congress’
intent. See United States v. Whited, 311 F.3d 259, 263-64 (3d
Cir. 2002). In this case, we must examine the relevant
subsection in its entirety:
(A) Except to the extent that a greater minimum
sentence is otherwise provided by this subsection
or by any other provision of law, any person who,
during and in relation to any crime of violence or
drug trafficking crime . . . uses or carries a
firearm, or who, in furtherance of any such crime,
possesses a firearm, shall, in addition to the
punishment provided for such crime of violence or
drug trafficking crime –
(i) be sentenced to a term of imprisonment of
not less than 5 years;
(ii) if the firearm is brandished, be sentenced
to a term of imprisonment of not less than
7 years; and
(iii) if the firearm is discharged, be sentenced
to a term of imprisonment of not less than
10 years.
(B) If the firearm possessed by a person convicted of
a violation of this subsection –
(i) is a short-barreled rifle, short-barreled
shotgun, or semiautomatic assault weapon,
the person shall be sentenced to a term of
imprisonment of not less than 10 years; or

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(ii) is a machinegun or a destructive device, or
is equipped with a firearm silencer or
firearm muffler, the person shall be
sentenced to a term of imprisonment of not
less than 30 years.
(C) In the case of a second or subsequent conviction
under this subsection, the person shall –
(i) be sentenced to a term of imprisonment of
not less than 25 years; and
(ii) if the firearm involved is a machinegun or
a destructive device, or is equipped with a
firearm silencer or firearm muffler, be
sentenced to imprisonment for life.
(D) Notwithstanding any other provision of law –
(i) a court shall not place on probation any
person convicted of a violation of this
subsection; and
(ii) no term of imprisonment imposed on a
person under this subsection shall run
concurrently with any other term of
imprisonment imposed on the person,
including any term of imprisonment
imposed for the crime of violence or drug
trafficking crime during which the firearm
was used, carried, or possessed.
§ 924(c)(1) (emphasis added).

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The prior version of § 924(c)(1) merely prohibited using3
or carrying a firearm “during and in relation to” a predicate
offense. In Bailey v. United States, 516 U.S. 137 (1995), the
Supreme Court held that “using” a firearm meant actively
employing it. In response, Congress superseded Bailey by
amending the statute to prohibit possession of a firearm “in
furtherance of” a predicate offense. See Studifin, 240 F.3d at
420-21; Alaniz, 235 F.3d at 386-90 (both discussing legislative
history).
10
The context of § 924(c)(1) reflects significant structural
alterations made in 1998, when Congress added the “possesses
in furtherance” clause to broaden the statute’s reach. The prior3
version of the statute read:
Whoever, during and in relation to any crime of
violence or drug trafficking crime . . . uses or
carries a firearm, shall, in addition to the
punishment provided for such crime of violence or
drug trafficking crime, be sentenced to
imprisonment for five years, and if the firearm is
a short-barreled rifle, short-barreled shotgun, or
semiautomatic assault weapon, to imprisonment
for ten years, and if the firearm is a machinegun,
or a destructive device, or is equipped with a
firearm silencer or firearm muffler, to
imprisonment for thirty years. In the case of his
second or subsequent conviction under this
subsection, such person shall be sentenced to
imprisonment for twenty years, and if the firearm

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is a machinegun, or a destructive device, or is
equipped with a firearm silencer or firearm
muffler, to life imprisonment without release.
Notwithstanding any other provision of law, the
court shall not place on probation or suspend the
sentence of any person convicted of a violation of
this subsection, nor shall the term of
imprisonment imposed under this subsection run
concurrently with any other term of imprisonment
including that imposed for the crime of violence
or drug trafficking crime in which the firearm was
used or carried.
§ 924(c)(1) (1996) (emphasis added).
A comparison of the current and prior versions of
§ 924(c) demonstrates that the statute has consistently specified
a minimum additional sentence that must be imposed
consecutively to any other term of imprisonment when a “crime
of violence or drug trafficking crime” involves a firearm. But
what is the scope of the prefatory clause in the current version
of § 924(c)(1)(A)? Read in context, the most cogent
interpretation is that the prefatory clause refers only to other
minimum sentences that may be imposed for violations of
§ 924(c), not separate offenses. See Studifin, 240 F.3d at 423-24
(“Examining the statute as a whole, particularly in light of the
language of § 924(c) and the purpose behind the 1998
amendments, we do not believe that Congress intended to
narrow § 924(c) by eliminating mandatory consecutive
sentences where another provision imposes a higher mandatory
minimum sentence for conduct other than that described in

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§ 924(c).”); Easter, 553 F.3d at 525-26. The prefatory clause
was added in 1998 to reflect the reorganization of the statute,
which moved alternative minimum sentences into separate
subsections. See Studifin, 240 F.3d at 423 (“We agree with the
Alaniz court that in light of the structure and language of
§ 924(c)(1), it is clear that the ‘except to the extent’ language is
designed to ‘link the remaining prefatory language in (c)(1)(A)
to’ the other subdivisions.”) (quoting Alaniz, 235 F.3d at 389).
For example, the 1998 amendment made brandishing a weapon
during a predicate offense subject to a seven-year minimum
sentence under its own subsection, § 924(c)(1)(A)(ii). But if the
weapon happens to be a short-barreled rifle, § 924(c)(1)(A)(i)
prescribes a ten-year minimum. The prefatory clause simply
makes clear that the ten-year minimum applies.
In referring to alternative minimum sentences, the
prefatory clause mentions “any other provision of law” to allow
for additional § 924(c) sentences that may be codified elsewhere
in the future – in the same way, for example, that 18 U.S.C.
§ 924 prescribes a sentence for violations of 18 U.S.C. § 922.
See § 924(a)(2) (“Whoever knowingly violates subsection (a)(6),
(d), (g), (h), (i), (j), or (o) of [18 U.S.C § 922] shall be fined as
provided in this title, imprisoned not more than 10 years, or
both.”). See also Collins, 205 Fed. Appx. at 197-98 (“[This
language] provides a safety valve that would preserve the
applicability of any other provisions that could impose an even
greater minimum consecutive sentence for a violation of
§ 924(c).”) (quoting Studifin, 240 F.3d at 423).
Our interpretation is not only consistent with the
overwhelming majority of courts that have addressed the

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question, but more importantly, ameliorates confusion arising
from Congress’ failure to state explicitly the offenses to which
the prefatory clause refers. In Whitley, the Second Circuit
emphasized this silence in diverging from our sister circuits and
holding that the prefatory clause refers to any offense. See
Whitley, 529 F.3d at 158. To test our interpretation of § 924(c),
we turn to Whitley and other possible interpretations.
B.
Reading the prefatory clause literally and in isolation
from its surrounding language, defendants have argued that
§ 924(c) does not apply when a predicate offense carries a
minimum sentence greater than the relevant minimum imposed
by §§ 924(c)(1)(A)(i)-(iii) or (B)-(C). See, e.g., Parker, 549
F.3d at 10-11; Alaniz, 235 F.3d at 386. Under this
interpretation, a defendant who brandishes a firearm during a
drug trafficking offense with a ten-year minimum sentence is
not subject to § 924(c) because, even though the elements of the
statute are satisfied, the drug crime’s ten-year minimum
constitutes “a greater minimum sentence” than the seven-year
minimum of § 924(c)(1)(A)(ii).
This interpretation is “suspect on its face” for several
reasons. Parker, 549 F.3d at 11. Initially, the prefatory clause
refers to, inter alia, greater minimum sentences “provided by
this subsection,” not for predicate offenses. Second, the
minimum sentences specified by § 924(c)(1) apply “in addition
to the punishment provided for” a predicate offense. Thus, the
prefatory clause requires a comparison between the minimum
sentences specified in §§ 924(c)(1)(A)(i)-(iii) and (B)-(C), and,

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at a minimum, others associated with using, carrying, or
possessing a firearm — not the predicate offense itself. Third,
reading the prefatory clause to refer to the minimum sentence
for a predicate offense would narrow the scope of § 924(c) in
derogation of Congress’ intent to broaden the statute’s reach
through the 1998 amendment.
That the prefatory clause cannot refer to a predicate
offense is borne out by the following hypothetical. Suppose
defendant A is convicted of a drug trafficking crime that carries
a minimum sentence of seven years imprisonment while
defendant B is convicted of a more serious drug trafficking
crime that mandates at least ten years imprisonment. Assume
also that both defendants are convicted of brandishing a firearm
under § 924(c)(1)(A)(ii), which carries a seven-year minimum
sentence. Defendant A — who committed the less serious drug
trafficking crime — will spend at least fourteen years in jail (a
seven-year minimum sentence for the drug offense followed by
at least a seven-year consecutive sentence under § 924(c)). Yet
defendant B — who committed the more serious drug
trafficking crime — would face a mandatory minimum sentence
of only ten years. As this hypothetical illustrates, a defendant
convicted of a predicate offense with a minimum sentence one
day longer than the relevant minimum under § 924(c) would
escape any further punishment while a defendant whose
predicate offense carries exactly the same minimum sentence
provided by § 924(c) sees his total sentence at least doubled.
We are confident that Congress did not intend such a bizarre
result. Indeed, every court to consider this argument has
rejected it. See Easter, 553F.3d at 525-27; Parker, 549 F.3d at

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10-12; Alaniz, 235 F.3d at 389-90; Studifin, 240 F.3d at 420-24;
Jolivette, 257 F.3d at 586-87; Collins, 205 Fed. Appx. at 197-98.
Although it is clear that a sentence imposed for a
predicate offense cannot supplant or abrogate the minimum
sentence specified for a violation of § 924(c), Abbott’s case is
complicated by the fact that in addition to drug trafficking and
possession of a firearm in furtherance of that offense, he was
also convicted of possession of a firearm by a convicted felon
under § 922(g) and ACCA. ACCA imposes its own fifteen-year
minimum sentence which, for purposes of § 924(c), might be
construed as “a greater minimum sentence [] otherwise provided
by this subsection or by any other provision of law.” Therefore,
we next consider whether the prefatory clause may refer to
sentences imposed under ACCA or another statute.
As the Second Circuit Court noted in adopting such an
interpretation, it would be logical for Congress to “provide[] a
series of increased minimum sentences [under § 924(c)] and also
to [make] a reasoned judgment that where a defendant is
exposed to two minimum sentences . . . only the higher
minimum should apply.” Whitley, 529 F.3d at 155. Interpreting
the prefatory clause to refer to higher minimum sentences
imposed by ACCA or another statute avoids some of the
problems cited above. Like the minimum sentences specified in
§ 924(c), ACCA’s minimum may be deemed “in addition to” the
sentence imposed for a §924(c) predicate offense. Moreover,
reading the prefatory clause to encompass such sentences would
not narrow the scope of predicate offenses eligible for enhanced
punishment under § 924(c). As we shall explain, however, this

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interpretation also leads to highly anomalous results, illustrating
why it has been widely rejected.
In this case, as in Whitley, the incongruity caused by
interpreting the prefatory clause to refer to separate offenses is
not readily apparent. The minimum sentence imposed by ACCA
happens to be exactly five years more than the sentence Abbott
received for his predicate drug offenses, which guarantees that
Abbott will serve at least the minimum amount of time beyond
his predicate sentences called for by § 924(c) — five years —
even without a separate sentence under § 924(c). But what if
Abbott had brandished the firearm, which would subject him to
a seven-year minimum under § 924(c)? Abbott would face a net
minimum sentence of only fifteen years, despite the fact that
§ 924(c) dictates a minimum of seven years beyond his ten-year
drug sentences. Even more incongruously, a defendant situated
identically to Abbott but who was not an armed career criminal
would be subject to a harsher minimum sentence than Abbott —
ten years for the drug offense plus at least seven consecutive

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As a final example, what if Abbott had been sentenced4
to thirty years for his drug offense? Under the Second Circuit’s
interpretation, ACCA’s fifteen-year minimum would still
preempt § 924(c)’s five-year minimum. Abbott would thus
escape any additional punishment merely because his predicate
sentence far exceeded the alternative minimum provide by
ACCA. This would be contrary to Congress’ clear intent in
§ 924(c) to guarantee a minimum amount of additional jail time
beyond that served for a predicate offense.
17
years under § 924(c). See Studifin, 240 F.3d at 423 (noting this
anomaly).4
In Whitley, the Second Circuit was undaunted by these
anomalous consequences because district judges have discretion
to increase a sentence. 529 F.3d at 158. This view asks too
much because it fixes the statute as illogical and anomalous,
then posits an ad hoc solution in each individual case.
Moreover, the purported “solution” was impossible in 1998
when the prefatory clause was written into the statute; Congress
could not have intended to create such sentencing disparities
with the clairvoyant expectation that seven years later the
Supreme Court would, in United States v. Booker, 542 U.S. 220
(2005), grant district judges the discretion to cure such
injustices.
Nevertheless, the Second Circuit justified departing from
our sister circuits because, in its mind, the result is dictated by
the “plain” language of the statute. See Whitley, 529 F.3d at 156
(concluding that other courts have “rewritten the ‘except’ clause

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in different ways to escape its plain meaning”). Even if the
language of the statute plainly supported this interpretation, we
would be loathe to adopt it because “statutory interpretations
‘which would produce absurd results are to be avoided if
alternative interpretations consistent with the legislative purpose
are available.’” First Merchants Acceptance Corp. v. J.C.
Bradford & Co., 198 F.3d 394, 403 (3d Cir. 2000) (quoting
Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 575 (1982)).
See also Lamie v. United States Trustee, 540 U.S. 526, 534
(2004) (“It is well established that when the statute’s language
is plain, the sole function of the courts – at least where the
disposition required by the text is not absurd – is to enforce it
according to its terms.”) (emphasis added and internal quotation
omitted).
We emphasize, however, that the language of the statute
does not plainly support the Whitley court’s interpretation.
Although it is obvious that the prefatory clause has some
limiting effect, its language does not plainly suggest that a
sentence under § 924(c) may be abrogated or supplanted by a
greater minimum sentence that happens to be imposed for an
entirely separate offense. According to the prefatory clause, the
sentences enumerated in § 924(c)(1)(A)-(C) do not apply when
“a greater minimum sentence is otherwise provided” by law.
This does not necessarily mean “when a greater minimum
sentence for any other crime is otherwise provided by law.”
See Parker, 549 F.3d at 11 (“The [prefatory] clause . . . does not
say ‘a greater minimum sentence’ for what; yet it has to have
some understood referent to be intelligible. Here, the referent
could be ‘any other crime related to this case’ or ‘the underlying
drug crime or crime of violence.’ Either of those readings . . .

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Nor can the prefatory clause be viewed as authorizing5
incremental sentencing enhancements. First, such an
interpretation is impossible to reconcile with the mandate that
§ 924(c) sentences must run consecutively to all other sentences.
See § 924(c)(1)(D)(ii). If Congress wanted to establish a net
minimum sentence combining predicate offenses and § 924(c)
offenses, it would have required § 924(c) sentences to run
consecutively to their predicates, rather than all other sentences.
Second, there is no basis in the text of § 924(c) to impose
incremental minimum sentences less than those specifically
enumerated in §§ 924(c)(1)(A)-(C). The language of the statute
makes clear that § 924(c) defines a separate offense with its own
minimum sentence, independent of any other offense or its
minimum sentence and prohibited from running concurrently.
See Easter, 553 F.3d at 526 (“[Section] 924(c) does not define
an enhancement, it defines a standalone crime, and the penalty
imposed under it must be imposed to run consecutively to any
19
require reading into the clause a referent not literally
expressed.”). To the contrary, at least one court has found that
the language of the prefatory clause plainly refutes the Second
Circuit’s interpretation. See Easter, 553 F.3d at 526 (“In the
contest between reading the [prefatory] clause to refer to
penalties for the offense in question or to penalties for any
offense at all, we believe the former is the most natural.”).
Reading the prefatory clause in context as we must, we
agree with the majority of courts that the “except” language
connotes a comparison between alternative minimum sentences
for a violation of § 924(c), not between sentences for separate
violations of § 924(c) and another statute.5

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other sentence.”) (citing Harris v. United States, 536 U.S. 545,
553 (2002)).
20
C.
In light of the aforementioned problems associated with
any other reading of § 924(c)(1)(A), we conclude that the
prefatory clause refers only to alternative minimum sentences
for violations of § 924(c). Therefore, the District Court did not
err by imposing a consecutive five-year sentence.
IV.
We turn now to the constitutionality of the search
warrant. In Ybarra v. Illinois, 444 U.S. 85 (1979), the Supreme
Court held that police executing a warrant authorizing the search
of a bar for narcotics lacked probable cause to search individual
patrons within the bar. The Court stated:
Where the standard is probable cause, a search or
seizure of a person must be supported by probable
cause particularized with respect to that person.
This requirement cannot be undercut or avoided
by simply pointing to the fact that coincidentally
there exists probable cause to search or seize
another or to search the premises where the
person may happen to be.
Id. at 91.

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21
Seizing on this language, Abbott argues that police
lacked probable cause to search him because this case is
“perfectly analogous to Ybarra.” However, the search warrant
in Ybarra referred only to the premises itself and the Court
expressly declined to consider a situation like Abbott’s, where
“the warrant . . . authorizes the search of unnamed persons in a
place and is supported by probable cause to believe that persons
who will be in the place at the time of the search will be in
possession of illegal drugs.” Id. at 92 n.4. Moreover, Abbott
was searched in a private residence, not in a public business.
Although the Supreme Court has not addressed the issue,
this Court has previously intimated that warrants authorizing the
search of all persons present may be constitutional in certain
circumstances. See Doe v. Groody, 361 F.3d 232, 239 (3d Cir.
2004) (concluding that if a search warrant was read in light of
the officer’s request to search “all occupants” of the residence,
“then police had legal authority to search anybody that they
encountered inside the house when they came to execute the
warrant”). Consistent with Doe and two of our sister courts of
appeals, we now hold that a warrant may authorize the search of
all persons present if there is probable cause to believe that a
premises is dedicated to criminal activity. See Owens v. Lott,
372 F.3d 267, 276 (4th Cir. 2004) (“An ‘all persons’ warrant can
pass constitutional muster if the affidavit and information
provided to the magistrate supply enough detailed information
to establish probable cause to believe that all persons on the
premises at the time of the search are involved in the criminal
activity.”); cf. Marks v. Clarke, 102 F.3d 1012 (9th Cir. 1997)
(“An all persons present warrant might be appropriate for a
different kind of locale – one dedicated exclusively to criminal

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activity – for example, a building or apartment used as a crack
house, a barn used as a methamphetamine lab, or a warehouse
used exclusively as a storage place for arms.”).
The issue on appeal is not whether the search warrant
was facially invalid, but whether it was supported by probable
cause with respect to all persons present. See Owens, 372 F.3d
at 276 (“In our view, the inclusion of ‘all persons’ language in
a warrant presents probable cause issues rather than particularity
problems.”). Here, the affidavit supporting the search warrant
for 1739 Fontain Street described Grant loitering in front of the
house, meeting with the informant, taking his money, entering
the house, returning with heroin, and giving it to the informant,
all under police surveillance. The officer who completed the
affidavit stated that in his experience, “defendants [] frequently
sell and stash narcotics from inside a location.” Because this is
sufficient to establish probable cause that the house was being
used for a criminal enterprise, the search of all persons present
inside the house was justified.
Abbott argues that the potential for family or guests to be
present negates probable cause with respect to every person who
could be in the house. See Marks, 102 F.3d at 1029 (“[W]e
believe that a warrant to search ‘all persons present’ for
evidence of a crime may only be obtained when there is reason
to believe that all those present will be participants in the
suspected criminal activity. That . . . would not be the case with
respect to a raid on any family home where innocent family
members or friends might be residing or visiting.”); Owens, 372
F.3d at 276 (“Th[e] generalization [that subjects present at the
scene of an illegal drug distribution commonly have drugs in

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23
their possession] was and is undoubtedly true, but it did not
provide the kind of particularized information that would have
permitted the magistrate to reasonably conclude that there was
a fair probability that any person seen by officers on the
premises was there to partake in one side of a drug transaction
or another.”). We disagree.
The cases upon which Abbott relies are factually
distinguishable from the present case. Marks involved a search
for stolen property (electronics equipment) in two residences
housing a large extended family with many children, and it was
unlikely that the subject of the search would be found on a
person. 102 F.3d at 1019-20. By contrast, the search warrant
for 1730 Fontain Street was targeted at drugs which could easily
be concealed on the person of anyone present as well as in the
Premises. Owens involved the search of a single-family home
based on an informant’s unsubstantiated tip that drugs were
being sold there, without police surveillance of illegal
transactions. 372 F.3d at 271-72. Indeed, Owens specifically
noted that probable cause to search all persons present might
have arisen if “[t]here was [an] indication, for example, that this
particular residence had a history of drug-related activities or
that known drug dealers or users were frequenting the place.”
372 F.3d at 278. That was precisely the case here.
Finally, to the extent that Marks and Owens may be read
to suggest that observing a drug dealer retrieve drugs from
inside a private residence does not establish probable cause to
obtain a warrant to search those present in that residence, we
reject that implication. To hold otherwise would eviscerate the
utility of “all persons present” search warrants, allowing drug

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We also reject Abbott’s argument that evidence of his6
prior arrest for selling drugs at the same location, which the
Government offered to show knowledge or intent under Rule
404(b), was unfairly prejudicial. The District Court did not
abuse its discretion in determining that the probative value of
this testimony outweighed its potential prejudice. See FED. R.
EVID. 403; United States v. Givan, 320 F.3d 452, 460-61 (3d
Cir. 2003) (upholding the admission of evidence of prior drug
conviction under Rule 404(b)).
24
dealers to ply their wares as Grant and Abbott did here. Drug
dealers could set up shop in any house, confident in the
knowledge that their contraband is not subject to seizure so long
as it is possessed by unidentifiable individuals inside the house.
Because the police had probable cause to search persons
inside the Premises, the District Court did not err in denying
Abbott’s motion to suppress physical evidence found on his
person.6
IV.
For the foregoing reasons we will affirm the judgment
of the District Court.

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