453 F.3d 752 (6th Cir. 2006), 05-5835, United States v. Harness

Docket Nº:05-5835.
Citation:453 F.3d 752
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Terry William HARNESS, Defendant-Appellant.
Case Date:July 17, 2006
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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453 F.3d 752 (6th Cir. 2006)

UNITED STATES of America, Plaintiff-Appellee,

v.

Terry William HARNESS, Defendant-Appellant.

No. 05-5835.

United States Court of Appeals, Sixth Circuit.

July 17, 2006

Argued: May 11, 2006.

Appeal from the United States District Court for the Eastern District of Tennessee at Knoxville, No. 04-00087—Thomas W. Phillips, District Judge.

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ARGUED:

Paula R. Voss, Federal Defender Services, Knoxville, Tennessee, for Appellant.

Tracee J. Plowell, Assistant United States Attorney, Knoxville, Tennessee, for Appellee.

ON BRIEF:

Paula R. Voss, Federal Defender Services, Knoxville, Tennessee, for Appellant.

Tracee J. Plowell, Assistant United States Attorney, Knoxville, Tennessee, for Appellee.

Before: SUTTON and McKEAGUE, Circuit Judges; CALDWELL, District Judge. [*]

OPINION

SUTTON, Circuit Judge.

In this appeal, Terry Harness raises two arguments: (1) that the police violated his Fourth Amendment rights when they entered his house without a warrant and found guns there and (2) that his 44-month sentence is unreasonable. Because the officers had probable cause to arrest Harness, because they permissibly followed Harness into his house after they had placed him in custody and because the officers observed the guns in plain view inside the house, the district court did not err in denying the suppression motion. And because the court properly calculated Harness's sentencing guidelines range and permissibly applied the § 3553(a) factors to Harness in giving him a within-guidelines sentence, the district court did not impose an unreasonable sentence. We affirm.

I.

On Saturday, February 21, 2004, Russell Self, a deputy with the Grainger County Sheriffs Department, investigated a claim of sexual molestation made by Harness's ex-wife, Sandra Osborn. Osborn told Self that Harness had propositioned her 10-year-old son while he and his 14-year-old brother were staying with their father during the previous weekend. Self interviewed Osborn and both sons. The younger son told Self that his naked father had approached him and asked him to perform a sex act. The older son, though unable to verify any details of the encounter because he had been asleep, corroborated that the encounter could have occurred on the date and at the time and place that his younger brother said it did. Osborn also informed Self that Harness had a prior conviction for sexual battery. After speaking with Osborn and the two boys, Self and his partner, Deputy Sheriff Barnard, verified Harness's prior conviction for sexual battery with the police dispatcher, though they were unable to locate Harness's name on a sex-offender internet website.

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The deputies drove to Harness's house. As they entered his driveway, Harness came out of the house and stood on his front porch with his hands in his pockets. The officers instructed Harness to leave his hands in his pockets, patted him down for weapons and handcuffed him. They advised Harness of his rights, told him about his son's allegation and asked why he did not appear on the sex-offender registry. Harness responded that he had filled out the sex-offender forms each month.

Self explained that he was arresting Harness for failing to register with the sex-offender registry and asked Harness if he "needed anything . . . inside the house or [to] turn anything off' before they drove him to the police station. JA 95. Harness responded that he needed his wallet, keys and cigarettes. When Harness entered the house to retrieve these items and turn off the stove in the kitchen, the deputies followed him. Once inside the house, the officers spotted two guns propped up against the wall in the hallway and two more in a gun rack in the bedroom. After seizing the guns, the officers took Harness to the police station.

On Monday morning, Self contacted the Tennessee Bureau of Investigation and determined that Harness had fulfilled his sex-offender registration requirements. (Having been convicted before 1997, Harness, it turns out, was under no obligation to be listed on the public internet database.) Harness was charged in state court with attempted aggravated sexual battery, which the court later dismissed, and in federal court with being a felon in possession of a firearm.

In the federal case, Harness made a pretrial motion to suppress the guns found in his house. Adopting a magistrate's report and recommendation, the district court rejected the motion, after which Harness conditionally pleaded guilty, reserving the right to raise his constitutional challenge on appeal. The district court sentenced him to 44 months in prison.

II.

Harness first argues that the officers did not have probable cause to arrest him on the porch. The existence of probable cause, quite familiarly, depends on "whether, at the moment the arrest was made, ... the facts and circumstances within [the officers'] knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the [defendant] had committed or was committing an offense." Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964). Not surprisingly, "[a]n eyewitness identification will constitute sufficient probable cause unless, at the time of the arrest, there is an apparent reason for the officer to believe that the eyewitness was lying, did not accurately describe what he had seen, or was in some fashion mistaken regarding his recollection of the confrontation." Ahlers v. Schebil, 188 F.3d 365, 370 (6th Cir. 1999) (internal quotation marks omitted); see also Thacker v. City of Columbus, 328 F.3d 244, 257 (6th Cir. 2003) (holding that a victim's statement that the defendant "had abused her alone is sufficient to establish probable cause" to arrest the defendant for domestic violence); Klein v. Long, 275 F.3d 544, 551 (6th Cir. 2001).

Gauged by these precedents, Self had probable cause to arrest Harness. He had spoken directly to the victim about the attempted sexual battery, and nothing about the allegation itself cast doubt on the victim's reliability. See Ablers, 188 F.3d at 370. The older brother corroborated that the victim was at Harness's house and separated from his brother at

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the time of the incident, confirming that there was a "window of time within which the alleged sexual assault could have occurred." Id. at 370-71; see also id. (A victim's accusation, "especially...

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