689 F.3d 301 (3rd Cir. 2012), 11-2566, United States v. Harrison

Docket Nº:11-2566.
Citation:689 F.3d 301
Opinion Judge:FUENTES, Circuit Judge.
Party Name:UNITED STATES of America v. Khayree HARRISON, Appellant.
Attorney:Brett G. Sweitzer (Argued), Mark T. Wilson, Federal Community Defender Office for the Eastern District of Pennsylvania, Philadelphia, PA, for Appellant Khayree Harrison. Arlene D. Fisk, William Weilman, Robert Zauzmer (Argued), Office of the United States Attorney, Philadelphia, PA, for Appellee ...
Judge Panel:BEFORE: FUENTES, SMITH, and JORDAN, Circuit Judges.
Case Date:August 07, 2012
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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689 F.3d 301 (3rd Cir. 2012)

UNITED STATES of America

v.

Khayree HARRISON, Appellant.

No. 11-2566.

United States Court of Appeals, Third Circuit.

August 7, 2012

Argued March 26, 2012.

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Brett G. Sweitzer (Argued), Mark T. Wilson, Federal Community Defender Office for the Eastern District of Pennsylvania, Philadelphia, PA, for Appellant Khayree Harrison.

Arlene D. Fisk, William Weilman, Robert Zauzmer (Argued), Office of the United States Attorney, Philadelphia, PA, for Appellee the United States of America.

BEFORE: FUENTES, SMITH, and JORDAN, Circuit Judges.

OPINION

FUENTES, Circuit Judge.

On October 12, 2009, three Philadelphia police officers entered a private residence located at 2114 North Franklin Street in Philadelphia without a warrant because they believed the house to be abandoned. Upon searching the house, they found Khayree Harrison sitting in a recliner with a gun, scales, pills, and cocaine base on the table next to him. The police took Harrison into custody, seized the gun, and obtained a warrant to seize the rest of the items. The government charged Harrison with possession with intent to distribute five grams or more of cocaine base. Harrison moved to suppress the physical evidence on the grounds that it had been confiscated pursuant to a search that violated the Fourth Amendment. The District Court held a hearing and denied the motion, finding that although Harrison had a reasonable expectation of privacy in the house, the police officers were operating under the mistaken but reasonable belief that the house was abandoned. Harrison appealed. We will affirm.

I.

A.

Khayree Harrison lived at 2015 North Eighth Street in Philadelphia, but paid Nicole Hawkins $750 a month to use the house at 2114 North Franklin Street starting in August 2009.1 Harrison spent only one or two nights a week at the 2114 North Franklin Street house. He testified that he had a key to the house and entered the home by unlocking the front door. He had paid Nicole Hawkins rent for October 2009.

On October 12, 2009, Philadelphia Police Officer Robert McCarthy was driving around the neighborhood in a marked police car when he spotted a dirt bike on the side of the road. He pulled over, retrieved the bike's vehicle identification number, began a search for the owner's information on his computer, and drove away. About ten minutes later, he learned that the bike was reported stolen. He went back to get the bike, but it was already gone. Later that day, he spotted the same bike being ridden by an unknown male. Officer McCarthy did not follow or apprehend him at that time. Around 8 p.m. that evening,

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Officer McCarthy was joined by Officer Matthew McCarthy, his cousin, and Officer Joseph O'Malley. They decided to walk through the yards between Franklin and 8th Streets to see if they could find the stolen bike. They spotted the bike in the backyard of 2114 North Franklin Street. The officers walked around to the front yard, where they noticed that the front door was open. They also saw candlelight through a boarded-up window on the first floor. Believing the house to be abandoned, the three officers walked in the front door and opened the door on their immediate left. They did not knock or announce their presence.

The officers saw Harrison sitting in a recliner chair. Next to him, he had a gun, scales, pills, and an unknown substance. Seeing the officers, Harrison ran out of the room and into the basement. The officers followed and took him into custody. They then contacted an Officer Reynolds, also of the Philadelphia Police Department, and had him prepare a search warrant for the house. In preparing the warrant, Officer Reynolds discovered that Nicole Hawkins Investment Company owned the property.

At the suppression hearing, the officers testified to the condition of the house and the District Court credited their testimony. The officers testified consistently that 2114 North Franklin Street was in a state of constant and severe disrepair. Specifically, Officer Robert McCarthy testified that the backyard was full of trash and there were " boards on the door and the window." Appendix. (" App." ) at A26. The yard was covered in weeds and generally untended. There was nothing covering the windows on the second floor. On the front of the house, they observed that the two bottom windows were boarded up with plywood, there was trash all over the yard, and the front door was unlocked and ajar.

Officer Matthew McCarthy, who had been at the house many times before, testified that " the front door [was] never locked," App. at A47, and was always open. In fact, he seemed unsure of whether the door could be locked. He also testified that the condition of the house never changed. It remained in the same state of disrepair each time he saw it.

Officer McCarthy also testified about the condition of the house's interior. He said that he entered 2114 North Franklin Street several times in the months leading up to October 12, 2009, although he never made any arrests or filled out any incident reports. He described the house as a " known drug residence," and said that one would often " see drug users and dealers hanging out outside, going in and out the front door all day long." App. at A46. He observed this activity " all summer." App. at A49. Prior to October, he had entered the house to kick people out numerous times. He testified that

The whole house was filled with drug paraphernalia all over the house, trash. The front door is never locked. It's always open. The upstairs has a single mattress in the front room of the building. Drug bags all over the place, drug paraphernalia. Mostly crack bags, some heroin bags. The first floor, again, trash all over the place. The whole house smells like urine. People are often in there sleeping. There is feces in both the tub and the toilet that is never flushed because there is no water in the house. Again, I go in there routinely just to kick people out, just to keep them out of the area.

App. at A47. Officer McCarthy also said that he had no reason to believe there was electricity in the house. Ultimately, he did not think anyone could actually be living there, as " it did not seem habitable." App. at A48. He last entered the house two or

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three weeks prior to the search that is at issue here.

B.

The grand jury returned an indictment that charged Harrison with possession with intent to distribute five grams or more of cocaine base, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B); commission of that offense within 1,000 feet of a school, in violation of 21 U.S.C. § 860; and possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1).

Prior to trial, Harrison filed a motion to suppress the physical evidence against him. After a hearing, the District Court denied the motion. It held that while the property was not abandoned, " [b]ased on the appearance of the property and the officers' knowledge of the property's history, the police acted reasonably in entering the property to investigate." App. at A12.

After a jury trial, Harrison was found guilty of possession with intent to distribute but was acquitted on the other charges. The District Court sentenced him to 62 months' imprisonment. This timely appeal followed. The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction pursuant to 28 U.S.C. § 1291.

II.

We review factual determinations made on a motion to suppress for clear error and legal determinations de novo. United States v. Kennedy, 638 F.3d 159, 163 (3d Cir.2011). The proponent of a motion to suppress bears the burden of proving that he had a legitimate expectation of privacy in the place searched and that the search was illegal. Kennedy, 638 F.3d at 163. Because the District Court denied Harrison's suppression motion on the grounds that the search was permissible, " we must review the propriety of the warrantless search that led to the discovery of incriminating evidence." United States v. Williams, 417 F.3d 373, 376 (3d...

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