765 F.3d 373 (3rd Cir. 2014), 13-2025, United States v. Mallory

Docket Nº:13-2025
Citation:765 F.3d 373
Opinion Judge:FISHER, Circuit Judge.
Attorney:Virgil B. Walker, Esq., Robert A. Zauzmer, Esq. ARGUED, Office of United States Attorney, Philadelphia, PA, counsel for Appellant. Catherine C. Henry, Esq., Joseph M. Miller, Esq., Brett G. Sweitzer, Esq. ARGUED, Federal Community Defender Office for the Eastern District of Pennsylvania, Philadel...
Judge Panel:Before: FUENTES and FISHER, Circuit Judges, and STARK,[*] District Judge.
Case Date:September 03, 2014
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

Mallory and Ismail, employed as emergency medical technicians, were visiting the Philadelphia home of Delaine, their mother. At about 2:30 a.m. they were standing with friends in front of a neighbor’s home. Officer Enders approached, shined a spotlight, and ordered them to disperse. Although they complied, Ismail cursed Enders, who detained Ismail for a few minutes before releasing him. Ismail walked... (see full summary)


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765 F.3d 373 (3rd Cir. 2014)




No. 13-2025

United States Court of Appeals, Third Circuit

September 3, 2014

Argued: January 22, 2014

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[Copyrighted Material Omitted]

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On Appeal from the United States District Court for the Eastern District of Pennsylvania. (E.D. Pa. No. 2-12-cr-00379-001). District Judge: Honorable Mary A. McLaughlin .

Virgil B. Walker, Esq., Robert A. Zauzmer, Esq. ARGUED, Office of United States Attorney, Philadelphia, PA, counsel for Appellant.

Catherine C. Henry, Esq., Joseph M. Miller, Esq., Brett G. Sweitzer, Esq. ARGUED, Federal Community Defender Office for the Eastern District of Pennsylvania, Philadelphia, PA, counsel for Appellee.

Before: FUENTES and FISHER, Circuit Judges, and STARK,[*] District Judge.


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FISHER, Circuit Judge.

In nearly all circumstances, we require police officers to obtain a warrant supported by probable cause before engaging in a search or seizure of a person, their house, their papers, or their effects. One of the few exceptions to this rule allows police to conduct a warrantless search or seizure when exigent circumstances require them to act with such alacrity that requiring them to first obtain a warrant would be unreasonable. The question at the heart of this case requires us to determine whether an exigency has abated such that officers are no longer excused from the warrant requirement.



In the late evening and early morning hours of January 14 and 15, 2012, Kamaal Mallory and his stepbrother Ismail Abu Bakr were at the home of Delaine Abu Bakr, Ismail's mother and Mallory's stepmother, who resided at 3434 Old York Road in Philadelphia, Pennsylvania. At the time, both Mallory and Ismail1 were employed as emergency medical technicians for the Northwest Care Ambulance Company. Mallory did not live with Delaine full-time, but he and his two daughters often stayed with her on weekends, and planned to do so on the weekend of January 13th through the 15th.

Between about 1:45 and 2:30 a.m. on the 15th, Mallory and Ismail were standing with friends in front of a neighbor's home. Officer Eric Enders approached them in a police cruiser, shined a spotlight on them, and ordered them to disperse. Although they complied with this order, Ismail cursed at Officer Enders, telling him to stop shining the spotlight in his face. Officer Enders and his partner then detained Ismail for disorderly conduct, placing him in the backseat of the cruiser, and driving around the corner.

Meanwhile, Mallory returned to his stepmother's house where his stepsister, Siddiqah Abu Bakr, let him in. Siddiqah had observed through a window the situation unfolding outside, and awoke her mother to tell her what was happening. After Siddiqah returned to the window, she saw Ismail being placed into the cruiser, which had left by the time Delaine came downstairs. Officer Enders detained Ismail for a few minutes before removing his handcuffs and releasing him. Ismail walked back toward his mother's house, seeing two police cruisers out front.

At 2:33 a.m., Officers Richard Hough and William Lynch, Jr., received a dispatch advising them that there was a group of men outside on the 3400 block of Old York Road, and that one of them was armed with a gun. The allegedly armed man was a black male wearing a brown leather jacket over a black hooded sweatshirt. The officers arrived at 3434 Old York Road about five minutes after receiving the dispatch.

Delaine, who by this time was standing outside on her porch, approached the driver's side door of the second cruiser to speak with Officers Hough and Lynch. She asked them whether they had arrested Ismail. While they were speaking, Officer Hough noticed a man standing nearby who matched the description of the suspect. This man was later identified as Mallory. The District Court observed that it remains

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unclear precisely where Mallory was standing in relation to Delaine, but it is undisputed that Mallory was outside and in view of the officers.

At one point, Mallory spoke with Officers Hough and Lynch, and as he did so his jacket lifted to reveal a revolver stuck in his waistband. When Officer Hough observed this, he exclaimed " gun!" in order to alert his partner to the presence of a weapon. Officer Hough exited the vehicle and ordered Mallory to stop, but Mallory instead ran into Delaine's house, shutting the door behind him.

The officers gave chase. Siddiqah, who had come outside, briefly blocked the officers' entry, shouting that they had no right to enter without a warrant. They pushed her aside and Officer Hough kicked the door, breaking the latch. Someone inside blocked the door from opening, and Officer Hough kicked the door several times, breaking loose a lower panel on the door.2 The person holding the door shut relented and Officer Hough opened the door, which, when one faced it from outside, swung in and to the left.

It was dark inside the house. The officers entered with weapons drawn, followed inside by Siddiqah and Delaine. Siddiqah was distraught, and the officers told them both to exit the house. It was then that another of Mallory's stepsisters, Tazkeyah Abu Bakr, came down the stairs. One of the officers pointed his weapon at her and told her to leave the house, and Tazkeyah joined Delaine and Siddiqah on the front porch.

While Officer Hough was kicking in the door, Officer Lynch had called for backup. When Officers Kevin Gorman and Kevin Robinson arrived shortly thereafter, Officers Hough and Lynch had already entered the house and were awaiting them in the first floor living room. Officer Hough ordered Officers Gorman and Robinson to stay on the first floor, with instructions to prevent the family from reentering the house. Officers Hough and Lynch then began searching the four-story home for Mallory, beginning on the top floor and working their way down. They searched for Mallory in places where a person could hide, such as rooms and closets. They also searched for the firearm in places where a firearm could be hidden, like inside drawers and under pillows. During the search, Ismail returned and briefly argued with one of the officers before Delaine persuaded him to join the rest of the family on the front porch.

During the search of the house, supervising Officer Sergeant Marc Hayes arrived.3 He spoke with Delaine, who explained that the family had been instructed to wait on the porch while the officers searched the house, but that it was cold outside. Sergeant Hayes allowed the family to wait in the living room, but when Officer Hough came back downstairs and saw this he explained to the Sergeant that he did not want the family in the house until the officers had recovered the firearm. The family was sent back outside.

The officers eventually located a locked bathroom on the first floor, which they had at first overlooked because they thought it was an exterior door. Believing that Mallory

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was hiding in the bathroom, the officers asked Delaine if she had a key, which she did not. No response came from within the bathroom when Delaine asked Mallory to come out. The officers used a crowbar to pry open the door, finding Mallory inside. They arrested and handcuffed him, and began to escort him through the first floor to the front door.

As the officers proceeded with Mallory from the rear of the house to the front door, one of them asked whether the area behind the opened front door had been searched.4 Officer Hough then recovered a revolver from " under or behind umbrellas located on the left side of the foyer behind the front door, which had been swung open into the house." United States v. Mallory, No. 12-379, 2013 WL 943407, at *5 (E.D. Pa. Mar. 12, 2013).


Mallory was indicted in the United States District Court for the Eastern District of Pennsylvania on one count of possession of a firearm by a convicted felon, in violation of 18 U.S.C. § § 922(g)(1) and 924(e). He moved to suppress the gun. The District Court held a suppression hearing and heard testimony from one witness for the Government -- Officer Hough -- and five witnesses for the defense -- Ismail, Delaine, Siddiqah, Tazkeyah, and Richard Thomas, III, a friend of Mallory's.

The District Court granted the motion to suppress. It held first that Mallory had a legitimate expectation of privacy in Delaine's home because, although he did not reside there, he and his daughters spent weekends there and were staying there the night of his arrest. Accordingly, he had standing to challenge the legality of the search. Mallory, 2013 WL 943407, at *6. The Government does not challenge this holding on appeal.

On the merits, the District Court concluded that the officers had probable cause to believe that Mallory had committed the crime of carrying a firearm " upon the public streets" of Philadelphia, in violation of 18 Pa. Cons. Stat. Ann. § 6108, and that their warrantless entrance into the home was justified under the exigent circumstances doctrine because they were in " hot pursuit" of a fleeing Mallory. Mallory, 2013 WL 943407, at *6-7. This exigency allowed the officers not only to enter the home and search for Mallory, but also to search places too small for a person to hide in order to recover the firearm. Id. at *7-8. However, once the police had found and secured Mallory, the exigency justifying their warrantless search -- hot pursuit of an armed suspect -- no longer existed. The District Court disagreed with the Government that Officer Hough's search was justified to prevent the imminent destruction of evidence, another of the recognized exigencies that may render a warrantless...

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