United States v. Harris

• Decision Date: 31 May 2022
• Docket Number: CRIMINAL ACTION No. 18-cr-315-7
• Citation: 604 F.Supp.3d 309
• Parties: UNITED STATES of America v. Makal HARRIS
• Court: U.S. District Court — Eastern District of Pennsylvania

604 F.Supp.3d 309

UNITED STATES of America

v.Makal HARRIS

CRIMINAL ACTION No. 18-cr-315-7

United States District Court, E.D. Pennsylvania.

Signed May 31, 2022

Everett R. Witherell, Kelly M. Harrell, Joseph T. Labrum, III, Assistant US Attorneys, U.S. Attorney's Office, Philadelphia, PA, for United States of America.

Benjamin Brait Cooper, The Cooper Law Firm, P.C., Philadelphia, PA, William Brennan, Law Offices of William J. Brennan, Philadelphia, PA, for Makal Harris.

Makal Harris, Philadelphia, PA, Pro Se.

MEMORANDUM

Pratter, United States District Judge

INTRODUCTION

Trained and experienced police officers often have a good sense of when criminal activity is afoot. Nevertheless, an officer's hunch must rise at least to the level of reasonable suspicion in order to momentarily stop a person.

Makal Harris moves to suppress drugs recovered on his person during a stop and frisk. Because the officer lacked reasonable suspicion to stop him, the Court suppresses the evidentiary use of the drugs found on him. After that stop and frisk, however, the officer correctly assessed that he had probable cause to arrest Mr. Harris. In a search incident to that arrest, the officer found two cell phones. Officers later obtained valid search warrants to search those cell phones and to search Mr. Harris's residence. These later searches were permissible, so the evidence gathered from them is admissible at trial. Thus, the Court grants Mr. Harris's motion in part and denies it in part.

FINDINGS OF FACT

The Court finds the following facts based on the evidence presented at the evidentiary hearing.¹ The Government presented a single witness, Thomas D'Alesio of the Philadelphia Police Department, who recounted the events in question.²

On December 11, 2015, Philadelphia Police Officers D'Alesio and Jeffrey Opalski were on patrol in the Overbrook Park neighborhood of Philadelphia in a marked police car. They were assigned to a tactical policing squad known as the "5-Squad" charged with proactive policing of the 19^th District. Prior to December 2015, Officer D'Alesio had made approximately 500 drug-related arrests and approximately 100 gun-related arrests in that district. Nonetheless, he described the Overbrook Park neighborhood as a relatively low crime area, explaining that he had only made about 50 drug-related arrests and less than 10 gun-related arrests in that area.

At approximately 7:05 p.m., while driving north on 76^th Street on their way to get coffee, the officers passed the rear alley of the 7500 block of Overbrook Avenue. As they passed, they observed two males standing near the rear of 7551 Overbrook Avenue. According to Officer D'Alesio, when the two men noticed the police car driving by, they ducked behind a parked car. This action drew the attention of Officer D'Alesio, who was driving, and Officer Opalski, his partner and passenger. They circled the block and again drove north on 76^th Street, this time turning right into the rear alley of the 7500 block of Overbrook Avenue.

As the officers turned down the back alley, the two men were still there, this time standing up, and they did not attempt to duck behind any car. The officers also recognized Mr. Harris as he came out the back door of the residence at 7551 Overbrook Avenue and walked towards the other two men.

Officers D'Alesio and Opalski knew Mr. Harris because of their prior familiarity with him. Mr. Harris had been convicted in 2007 for robbery, aggravated assault, and firearm violations. In 2014, Officer D'Alesio and Officer Opalski stopped a vehicle that Mr. Harris was in. Officer D'Alesio discovered a drug compartment in the vehicle, and after obtaining a search warrant for the vehicle, discovered heroin in the compartment. Mr. Harris was acquitted of that charge. And in March 2015, a person arrested near the 7500 block of Overbrook Avenue had told police that Mr. Harris had been packing and distributing drugs and storing firearms at his residence. This informant identified Mr. Harris by both his photo and his nickname "Stu." The Attorney General's office later corroborated that Mr. Harris lived at this address, and said that dealers were driving to Washington, D.C. a few times a month to bring back drugs. Based on this information, the officers added the 7500 Overbrook area to their patrols.

As the police car came down the alley towards him, Mr. Harris stopped, put his hands in the front pocket of his hoodie sweatshirt, and began to back up towards his residence. Officer D'Alesio later said that when he stopped Mr. Harris, he was about five feet outside his back door. At the same moment, Officer D'Alesio got out of the police car and ordered Mr. Harris to stop and put his hands up. Based on his training and experience, Officer D'Alesio knew that people often put their hands into their pocket in order to hold a gun when they see the police. Upon the police directive, Mr. Harris took his hands out of his pocket and put them up in the air. Officer D'Alesio then noticed a bulge in the pocket of Mr. Harris's sweatshirt. Believing the bulge to be a gun, Officer D'Alesio conducted a pat down frisk of Mr. Harris. Upon touching the bulge through Mr. Harris's sweatshirt, Officer D'Alesio sensed immediately, based on his training and experience, that the bulge was a "rack" of heroin.³ Officer D'Alesio then placed Mr. Harris under arrest and more fully searched him incident to that arrest, recovering $878 and two iPhones.

The officers "cleared" the residence at 7551 Overbrook to ensure there were no other people inside. They then secured the residence while waiting for a search warrant. The warrant issued around 1:00 a.m. on December 12, Gov. Ex. 7, and police executed the warrant about five minutes later. Inside, police recovered packaging material consistent with narcotics trafficking and a glass jar containing Lidocaine, which is commonly used to "cut" heroin before distribution.

Less than a week later, a Philadelphia police officer operating as part of a Drug Enforcement Administration (DEA) task force obtained search warrants for the two iPhones taken in the search of Mr. Harris. Gov. Exs. 8 & 9. An analyst attempted to extract data from the cell phones the following day but was unsuccessful because the DEA did not yet have the software to break the passwords protecting the phones. Five years later, however, the DEA used upgraded software to extract the content of the cell phones.

A grand jury returned an indictment against Mr. Harris for possession with intent to distribute a substance containing heroin in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C), and conspiracy to distribute controlled substances in violation of 21 U.S.C. § 846.

Mr. Harris moves to suppress all of the evidence recovered as part of this incident. The Government opposes this motion. The Court held a hearing on the motion and received supplemental briefing from the parties, leaving the matter ripe for the Court's resolution.

DISCUSSION

Mr. Harris contends that Officer D'Alesio’s initial stop of him was unconstitutional under the Fourth Amendment to the United States Constitution because Officer D'Alesio lacked reasonable suspicion to stop him. As a result, Mr. Harris argues the evidence discovered during the frisk of his person and the subsequent search of his house and cell phones is "fruit of the poisonous tree" that must be excluded. The Government counters that Officer D'Alesio did have reasonable suspicion for the initial stop. Even if he did not, the Government argues, all the evidence discovered subsequent to that initial stop and frisk is still admissible under the good faith exception to the exclusionary rule.

In general, "the burden of proof is on the defendant who seeks to suppress evidence. However, once the defendant has established a basis for his motion, i.e. , the search or seizure was conducted without a warrant, the burden shifts to the government to show that the search or seizure was reasonable." United States v. Johnson , 63 F.3d 242, 245 (3d Cir. 1995) (internal citation omitted). The Government must prove that the search or seizure was reasonable by a preponderance of the evidence. United States v. Matlock , 415 U.S. 164, 177 n.14, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974) ; United States v. Ritter , 416 F.3d 256, 261 (3d Cir. 2005).

A motion to suppress involves a sequential analysis of events. Thus, the Court first analyzes the initial stop and frisk of Mr. Harris before addressing his arrest, search incident to arrest, and subsequent searches of Mr. Harris’ cell phones and residence based on search warrants. The Court finds that the initial stop and frisk of Mr. Harris was unconstitutional and thus suppresses the evidence discovered as part of that immediate stop and frisk but does not suppress the evidence subsequently discovered.

I. The Initial Terry Stop of Mr. Harris Was Not Based on Reasonable Suspicion and the Drugs Seized During the Subsequent Frisk Must Be Suppressed

The Fourth Amendment protects individuals against "unreasonable searches and seizures." U.S. Const. amend IV. As a general rule, a police officer must obtain a warrant supported by probable cause for a search or seizure to be reasonable. Katz v. United States , 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) ; Terry v. Ohio , 392 U.S. 1, 20, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) ; United States v. Brown , 448 F.3d 239, 244 (3d Cir. 2006). That general rule, however, is subject to numerous exceptions. As relevant here, an officer may conduct a brief investigatory stop (a seizure⁴ ) of an individual without arresting that person and even without probable cause so long as the officer, in light of his experience, has reasonable, articulable suspicion that "that criminal activity may be afoot." Terry , 392 U.S. at 30, 88 S.Ct. 1868 ; Illinois v. Wardlow , 528 U.S. 119, 123, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000). Such a stop is now known colloquially as a " Terry stop."

In order to engage in a Terry stop, an...