Warner v. McCunney ( 2008 )

Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
1-8-2008
Warner v. McCunney
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-5167
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"Warner v. McCunney" (2008). 2008 Decisions. Paper 1789.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 05-5167
__________
THOMAS WARNER
Appellant.
v.
JOSEPH MCCUNNEY
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civ. No. 05-1248)
District Judge: Honorable Harvey Bartle, III
Submitted under Third Circuit LAR 34.1(a)
August 28, 2007
Before: BARRY, CHAGARES, and ROTH, Circuit Judges.
(Opinion filed January 8, 2008)
OPINION
PER CURIAM:
Thomas Warner appeals from the District Court’s order, entered October 27, 2005,
granting Joseph McCunney’s motion for summary judgment. We will affirm.
In December 2002, Miles Warner and his wife Mary were found murdered in their
home in Chadds Ford, Pennsylvania. Thomas Warner is one of Miles Warner’s children;
Mary Warner was his stepmother. Sallie Anderson, who is Thomas Warner’s sister, is co-
executrix of Miles Warner’s estate. In March 2003, Anderson found some bullets in a
hallway closet in her parents’ house. She called McCunney, the Pennsylvania state trooper
who was leading the investigation of the murders, and gave him permission to search the
house. McCunney arrived at the house with trooper Randy Testa and members of a forensic
team. Anderson took the officers to a second-floor storage room in which Thomas Warner
had stored some belongings, including a small plastic container. In one of the drawers of the
plastic container, Testa found bullets similar in caliber to those used to kill Miles and Mary
Warner. Testa informed McCunney, who had left the room to search the basement.
McCunney telephoned his supervisor and advised Testa to stop the search. Shortly
thereafter, McCunney’s supervisor advised McCunney that the search should not continue
until a warrant could be obtained. Two warrants were secured later that day: one was for the
Warners’ house and the other was for Thomas Warner’s apartment. After obtaining the
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warrants, Testa and McCunney seized the bullets found in the plastic container as well as
some papers. They also seized several items from Thomas Warner’s apartment.
On March 16, 2005, Thomas Warner (hereafter, Warner) filed a complaint pursuant
to 42 U.S.C. § 1983 against McCunney, alleging that McCunney had violated his Fourth
Amendment right to be free from unreasonable searches and seizures; he sought
compensatory and punitive damages. McCunney filed a motion for summary judgment,
which the District Court granted. Warner filed a timely notice of appeal.
We have appellate jurisdiction pursuant to 28 U.S.C. § 1291. Our review is plenary.
McGreevey v. Stoup, 413 F.3d 359, 363 (3d Cir. 2005). Summary judgment is proper when,
viewing the evidence in the light most favorable to the non-moving party, there is no genuine
issue of material fact and the moving party is entitled to judgment as a matter of law. See
Saldana v. K-Mart Corp., 260 F.3d 228, 232 (3d Cir. 2001). We may affirm the District
Court on any grounds supported by the record. See Nicini v. Morra, 212 F.3d 798, 805 (3d
Cir. 2000) (en banc).
Warner argues that the initial, warrantless search of his property at his father’s house
violated his rights under the Fourth Amendment. The District Court did not determine
whether that search was valid because it concluded that the search was conducted by Testa
(who is not a defendant in this matter) while McCunney was in the basement and that
McCunney thus was not personally involved in the search.
To avail himself of the protection accorded by the Fourth Amendment, Warner must
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show that he had a legitimate expectation of privacy in the area searched. See Minnesota
v. Olson, 495 U.S. 91, 95-96 (1990); see also Rakas v. Illinois, 439 U.S. 128, 143 (1978) (a
person who claims the protection of the Fourth Amendment must show a legitimate
expectation of privacy in the invaded place). To show a legitimate expectation of privacy
in searched premises, the person challenging the search has the burden of showing both a
subjective expectation of privacy and that the expectation is objectively reasonable, that is,
one that society is willing to accept. See Olson, 495 U.S. at 96-97. Several factors are
relevant to this showing: whether the party has a possessory interest in the things seized or
the place searched; whether the party can exclude others from that place; whether the party
took precautions to maintain the privacy; and whether the party had a key to the premises.
See, e.g., Rawlings v. Kentucky, 448 U.S. 98, 105 (1980); United States v. Heckenkamp, 482
F.3d 1142, 1146 (9th Cir. 2007); United States v. Brown, 408 F.3d 1049, 1051 (8th Cir.
2005).
The following facts are undisputed. Although Warner had resided at the Chadds Ford
residence occasionally during the two decades that preceded his father’s death, he had not
slept overnight at the residence since 1993 or 1994. About one month before his father’s
murder, Warner had placed some of his personal belongings in a small, second-floor storage
room in the Chadds Ford residence. The door to the room was unlocked, and the room was
accessible to anyone in the house. Some of Warner’s belongings were in open boxes; some
were in a small, plastic container with drawers. Although the top and sides of the container
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were opaque, the front of the container was clear. Nothing in the record indicates that the
plastic container was locked. At the time of the search, the property was under the control
of the executors of Miles Warner’s estate, one of whom was Warner’s sister. On this record,
Warner has not shown that he had a legitimate expectation of privacy in the storage room.
See United States v. Hunyady, 409 F.3d 297, 301-02 (6th Cir. 2005)(appellant did not have
a reasonable expectation of privacy in his late father’s house where appellant did not lawfully
reside in the house, and the house was under the control of a personal representative).
In any event, the warrantless search of the Chadds Ford residence did not violate the
Fourth Amendment’s proscription of unreasonable searches because McCunney had obtained
Anderson’s consent to search the premises. See United States v. Matlock, 415 U.S. 164, 170-
71 (1974); see also Illinois v. Rodriguez, 497 U.S. 177, 186-89 (1990) (warrantless search
is valid when based upon the consent of a third party whom the police reasonably believe to
possess common authority over the premises).
Warner also asserts that there was no probable cause to support the search warrant for
his apartment because McCunney’s affidavit in support of the warrant contained
misstatements of material fact. The District Court correctly determined that Warner failed
to show that McCunney “knowingly and deliberately, or with a reckless disregard for the
truth, made false statements or omissions that create[d] a falsehood in applying for [the]
warrant” and that “such statements or omissions [were] material, or necessary, to the finding
of probable cause.” See Wilson v. Russo, 212 F.3d 781, 786-87 (3d Cir. 2000).
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For the foregoing reasons, we will affirm the judgment entered by the District Court.
Warner’s motion for a hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978), is
denied.
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