United States v. Dwight Henley

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 18-1428
___________
UNITED STATES OF AMERICA
v.
DWIGHT D. HENLEY,
Appellant
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. No. 2-15-cr-00199-001)
District Judge: Honorable Mark R. Hornak
Submitted February 5, 2019
Before: HARDIMAN, SCIRICA, and RENDELL, Circuit
Judges.
(Filed: October 29, 2019)
Scott W. Brady
Donovan J. Cocas
Laura S. Irwin
Office of United States Attorney
700 Grant Street
Suite 4000
Pittsburgh, PA 15219
Attorneys for Appellee
Giuseppe G.C. Rosselli
Suite 107
660 Lincoln Avenue
Pittsburgh, PA 15202
Attorney for Appellant
OPINION OF THE COURT
HARDIMAN, Circuit Judge.
Dwight Henley appeals an order of the District Court
denying his motion to suppress evidence. Henley preserved his
right to appeal that issue by entering conditional guilty pleas to
possessing a firearm and ammunition in violation of 18 U.S.C.
§ 922(g)(1) and possession with intent to distribute marijuana
in violation of 21 U.S.C. § 841(a)(1). The question presented
is whether the Commonwealth of Pennsylvania violated
Henley’s Fourth Amendment rights when it searched his house
while he was on parole. Because reasonable suspicion
supported the search, we will affirm.
2
I1
In March 2012, Henley was a parolee subject to
supervision by the Pennsylvania Board of Probation and
Parole. A parole agent with over twenty years’ experience,
Joyce Douglass, was assigned to Henley. According to Agent
Douglass, Henley first did “really well” on parole while living
with his sister in a supportive environment, App. II 109, and
Douglass had a “pretty decent relationship” with him. App. II
111. But Douglass observed a “change in attitude” as Henley
“became more secretive” and engaged in conduct that led
Douglass to ask her supervisor to search Henley and his home
for evidence of drug trafficking. App. II 111.
For starters, Douglass noticed Henley began associating
with several former and current parolees suspected of drug
dealing. Henley also violated his parole conditions by moving
residences twice without the required prior notice. He moved
out of his sister’s home and into a home on Pine Alley in
Clairton, Pennsylvania, that he reportedly bought for $1.00
from his brother Quienty, who was on parole as well. Henley
later moved to a home on Park Avenue in Clairton he bought
after reportedly selling the Pine Alley home for $800.00 to
1
The District Court had jurisdiction under 18 U.S.C.
§ 3231. We have jurisdiction under 28 U.S.C. § 1291. We
review de novo the District Court’s legal determination that
reasonable suspicion supported the search. Ornelas v. United
States, 517 U.S. 690, 691 (1996). Because the suppression
motion was denied, we view the facts in the light most
favorable to the Government. United States v. Myers, 308 F.3d
251, 255 (3d Cir. 2002).
3
Jarron Bell, who himself was a parolee supervised by Douglass
and was under investigation by the FBI for heroin trafficking.
Douglass learned Henley was associating with Bell when she
tried to visit Henley at the Pine Alley address, but was greeted
by Bell, who pretended to be a guest even though he had
bought the home from Henley. Henley admitted lying to
Douglass about the property transfer to cover for Bell.
Douglass’s observations on other home visits likewise
sparked concern. She observed motorcycle club attire and a
photograph of Henley with the club, whose members included
other parolees. She caught Henley in more lies and another
violation of parole conditions. In late spring 2013, Agent
Douglass twice attempted a home visit, but Henley had
traveled without permission to the club’s bike week at the
beach. Henley falsely reported that he had gone fishing just
outside the permitted area. In response, Douglass placed him
on electronic monitoring for a month. On a March 2014 home
visit, Douglass noticed Henley’s front door had been kicked in.
Henley informed her someone broke into his home, which
raised a red flag because it suggested to Douglass that someone
was looking for drugs, guns, or money. Finally, during an
October 31, 2014 home visit, Douglass smelled the “really
strong” odor of a “large amount of marijuana,” which she
called “skunk weed,” coming from the enclosed porch. App. II
137-139.
Another issue that troubled Douglass was Henley’s
apparent income in relation to his lawful employment. At the
beginning of his parole, Henley changed employers twice,
increasing his wage to $11.00 per hour at MPW Industrial
Services. According to his boss, Henley “work[ed] as much
overtime as he possibly could,” App. II 121, “trying to better
himself.” App. II 110. But MPW later reported to Douglass that
4
Henley chose to work less, rejecting available work he sought
before and “all of a sudden, he just seemed to be working a
couple days a week.” App. II 121. Despite this reduced
schedule, Henley paid several thousand dollars in fines, when
previously he had paid little. Douglass also took notice that:
(1) Henley owned three motor vehicles, a motorcycle, and a
boat; (2) Henley appeared at the parole offices with a “fair
amount of cash,” though not enough in her estimation to
document, App. II 191; and (3) “quite a bit of money” was
spent to remodel and furnish Henley’s Park Avenue home.
App. II 132.
In late December 2014, MPW terminated Henley’s
employment because he punched a co-worker, and multiple
sources reported to Douglass that Henley’s brother Quienty
brought a handgun to the altercation. Yet Henley told Douglass
that his employer fired him because he accidentally ate a
marijuana brownie and failed a drug test.
From October 2013 until early 2015, Douglass received
reports that Henley was selling marijuana, that he was paying
his subordinates with heroin, and that his associates, (including
Bell) were selling drugs.
On February 23, 2015, after receiving approval from her
supervisor, Douglass and two other Pennsylvania parole agents
(John Sartori, Jr. and Ronald Fine) entered Henley’s home
through an open door without a warrant, searched his person,
and searched his residence. Officers found and seized the
following indicia of drug trafficking: over $2,000 in cash; over
800 grams of marijuana in a large plastic bag, a vacuum-sealed
package, and several individual packages; scales; a marijuana
grinder; a .45 caliber pistol and ammunition; and three cell
5
phones. During the search, Henley made incriminating
statements as well.
A federal grand jury returned a three-count indictment
charging Henley with drug trafficking and firearm offenses.
Henley moved under Rule 12(b)(3)(C) of the Federal Rules of
Criminal Procedure to suppress the evidence obtained from the
search, contending it violated the Fourth Amendment. After an
evidentiary hearing, the District Court denied the motion,
holding the agents possessed reasonable suspicion necessary to
support the search. Consistent with his conditional guilty pleas,
Henley filed this appeal challenging the search.
II
Henley claims Douglass’s suspicion that he was dealing
drugs rested on “nothing more than stale speculation premised
upon irrelevant innuendo.” Henley Br. at 5. In support of his
appeal, Henley relies on various Pennsylvania court decisions
concerned with state constitutional violations. Because this
case involves a federal prosecution, however, we must
determine what the Fourth Amendment demands of the
challenged search. United States v. Rickus, 737 F.2d 360, 363-
64 (3d Cir. 1984). At the same time, we recognize that state
law may inform the contours of the government intrusion, both
in terms of the legitimate state interests and the parolee’s
diminished expectation of privacy. See Samson v. California,
547 U.S. 843, 851–52 (2006).
A
The touchstone of the Fourth Amendment is
reasonableness, so we determine the constitutionality of a
search “by assessing, on the one hand, the degree to which it
6
intrudes upon an individual’s privacy and, on the other, the
degree to which it is needed for the promotion of legitimate
governmental interests.” United States v. Knights, 534 U.S.
112, 118–19 (2001) (quoting Wyoming v. Houghton, 526 U.S.
295, 300 (1999)).
As a parolee, Henley’s liberty was subject to certain
restrictions. See Samson, 547 U.S. at 850–51 & n.2 (parolees
are more like prisoners than probationers). The state interest in
parolees like Henley is two-fold: (1) that they successfully
complete the term of . . . parole with integration “back into the
community” while (2) protecting the public from their conduct
as individuals who are considered more likely to engage in
criminal conduct than the ordinary member of the community.
Id. at 849. “[T]he balance of these considerations requires no
more than reasonable suspicion to conduct a [warrantless]
search of a [parolee’s] . . . house.” Knights, 534 U.S. at 121;
see United States v. Baker, 221 F.3d 438, 444 (3d Cir. 2000)
(justification applies with perhaps even greater force to
parolees given judgment that parolee needed incarceration).
B
Henley claims the applicable standard for the search is
reasonable suspicion. The Government counters that under the
Supreme Court’s decision in Samson, the Fourth Amendment
requires no suspicion to justify a warrantless parole search,
even if Pennsylvania law would. We read Samson differently
than the Government.
Before Samson, the Supreme Court in Knights held
constitutional the warrantless search of a probationer on
reasonable suspicion where the search was a condition of
probation of which the probationer was aware. 534 U.S. at 121.
7
In Samson, the Supreme Court considered the California
legislature’s determination that it was not feasible to require
reasonable suspicion to search parolees because of their vast
numbers and high recidivism rates. California concluded that a
reasonable suspicion requirement “would undermine the
State’s ability to effectively supervise parolees and protect the
public from criminal acts of reoffenders.” 547 U.S. at 854.
Samson answered in the affirmative a question left open
in Knight—“whether a condition of release can so diminish or
eliminate a released prisoner’s reasonable expectation of
privacy that a suspicionless search by a law enforcement
officer would not offend the Fourth Amendment.” Samson,
547 U.S. at 847 (emphasis added). The Samson Court upheld
California’s decision to impose as a condition of parole that the
individual be subject to search “by a parole officer or other
peace officer at any time of the day or night, with or without a
search warrant and with or without cause.” 547 U.S. at 846
(citing CAL. PENAL CODE § 3067(a) (West 2000)). So Samson
suggests that a State may make such a condition part of its
parole system without violating the Fourth Amendment. 547
U.S. at 855 (“That some States and the Federal Government
require a level of individualized suspicion is of little relevance
to our determination whether California’s supervisory system
is drawn to meet its needs and is reasonable, taking into
account a parolee’s substantially diminished expectation of
privacy.”). Our reading of Samson and a faithful reading of our
decision in United States v. Baker requires that we reject the
Government’s proposition.
Unlike in Samson, here neither the Pennsylvania
legislature nor Henley’s conditions of release subject him to
search at any time or for any reason. In fact, reasonable
suspicion is required under Pennsylvania law. 61 PA. CONS.
8
STAT. § 6153. 2 For that reason, in United States v. Baker, we
held that although a Pennsylvania parolee consent form
providing for search without a warrant waived the warrant
requirement, it did not provide for suspicionless searches. 221
F.3d at 448. We determined the search in Baker violated the
Fourth Amendment because it was unsupported by reasonable
suspicion or a waiver of Pennsylvania’s reasonable suspicion
requirement for a parole search. Id. at 449. Baker accords with
Samson, so we adhere to it. In sum, Henley’s search required
reasonable suspicion because neither a statute nor a condition
of parole provides that he was subject to search without
suspicion.
III
We turn now to apply the “flexible” test of
reasonableness. United States v. Ramos, 443 F.3d 304, 309 (3d
Cir. 2006). “Balancing the totality of the circumstances is the
‘general Fourth Amendment approach’ used to assess the
reasonableness of a contested search.” United States v.
Mitchell, 652 F.3d 387, 403 (3d Cir. 2011) (quoting Knights,
534 U.S. at 118). We determine whether reasonable suspicion
exists by context and “commonsense,” Illinois v. Wardlow, 528
U.S. 119, 125 (2000), mindful that it is something less than
what is “required to establish probable cause, but also in the
sense that reasonable suspicion can arise from information that
is less reliable,” Alabama v. White, 496 U.S. 325, 330 (1990).
Thus, an officer needs only “a particularized and objective
2
Section 6153(b), PA. CONS. STAT. ANN. (2009),
provides for search of parolees in accordance with its
provisions. Section 6153(d) provides a parole agent may
conduct a personal or property search on reasonable suspicion.
61 PA. CONS. STAT. ANN. § 6153(d)(1)-(2).
9
basis for suspecting legal wrongdoing,” United States v.
Arvizu, 534 U.S. 266, 273 (2002) (internal quotations omitted).
Parole agents, like other law enforcement officers,
should “draw on their own experience and specialized training
to make inferences from and deductions about the cumulative
information available to them that ‘might well elude an
untrained person.’” Arvizu, 534 U.S. at 273 (quoting United
States v. Cortez, 449 U.S. 411, 418 (1981)). In the comparable
probation context, the Supreme Court has explained that
we deal with a situation in which there is an
ongoing supervisory relationship—and one that
is not, or at least not entirely, adversarial—
between the object of the search and the
decisionmaker.
In such circumstances it is both
unrealistic and destructive of the whole object of
the continuing [] relationship to insist upon the
same degree of demonstrable reliability of
particular items of supporting data, and upon the
same degree of certainty of violation, as is
required in other contexts. In some cases—
especially those involving drugs or illegal
weapons—the [] agency must be able to act
based upon a lesser degree of certainty than the
Fourth Amendment would otherwise require in
order to intervene before [the individual] does
damage to himself or society. The agency,
moreover, must be able to proceed on the basis
of its entire experience with the probationer, and
to assess probabilities in the light of its
knowledge of his life, character, and
circumstances.
10
Griffin v. Wisconsin, 483 U.S. 868, 879 (1987) (footnotes
omitted). 3
In this appeal, we must determine whether the facts and
circumstances known to a veteran parole agent who supervised
a parolee convicted of drug crimes would warrant an agent of
reasonable caution to have a particularized basis for believing
evidence of criminality would be found during the February
23, 2015 search. Arvizu, 534 U.S. at 273. We hold they would.
In response to the Government’s argument, Henley
challenges information in isolation. We address each of
Henley’s challenges, but we do so by considering (as we must)
the totality of the circumstances.
Henley first insists that the conduct Douglass cited in
support of her belief he had returned to drug dealing was
susceptible to innocuous explanation. According to Henley, the
fact that he owned multiple vehicles and a boat, bought and
sold houses, and suddenly came up with thousands of dollars
while turning away lawful work should not have raised
concerns to Douglass. Henley suggests that he might have sold
a vehicle before buying the next one, the boat was nothing
impressive, and the houses were of modest value (apparently
worth only $1). His association with the motorcycle club was
3
In this same vein, Pennsylvania law provides for the
supervisory agent/parolee relationship that “[s]upervision
practices shall reflect the balance of enforcement of the
conditions of parole and case management techniques to
maximize successful parole completion through effective
reentry to society.” 61 PA. CONS. STAT. ANN. § 6153(a).
11
a positive thing that should have been of no concern to
Douglass—despite the involvement of other parolees
suspected of drug crimes. And how could Douglass hold
against him his having paid the fines he was legally obliged to
pay?
Henley’s approach would replace “reasonable
suspicion” based on the totality of the circumstances with a “no
room for doubt” that a parolee is engaged in criminal conduct
standard. Such a test would severely impede the laudable and
legitimate goals of parole supervision: successful re-entry and
protecting the public. Evaluating factors in isolation and then
according “no weight” to conduct susceptible of “innocent
explanation” departs “sharply” from the Supreme Court’s
teachings. Arvizu, 534 U.S. at 274. The Court has stated that
“innocent behavior frequently will provide the basis for a
showing of probable cause.” Illinois v. Gates, 462 U.S. 213,
243 n.13 (1983). Even more so for the lesser showing of
reasonable suspicion. See United States v. Sokolow, 490 U.S.
1, 8-9 (1989) (conduct consistent with innocent travel in
combination amounted to reasonable suspicion of a drug
enforcement officer). For that reason, Douglass did not have to
“rule out the possibility of innocent conduct,” Arvizu, 534 U.S.
at 277, when considering Henley’s activities.
And then there is Henley’s access to marijuana and its
discovery at his home during a search for evidence of drug
trafficking. Henley incredibly claims that his veteran parole
agent failed to show she had experience to determine whether
what she smelled on the home visit in October 2014 was
marijuana, or if the smell was just a skunk infestation.
Douglass’s experience supervising parolees convicted of drug
crimes easily meets the bar for our evaluation of her
assessment. Moreover, “[i]t is well settled that the smell of
12
marijuana alone, if articulable and particularized, may
establish not merely reasonable suspicion, but probable cause.”
Ramos, 443 F.3d at 308.
Henley challenges as too stale to support reasonable
suspicion for the February 23, 2015 search that (1) he suffered
a break-in back in March 2014 and (2) Douglass detected the
marijuana odor in October 2014. He protests (ironically) that
his circumstances did not involve “the hallmarks of an actual
investigation into narcotics dealing” because there were no
drug buys or wiretaps. Henley Br. at 11. We reject the notion
that absent a full-scale or ongoing drug trafficking
investigation, staleness presents an insurmountable bar to a
later parole search.
As for staleness, “[t]he likelihood that the evidence
sought is still in place depends on a number of variables, such
as the nature of the crime [or parole violation], of the criminal,
of the thing to be seized, and of the place to be searched,”
United States v. Tehfe, 722 F.2d 1114, 1119 (3d Cir. 1983); see
United States v. Harvey, 2 F.3d 1318, 1322 (3d Cir. 1993). The
passage of time “loses significance” when the evidence sought
relates to protracted or ongoing criminality. United States v.
Urban, 404 F.3d 754, 774 (3d Cir. 2005); see Tehfe, 722 F.3d
at 1119.
United States v. Ritter, 416 F.3d 256 (3d Cir. 2005), is
instructive. That case involved aerial observation and seizure
of marijuana plants at a property plus two anonymous tips over
seven months later reporting marijuana growing there. We
found that evidence provided probable cause to get a warrant
to search the property despite the time between the observation
and the tips. Id. at 262-63. Considering only the October 2014
13
home visit and the February search, the gap in this appeal is
half the time at issue in Ritter.
Henley also questions that no property search occurred
at the time of the October 2014 home visit. But justification for
an earlier search that did not occur does not vitiate lawful
justification to conduct a later search. Moreover, any claimed
staleness disappeared in the face of the broader circumstances
giving Douglass reason to believe that Henley was trafficking
drugs.
As to the ongoing reports of criminal activity to his
parole officer, Henley challenges them as unworthy of
consideration because Douglass did not detail the who, what,
where, and when of the reports. We disagree.
It’s true Douglass provided little detail, but she did
testify that reports were ongoing. She also said the reports were
about Henley, not just someone consistent with his identity.
And they specified he was selling drugs and paying
subordinates with heroin.
“Tipster” cases, whether involving probable cause or
reasonable suspicion determinations, focus on the tip’s indicia
of reliability. Alabama v. White found an anonymous tip
reliable enough for a Terry stop where portions of the tip were
corroborated, such as the unpredictable movements of the
person identified in it. 496 U.S. at 327. We require more for
the tip relied on by law enforcement to justify probable cause,
than for reasonable suspicion. Alabama v. White, 496 U.S. at
330. And under the instruction of Griffin and Samson, the
requisite reliability of a tip to support the weight of reasonable
suspicion for a Terry stop seems too high a bar when
considering the potentially recalcitrant parolee and a parole
14
search. Our approach to the reasonableness of a parole agent
relying on information relayed by others, even if not law
enforcement, even if anonymous, and even if not intrinsically
reliable, bends heavily towards the twin goals of parole
supervision with reasonableness of the intrusion as the
paramount concern.
In considering the inherent nature of supervision, we
acknowledge that parole officers may consider general reports
in carrying out their duties—in fact, that information is their
stock in trade. 4 We reject Henley’s contention that the
reports—which Douglass found to corroborate her concerns—
provide little to no support for reasonable suspicion in the
parole context.
Griffin supports our approach. The Court there found
“reasonable grounds” for a probation search when a detective
called a probation supervisor and stated “there were or might
be guns” in the probationer’s home. 483 U.S. at 871. Nothing
further to support a search—just an “unverified tip from an
unknown source” to a detective then relayed to probation. Id.
at 887 (Blackmun, Jr., dissenting).
4
Samson recognized that a parolee’s incentive to
conceal criminality justifies an intensive system of
supervision. 547 U.S. at 855. The delicate balance of this
system—at the same time seeking a transition into society
while protecting the public from the same individual—requires
parole officers to act on “reports,” “tips,” or “information” that
in other contexts might seem too thin.
15
The Court explained
we think it reasonable to permit information
provided by a police officer, whether or not on
the basis of firsthand knowledge, to support a
probationer search. . . .[P]olice may be unwilling
to disclose their confidential sources to probation
personnel. For the same reason, and also because
it is the very assumption of the institution of
probation that the probationer is in need of
rehabilitation and is more likely than the
ordinary citizen to violate the law, we think it
enough if the information provided indicates, as
it did here, only the likelihood (“had or might
have guns”) of facts justifying the search.
Griffin, 483 U.S. at 879–80 (1987). Thus, Griffin endorses the
adequacy of generalized information from an unknown source
of evidence of a crime in a parole/probation context.
We also find it significant that the Supreme Court in
Griffin did not assess traditional tip reliability factors—
presumably because it involved a probationer. In view of
Henley’s drug trafficking history, the ongoing reports (more
than the one report in Griffin) would resonate with a reasonable
parole agent’s concerns about his activities. Under Griffin the
reports themselves would provide reasonable suspicion for a
parole search, whether or not relayed through other law
enforcement.
Viewing the totality of the facts presented here,
Henley’s parole status and his criminal history with drugs
made him more likely to commit a drug trafficking crime than
the public. He also violated his conditions of parole by failing
16
to ask the permission required of his parole agent. Another
factor is the apparent disparity in Henley’s income and his
spending. Douglass learned of Henley’s decreased interest in
taking on work at MPW at the same time he exhibited an ability
to pay thousands of dollars in fines and purchase vehicles,
homes, repairs, and new furniture. All this suggested to
Douglass that Henley had returned to drug trafficking to make
money. The smell of a large amount of marijuana and the
break-in of Henley’s home also suggested an intruder seeking
to access drugs, guns, and money in Henley’s home. Finally,
we acknowledge the ongoing reports to Douglass from October
2013 continuing up until the time of the search that Henley
engaged in drug trafficking activity and his continued
association with other parolees suspected of the same. These
facts ineluctably show that a reasonably prudent parole agent
in Douglass’s shoes would suspect that Henley returned to drug
trafficking and that evidence of it would be found during the
February 23, 2015 search.
* * *
The Commonwealth found evidence supporting
Henley’s conviction during a search supported by reasonable
suspicion. Because no Fourth Amendment violation occurred,
the District Court did not err when it denied Henley’s motion
to suppress. We will affirm the convictions and judgment of
sentence.
17