United States v. Khayree Harrison

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 11-2566
_____________
UNITED STATES OF AMERICA
v.
KHAYREE HARRISON,
Appellant
_____________
On Appeal from the United States District Court
For the Eastern District of Pennsylvania
(D.C. No. 09-cr-00756-1)
District Judge: Hon. Timothy J. Savage
_____________
Argued March 26, 2012
_____________
BEFORE: FUENTES, SMITH, and JORDAN, Circuit
Judges
(Opinion Filed: August 7, 2012)
1
Brett G. Sweitzer (Argued)
Mark T. Wilson
Federal Community Defender Office for the Eastern District
of Pennsylvania
601 Walnut Street
The Curtis Center, Suite 540 West
Philadelphia, PA 19106
Counsel for Appellant Khayree Harrison
Arlene D. Fisk
William Weilman
Robert Zauzmer (Argued)
Office of the United States Attorney
615 Chestnut Street
Suite 1250
Philadelphia, PA 19106
Counsel for Appellee the United States of America
_____________
OPINION OF THE COURT
_____________
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.
2
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
1
Nicole Hawkins testified at the suppression hearing
that no one was renting the house at the time of the search.
Though it did not make a specific finding to this effect, the
District Court did not credit her testimony. She was an
evasive witness, and was unable or unwilling to answer
simple questions about her ownership interest in the house,
how she acquired it, who paid rent, and whether she was
making improvements to it. As such, finding her incredible
was not clearly erroneous. See Anderson v. City of Bessemer
City, N.C., 470 U.S. 564, 575 (1985).
3
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,
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
4
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
5
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 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
6
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 Cir. 2005).
In so doing, we construe the record in the light most favorable
7
to the government. United States v. Myers, 308 F.3d 251, 255
(3d Cir. 2002).
III.
A.
The Supreme Court has consistently held that “[t]he
touchstone of the Fourth Amendment is reasonableness.”
Florida v. Jimeno, 500 U.S. 248, 250 (1991). “It remains a
cardinal principle that searches conducted outside the judicial
process, without prior approval by judge or magistrate, are
per se unreasonable under the Fourth Amendment—subject
only to a few specifically established and well-delineated
exceptions.” California v. Acevedo, 500 U.S. 565, 580 (1991)
(internal quotation marks omitted). At issue here is the
abandonment exception, which we consider in the context of
the good faith exception to the exclusionary rule typically
applied to evidence seized without a warrant. See United
States v. Leon, 468 U.S. 897, 919-20 (1984) (“[W]here the
officer’s conduct is objectively reasonable, excluding the
evidence will not further the ends of the exclusionary rule in
any appreciable way; for it is painfully apparent that . . . the
officer is acting as a reasonable officer would and should act
in similar circumstances” (internal quotation marks and
citations omitted)). We first consider the contours of
abandonment.
A warrantless search of property is permissible under
the Fourth Amendment where the owner has abandoned his
reasonable expectation of privacy in that property. United
States v. Fulani, 368 F.3d 351, 354 (3d Cir. 2004) (citing
Abel v. United States, 362 U.S. 217 (1960)). This
8
determination must be made from an objective viewpoint, and
proof of intent to abandon must be established by clear and
unequivocal evidence. Id. We look at the totality of the facts
and circumstances in making such a determination. See id.;
McKenney v. Harrison, 635 F.3d 354, 359 (8th Cir. 2011). In
most cases, disclaiming ownership or physically relinquishing
the property is sufficient to establish abandonment. United
States v. Liu, 180 F.3d 957, 960 (8th Cir. 1999).
We note that, “abandonment for purposes of the Fourth
Amendment differs from abandonment in property law; here
the analysis examines the individual’s reasonable expectation
of privacy, not his property interest in the item.” 2 Fulani, 368
F.3d at 354 (citing United States v. Lewis, 921 F.2d 1294,
1302 (D.C. Cir. 1990)); United States v. Stevenson, 396 F.3d
538, 546 (4th Cir. 2005). Thus, our holding will not turn on
whether the house was abandoned under the common law of
property. “Indeed, there is a real difference between
property-law and constitutional abandonment, for courts have
repeatedly found abandonment for constitutional purposes in
situations that might not support a finding of abandonment in
the common-law understanding.” United States v. Redmon,
2
The Supreme Court’s recent decision in United States
v. Jones, --- U.S. ---, 132 S.Ct. 945 (2012) (finding that a
common law trespass constitutes a “search” under the Fourth
Amendment) does not alter our analysis. The question before
the Court in Jones was different than the question currently
before us. As Justice Sotomayor noted in her concurrence,
the Court was grappling with the question of when a search
occurred, which is not at issue here. It is undisputed that the
officers’ entry constituted a “search” under the Fourth
Amendment.
9
138 F.3d 1109, 1127 (7th Cir. 1998) (Flaum, J., concurring)
(en banc). Therefore, the fact that for common law purposes
real property cannot be abandoned, see e.g., Pocono Springs
Civic Assoc., Inc. v. MacKenzie, 667 A.2d 233, 236 (Pa.
Super Ct. 1995), is not dispositive. See United States v.
Wilson, 472 F.2d 901, 902 (9th Cir. 1972) (“[W]e hold that
local law of real property does not provide the exclusive basis
upon which to decide Fourth Amendment questions.”).
Rather, it will inform our inquiry. See Stevenson, 396 F.3d at
546. As such, what the common law property rules suggest
is that abandonment of real property under the Fourth
Amendment is difficult, but not impossible, to establish.
The home occupies a sacrosanct place in our Fourth
Amendment jurisprudence. Hudson v. Michigan, 547 U.S.
586, 603 (2006) (Kennedy, J., concurring). “Privacy and
security in the home are central to the Fourth Amendment’s
guarantees as explained in our decisions and as understood
since the beginning of the Republic.” Id.Nevertheless, a person can lose his reasonable
expectation of privacy in his real property if he abandons it.
Thus, a person can, as he can with any other property,
sufficiently manifest an intent to abandon his house. See
McKenney, 635 F.3d at 359; United States v. Levasseur, 816
F.2d 37, 44 (2d Cir 1987); Mann v. Cannon, 731 F.2d 54, 59
(1st Cir. 1984) (finding that a warrantless search of a doctor’s
house was permitted when the “the house had become open to
the public, vandalized, uninhabitable, and from appearances
virtually abandoned.”); United States v. Callabrass, 607 F.2d
559, 565 (2d Cir. 1979) (“Thus it appears to all intents and
purposes that appellant abandoned the house and the property
in it.”) (Oakes, J., dissenting); United States v. Wilson, 472
10
F.2d 901, 903 (9th Cir. 1972); see also, People v. Taylor, 655
N.W.2d 291 (Mich. Ct. App. 2002); State v. Hunter, 2012
WL 1868393, at *4 (N.J. Super. Ct. App. Div. May 24, 2012);
State v. Linton, 812 A.2d 382, 383-84 (N.J. Super. Ct. App.
Div. 2002) (permitting a search of a house that “had all the
indicia of abandonment”); State v. McKinney, 637 S.E.2d
868, 871 (N.C. 2006) (“A reasonable expectation of privacy
in real property may be surrendered, however, if the property
is permanently abandoned.”); Wayne LaFavre Search and
Seizure: A Treatise on the Fourth Amendment § 2.3(e) (4th
Ed. 2011) (“It has often been held that if a defendant has in
fact abandoned the place where he formerly resided, then he
may not have suppressed from evidence what the police find
on those premises after the time of abandonment.”); cf.
United States v. Wyler, 502 F. Supp. 959, 968 (S.D.N.Y.
1980); State v. Carter, 54 So. 3d 1093, 1095 (La. 2011) (“We
agree with the premise of the state’s argument . . . that an
individual does not possess a reasonable expectation of
privacy in an abandoned home and therefore may not
complaint about a warrantless entry of the premises by the
police.”).
Even the framework established by a plurality of the
Supreme Court for analyzing searches of burned down houses
implicitly recognizes that a residence can be abandoned. In
Michigan v. Clifford, 464 U.S. 287, 289, 293 (1984), the
Supreme Court found unconstitutional a warrantless search of
a home after a devastating fire. In the early morning, a fire
broke out at the home of Raymond and Emma Clifford. Id. at
289. By 1:00 p.m. that day, the fire was extinguished and a
work crew was pumping water out of the home. Id. at 290. A
fire department inspector entered the home without a warrant
and searched it, finding evidence of arson. Id. The
11
constitutionality of the warrantless search, a plurality of the
Court held, can turn on “whether there are legitimate privacy
interests in the fire-damaged property.” Id. at 292; see also
United States v. Francis, 327 F.3d 729, 735 (8th Cir. 2003)
(finding that “the existence of legitimate privacy interests,” to
be an important factor in determining whether a post-fire
warrantless search of a house was permitted). Expectations
of privacy “may remain” in fire-damaged homes because
“[p]eople may go on living in their homes or working in their
offices after a fire. Even when that is impossible, private
effects often remain.” Id. (quoting Michigan v. Tyler, 436
U.S. 499, 505 (1978)) (internal quotation marks omitted).
The plurality enumerated several factors that should be
analyzed in determining whether a legitimate expectation of
privacy remained: “the type of property, the amount of fire
damage, the prior and continued use of the premises, and, in
some cases, the owner’s efforts to secure [the home] against
intruders.” Id.; see also United States v. Mitchell, 85 F.3d
800, 805-6 (1st Cir. 1996). In other words, there are
circumstances in which the combination of fire damage and
an owner’s own acts so exposes a home to the outside world
that the owner has relinquished his legitimate expectation of
privacy in that home. 3 Cf. Clifford, 464 U.S. at 292.
3
Harrison’s reliance on the Seventh Circuit’s decision
in Wilson v. Health and Hospital Corp. 620 F.2d 1201 (7th
Cir. 1980) is misplaced. There, one-half of a duplex was
burned down and effectively left open and unsecured.
Wilson, 620 F.2d at 1206. The District Court determined that
there was no reasonable expectation of privacy because the
house was so exposed to the outside world that no one would
have had an objective expectation of privacy in the property.
Id. at 1208. The Seventh Circuit disagreed, finding that the
12
The same logic applies to a person’s abandonment of
his house. A person can, through his own acts or omissions,
manifest an intent to relinquish his legitimate expectation of
privacy in his real property, as the same test applies
regardless of the nature of the property. This is, however, a
difficult standard to meet, and one that requires a careful
analysis of all the facts and circumstances of a particular case.
Before the government may cross the threshold of a home
without a warrant, there must be clear, unequivocal and
unmistakable evidence that the property has been abandoned.
Only then will such a search be permitted.
B.
In this case, it is undisputed that the house was not
actually abandoned and that Harrison, as a renter, possessed a
reasonable expectation of privacy in the property. Therefore,
the only issue before us is whether the police officers’ belief
that the house was abandoned justified their warrantless entry.
search of the house did not qualify under either the open
fields or plain view doctrines. Id. at 1209. However, the
Seventh Circuit remanded for an evidentiary hearing and
explicitly acknowledged that upon a fuller record “it may well
be . . . that the plaintiff had effectively abandoned his right to
exclude.” Id. at 1213. It also acknowledged that “the open
and unsecure condition of the premises . . . would point away
from a reasonable expectation [of privacy].” Id. Thus,
Wilson does not stand for the proposition that a person cannot
abandon a residence.
13
The law does not require that police officers always be
factually correct; it does demand, however, that they always
be reasonable. Illinois v. Rodriguez, 497 U.S. 177, 186
(1990). “Consequently, a reasonable mistake of fact does not
violate the Fourth Amendment.” United States v. Delfin-
Colina, 464 F.3d 392, 398 (3d Cir. 2006) (internal quotation
marks omitted); see also United States v. Elliott, 50 F.3d 180,
185-86 (2d Cir. 1995). In deciding what is reasonable, a
court is to apply an objective standard, looking at whether
“the facts available to the officer at the moment . . . warrant a
man of reasonable caution in the belief” that the search was
permissible. Rodriguez, 497 U.S. at 188 (internal quotation
marks omitted).
Unlike a mistake of fact, a search conducted pursuant
to a police officer’s mistake as to the governing law, even if
reasonable, is not permitted under the Fourth Amendment.
Delfin-Colina, 464 F.3d at 397, 399 (“[A] mistake of law by
the seizing officer will render a traffic stop per se
unreasonable under the Fourth Amendment” unless facts are
offered that “show that the identified law was actually
broken.”).
Harrison contends that the police officers made a
mistake of law when they entered 2114 North Franklin Street.
Their mistake, according to Harrison, was that they assumed a
house could be abandoned at all. Thus, the argument goes, it
is irrelevant whether the officers were reasonable in their
belief. We disagree. First, as discussed above, a house can
be abandoned for Fourth Amendment purposes, and thus the
officers did not make a mistake of law. Second, the officers
made a mistake of fact. Their observations of the property
14
over time suggested to them that whoever once had an
expectation of privacy in the property had since effectively
relinquished it. As they testified before the District Court, the
police officers believed that the house was unfit for human
habitation and that no one lived there. This is a mistake of
fact, not of law. In essence, the officers were mistaken in
their belief that there existed no person who had a remaining
expectation of privacy in the property. Thus, under our case
law governing mistakes of fact, the officers’ warrantless
search of the house was permissible if their mistake was
reasonable.
C.
1.
Before turning to a discussion of the reasonableness of
the officers’ mistake, we must deal with the threshold inquiry
of what information we may rely upon in deciding the
question. Before us, Harrison contends that we should
exclude any observations Officer Matthew McCarthy made of
the interior condition of the house because each entry he
made was without a warrant in violation of the Fourth
Amendment. The government contends that Harrison failed
to raise this argument before the District Court and that it is
waived. We agree. It is well-settled that suppression
arguments raised for the first time on appeal are waived
absent good cause. United States v. Rose, 538 F.3d 175, 182
(3d Cir. 2008). Indeed, “[a] party waives any Rule 12(b)(3)
defense, objection, or request not raised” prior to trial. Fed.
R. Crim. P. 12(e); see also Rose, 538 F.3d at 180.
15
Harrison’s counsel neither referenced nor objected to
the officer’s prior entries in his initial memorandum of law in
support of his motion to suppress. The government, however,
made explicit reference to the officer’s prior entries in its
opposition brief. Thus, at a minimum, Harrison’s counsel
was on notice that the government would be introducing and
relying upon such evidence in opposing his motion.
Nevertheless, no reply was made.
At the hearing, Harrison did not object when the
government questioned the police officers about their prior
entries, did not build a record supporting his argument that
the facts did not justify the initial entries under an
abandonment theory, and did not make any legal arguments
relevant to abandonment during his colloquy with the District
Court. Though he referenced Officer McCarthy’s initial
entries, he confined his oral argument solely to the question
of whether the evidence should be suppressed because it
would deter future police misconduct under the Supreme
Court’s balancing test in Herring v. United States, 555 U.S.
135 (2009). Such an argument presupposes that the search
violated the Fourth Amendment and represents a different and
distinct theory of suppression.
Thus, by operation of Rule 12(b) of the Federal Rules
of Criminal Procedure, this argument is waived absent good
cause. Rose, 538 F.3d at 179-80. Harrison presents no
reason, and we see none, why good cause exists for the failure
to raise this issue before the District Court. Because this
argument is waived, we will include the entirety of Officer
Matthew McCarthy’s testimony regarding the interior of the
house.
16
2.
Turning to the central question of this appeal, we
conclude that, based on the totality of the circumstances, the
officers were reasonable in their mistake of fact. The police
officers testified consistently that the exterior of 2114 North
Franklin Street was in a state of severe disrepair. There was
trash strewn about, the lawn was overgrown with weeds, and
the windows on both levels were either boarded up or
exposed. 4 The front door was left open, and the lock may
have been broken. However, this alone would not have been
sufficient to find the officers’ mistake reasonable.
It is unreasonable to assume that a poorly maintained
home is an abandoned home. A one-time look at 2114 North
Franklin Street in its dilapidated condition would not justify
the police entering it without a warrant because a reasonably
cautious officer would only assume that the person who
occupied the home did not maintain it as they should, not that
they had clearly manifested an intent to relinquish their
4
We note that boarded-up windows can cut against
finding that the house was abandoned in that it suggests an
individual is taking steps to secure the property. Conversely,
the always open front door weighs in favor of finding that the
house was abandoned as it suggests an individual is not
taking steps to secure the property or to exclude others. As
the Supreme Court noted in Michigan v. Clifford, 464 U.S.
287, 289 (1984), such efforts must be considered as part of an
inquiry into whether an individual relinquishes his
expectation of privacy in his property.
17
expectation of privacy in the house. 5 There simply is no
“trashy house exception” to the warrant requirement.
Here, however, the police officers knew more.
Specifically, Officer Matthew McCarthy knew that the inside
of the house matched the rundown condition of the exterior.
It was a known drug den. There were no furnishings other
than a single mattress on the top floor, human waste filled the
bathtub and toilets, and there was no evidence of running
water or electricity. During his prior entries, Officer
McCarthy observed squatters, who claimed no right to be
there. The house was so dilapidated that the officers believed
it was not fit for human habitation. 6 This, combined with the
exterior condition of the property, is probative evidence of
abandonment.
5
There may be situations where it is ambiguous to a
reasonable officer whether a dilapidated house is abandoned.
In such cases, the officer would need to make further
inquiries into the property’s status. See United States v. Cos,
498 F.3d 1115, 1128-29 (10th Cir. 2007) (finding that a duty
to investigate further is triggered when the facts known to the
officers are ambiguous, such as when it is unclear whether
someone has the authority to consent to a search.). Such an
inquiry was unnecessary here, because, given the officer’s
extensive knowledge of the home and its history, the facts
seemed unambiguous. Thus, no duty to inquire further was
triggered.
6
Indeed, even Harrison himself, despite paying nearly a
thousand dollars a month to rent the property, did not live
there.
18
The Eighth Circuit in McKenney v. Harrison, 635 F.3d
354 (8th Cir. 2011) similarly concluded that when both the
exterior and the interior of a house are in an extreme state of
disrepair suggesting that it is uninhabitable, it is reasonable
for officers to assume the house is abandoned. The Eighth
Circuit observed:
The officers found the house in disrepair, with
an unkempt yard and a fence that was
incomplete and falling apart. There were no
vehicles parked in the driveway. No one
responded when the officers knocked on the
front door, and the back door was open three or
four inches. Through the open door, the officers
could see into the kitchen, where the cabinets
were open and empty, the refrigerator was open,
empty, and pulled away from the wall, and there
was no furniture or personal effects. There were
no lights on, sounds from appliances, or other
indications that the house had electrical power.
In light of these facts, it was reasonable for
Harrison and Pollreis to conclude that the house
was abandoned.
McKenney, 635 F.3d at 359. To the Eighth Circuit, the police
were reasonable in concluding, upon seeing the decaying
house, and “open and empty” drawers and appliances, that the
house was abandoned. It was as if some time ago someone
had packed up in haste never to return. See id. The officers
could only have reached such a conclusion once they
observed the condition of the property’s interior. Without
those additional facts, it is unlikely that the officers’ belief
would have been reasonable.
19
Ours is an even stronger case for abandonment than
McKenney, because here the officers had knowledge of the
property’s history. This knowledge—particularly their
observation of its unchanging, uninhabitable condition over
several months—dispositively bolsters the reasonableness of
the officers’ belief. Based on the record, we assume that
Officer Matthew McCarthy began observing the property in
approximately June 2009. 7 Thus, he had about four months
of observations of the house’s condition before he entered it
in October.
It is one thing to infer that a person has abandoned his
expectation of privacy in his home based on a one-time
observation. It is quite another to observe that same property
in that same dilapidated condition with a front door that is
“always open” over the course of several months. Over time,
the inference that the property has been “thrown away”
becomes significantly stronger. Given the combination of the
rundown exterior, the “always open” door, the trashed
interior, and the extended observations over time, the police
officers were reasonable in their mistaken belief that the
house was abandoned. Based on the totality of the
circumstances, the warrantless search was permitted under the
Fourth Amendment and the District Court did not err when it
denied Harrison’s motion to suppress.
7
Officer McCarthy testified that he observed the house
over the course of months, noting that he observed known
drug dealers entering the home all summer. This suggests he
entered the home from around June through October.
20
III.
The District Court’s order denying the motion to
suppress will be affirmed.
21