A house is not a home

For a drug dealer, an abandoned house can be the perfect cover: it’s inside work, people (read, cops) can’t see what you’re doing and the building looks like, well, like nobody lives there.

But as with everything else in life, the devil is in the details.

Just ask Khayree Harrison, 21, currently a guest of the U.S. government at the federal prison in Cumberland, Md. Last week, a federal appeals court in Philadelphia affirmed his drug conviction, ruling that that the North Philly rowhouse Harrison rented looked too abandoned.

For that reason, ruled a three-judge panel of the U.S. Court of Appeals for the Third Circuit, Philadelphia police were justified in their warrantless search of the house on Oct. 12, 2009. The officers surprised Harrison as he sat in a recliner with a gun, scales, pills, and cocaine base on a table next to him.

“It is one thing to infer that a person has abandoned his expectation of privacy in his home based on a one-time observation,” wrote U.S. Circuit Judge Julio M. Fuentes in the unanimous Aug. 7 opinion. “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.”

After Harrison’s arrest, the case was transferred to federal court and assigned to U.S. District Judge Timothy J. Savage for trial. Harrison’s lawyers asked the judge to suppress the evidence seized during the arrest, arguing that the warrantless police search violated Harrison’s Fourth Amendment right against unreasonable search and seizure.

The house in the 2100 block of North Franklin Street wasn’t abandoned, defense lawyers argued. Harrison had rented it for $750 a month since August 2009 from the Nicole Hawkins Investment Co. He spent one or two nights a week there but lived nearby in a house in the 2000 block of North Eighth Street.

Savage denied the suppression motion and Harrison was convicted by a federal court jury of possession of cocaine base with intent to deliver. The jury acquitted Harrison of a count of committing the crime within 1,000 feet of a school and a weapons charge.

Savage sentenced Harrison to 62 months in prison and defense lawyers filed the appeal with the Third Circuit.

“The law does not require that police officers always be factually correct; it does demand, however, that they always be reasonable,” wrote Judge Fuentes in the opinion denying Harrison’s appeal.

So the question for the appeals court was whether the police officers reasonably believed the Franklin Street property was abandoned when they went through the open front door and surprised Harrison.

By all accounts, the house was a real mess. The backyard was full of trash and there were boards on the door and windows. The yard was choked with weeds. There was nothing covering the second-floor windows and the front door was unlocked and ajar.

Still, Fuentes wrote, the Fourth Amendment doesn’t provide a “trashy house exception” to the need for police to have a search warrant.

Instead, the appeals court looked to the experience of Officer Robert McCarthy, whose history with the property was the basis for the warrantless search.

According to the appeals opinion, McCarthy knew the house as a drug den and had evicted squatters several times in the previous months. The only furnishings he notice before was a single mattress on the top floor. Drug debris littered the house. Human waste filled the bathtub and toilets and there was no evidence of running water or electricity.

“The house was so dilapidated that the officers believed it was not fit for human habitation,” Fuentes wrote. “This, combined with the exterior condition of the property, is probative evidence of abandonment.”

Earlier on Oct. 12, 2009, the appeals opinion continues, McCarthy was driving around the neighborhood in a marked police car when he saw a dirt bike on the side of the road. McCarthy got the serial number from the bike, returned to his car and began a computer search and learned it was stolen.

McCarthy went back to get the bike but it was already gone. Later that day, the officer spotted a man riding the same bike. That evening about 8 p.m., McCarthy returned with two officers to see if they could find the bike and spotted it in the back yard of the Franklin Street house.

They walked through the open front door without knocking and surprised Harrison, who tried to flee.

“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,” wrote Fuentes. “Based on the totality of the circumstances, the warrantless search was permitted under the Fourth Amendment.”

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