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United States of America v. Bernard Mcmillion

January 3, 2011

UNITED STATES OF AMERICA PLAINTIFF
v.
BERNARD MCMILLION DEFENDANT



The opinion of the court was delivered by: William W. Caldwell United States District Judge

MEMORANDUM

I. Introduction

Presently before the court is defendant Bernard McMillion's motion to suppress evidence. Defendant argues that his warrantless arrest and a subsequent search pursuant to a warrant were unlawful. On December 22, 2010, we held a hearing on this issue. After review of the briefs and hearing testimony, we will deny the motion.

II. Background

On August 17, 2007, two police officers were on patrol in Swatara Township, Dauphin County, Pennsylvania when they visited the East Ridge Apartment complex and entered the building where defendant was staying. After walking in to the building, the officers smelled an odor which they concluded was marijuana. Believing the odor to be emanating from apartment #3 on the second floor, the officers knocked on the door to speak with the occupants.*fn1

After knocking, a male voice asked who was at the door. The officers informed them it was the police. After waiting a period of time, Schkira Washington, a non-party to this case, answered the door followed by the defendant, Bernard McMillion. When the door was opened, the officers detected a strong odor, which they knew to be marijuana, coming from within the apartment. The officers identified themselves as police, entered the apartment, and detained both Washington and the defendant. After placing Washington in handcuffs, the officers reported that the defendant became agitated, admitted that he had smoked marijuana and claimed any marijuana was his.

After removing the defendant from the scene, law enforcement obtained a search warrant which was executed on the premises around 12:12 a.m. on the following day. During the search, police recovered a .22 caliber revolver, $8,000 in cash and approximately 15 ounces of marijuana.

III. Discussion

A. Standing

As a threshold matter, "[s]tanding to challenge a search requires that the individual challenging the search have a reasonable expectation of privacy in the property searched, and that he manifest a subjective expectation of privacy in the property searched." United States v. Baker, 221 F.3d 438, 441 (3d Cir. 2000)(citations omitted). It is established that an overnight guest has a reasonable expectation of privacy in a third-party's residence. See United States v. Perez, 280 F.3d 318, 337 (3d Cir. 2002); see also United States v. Smith, 282 F.App'x 143, 147 (3d Cir. 2008).

Based upon the hearing testimony, we conclude that McMillion has standing to challenge the search of apartment # 3. Witness testimony establishes that the defendant was a frequent overnight guest who regularly kept cloths at the apartment and also had a key to the residence. In addition, McMillion would, on occasion, pay the cable and other utility bills as well as receive mail at the residence. These facts leave no doubt that the defendant had a reasonable expectation of privacy in Ms. Washington's apartment, and thus he has standing to challenge his arrest and the subsequent search.

B. Arrest and Search

We will begin by discussing the relevant constitutional principles governing warrantless seizures in the home. The Fourth Amendment provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly ...


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