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State. v. Harvey

United States District Court, Eastern District of Pennsylvania

March 6, 2014




Moving to suppress a sample of his DNA taken pursuant to a search warrant, the defendant Joseph Harvey contends that the warrant was issued without probable cause and on the basis of material falsehoods and omissions in violation of the Fourth Amendment.[1] He relies upon Franks v. Delaware, 438 U.S. 154 (1978), which requires suppression of evidence secured pursuant to a search warrant issued on the basis of false material statements or omissions made either knowingly and intentionally, or with reckless disregard for the truth. Id. at 155-56; United States v. Brown, 631 F.3d 638, 642 (3d Cir. 2011) (citing Franks, 438 U.S. at 155-56).

Considering the evidence presented at the hearing, including the warrant and the affidavit of probable cause, I find there were no material false statements and omissions that were made knowingly and intentionally or recklessly so as to invalidate the warrant. I also conclude that there was probable cause to support the issuance of the warrant. Therefore, I shall deny the motion.

The Investigation

The investigation leading up to the application for the search warrant was instigated by a complaint made to the police on October 9, 2009.[2] After responding to a radio call, Philadelphia Police Officer Perry reported that a twenty-one year-old female complained that during a drug raid in the Kensington section of Philadelphia earlier that day, a police officer had masturbated in front of her, ejaculating onto her jeans.[3]

At the direction of his supervisor, Perry transported the complainant and her jeans to the Internal Affairs Division of the Philadelphia Police Department (“IAD”).[4] Lieutenant Joseph Martin of IAD interviewed the complainant, who repeated, in more detail, her complaint to Perry.[5] She related that three officers in plain clothes forcibly entered the second floor bedroom in which she and a male friend were located.[6] She stated that after her male friend was taken out of the room, one of the officers made her take off her clothes and then masturbated.[7]

The complainant told Martin that she and her male companion called 911 immediately after the encounter.[8] Martin secured a tape recording of the call, corroborating the complainant’s claim that she had made the call.[9]

Martin determined that three undercover police officers had conducted a drug investigation at 2817 “D” Street in the late night of October 8, 2009.[10] He interviewed two of Harvey’s fellow officers, Hayden Smith and Curtis McKee, and their supervisor, Sergeant Jesus Serrano.[11]

Smith and McKee confirmed that they and Harvey had entered an abandoned property on “D” Street and that Harvey was alone with a female for a period of time in that property.[12] Neither one reported that Harvey had assaulted the woman or otherwise did anything improper in the property.[13]

In the meantime, IAD submitted the complainant’s jeans for testing.[14] The test was positive for the presence of sperm.[15] Martin also took a sample of her DNA which he had tested.[16]

Martin later presented to the complainant a photo array of eight police officers in uniform, which included Harvey’s photograph.[17] The complainant did not pick Harvey’s photo out of the array. She circled photos of two other officers, stating that they looked familiar but she was not sure.[18]

After concluding his investigation, Martin applied for a search warrant, Warrant Control No. 148051, to secure a DNA sample from Harvey on February 17, 2010.[19] The warrant was approved and issued on the same day. The DNA sample was taken later that evening.


The affidavit of probable cause in the warrant application recites the results of Martin’s investigation in support of probable cause. Harvey challenges three statements in the affidavit as false.[20] They are: (1) Officers Smith, McKee and Norman Camacho reported to Serrano that “P/O Joseph Harvey may be engaging in criminal acts”; (2) Harvey “may have sexually assaulted a female inside of an abandoned property”; and (3) Smith told Serrano that “on the day of the event, the officer had decided to investigate an abandon (sic) property. Once inside they observed a male [Pat] and female [Complainant Witness] on the floor, semi-nude. They asked them for identification, following which the officers walked outside with the male leaving the female inside, as she had requested time to put her clothes back on. The officers engaged the male in ...

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