United States District Court, W.D. Pennsylvania
R. HORNAK, CHIEF UNITED STATES DISTRICT JUDGE.
early morning hours of July 29, 2016, officers from the Scott
Township (PA) Police Department responded to a 9-1-1 call
alerting them to a possible home invasion at a residence
owned by Defendant James France. When they arrived, the
officers were met by an individual who told them that six (6)
shotgun-toting men were inside the house. After a knock and
announce failed to draw anyone from the house, officers
entered the home. But instead of six (6) armed invaders, the
officers encountered two (2) people sitting on a bed
upstairs, a substantial quantity of methamphetamine, a litany
drug paraphernalia, and indicia bearing France's name.
Based on their observations during a protective sweep of the
home, the officers obtained a warrant to further search the
residence. The fruits of that warrant led a federal grand
jury to indict France and two (2) co-defendants.
moved to suppress all of the evidence collected from his
residence on grounds that the officers' initial
warrantless entry into his home violated his Fourth Amendment
rights. The Court held a hearing on the matter and the
parties fully briefed the issues. For the reasons that will
follow, France's Motion to Suppress is DENIED.
September 13, 2016, a federal grand jury indicted France on
one (1) count of Conspiracy to Distribute and Possess with
Intent to Distribute Fifty (50) Grams or More of
Methamphetamine, 21 U.S.C. § 846, and one (1) count of
Possession with Intent to Distribute Fifty (50) Grams or More
of Methamphetamine, 21 U.S.C. §§ 841(a)(1) and
(b)(1)(A)(viii). (Indictment, ECF No. 1.) Then, on January
25, 2019, France moved to suppress the evidence uncovered
during the execution of a search warrant at his residence.
(Mot. to Suppress, ECF No. 172.) The Government filed its
response to France's Motion to Suppress on March 15,
2019. (Gov't Resp., ECF No. 180.) Shortly thereafter, on
May 14, 2019, the Court held a hearing on France's motion
and later ordered post-hearing briefing from the parties.
(ECF Nos. 188 and 189.) France filed his post-hearing brief
on July 16, 2019. (Def's Post-Hr'g Br., ECF No. 194.)
The Government filed their response on August 28, 2019.
(Gov't's Post-Hr'g Br., ECF No. 195.) Then France
filed his reply on September 14, 2019. (Def's
Post-Hr'g Reply, ECF No. 198.) With post-hearing briefing
complete, the Court can decide France's motion.
motion to suppress evidence, the trial judge sits as the
finder of fact. See, e.g., United States v. Harris,
884 F.Supp.2d 383, 387 n.2 (W.D. Pa. 2012). Therefore, it is
for the trial judge to assess the credibility of the
witnesses, weigh the evidence, and reach any
"inferences, deductions and conclusions to be drawn from
the evidence." Id.
suppression hearing held on May 14, 2019, the Government
called Scott Township Police Officer Shane McGrath to testify
and proffered testimony from Scott Township Police Chief
Thomas Dunlevy. (Hr'g Tr., ECF No. 191, at 2,
92:19-96:9.) Although the Government proffered Chief
Dunlevy's direct testimony, France's counsel briefly
cross-examined Dunlevy, and the Government followed up with
redirect examination. (Id. at 101:8, 103:15.) The
Court finds Officer McGrath's testimony, and Chief
Dunlevy's proffered testimony and his testimony on cross
and redirect examination to be credible. Here is what
happened on the night in question.
vast majority of the testimony during the hearing came from
Officer McGrath. At 1:38 AM on July 29, 2016, Officer
McGrath was on a routine patrol as a K-9 officer in Scott
Township, Pennsylvania. (Id. at 19:13-15.) At that
time, he received "a call for service for a burglary in
progress .. . where it was reported that there were six black
males attempting to break into a residence with armed
shotguns" on Bower Hill Road in Scott Township.
(Id. at 19:20-24.) Four (4) officers, including
Officer McGrath, simultaneously responded to the scene of the
reported home invasion. (Id. at 43:24-24:1.) Officer
McGrath knew from experience that the site of the alleged
home invasion is a "kind of congested" residential
area. (Id. at 20:2-10.)
residence itself was a single-family home situated on Bower
Hill Road, which has two (2) lanes running in each direction.
(Id. at 45:3-13.) The home had a small driveway
leading to a garage attached to the basement level of the
home. (Id. at 45:22-46:4, 68:1-13.) In addition to
the basement, there were two (2) main floors of the home.
(Id. at 49:11-15.) The front door to the home was
elevated above the sidewalk, and there were three (3) or four
(4) steps leading from the sidewalk to the front door.
(Id. at 68:9-69:9.) Viewing the residence from the
front sidewalk on Bower Hill Road, the home's roof was
pitched from left to right in a triangular shape.
(Id. at 69:19-70:17.)
arrived at the residence, Officer McGrath "encountered a
male outside the residence who was the apparent caller."
(Id. at 20:21-22.) The man's "name was Mark
Huellen" ("Huellen"). (Id. at 20:22.)
As McGrath approached, Huellen was standing "[o]n the
front sidewalk closest to Bower Hill Road away from the
house, " still "on his cell phone with the
dispatchers." (Id. at 21:13-14, 69:15-18.)
Referring to the home invaders he reported in his 9-1-1 call,
Huellen told Officer McGrath "that these males were in
the house, trying to get in with shotguns."
(Id. at 20:22-24.) Huellen further stated that
"[t]hey were on the roof. .. trying to get in through
the door." (Id. at 20:23-25.) And Huellen
warned that the armed men "were still in the
residence." (Id. at 21:1-2.)
Officer McGrath encountered Huellen, he noted that Huellen
was "[u]pset, very excited like you would be if you were
experiencing a traumatic event where someone is trying to
harm you." (Id. at 21:4-6.) Huellen was wearing
jeans and a white shirt, and Officer McGrath testified that
he remembered that Huellen was not wearing shoes or socks
despite it being a relatively cold night. (Id. at
21:8-10.) When asked on cross examination if he could tell
whether Huellen was under the influence of narcotics, Officer
McGrath testified that he did not have much time to assess
Huellen's physical state since he was primarily focused
on the potential threat of six (6) armed men inside the
residence. (Id. at 47:1-18.)
"quickly" talking with Huellen, Officer McGrath and
three (3) other officers approached the house. (Id.
at 21:23-22:7.) The back of the residence was "very
dark" and there was "a back porch that ha[d] . . .
drapery covering the back." (Id. at 22:12-22.)
Because of the drapery, the officer "couldn't see
into the residence." (Id.) Officer McGrath also
testified that the officers were focused on the "back
roof because [Huellen] said people were trying to get into
the house through the roof." (Id.)
front of the house, however, Office McGrath observed that the
front door was "wide open" and "lights were on
in the residence." (Id. at 22:18-23:2.) The
officers approached the open front door and yelled in:
"Scott Township Police, announce yourself, anyone in the
residence." (Id. 54:1-6.) The officers received
no response from anyone in the home. (Id. at
23:8-9.) As they were at the open front door, however,
Officer McGrath "hear[d] music from the upstairs but
[h]e couldn't determine exactly where it was coming
from." (Id. at 23:10-14.)
received no response to their knock and announce, and still
believing that there may be armed individuals inside, the
officers then entered the house. (Id. at
23:23-24:8.) Officer McGrath and Officer Helf-another Scott
Township police officer-"entered into the right of the
doorway." (Id.) "There was a small room to
the right" when they entered, and the officers
"visually looked [into the room] and [saw] there were no
threats." (Id.) In the entry way to the
residence there was also a stairwell leading up to the second
level of the home. (Id. at 24:4-12; Gov't Ex.
1.) And at the top of the stairway was a closed door. (ECF
No. 191, at 25:5-12.)
McGrath and Helf ascended the stairwell in order to secure it
and then attempted to clear the upstairs, while the other two
(2) officers went to clear the living room and dining room
area of the house. (Id. at 24:4-8.) Officers McGrath
and Helf, as they approached the closed door at the top of
the stairwell, "could hear music playing."
(Id. at 25:13-24.) They "again announced Scott
Township Police" but did not receive a response.
(Id.) But for officer safety reasons-since an armed
suspect "could be hiding behind [the] door"-they
did not knock on the closed door at the top of the stairs.
(Id. at 26:1-12.)
Officers McGrath and Helf reached the top of the stairs,
Officer McGrath opened the door-to what turned out to be a
bedroom-and observed "two males on the
bed." (Id. at 27:3-6.) One of the males
on the bed was Caucasian, and the other was African American.
(Id. at 27:10-15.) The officers then identified
themselves and ordered the two (2) men to put their hands up.
(Id.) But instead of complying, "[t]he one
African American actor attempted to reach for a bag on the
bed" despite being told multiple times not to move.
(Id.) As a result, the officers "secured him
forcefully." (Id.) After securing the
individual, Officer McGrath "could see open in plain
view there was a handgun in" the bag the man reached
for. (Id. at 28:6-10.) There were also
"multiple pipes and drug paraphernalia in the residence
or in that bedroom." (Id.) Because of this,
both of the men found in the bedroom were placed in custody.
(Id. at 28:12-13.)
the suspects in the bedroom, however, did not conclude the
officers' protective sweep of the house. (Id. at
27:19-28:6.) Based on Huellen's report, the officers were
looking for six (6) individuals, but only two (2) were
located in the upstairs bedroom. (Id.) Officer
McGrath, therefore, concluded that they were "still
looking for four others, specifically at least five other
black males." (Id. at 28:1-2.) So Officers
McGrath and Helf secured "the firearm for safety but...
did not seize anything." (Id. at 28:11-29:5.)
The officers placed the two (2) suspects, then in custody, in
the upstairs hallway under the watch of Officer Scott-another
member of the Scott Township Police Department. Officers
McGrath and Helf then finished sweeping the bedroom for other
threats to officer safety, but found no additional suspects.
in search of potentially four (4) or five (5) more suspects,
the officers "proceeded to clear the rest of the
residence upstairs." (Id. at 29:6-14.) This
included sweeping "a master bedroom and a bathroom
upstairs." (Id.) But the officers did not
locate any further suspects in the upstairs portion of the
residence. (Id.) At this time, the officers brought
the two (2) suspects downstairs where they remained in
custody. (Id. at 29:15-20.)
the upstairs cleared, the officers began sweeping the first
floor for any additional suspects. (Id. at 29:4-13.)
During their sweep, the officers noted that the residence was
cluttered with bags, boxes, and other random objects covering
almost every surface. (Id.; Gov't Exs.
2-4.) Included in this clutter was drug
paraphernalia, including "smoking glass pipes, "
"a digital scale, " and a butane torch (ECF No.
191, at 32:5-34:2; Gov't Exs. 3-7.) The officers worked
their way to the basement of the home which they swept for
threats, and did the same as to a "hidden room in the
basement." (ECF No. 191, at 34:21-35:11.) There, the
officers confronted what appeared to be containers with
chemicals in them. (Id.) Most notably, however, was
the pungent odor that permeated the basement area of the
home. (Id.) Officer McGrath testified that, based on