United States of America v. Andre Henry

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-3888
UNITED STATES OF AMERICA
v.
ANDRE HENRY,
Appellant
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Criminal No. 2-06-cr-00033-001)
District Judge: Hon. Jan E. Dubois
Submitted Pursuant to Third Circuit LAR 34.1(a)
November 6, 2009
BEFORE: SCIRICA, Chief Judge, JORDAN and COWEN, Circuit Judges
(Filed: January 7, 2010)
OPINION
COWEN, Circuit Judge
Andre Henry appeals from the judgment of conviction and sentence entered by the

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United States District Court for the Eastern District of Pennsylvania. We will affirm.
I.
Henry was convicted and sentenced in Pennsylvania state court for robbery at
gunpoint. On April 25, 2003, he was released on parole. He signed the standard
Pennsylvania form giving parole agents consent to search his person, property, and
residence without a warrant.
Henry was subsequently arrested by state parole agents on October 21, 2003. On
January 24, 2006, a federal grand jury returned a twenty-eight-count indictment against
him and six other defendants. The grand jury subsequently returned a superseding
indictment with the same number of counts on October 24, 2006. He was charged with
various firearms offenses, Hobbs Act robbery, armed bank robbery, carjacking, and
solicitation to commit murder. Henry filed numerous counseled and pro se pretrial
motions, and specifically sought to suppress evidence obtained in connection with the
search of his automobile and his residence on October 21, 2003.
After an evidentiary hearing, the District Court denied the suppression motions on
February 2, 2007. It provided its reasoning for doing so in a thorough memorandum.
Refraining from deciding the question of whether reasonable suspicion was even
required given his written consent to warrant-less searches as a condition of parole, the
District Court concluded that there was reasonable suspicion to conduct the two searches
at issue in this case. It further found that Henry’s suppression testimony was properly

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The District Court possessed subject matter jurisdiction over this criminal matter1
pursuant to 18 U.S.C. § 3231. We have appellate jurisdiction under 28 U.S.C. § 1291.
We review a district court’s findings of fact in connection with a suppression motion
under a clear error standard of review. See, e.g., United States v. Williams, 413 F.3d 347,
351 (3d Cir. 2005); United States v. Perez, 280 F.3d 318, 336 (3d Cir. 2002). In turn, the
district court’s application of the law to these facts is subject to plenary review. See, e.g.
Perez, 280 F.3d at 336.
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stricken because he had invoked his Fifth Amendment rights on cross-examination. The
District Court finally noted that “there is uncontroverted testimony that defendant
consented to the search of his vehicle immediately prior to the October 21, 2003 search
of his vehicle, and that defendant’s mother consented to the search of her house
immediately prior to the October 21, 2003 search of defendant’s residence.” (82a (citing
Jan. 29, 2007 Hearing Transcript at 55, 106).)
On February 22, 2007, the jury found Henry guilty on twenty-seven counts (a
single count (possession of body armor) was dismissed by the government). The District
Court subsequently sentenced him to a total term of imprisonment of 982 months. This
appeal followed.
II.
We agree with the District Court that the parole agents clearly possessed
reasonable suspicion to conduct the searches, and we therefore need not decide whether
the Supreme Court’s decision in United States v. Samson, 547 U.S. 843 (2006),
otherwise permits suspicion-less searches in the current circumstances.1
The existence of reasonable suspicion is ascertained from the totality of the

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circumstances. See, e.g., United States v. Arvizu, 534 U.S. 266, 273 (2002). “This
process allows officers to draw on their own experience and specialized training to make
inferences from and deductions about the cumulative information available to them that
might well elude an untrained person.” Id. (quotation omitted). “Although an officer’s
reliance on a mere ‘hunch’ is insufficient [to satisfy the reasonable suspicion
requirement], the likelihood of criminal activity need not rise to the level required for
probable cause, and it falls considerably short of satisfying a preponderance of the
evidence standard.” Id. at 274 (citations omitted); see also, e.g., United States v. Baker,
221 F.3d 438, 444 (3d Cir. 2000) (“The decision to search must be based on ‘specific
facts,’ but the officer need not possess probable cause.” (quotation omitted)).
Initially, the District Court properly determined that the parole agents possessed
reasonable suspicion to search Henry’s vehicle on October 21, 2003. Special Agent
Gerald Gallagher of the Bureau of Alcohol, Tobacco, and Firearms (“ATF”) learned on
October 7, 2003 that Henry was involved in the August 2003 straw purchases of several
“long guns” in Montgomery County. Agent Gallagher then spoke with Donna Henry,
who supervised the parole officer assigned to Henry, on October 20, 2003. He told her
about the Montgomery County straw purchases and his desire to speak with Henry. On
the next day, Henry arrived at the parole office without a scheduled appointment and
asked for the ankle monitor to be removed. Based on the information from Agent
Gallagher, Henry was detained. He admitted that he traveled outside of Philadelphia

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County. After purportedly obtaining his consent, his vehicle was searched. The parole
agents found, inter alia, a turnpike ticket, which indicated travel outside Philadelphia
County in violation of the conditions of parole, a bumper sticker for the gun shop
mentioned by Agent Gallagher, and three metal pipes (eventually determined not to
contain explosives). In the end, the information regarding possible parole violations,
combined with Supervisor Henry’s knowledge of Henry’s own prior criminal history, the
circumstances of his unexpected visit to the parole office asking for the removal of his
ankle monitor, and her own experience as a parole agent, clearly furnished reasonable
suspicion to believe that Henry’s car would contain evidence of parole violations.
Henry acknowledges that the parole agents had “reason to suspect that appellant
had violated the conditions of his release (by participating in the straw purchases and
leaving the County).” (Appellant’s Br. at 19.) However, he claims that “what is missing
here are the ‘specific facts’ that would have permitted a reasonable inference that
evidence of those violations (or some other violation) would be found inside the
vehicle.” (Id.) But, contrary to his characterizations, Supervisor Henry never actually
conceded this point in her testimony. She did admit that Agent Gallagher never
specifically told her that she might find weapons in Henry’s vehicle or on his person and
that she likewise did not have particular information that he had weapons on his person,
in his vehicle, or in his residence. She further admitted that she “didn’t enter the car to
look for a turnpike ticket.” (92a.) On the other hand, Supervisor Henry testified that, in

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her experience, parolees, particularly those with convictions for violent offenses
involving weapons, often have weapons in their vehicles. While Henry emphasizes her
passing statement that she was looking for “[f]urther violations of any kind,” this
assertion came in response to a cross-examination question that inaccurately claimed that
Supervisor Henry had previously testified that she “had no reason to believe there were
weapons in there.” (92a-93a.)
We likewise must reject Henry’s argument that the present circumstances are
analogous to the circumstances addressed by this Court in United States v. Baker, 221
F.3d 438 (3d Cir. 2000). In Baker, the defendant was arrested by parole agents because
he violated a parole condition against driving without a license. Id. at 440. The agents
then searched the trunk of his car, finding drug paraphernalia. Id. at 440-41. We held
that they lacked reasonable suspicion to search the trunk because the parole violation of
driving without a license had no apparent relation to anything that could be found in the
trunk. Id. at 445 (“[N]either Baker’s violation of his parole by driving a vehicle nor his
failure to document that he owned the vehicle can give rise to a reasonable suspicion that
he was committing other, unspecified, unrelated parole violations – the evidence of
which might be found in the trunk.” (citation omitted)). On the other hand, the parole
agents here had a reasonable basis to search Henry’s vehicle, especially in light of the
specific information regarding the straw purchases across county lines.
Following the search of the car and questioning by Agent Gallagher (after

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Miranda warnings were given and he signed a waiver), parole agents searched Henry’s
residence with the permission of his own mother. They seized a number of items,
including the weapons acquired in the straw purchases. Henry’s challenge to this search
largely rests on the notion that this second search (as well as his statements to Agent
Gallagher at the parole office) constituted the “inadmissible fruit” of the constitutionally
deficient search of his vehicle. (Appellant’s Br. at 17.) We, however, have already
concluded that this initial search was supported by reasonable suspicion. Likewise, his
assertion that “there were no ‘specific facts’ which could have possibly given rise to a
reasonable suspicion that firearms or evidence of some other unspecified violation would
be found” must be rejected given Agent Gallagher’s own testimony that Henry admitted
to him that the guns had been stored at the house at some point. (Appellant’s Br. at 20.)
Agent Gallagher further told the District Court that, in his experience, suspects tend to
keep guns in their residences, that such guns are often recovered some time after the
authorities receive information about their location, and that long guns especially tend to
be kept longer than handguns. Supervisor Henry confirmed this account by testifying
that parolees who had been convicted of weapons offenses often keep firearms at their
homes. Even setting aside the fact that Henry’s mother consented to the search itself, the
District Court properly found that the search of the residence was supported by

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The government raises a number of additional grounds for why we should uphold2
the District Court ‘s ruling denying Henry’s motions to suppress. But, given the clear
existence of reasonable suspicion, we need not address these additional points to resolve
this appeal.
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reasonable suspicion.2
III.
For the foregoing reasons, we will affirm the judgment of the District Court.

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