NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

____________ No. 15

- 2511

_____________ UNITED STATES OF AMERICA

v. DANIEL THOMAS CURRAN,

Appellant

_____________ APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

(D.C. Crim. No. 13

- cr - 00 259

- 001 ) District Judge: Honorable William W. Caldwell

____________ Submitted Under Third Circuit LAR 34.1(a)

January 22, 2016

____________ Before: FISHER, CHAGARES and BARRY, Circuit Judg es

(Opinion Filed: February 1, 2016 )

____________ OPINION *

____________

B ARRY, Circuit Judge

* This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does not constitute binding precedent.2

Daniel Thomas Curran entered a conditional plea of guilty to charges of production, receipt, and possession of child pornography, pursuant to a plea agreement , under Federal Rule of Criminal Procedure 11(a)(2) , that preserved his right to appeal the District Court’s denial of his motion to suppress. 1 He now appeals the denial of that motion, and contends , as well, that the Court erred in imposing a substantive ly unreasonable sentence of 840 months’ imprisonment (70 years). Because the Court correctly denied Curran’s motion to suppress, and because his sentence was not substantively unreasonable, we will affirm.
I. In August and September of 2013, Curran lived with R.S. and R.S.’s two young children, including C.S., age 9 years old. On September 24 and 25, 2013, law enforcement received reports regarding the possible sexual abuse of C.S. by Curran. R.S. also reported to law enforcement that items had been sto len from his home, including jewelry, a Nintendo DS , photo albums, throwing stars, knives, nunchucks, bayonets, old bullets, and an old cell phone. R.S. indicated that Curran had a storage unit, although he did not know the location. O fficers obtained a warrant to search Curran’s car for the stolen items. While executing the search, they asked Curran about the storage unit. He denied having one .

1 The R ule provides that: “W ith the consent of the court and the government, a defendant may enter a conditional plea o f guilty or nolo contendere, reserving in writing the right to have an appellate court review an adverse determination of a specified pretrial motion. A defendant who prevails on appeal may then withdraw the plea. ”3

Shortly after this conversation, law enforcement contacted a local storage facilit y and learned that Curra n did have a storage unit and, in fact, was currently at the unit. Officers proceeded to the location, where they observed Curran walking toward the exit and looking over his shoulder toward the fence at the back of the facility. The officers detained Curran and found three bags lying outside the fence of the storage unit complex. Curran told an officer that the bags were his 2 and that he had thrown them over the fence. The officer read Curran his Miranda rights. The bags consisted of a tote bag, a z ippered duffel bag, and a wheeled computer bag. The tote bag was open and some items were strewn on the grass, including a knife, DVDs, and a child’s toy. The officers brought the bags to the patrol car, where an officer opened the duffel bag and found a phone inside. Curran admitted that the phone belonged to R.S. The officers searched the bags before placing them in the car, and then transported the bags and Curran to the pol ice station. A more thorough inventory search of the bags was conducted at t he police station.
T he officers found in the bags a computer, USB flash drives, and cell phones. Warrants were obtained to search those items, and to search the storage unit for stolen

2 At the suppression hearing, the office r testified that Curran initially denied that the bags were his. The police report and probable cause affidavit, however, suggest that , at the outset, Curran admitted ownership of the bags. The District Court found that the written reports were more reli able because “[t]he order of events were certainly more clear in the detective’s mind at the time of writing the reports,” and it accepted the facts “as laid out therein.” (A pp. 13 n.5.) The Court concluded, however, that this was a “minor detail[]” that was “ultimately immaterial” to its analysis. ( Id. )4

property. Upon finding child pornography in the storage unit, anot her warrant was issued to search for child pornography

- related items. On the computer and flash drives that had been found in the bags outside the storage facility, officers found more than 40,000 images of child pornography, including videos and images o f Curran sexually abusing C.S. In the storage unit itself , officers found sex toys, stolen items belonging to R.S. and his family, toys belonging to C.S., children’s clothing not belonging to C.S., and many pages of writings relating to sex with children. Curran moved to suppress the evidence found in the bags, and also sought to suppress evidence found in his storage unit, contending that it was “fruit of the poisonous tree” stemming from the unlawful search of the bags. Following a hearing, the Distr ict Court denied the motion. The District Court concluded that Curran did not abandon the bags because he planned to retrieve them and take them to his vehicle. The Court determined , however, that the seizure of the bags was lawful , because stolen prope rty was in plain view, and that the officer’s cursory search of the bags at the scene was permissible based on concern for officer safety, particularly in light of the fact that several of the items of stolen property were alleged to be weapons. Because t he Court concluded that the search of the bags was lawful, it declined to reach Curran’s “fruit o f the poisonous tree” argument. Curran entered a conditional plea of guilty pursuant to a plea agreement that preserved his right to appeal the Court’s ruling on the suppression motion.5

At sentencing, the District Court determined

— and the parties did not dispute

— that Curran’s Guidelines range was 840 months’ imprisonment. 3 Defense counsel argued that a sentence of 840 months (70 years) was greater than nece ssary in light of the fact that Curran, 41 years old at the time of sentencing, would be 111 when his sentence had been served. Counsel also argued that a lower sentence was warranted by Curran’s remorse, history of having been abused, mental health probl ems, and another sentence (from another, unidentified, jurisdiction) in which a producer of child pornography received only 26 years’ imprisonment. The Court, however, imposed the Guidelines sentence of 840 months’ imprisonment, indicating that Curran’s c ase was “one of the most disturbing cases I thi nk I’ve ever had.” (App. 264 .) It expressed its belief that Curran would victimize another child if given the opportunity, and stated that the possession of “an unbelievable quantity of sickening pornography involving children as young as toddlers,” reflected a person who could pose a threat to children “and who must be deterred by removal from society and from the community.” ( Id

. ) Acknowledging that the sentence “could be a life sentence,” the Court concl uded that it was not unreasonable under the circumstances. ( Id. ) On appeal, Curran contends that the District Court erred in denying his motion to suppress because the search of the bags was not authorized by any exception to the

3 While the combination of Curran’s total offense level (which the parties agreed was at least 43) and criminal history category (I) resulted in a Guidelines range of life imprisonment, Curran’s Guidelin es range was capped at the statutory ma ximum for the charged offenses ( 840 months )

.6

warrant requirement. He also argues that his sentence is substantively unreasonable because it exceeds his life expectancy.
II. The District Court had jurisdiction pursuant to 18 U.S.C. § 3231, and we have jurisdiction pursuant to 28 U.S.C. § 1291. United States v. Golson , 743 F.3d 44, 50 (3d Cir. 2014). In reviewing a district court’s decision on a motion to suppress, “[w]e review the District Court’s factual findings for clear error, and exercise plenary review over the District Court’s determination that the seizure did not violate the Fourth Amendment.”
Id. at 55. We may affirm for any reason supported by the record. United States v. Dupree , 617 F.3d 724, 728 n.2 (3d Cir. 2010). We review the substantive reasonableness of a sentence for abuse of discretion. United Stat es v. Tomko , 562 F.3d 558, 567 (3d Cir. 2009) (en banc).
III. Curran argues that the warrantless search of the bags prior to transport to the police station was unlawful because the incriminating nature of the items allegedly in plain view was not immedia tely apparent, and, even if it was, the search of the zippered bags was not justified by the “plain view” exception to the warrant requirement. Curran also contends that the search was not justified by concern for officer safety because the bags were sear ched before he was placed under arrest , and, in any event, the “transportation” exception to the warrant requirement that the District Court relied upon7

is supported by only a non

- precedential opinion of this Court. The Government argues that the search a nd seizure of the bags was lawful because the bags had been abandoned,

or , in the alternative, that the seizure was permissible under the “plain view” exception and the search was permissible for officer safety. The Fourth Amendment prohibits only “unreas onable” searches and seizures. U.S. Const. Amend. IV; United States v. Katzin , 769 F.3d 163, 169 (3d Cir. 2014) (en banc). I t is a “cardinal principle” that “searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment

— subject only to a few specifically established and well

- delineated exceptions.” California v. Acevedo , 500 U.S. 565, 580 (1991) (quoting Mincey v. Arizona , 437 U.S. 385, 390 (1978)) . “A warrantless searc h of property is permissible under the Fourth Amendment where the owner has abandoned his reasonable expectation of privacy in that property.” United States v. Harrison , 689 F.3d 301, 306

- 07 (3d Cir. 2012) ; see Abel v. United States , 362 U.S. 217 , 241 (19 60). In determining whether an individual has abandoned a reasonable expectation of privacy in his property, we examine the totality of the facts and circumstances from an objective viewpoint. Harrison , 689 F.3d at 307. “[P]roof of intent to abandon mu st be established by clear and unequivocal evidence.” Id. Disclaiming ownership of property or physically relinquishing it is sufficient to establish abandonment for purposes of the Fourth Amendment, in most cases. Id. The question of whether an indivi dual has8

abandoned a reasonable expectation of privacy in an item of property is distinct from the question of abandonment under property law. Id. ; see United States v. Fulani , 368 F.3d 351, 354 (3d Cir. 2004)

. For purposes of the Fourth Amendment, we ex amine “the individual’s reasonable expectation of privacy, not his property interest in the item.”
Fulani , 368 F.3d at 354. Curran abandoned a ny reasonable expectation of privacy in the bags when he threw them over the storage facility’s fence into a pub lic area, walked away, and made no attempt to protect the bags or their contents from inspection. See United States v. Dickens , 695 F.2d 765, 777

- 78 (3d Cir. 1982), abrogated on other grounds as recognized
in In re Grand Jury Empaneling of Special Grand J ury , 171 F.3d 826, 828 (3d Cir. 1999) (defendant abandoned reasonable expectation of privacy in a bag when he left it on a staircase accessible to the public); United States v. Morgan , 936 F.2d 1561, 1570 (10th Cir. 1991) (defendant abandoned reasonable ex pectation of privacy in a bag when he discarded it in a backyard that was accessible to the public, and made no attempt to retrieve it); United States v. Thomas , 864 F.2d 843, 846 (D.C. Cir. 1989) (defendant abandoned reasonable expectation of privacy in a bag when he left it in a public hallway). The District Court focused on Curran ’s claim that he planned to retrieve the bags and concluded that, therefore, Curran’s actions did not demonstrate intent to abandon them. While the Court may have correctly observed that Curran did not manifest an intent to abandon his ownership interest in the bags, his actions clearly and unequivocally9

demonstrate d an abandonment of his reasonable expectation of privacy. As the D.C. Circuit has held, “The legal significanc e of [the defendant’s] acts is not altered by the fact that he might have intended to retrieve the bag later. His ability to do so would depend on the fortuity that other persons with access to the public [place] would not disturb his bag while it lay the re unattended.” Thomas , 864 F.2d at 846 n.5. Curran’s “ability to recover [the bags] depended entirely upon fate and the absence of inquisitive (and acquisitive) passers

- by.” See United States v. Jones , 707 F.2d 1169, 1172 (10th Cir. 1983). When Curran threw the bags over the fence into a public area, where they could be accessed by any passerby, it was no longer reasonable for him to expect those bags to remain private after he walked away. See Dickens , 695 F.2d at 778 (“Expecting privacy
in a buildin g staircase accessible to other tenants and the general public cannot be considered reasonable.”). Because the search of the bags was reasonable in light of the abandonment exception to the warrant requirement, we will affirm the District Court’s order denying Curran’s motion to suppress. Because we can affirm the denial of a suppression motion on any ground supported by the record, see Dupree , 617 F.3d at 728 n.2, we need not address the Court’s holding s with respect to the “ plain view ” exception and t he officer safety “transportation” exception to the warrant requirement.
IV. Title 18 U.S.C. § 3553(a) provides that a court shall impose a sentence “sufficient,10

but not greater than necessary” to comply with the purposes of sentencing. Curran
contends that his sentence of 840 months’ imprisonment is substantively unreasonable because it exceeds his life expectancy. The fact that it may do so, however, does not render his sentence substantively unreasonable. See United States v. Ward , 732 F.3d 175, 18 6 (3d Cir. 2013); United States v. Watson , 482 F.3d 269, 273 (3d Cir. 2007) (“[T]he mere fact that a defendant may not survive beyond his sentence does not provide a basis for a shorter sentence.”). As we held in United States v. Tomko , “if the district

co urt's sentence is procedurally sound, we will affirm it unless no reasonable sentencing court would have imposed the same sentence on that particular defendant for the reasons the district court provided.” 562 F.3d at 568. Here, the District Court acted within its discretion in imposing a sentence of 840 months, in light of the egregious nature of Curran’s crimes and the danger he posed to children.
V. We will affirm the District Court’s denial of Curran’s motion to suppress and affirm the judgment of s entence.