                                                                  NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                 ______________

                                       No. 15-3059
                                     ______________

                            UNITED STATES OF AMERICA

                                             v.

                              ANDRE DWAYNE RUFFIN,
                                             Appellant
                                  ______________

             APPEAL FROM THE UNITED STATES DISTRICT COURT
              FOR THE WESTERN DISTRICT OF PENNSYLVANIA
                          (D.C. No. 2-13-cr-00138-001)
                    District Judge: Hon. Terrence F. McVerry
                                 ______________

                       Submitted Under Third Circuit LAR 34.1(a)
                                    October 6, 2016
                                   ______________

               Before: SHWARTZ, COWEN, and ROTH, Circuit Judges.

                                (Filed: December 2, 2016)

                                     ______________

                                        OPINION*
                                     ______________

SHWARTZ, 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.
       In the course of a murder investigation, law enforcement obtained a search warrant

to collect video footage from surveillance cameras mounted at Andre Dwayne Ruffin’s

home to investigate Ruffin’s whereabouts at the time of the murder. While at Ruffin’s

home to execute the warrant, police discovered two firearms in plain view. Ruffin was

subsequently charged with being a felon in possession of firearms and ammunition, in

violation of 18 U.S.C. § 922(g)(1). Ruffin moved to suppress this evidence on the

grounds that the information supporting the warrant for the surveillance footage was stale

and that the officers’ search exceeded the scope of their protective sweep. The District

Court rejected Ruffin’s arguments and denied the motion. We will affirm.

                                             I

       Andrew Ruffin and Leicia Jackson shared a home located at 704 East 14th Avenue

in Homestead, Pennsylvania. Title to the home was in Leicia Jackson’s name. After

Leicia passed away in 2012, Ruffin and Leicia’s mother, Loretta Jackson, became

embroiled in a probate dispute over ownership of the property. On April 11, 2013, one

day before a scheduled probate hearing, Loretta was shot and killed. On April 12, a law

enforcement officer went to 704 East 14th to speak with Ruffin and left a business card

with Ruffin’s girlfriend with instructions for Ruffin to call. The officer noticed multiple

video surveillance cameras mounted on the exterior of the residence.

       On April 15, Ruffin went to police headquarters and provided a statement in which

he claimed that he and his girlfriend did not leave 704 East 14th the night of April 11.

Upon learning about the video surveillance system at Ruffin’s home, and aware of

Ruffin’s claim that he was home the night of the murder, Detective Michael Feeney, who

                                             2
has extensive experience with extraction, preservation, and analysis of video data,

suggested that the officers “obtain a search warrant for the data contained on those

devices, as it may either . . . corroborate [Ruffin’s] alibi or disprove [it].” App. 46.

Feeney then obtained information about the locations of the six cameras and prepared an

affidavit to obtain a search warrant. The affidavit described his colleagues’ observation

of the six-camera setup and set forth his own experience that similar surveillance systems

usually include a recording component for later review of footage. Based on the

affidavit, a judge issued a search warrant on April 22 for “[a]ny and all VIDEO

RECORDING SYSTEMS . . . and any and all ELECTRONIC DEVICES CAPABLE OF

RECORDING VIDEO.” Supp. App. 26.

       While some of the officers traveled to 704 East 14th to execute the warrant,

Feeney stopped Ruffin in a vehicle in the vicinity of the home. Ruffin told Feeney there

was no one in the house. However, when the other officers knocked on the door,

Ruffin’s girlfriend appeared. As a result, the officers “performed a safety sweep of the

residence to verify that there were no additional person[s] contained inside the

residence.” App. 49.

       During the sweep, an officer saw what he “recognized as a handgun in a holster”

in the open drawer of a dresser located in an upstairs bedroom. App. 93-94. In another

bedroom, the officer observed an open gun “vault,” in which he saw what he “recognized

[]as some type of AR-15 M4 variant.” App. 98-99. Although the purpose of the sweep

was to clear the house of any hidden individuals, the officer explained that he saw the

guns because “[y]ou can’t select what you see when you go into a room.” App. 118.

                                               3
       Based on these observations, the officers obtained a second warrant to seize the

firearms. Ruffin was charged with a violation of § 922(g)(1), and moved to suppress the

evidence of the firearms on the grounds that (1) the information in the warrant was stale,

and thus probable cause for the search was lacking, and (2) the officer exceeded the scope

of the protective sweep by looking in spaces incapable of concealing a person.

       At the suppression hearing, Detective Feeney testified that he sought to move

quickly once he thought of obtaining a search warrant for the surveillance recording

system at Ruffin’s house because he understood the “possibility that the information

could be . . . easily disposed of,” App. 61, and noted that such a “system has the potential

to overwrite data,” App. 62. At the time he sought the warrant, he did not know whether

Ruffin’s cameras were operational or fake, were connected to an analog or digital system,

recorded or streamed a live feed, or had been tampered with since the date of the murder.

He also did not mention in his affidavit the possible temporary nature of the evidence

because he believed “[i]f that warrant was granted . . . the [temporal] problem would be

solved.” App. 63.

       The District Court denied Ruffin’s motion and Ruffin proceeded to trial, where a

jury convicted him of being a felon in possession. Ruffin was sentenced to 300 months’

imprisonment. Ruffin appeals the denial of his motion to suppress,1 arguing, among

other things, that the information in the warrant was stale.2


       1
        Ruffin’s notice of appeal indicated that he sought to appeal the judgment entered
by the District Court. His opening brief raised a challenge only to the District Court’s
order denying his motion to suppress; nowhere did he challenge his sentence. Ruffin
now seeks a partial remand to allow the District Court to consider the impact of Mathis v.
                                              4
                                             II3

       Where, as here, “a district court, in reviewing a magistrate’s determination of

probable cause, bases its probable cause ruling on facts contained in an affidavit, we

exercise plenary review over the district court’s decision.” United States v. Conley, 4

F.3d 1200, 1204 (3d Cir. 1993). Thus, applying the same standard as the District Court,

we must determine whether “the [issuing] judge had a substantial basis for concluding

that probable cause existed to uphold the warrant.” United States v. Whitner, 219 F.3d

289, 296 (3d Cir. 2000) (internal quotation marks and citations omitted). Our inquiry is

confined “to the facts that were before the [issuing] judge, i.e., the affidavit,” and we do

not “consider information from other portions of the record.” United States v. Hodge,

246 F.3d 301, 305 (3d Cir. 2001) (internal quotation marks and citation omitted). We

thus review the affidavit to determine whether the issuing judge had a “substantial basis”

for concluding that “there is a fair probability that contraband or evidence of a crime will

be found in a particular place.” Illinois v. Gates, 462 U.S. 213, 238 (1983). This, of

United States, 136 S. Ct. 2243 (2016), on his sentence. In his motion for remand, Ruffin
suggests that he needs an “evidentiary hearing” to determine whether the District Court
should apply the categorical or modified categorical approach for deciding whether his
prior convictions qualify as predicate offenses under the Armed Career Criminal Act.
The District Court already engaged in that analysis, and Ruffin did not appeal its
conclusions. His motion therefore essentially seeks an opportunity to reargue an issue the
District Court decided and which he declined to raise on appeal. This is not a proper use
of the remand procedure, and for that reason, we will deny his motion.
        2
          Since the officers were at Ruffin’s home pursuant to a valid search warrant, we
need not reach his argument that the officers’ “protective sweep” of the premises was
unreasonable and unjustified. The “protective sweep” rule is an exception to the Fourth
Amendment’s warrant requirement. See Maryland v. Buie, 494 U.S. 325, 327 (1990).
The officers were not acting under an exception to the warrant requirement.
        3
          The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have
jurisdiction pursuant to 28 U.S.C. § 1291.
                                              5
course, contemplates that the judge was presented with a sufficient basis to believe that

the items to be seized were still on the premises.

       Ruffin argues that the staleness of the facts in the affidavit negated probable cause

and, concomitantly, the validity of the warrant. Dated or “stale” information “may have

little value in showing that contraband or evidence is still likely to be found in the place

for which the warrant is sought.” United States v. Williams, 124 F.3d 411, 420 (3d Cir.

1997) (citation omitted). We have previously identified several factors to consider in

making a staleness determination, including the “[a]ge of the information supporting a

warrant application,” “the nature of the crime,” and “the type of evidence” sought.

United States v. Harvey, 2 F.3d 1318, 1322 (3d Cir. 1993) (citation omitted) (holding

months-old information supported a warrant to search residence for child pornography,

noting law enforcement agent’s opinion that pedophiles rarely dispose of such material).4

       Here, less than two weeks lapsed between Loretta Jackson’s murder and the

issuance of the warrant. Thus, the investigation was at an early phase. Moreover, the

warrant sought evidence to verify Ruffin’s alibi. The surveillance footage, which may

have depicted Ruffin’s movements (or lack thereof) on the night of the murder, could


       4
         “Age alone . . . does not determine staleness.” Harvey, 2 F.3d at 1322 (probable
cause determination “is not merely an exercise in counting the days or even months
between the facts relied on and the issuance of the warrant”). On the intersection
between the passage of time and technology, we have noted that computers have “long
memor[ies].” United States v. Vosburgh, 602 F.3d 512, 529 (3d Cir. 2010) (alteration in
original) (internal quotation marks and citation omitted) (finding probable cause to search
computer for child pornography was not stale after four-month gap, because evidence
shows that individuals tend to keep child pornography images and thus the “passage of
weeks or months here is less important than it might be in a case involving more fungible
or ephemeral evidence, such as small quantities of drugs or stolen music”).
                                              6
help to accomplish this goal. The six cameras mounted on the exterior of Ruffin’s home

suggested a sophisticated surveillance system was in place, and Feeney’s probable cause

affidavit provided the issuing judge with a basis to conclude that recordings from the

system may be located in the home. Feeney explained that:

       [I]n my training and experience dealing with surveillance video and
       multiple recoveries of video admitted into evidence . . . the videos have
       usually all been recovered and stored within a recording device. It has been
       my experience that multi-camera systems are recorded as it would be
       difficult for a person to watch video from each camera. As such video is
       usually recorded digitally onto a [digital video recorder] and stored for
       subsequent review.

Supp. App. 28. From this statement, it was reasonable for the issuing judge to infer that

the camera system at 704 East 14th was programmed to record and store images of

activity outside the premises for review at a later time. Thus, “there [was] a fair

probability that” the type of evidence sought “[would] be found” in Ruffin’s home.

Gates, 462 U.S. at 238.

       Although it was possible that Ruffin could have erased any video footage, or that

the system would automatically delete or overwrite footage after a certain period of time,

Ruffin provides no basis for engaging in such speculation. Nor did Ruffin present any

evidence at the suppression hearing that could have led the District Court to discount the

issuing judge’s probable cause determination that recorded footage was likely to be found

in Ruffin’s home.

       Accordingly, the District Court correctly determined that the information

Detective Feeney supplied in his probable cause affidavit was not stale. There was a “fair

probability” that video surveillance footage existed in Ruffin’s home that could shed light

                                              7
on his alibi. The information in the affidavit therefore provided the issuing judge with a

“substantial basis” for concluding that probable cause existed to issue the warrant.

                                            III

       For the foregoing reasons, we will affirm the District Court’s order denying

Ruffin’s motion to suppress.




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