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U.S. v. HERROLD

July 23, 1991

UNITED STATES OF AMERICA
v.
GENE ALLEN HERROLD.



The opinion of the court was delivered by: Muir, District Judge.

OPINION

I. Introduction.

On April 9, 1991, the grand jury sitting at Scranton returned a two-count indictment charging Gene Allen Herrold with possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g) and 924(e)(1) and with possession of a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1).

On April 26, 1991, Herrold appeared before us and entered a plea of not guilty to the charges as set forth in the indictment. On May 28, 1991, Herrold filed a motion to suppress evidence and a brief in support thereof. We held a hearing on the motion to suppress evidence on June 26, 1991. This motion has been fully briefed. The following are the Court's findings of fact, discussion, and conclusions of law with respect to the motion to suppress evidence.

II. Findings of Fact.

1. Gene Allen Herrold lives at RD # 1, Box 504, Port Trevorton, Pennsylvania. (Undisputed) (hereinafter "U")

2. On August 24, 1990, members of the Region IV Narcotics Strike Force based in State College, Pennsylvania and a confidential informant went to the vicinity of Herrold's residence, a white trailer home with brown trim located approximately 100 feet west of the intersection of Flanders Road and Sholley's Road in Chapman Township, Snyder County, Pennsylvania. (U)

3. The officers had learned from the confidential informant who made the arrangements, as well as from another informant, that Herrold had just obtained a large quantity of cocaine.

4. Before the confidential informant drove to Herrold's residence, the officers strip-searched the informant's person and searched the informant's vehicle, and found no hidden controlled substances. (U)

5. On August 24, 1990, Herrold allegedly sold one-half ounce of cocaine to the confidential police informant. (U)

6. Previously that evening, the confidential informant had made arrangements by telephone with Herrold and a female occupant of the trailer to purchase cocaine.

7. Subsequent to the alleged sale, Herrold was arrested in his home by Pennsylvania State Trooper Kenneth F. Hill who arrested him without first obtaining an arrest warrant.

8. Steve Landis is the confidential police informant who allegedly purchased drugs from Herrold on August 24, 1990. (U)

9. Steve Landis lives at RD # 1, Selinsgrove, Pennsylvania. (U)

10. Trooper Hill is assigned to the Region IV Narcotics Strike Force in State College.

11. Detective Ray C. Gerringer is the Chief Deputy Sheriff and Chief County Detective in Montour County. (U)

12. On August 24, 1990, Ray C. Gerringer was serving in conjunction with the SUN (Snyder, Union, Northumberland) Area Task Force under the supervision of Trooper Hill. (U)

13. Ray C. Gerringer was a member of the surveillance team observing Herrold on August 24, 1990. (U)

14. Sergeant J. Martin Berthelsen is employed by the Mahoning Township Police Department. (U)

15. On August 24, 1990, Sergeant Berthelsen was assigned to the SUN Area Task Force under the supervision of Trooper Hill. (U)

16. On August 24, 1990, Sergeant Berthelsen was a member of the surveillance team observing Herrold's residence. (U)

17. Chief Ramer is employed by Riverside, Pennsylvania, Police Department. (U)

18. On August 24, 1990, Chief Ramer was serving in conjunction with the SUN Task Force under the supervision of Trooper Hill. (U)

19. On August 24, 1990, Chief Ramer was a member of the surveillance team observing Herrold's residence. (U)

20. Detective/Sergeant Thomas Garlock is employed by the Sunbury, Pennsylvania, City Police Department. (U)

21. On August 24, 1990, Sergeant Garlock was serving in conjunction with the SUN Area Task Force under the supervision of Trooper Hill.

22. N. Haas is a Pennsylvania State Trooper. (U)

23. On August 24, 1990, Trooper Haas was assigned to assist the SUN Area Task Force and served under the supervision of Trooper Hill.

24. Robert Avvisoto is a Pennsylvania State Trooper. (U)

25. Trooper Avvisoto was assigned to assist the SUN Area Task Force on August 24, 1990, serving under the direction of Trooper Hill. (U)

26. In 1988, Landis was approached by Trooper Hill and advised that on the basis of certain activities he could be arrested for the possession of illegal drugs.

27. Landis has been working in an undercover capacity as a police informant for Trooper Hill.

28. On Wednesday, August 22, 1990, Landis allegedly met with Herrold and discussed purchasing drugs from Herrold. (U)

29. Herrold and Landis met in Freeburg, Pennsylvania, on August 22, 1990. (U)

30. On August 22, 1990, Landis allegedly gave Herrold $300 for the drugs. (U)

31. On August 22, 1990, Landis and Herrold allegedly arranged to consummate the drug sale on Friday, August 24, 1990. (U)

32. On or about August 22, 1990, Landis telephoned Trooper Hill to advise him of his meeting with Herrold and of the proposed drug transaction on August 24, 1990.

33. The original plan for the drug transaction was for Herrold to bring the drugs to Landis' home in Selinsgrove and to consummate the deal in Selingsgrove, Pennsylvania, on August 24, 1990, at Landis' residence. (U)

34. On August 24, 1990, the surveillance team met between approximately 5:00 and 5:30 p.m. at the Pennsylvania State Police Barracks. (U)

35. On August 24, 1990, Trooper Hill strip-searched Landis at his home prior to proceeding to Herrold's residence.

36. On August 24, 1990, Detective Ray C. Gerringer and Sergeant J. Martin Berthelsen conducted a search of Landis' vehicle prior to proceeding to Herrold's residence.

37. Sergeant Garlock and Chief Ramer, who were in Sergeant Garlock's vehicle, were sitting at an assigned location conducting surveillance near Landis' home. (U)

38. Garlock and Ramer were in radio communication with Trooper Hill or Sergeant Berthelson at all times. (U)

39. On the evening of August 24, 1990, Landis telephoned Herrold. (U)

40. Herrold did not come to the telephone; however, Landis spoke with Herrold's girlfriend, Barbara Crowther. (U)

41. Crowther indicated that she and Herrold would be up to Landis' home shortly. (U)

42. Following this telephone call, Landis related to Trooper Hill the contents of his conversation with Ms. Crowther. (U)

43. Following the telephone call, Trooper Hill determined that the incident, or drug deal should take place at Herrold's home rather than at the home of Landis.

44. Thereafter, on August 24, 1990, Landis made a second call to Herrold.

45. He did not speak with Herrold but with an older woman and advised her to tell Herrold that Landis would be coming to Herrold's home and to tell Herrold to await his arrival. (U)

46. Subsequently, Trooper Hill notified the other members of the surveillance team who were not with him at Landis' home ...


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