approached him as he was walking toward his vehicle. When the detectives identified themselves as police, Daly fled on foot and left his jacket behind. He was apprehended by the detectives in the parking lot. A subsequent search of the jacket resulted in the confiscation of small quantities of marijuana and cocaine.
12. Detectives then proceeded to Daly's sixteenth floor apartment, number 16B, fearing that other persons were in the apartment and had observed the apprehension of Daly in the parking lot, in order to secure the premises before executing a search. There, they observed drug paraphernalia in plain view. All these activities and observations, including the events after Daly's exit from the building, were included in Reynolds' affidavit.
13. At the evidentiary hearing on July 17-18, 1996, several witnesses testified regarding the events leading up to Daly's November 21 arrest, including Reynolds, Spagnoletti, the detectives at the Hill Tower apartment complex, Reilly, Ed Bradley (an innocent bystander who observed the arrest), Daniella Desiderio (Daly's friend), Joseph McCarrick (Daly's friend), and Daly himself. Reilly testified that he had never travelled to Florida with Daly and that he had never been involved in drug trafficking activities with Daly. Desiderio and McCarrick testified that they had seen Daly in Pennsylvania on November 18, 1995; however, Daly revealed that he had been in Florida from November 12 to 14. Reynolds testified that he began preparing his affidavit in support of the warrant earlier on the day of November 21, 1995.
14. The detectives' testimony revealed that they had begun their surveillance of the Hill Tower apartment complex at approximately 11:00 a.m. Moreover, the four detectives who had set up surveillance had been wearing plain clothes and had been driving an Acura Legend and a BMW. In addition, when the detectives "approached" Daly to speak with him, they drove the BMW immediately behind Daly's vehicle and effectively "blocked" his car into its parking space. Daly had not yet entered the vehicle and immediately fled on foot, under the belief, according to Daly, that he was being accosted by drug dealers, not police officers.
15. After the detectives apprehended Daly, two of them accompanied him to the BMW, where they awaited the issuance of the search warrant. Believing that Reilly may have been in Daly's apartment and could have destroyed evidence while in the apartment, the other two detectives went upstairs to secure the apartment, where they observed drug paraphernalia in plain view. Defendant produced photographs which revealed that a person in the apartment could not see activity in the parking lot unless he or she were standing outside on the balcony.
16. The search warrant was signed by the issuing authority at approximately 4:35 p.m., whereupon Reynolds contacted the detectives at the scene and informed them they could commence their search. Reynolds himself arrived with the warrant at approximately 5:10 p.m., by which time the search of apartment 16B was nearly completed.
B. The Academy Road Apartment
17. The second half of defendant's motion to suppress concerns the evidence seized at the apartment at 11909 Academy Road on January 20, 1996. The search warrant for this apartment was also based on the sworn affidavit of Detective Reynolds.
18. After Daly was arrested on November 21, 1995, he posted bail on December 7, 1995, but failed to appear for his preliminary hearing five days later. A bench warrant was issued for his arrest.
19. On January 11, 1996, Reynolds was first contacted by Special Agent Judith Tyler ("Tyler"), with whom Reynolds had previously worked in her capacity as a narcotics investigator with the Federal Bureau of Investigation. Tyler had called to inquire whether Daly was a fugitive in Philadelphia. She informed him that a confidential source ("CS"), who was known by her to be accurate and reliable, had told her that he knew Daly.
20. The CS stated that Daly had dyed his hair and was seeking false identification in order to elude law enforcement authorities. The CS also told Tyler that Daly was planning to travel by car to Florida on January 12, 1996, in order to obtain cocaine for distribution in Philadelphia, that Daly would return to Philadelphia on January 15, 1996, and that this was Daly's modus operandi for acquiring cocaine. The CS later informed Tyler that, sometime between January 15 and January 18, Daly had told the CS that he had cocaine available for sale.
21. Furthermore, the CS stated that he knew the specific telephone number at which Daly could be contacted, since he had spoken with Daly at that number sometime within the week preceding January 20, 1996. Reynolds' subsequent check of the number with the telephone company revealed that the phone was subscribed under the name of David Meckling, at 11909 Academy Road, first floor apartment, Philadelphia, Pennsylvania.
22. Finally, the CS described one of the vehicles driven by Daly. Reynolds' later investigation of the vehicle, however, revealed that it was not registered under Daly's name. Yet, when Reynolds visited the 11909 Academy Road location on January 19, 1996, he saw the same vehicle in the rear parking lot of the building.
23. On January 20, 1996, Reynolds and other members of his unit set up surveillance at 11909 Academy Road in an attempt to arrest Daly on his outstanding warrant. At approximately 12:00 p.m., the detectives observed Daly exit the rear of the building and enter a vehicle that did not match the description of the one identified by the CS. Shortly thereafter, Daly was arrested a few blocks away from the apartment building. A search of his person incident to the arrest resulted in the seizure of approximately one ounce of cocaine.
24. Other detectives then proceeded to the first floor apartment at 11909 Academy Road and informed the occupants that the police were going to obtain a search and seizure warrant for those premises. All these activities and observations, including the events after Daly's arrest, were included in Reynolds' affidavit in support of the search warrant.
25. At the evidentiary hearing on July 17-18, 1996, additional details regarding these events were brought to the Court's attention. The testimony primarily involved two issues: the identity of Tyler's confidential source
and the sequence of events involving the search of the first floor apartment.
26. Daly produced several witnesses who testified that the apartment had been searched prior to the signing of the search warrant at approximately 3:15 p.m. Among the individuals who testified regarding this search were Sharleen Angelastro, the acting assistant manager of 11909 Academy Road who had been conducting an "open house" viewing of another apartment in the building that day, Jonathan Allebach, Ms. Angelastro's fiance who had come to assist her with the open house and to escort her home, and Susan DiGregorio, Daly's girlfriend who had been visiting Daly in the Academy Road apartment when it was secured and searched by the police.
27. Ms. Angelastro testified that, prior to entering the apartment, the police had knocked and identified themselves as "management," not as the police. She further testified that she had entered the apartment while the police were present, and had observed that the apartment had been "turned upside down," in that she had seen a ripped mattress, tiles that had fallen off the ceiling, and sofa cushions and fish tank rocks on the floor. In addition, she had observed an item of furniture resembling a large wash basin being removed at approximately 1:00 or 1:30 p.m. that day, and was certain that the apartment had been "ransacked" before 2:30 that afternoon. She left work that day at 3:20 p.m.
28. Her fiance, Mr. Allebach, testified that, although he had seen nothing taken out of the apartment, he had heard noises of objects being moved around inside the apartment. He also testified that he had heard the police identify themselves as "management." Furthermore, he corroborated Ms. Angelastro's departure time as 3:20 p.m., having left the building with her.
29. Defendant's third witness, Ms. DiGregorio, likewise testified that the police had identified themselves as "management" when they knocked, but that, when she opened the door, she saw police officers and drug enforcement agents. She also stated that as soon as the police entered the apartment, they began looking around, and that, in her opinion, the search was finished by 2:30 p.m. She testified that the police never showed her a search warrant and spent several hours snacking and watching television in the apartment, while she sat on the living room floor. The fact that the search warrant never arrived at the premises was corroborated by the Government's witnesses, who had given a copy of the warrant to Daly at the police station.
30. Ms. DiGregorio, however, admitted to having been "pretty drunk" at a party held in the apartment the previous evening and that as a result she had been "messed up" when the police appeared the following day. She also testified that she was not a resident of the apartment, but had merely been visiting Daly for the weekend. Moreover, she admitted that, when the police first asked her for her name, she had given them a false name.
A. Probable Cause and Search Warrants
31. The Fourth Amendment to the United States Constitution provides that
the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
U.S. Const. amend. IV. The Amendment "protect[s] the basic right to be free from unreasonable searches and seizures" and "requires that warrants be particular and supported by probable cause." Payton v. New York, 445 U.S. 573, 584, 100 S. Ct. 1371, 1379, 63 L. Ed. 2d 639 (1980). It is clear that the "physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed." Id. at 585, 100 S. Ct. at 1379-80 (quoting United States v. United States District Court, 407 U.S. 297, 313, 92 S. Ct. 2125, 2134, 32 L. Ed. 2d 752 (1972)).
32. "The Fourth Amendment contains no provision expressly precluding the use of evidence obtained in violation of its commands, and an examination of its origin and purposes makes clear that the use of fruits of a past unlawful search or seizure works no new Fourth Amendment wrong." United States v. Leon, 468 U.S. 897, 906, 104 S. Ct. 3405, 3411, 82 L. Ed. 2d 677 (1984) (citing United States v. Calandra, 414 U.S. 338, 354, 94 S. Ct. 613, 623, 38 L. Ed. 2d 561 (1974)) (internal quotations omitted). Enforcement of the Fourth Amendment thus depends upon judicial application of the exclusionary rule. "The rule . . . operates as a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal constitutional right of the party aggrieved." Id. at 906, 104 S. Ct. at 3412 (citing Calandra, 414 U.S. at 348, 94 S. Ct. at 620) (internal quotations omitted). Application of the exclusionary rule requires that evidence obtained during a search or seizure violative of the Fourth Amendment must be suppressed, unless the actions of the government agents fall under one of the judicially sanctioned exceptions to the exclusionary rule.
33. The test to determine whether probable cause exists to support the issuance of a search warrant is the totality-of-the-circumstances approach. Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2332, 76 L. Ed. 2d 527 (1983). The Supreme Court has defined "probable cause" as "a fair probability that contraband of evidence of a crime will be found in a particular place." Id. Probable cause "is a fluid concept -- turning on the assessment of probabilities in particular factual contexts -- not readily, or even usefully, reduced to a neat set of legal rules." Id. at 232, 103 S. Ct. at 2329. Among the factors that are relevant, but not necessarily dispositive, to a court's determination of probable cause under this approach are the reliability of an informant, the informant's basis of knowledge, corroboration of information through other sources, an informant's predictions of future plans, and the level of detail of the information provided.
If, for example, a particular informant is known for the unusual reliability of his predictions of certain types of criminal activities in a locality, his failure, in a particular case, to thoroughly set forth the basis of his knowledge surely should not serve as an absolute bar to a finding of probable cause based on his tip. Likewise, if an unquestionably honest citizen comes forward with a report of criminal activity -- which if fabricated would subject him to criminal liability -- we have found rigorous scrutiny of the basis of his knowledge unnecessary. Conversely, even if we entertain some doubt as to an informant's motives, his explicit and detailed description of alleged wrongdoing, along with a statement that the event was observed firsthand, entitles his tip to greater weight than might otherwise be the case. Unlike a totality-of-the-circumstances analysis, which permits a balanced assessment of the relative weights of all the various indicia of reliability (and unreliability) attending an informant's tip, the "two-pronged test" [the former approach which required proof of the veracity and the basis of knowledge of an informant] has encouraged an excessively technical dissection of informants' tips, with undue attention being focused on isolated issues that cannot sensibly be divorced from the other facts presented to the magistrate.
Id. at 233-34, 103 S. Ct. at 2329-30.
34. In applying the totality-of-the-circumstances approach to adjudicate motions to suppress evidence for lack of probable case to support a search warrant, the Third Circuit, like the Supreme Court, has cautioned against the application by a reviewing court of "an unduly narrow standard for evaluating probable cause." United States v. Conley, 4 F.3d 1200, 1203 (3d Cir. 1993), cert. denied, 510 U.S. 1177, 127 L. Ed. 2d 564, 114 S. Ct. 1218 (1994).
The district court [may] exercise only a deferential review of the initial probable cause determination by the magistrate. A magistrate's determination of probable cause should be paid great deference by reviewing courts. The duty of the reviewing court is simply to ensure that the magistrate had a substantial basis for concluding that probable cause existed. Keeping in mind that the task of the issuing magistrate is simply to determine whether there is a fair probability that contraband or evidence of a crime will be found in a particular place, a reviewing court is to uphold the warrant as long as there is substantial basis for a fair probability that evidence will be found.
Id. at 1205 (citing Gates, 462 U.S. at 236-38, 103 S. Ct. at 2330-2331) (internal quotations omitted). "[A] reviewing court may not conduct a de novo review of a probable cause determination. Even if a reviewing court would not have found probable cause in a particular case, it must nevertheless uphold a warrant so long as the issuing magistrate's determination was made consistent with the minimal substantial basis standard." Id. (citing Gates, 462 U.S. at 236, 103 S. Ct. at 2331).
35. With respect to probable cause supporting the issuance of search warrants, the Third Circuit has further noted that "courts . . . must bear in mind that search warrants are directed, not at persons, but at property where there is probable cause to believe that instrumentalities or evidence of crime will be found. The affidavit in support of a warrant need not present information that would justify the arrest of the individual in possession of or in control of the property." Id. at 1207 (citing United States v. Tehfe, 722 F.2d 1114, 1117-18 (3d Cir. 1983), cert. denied, 466 U.S. 904, 104 S. Ct. 1679 (1984)).
36. "Direct evidence linking the place to be searched to the crime is not required for the issuance of a search warrant. Instead, probable cause can be, and often is, inferred by considering the type of crime, the nature of the items sought, the suspect's opportunity for concealment and normal inferences about where a criminal might hide stolen property." Id. (citations omitted). Moreover, the Third Circuit has held that, even when a reviewing court may find innocuous explanations for each detail in an informant's tip, the issuing authority is entitled to infer that, when viewed together, the details give rise to a belief that evidence of illegal activity will more likely than not be found on the premises to be searched. United States v. Williams, 3 F.3d 69, 73 (3d Cir. 1992). Thus, the district court's role in making probable cause determinations on affidavits in support of applications for search warrants is "quite limited." Conley, 4 F.3d at 1205.
37. Consistent with the limited role of a reviewing court on a motion to suppress, the Third Circuit has provided that, in a case where certain factual averments in a supporting affidavit may be "tainted" by police misconduct, those averments do not necessarily vitiate a warrant which is otherwise supported by probable cause reflected in the affidavit. United States v. Herrold, 962 F.2d 1131, 1138 (3d Cir.), cert. denied, 506 U.S. 958, 113 S. Ct. 421, 121 L. Ed. 2d 344 (1992). The proper procedure under such a set of facts is to examine the affidavit for probable cause after excising the tainted averments.
38. Furthermore, the Third Circuit has noted two exceptions to the exclusion of evidence that was improperly obtained.
The inevitable discovery doctrine permits introduction of "evidence that inevitably would have been discovered through lawful means, although the search that actually led to the discovery of the evidence was unlawful." Id. at 1140. "If the prosecution can establish by a preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawful means . . . then the deterrence rationale [in deterring police misconduct] has so little basis that the evidence should be received." Id. at 1139 (quoting Nix v. Williams, 467 U.S. 431, 444, 104 S. Ct. 2501, 2509, 81 L. Ed. 2d 377 (1984)).
39. In contrast, under the independent source doctrine, "evidence that was in fact discovered lawfully, and not as a direct or indirect result of illegal activity, is admissible." Id. at 1140. "The interest of society in deterring unlawful police conduct and the public interest in having juries receive all probative evidence of a crime are properly balanced by putting the police in the same, not a worse position, that they would have been in if no police error or misconduct had occurred. . . . When the challenged evidence has an independent source, exclusion of such evidence would put the police in a worse position than they would have been in absent any error or violation." Id. at 1139 (quoting Murray v. United States, 487 U.S. 533, 537, 108 S. Ct. 2529, 2533, 101 L. Ed. 2d 472 (1988) (quoting Nix, 467 U.S. at 443, 104 S. Ct. at 2509)).
40. The key distinction between these doctrines is that independent source "focuses on what actually happened," whereas inevitable discovery "considers what would have happened in the absence of the initial [illegal] search." Id. Both doctrines are relevant to the instant case.
41. Additionally, the Court notes that law enforcement officials may enter and secure apartments from within if they act on probable cause and under exigent circumstances. Segura v. United States, 468 U.S. 796, 810, 104 S. Ct. 3380, 3388, 82 L. Ed. 2d 599 (1984). "As a practical matter, officers who have probable cause and who are in the process of obtaining a warrant have no reason to enter the premises before the warrant issues, absent exigent circumstances which, of course, would justify the entry." Id. at 812, 104 S. Ct. at 3389. "Before agents of the government may invade the sanctity of the home, the burden is on the government to demonstrate exigent circumstances that overcome the presumption of unreasonableness that attaches to all warrantless home entries." Welsh v. Wisconsin, 466 U.S. 740, 750, 104 S. Ct. 2091, 2098, 80 L. Ed. 2d 732 (1984).
42. Finally, with respect to the physical presence of search warrants at the place to be searched, Federal Rule of Criminal Procedure 41(d) provides that "the officer taking property under the warrant shall give to the person from whom or from whose premises the property was taken a copy of the warrant and a receipt for the property taken or shall leave the copy and receipt at the place from which the property was taken." Fed. R. Crim. P. 41(d). "Nothing in the fourth amendment or Rule 41 requires that the search warrant be physically present prior to commencing the search." United States v. Hepperle, 810 F.2d 836, 839 (8th Cir.) (citing, inter alia, Katz v. United States, 389 U.S. 347, 355 n.16, 88 S. Ct. 507, 513 n.16, 19 L. Ed. 2d 576 (1967)), cert. denied, 483 U.S. 1025, 107 S. Ct. 3274 (1987).
B. Reasonable Suspicion and Terry Stops
43. The case law regarding the authority of law enforcement officers to stop and temporarily detain citizens short of an arrest is well-settled. See Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). As the Third Circuit most recently stated, "under Terry, a police officer may detain and investigate citizens when he or she has a reasonable suspicion that criminal activity may be afoot." United States v. Roberson, 90 F.3d 75, No. 95-1827, 1996 WL 394030, at *2 (3d Cir. 1996) (citing Terry, 392 U.S. at 30, 88 S. Ct. at 1884).
44. In Roberson, where the police officers received an anonymous tip that the defendant was a drug-dealer, but observed only innocent activity on the part of the defendant before stopping him, the Third Circuit held that "the police do not have reasonable suspicion for an investigative stop when . . . they receive a fleshless anonymous tip of drug-dealing that provides only readily observable information, and they themselves observe no suspicious behavior." Id. at *7. The court went on to note, however, that the police officers could have engaged in a variety of activities which may have given rise at least to a reasonable suspicion to stop the defendant:
We note that the government was not powerless to act on the non-predictive, anonymous tip they received. The officers could have set up surveillance of the defendant. If the officers then observed any suspicious behavior or if they had observed suspicious behavior as they approached the defendant in this case, they would have had appropriate cause to stop -- and perhaps even arrest -- him. . . . In the absence of any observations of suspicious conduct or the corroboration of information from which the police could reasonably conclude that the anonymous tipster's allegation of criminal activity was reliable, we must conclude that there was no reasonable suspicion to stop the defendant.