United States District Court, M.D. Pennsylvania
November 3, 2005.
UNITED STATES OF AMERICA Plaintiff
TYRONE JONES, Defendants.
The opinion of the court was delivered by: WILLIAM CALDWELL, Senior District Judge
We are considering Defendant's motions to suppress evidence.
(Docs. 27, 35, 46). On October 25, 2005, we held a hearing to
determine whether evidence seized from, and statements made by,
the Defendant should be suppressed because the police made an
invalid warrantless entry into his residence and subsequently
obtained and relied upon a facially invalid search warrant to
search that residence. At the hearing, the Government presented
the testimony of Detective Sean Cornick, Detective Shawki Lacey,
and Drug Enforcement Administration (DEA) Agent Keith
Kierzkowski. The Defendant did not present any testimony.
On June 14, 2005, Agent Kierzkowski informed Detective Cornick
that he had a confidential informant (CI) who could facilitate a
drug transaction with an individual known as "Roni." As a result
of this information, a meeting was set up between Roni and the CI
so that the CI could purchase three ounces and an "8-ball" of
crack cocaine. The CI would be accompanied to the meeting by Detective Lacey, who was acting in an undercover
According to Detective Lacey, the CI was searched for
contraband and money prior to the meeting. Although the
pre-arranged purchase was for approximately $2500.00 worth of
crack cocaine, the CI was not given any money to complete the
transaction. Instead, the plan was to arrest Roni once it was
confirmed that he possessed the drugs.
Detective Lacey and the CI drove to Sixth and McClay Streets in
Harrisburg. Once there, the CI called Roni and was told to
proceed to the area of Fifth and Woodbine Streets. After a second
call to Roni the CI saw him walking north on Fifth Street. The CI
exited the vehicle, following Roni to a nearby alley. Detective
Lacey remained in the vehicle and could see the CI and Roni until
they went into the alley. He then moved the vehicle so that he
could maintain visual contact. At no time could he hear the
conversation between the CI and Roni.
Detective Lacey witnessed the CI and Roni converse for
approximately thirty seconds before the CI returned to the
vehicle. He informed Detective Lacey that Roni had a large
quantity of crack with him but that Roni was nervous, asked about
the police because he had seen people in cars, and wanted to go
to a different location. The CI asked Detective Lacey to drive
off to divert suspicion and he did so. Eventually, DEA agents
told Lacey where to find the CI. Once Detective Lacey picked him up,
the CI reaffirmed that Roni had shown him the crack cocaine.
Detective Lacey relayed all of this information to Detective
Cornick. At no time, however, did Detective Lacey see any drugs.
After Roni left the alley, Detective Cornick, having been
informed by Detective Lacey of Roni's reluctance to complete the
transaction, ordered the other officers in the area to continue
surveillance. Detective Hooper radioed Cornick that Roni entered
2212 North Fourth Street. Detective Cornick ordered that a
perimeter be established around the house. This perimeter
included Orange Alley, which ran along the back of the residence.
Once the perimeter was established, Detective Cornick, wearing a
marked police jersey and accompanied by officers in full police
uniform, approached the residence and knocked on the front door,
announcing that they were the police. Detective Cornick could see
through the glass door that two females and a child were in the
While he was knocking on the door, Detective Cornick received a
radio transmission from Officer Mauer, who was located at the
rear of the residence, that a black male was throwing things from
the roof of the residence. Detective Cornick continued to knock
on the door and announce the presence of the police. He then
received a second transmission from Officer Mauer which indicated
that the individual had thrown crack cocaine and a handgun from the roof. At this point, Detective Cornick and the
other officers made a forced entry into the residence and
performed a protective sweep. They secured the first floor and
then continued to the second floor where they found the two
females and the child. Detective Cornick found the Defendant on
the third floor. All of the individuals were then taken to the
living room where Cornick informed them that he would be
obtaining a search warrant for the residence. During the course
of the sweep, crack cocaine and marijuana were seen in the
bathroom toilet but they were not removed.
Detective Cornick obtained the warrant at 11:17pm on June 14,
2005. He returned to the residence where he advised the occupants
of the contents of the warrant and gave them their Miranda
warnings. A search was then conducted in which quantities of
marijuana, crack cocaine, powdered cocaine, and other items were
found. To Detective Cornick's knowledge, no search, other than
the protective sweep, was done prior to the issuance of the
According to Agent Kierzkowski's testimony, prior to securing
the occupants he had positioned himself in the alley behind the
residence. He was accompanied by a number of other officers,
including Officer Mauer. Almost immediately an object, which he
later determined to be loaded gun, flew by his head. He also saw
a chalk-like substance hit the ground. He picked it up and, based on his experience, identified it as crack cocaine.
From a distance of about fifty to sixty feet, in adequate
lighting, he observed the Defendant throwing bags and other items
from the roof. He instructed Officer Mauer to relay this
information to Detective Cornick.
Agent Kierzkowski then entered the residence. He read the
Defendant his Miranda warnings but asked no questions. The
Defendant told him, however, that all of the drugs in the house
were his and did not belong to the other occupants. The Defendant
also made this statement, along with other statements, to
With regard to the warrant, the application was made on June
14, 2005, and the affidavit in support of the warrant was dated
June 14, 2005. However, the body of the affidavit indicates that
June 15, 2005, was the date of occurrence for the events
supporting probable cause. Detective Cornick testified that this
was a typographical error and that although he had read over the
affidavit, he had not noticed it. Further, although the house to
be searched was identified as 2212 North Fourth Street, the
inventory receipt from the search indicates that a copy of the
receipt, warrant, and affidavit were left at 2214 North Fourth
Street. Detective Cornick testified that he wrote "2214" but that
this was an error and that it should have been "2212." The Defendant argues that the items thrown from the roof of the
residence should be suppressed because the circumstances in which
they were thrown constitute a forced abandonment. This argument,
however, is dependant upon a showing that the items were thrown
from the roof after the police entered the residence. He
further argues that all items seized should be suppressed because
the warrantless entry was unlawful and as such, any resulting
search was unlawful. The Government maintains that the
Defendant's forcible abandonment argument must fail because the
officers entered the residence after the Defendant began to throw
items from the roof. The United States further argues that no
search, other than a protective sweep, was done until a search
warrant was obtained and that the officers had probable cause and
exigent circumstances before entering the house.
The Defendant's forcible abandonment argument must fail. The
abandonment of property "is not voluntary if it is the result of
a preceding Fourth Amendment violation or other illegal police
conduct." United States v. Perkins, 871 F.Supp. 801, 803 (M.D.Pa
1995) (McClure, J.). The only argument that the Defendant offers
to support his theory is that the items were thrown from the roof
after the officers entered the house. However, Detective Cornick
testified that he entered the house after Officer Mauer informed
him that a gun and drugs were thrown from the roof. We find this
testimony to be credible. United States v. Scarfo, 180 F.Supp.2d 572, 576 (D.N.J. 2001) (stating that issues of credibility and
weight given to evidence are to be decided by the trial judge at
a suppression hearing). As such, the gun and drugs thrown from
the building could not have been forcibly abandoned as a result
of the entry and we cannot grant suppression on that basis.
The Defendant also contends that the forced entry was unlawful.
However, once Detective Cornick was informed that items were
being thrown from the roof, probable cause existed to enter the
residence. See United States v. Acosta, 786 F.Supp. 494, 500
(E.D.Pa. 1992) (finding that probable cause existed once the
agent at the front door of the apartment was informed that
"stuff," which was interpreted to mean cocaine, was being thrown
from the window of the apartment), rev'd on other grounds
965 F.2d 1248 (3d Cir. 1992). In order for the entry to be lawful,
exigent circumstances must also have existed.
When officers possess "probable cause to believe contraband is
present" and are also faced with circumstances where "they
reasonably conclude that the evidence will be destroyed or
removed before they can secure a warrant, a warrantless search is
justified." United States v. Rubin, 474 F.2d 262, 268 (3d Cir.
1973). In determining whether the circumstances surrounding the
warrantless entry and search are exigent, courts have looked to:
(1) the degree of urgency involved and the amount of
time necessary to obtain a warrant: . . . (2)
reasonable belief that the contraband is about to be removed; . . . (3) the possibility of
danger to police officers guarding the site of the
contraband while a search warrant is sought; . . .
(4) information indicating the possessors of the
contraband are aware that the police are on their
trail; . . . and (5) the ready destructibility of the
contraband and the knowledge that efforts to dispose
of narcotics and to escape are characteristic
behavior of persons engaged in the narcotics traffic.
Id. at 268-9 (internal citations and quotations omitted).
In the instant case, the evidence shows that the Defendant was
nervous while speaking with the CI and asked the CI about
possible police presence. Once the Defendant returned to his
residence, he disposed of contraband and a firearm by throwing
them off the roof of his house. He continued to dispose of items
from the roof even though there were officers in the alley behind
the house and at the door of his residence. As such, we find that
the officers who entered the house possessed a reasonable belief
that contraband was being removed and a reasonable belief that
the Defendant knew that the police had followed him and were at
his residence. We further find that there was sufficient urgency
as the officers were aware that the Defendant was actively
removing drugs and other items from the residence. While there is
no evidence that the officers attempted to obtain a search
warrant prior to entering the residence, under the circumstances
of this case, the officers could have reasonably "concluded that
even a short wait might have been too long." Id. at 269-70.
Finally, although the officers entered the house and made a protective
sweep, a search warrant was obtained prior to any search for
contraband in the residence. Taking all of these factors into
consideration, we conclude that sufficient exigent circumstances
existed to justify the warrantless entry into the residence.
The Defendant's next argument is that the search warrant was
facially invalid and supported by an obviously false affidavit.
He also argues that the warrant is an invalid general warrant.
The Government responds by contending that the discrepancy
between the dates in the affidavit and the warrant are a
typographical error which amount to a technical defect. The
United States does not address the Defendant's contention that
the warrant is an invalid general warrant.
"An affidavit which contains unwise, poorly crafted or
otherwise defective statements may nevertheless support a valid
warrant." United States v. Conley, 4 F.3d 1200, 1208 (3d Cir.
1993). "[S]tatements in an affidavit may not be read in isolation
the affidavit must be read as a whole." Id. In this instance,
the affidavit contained sufficient information to support a
finding of probable cause. The affidavit contained not only
information regarding the meeting between "Roni" and the CI, but
that a gun and crack cocaine were found at the rear of the house
and that "Roni" was seen throwing items from the roof of the
residence that he entered. (Gov. Ex. 2). We find the testimony of Detective Cornick, that the presence of the date "6-15-2005"
in the affidavit was a typographical error, to be credible. Since
the affidavit contained sufficient probable cause to support the
warrant application, we cannot suppress the evidence on this
ground. We further note that the Defendant's reliance on Groh v.
Ramirez, 540 U.S. 551, 124 S.Ct. 1234, 157 L.Ed.2d 1068 (2004),
to support his argument that the error in the date is more than a
"technical defect" is misplaced. In Groh, the Supreme Court found
that a warrant devoid of any description of the items to be
seized was invalid. Groh, 540 U.S. at 564-6, 124 S.Ct. at 1294-5,
157 L.Ed.2d at 1082-4. An error in a supporting affidavit is
clearly not the same as the failure to include a description of
items to be seized.
The Defendant maintains that the warrant is an invalid general
warrant. He does so by parsing the language used in the search
warrant. However, "the phrases in a search warrant must be read
in context and not in isolation." Conley, 4 F.3d at 1208. The
warrant in this case authorized a search for "Any Contraband,
including but not limited to Cocaine or any controlled substance,
any Drug Paraphernalia, Drug Proceeds, and also any firearms
indicative of ownership." (Gov. Ex. 1). The Defendant contends
that the use of the word "contraband" leaves an officer with
unbridled discretion. However, it is clear from the remainder of
the warrant that the contraband being sought was drugs or other drug-related items. Additionally, the phrase "indicative of
ownership" in not confusing as it is clearly referring to any
firearms that the police may find.
The Defendant's final argument with regard to the entry into
the residence is that since the police failed to announce both
their identity and purpose prior to entering the Defendant's
residence, the entry was unlawful. At the suppression hearing,
Detective Cornick testified that when he knocked on the door of
the Defendant's residence, he announced that the police were
present. There was no testimony, however, as to whether he
announced their purpose. Thus, assuming that he did not announce
their purpose, it is up to the Government to demonstrate that
exigent circumstances existed to justify a failure of the
officers to announce their purpose prior to entering the
residence. United State v. Conley, 859 F.Supp. 887, 890 (W.D.Pa.
1994) (Conley II). We have already determined that the officers'
entry into the house was supported by exigent circumstances. When
Detective Cornick initially knocked on the door he did not know
that items were being thrown from the roof of the house. After he
became aware of the probable cause that existed to enter the
house, it was reasonable for Detective Cornick to believe that
the Defendant knew of the police presence, and its purpose, and
was trying to destroy evidence. Id. at 891. Thus, Detective
Cornick's failure to announce their purpose prior to entering the residence did not
make the entry unlawful.
The Defendant also argues that any statements he made should be
suppressed because since the entry and search of the residence
were unlawful, any statements made are "fruit of the poisonous
tree." The Government argues that since both the entry and search
were lawful, the statements cannot be suppressed under this
theory. Having found that both the entry and search were lawful,
we must agree with the United States and will not suppress the
statements. See Wong Sun v. United States, 371 U.S. 471,
83 S.Ct 407, 9 L.Ed.2d 441 (1963) (finding that statements can be
suppressed if they are the "fruit" of an officer's unlawful
We will enter an appropriate order. ORDER
AND NOW, this 3rd day of November, 2005, it is ordered that the
Defendant's motions to suppress (docs. 27, 35, 46) are denied.
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