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U.S. v. JONES

November 3, 2005.

UNITED STATES OF AMERICA Plaintiff
v.
TYRONE JONES, Defendants.



The opinion of the court was delivered by: WILLIAM CALDWELL, Senior District Judge

MEMORANDUM

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 capacity.

  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 residence.

  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 search warrant.

  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 Detective Cornick.

  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 ...


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