The opinion of the court was delivered by: Judge Kane
Pending before the Court is Defendant's motion to suppress the seizure of a handgun recovered during a police search of his apartment in York, Pennsylvania. The Government has filed a timely brief opposing the motion, and the Court convened an evidentiary hearing on January 24, 2006. Upon due consideration of the briefs and the evidence submitted, the Court concludes that the seizure of the handgun must be suppressed because it was recovered pursuant to a search warrant issued without probable cause, and because the good faith exception to the exclusionary rule does not apply.
In September 2000, Detective James McBride of the Vice and Narcotics Division of the York City Police Department was investigating reports from a confidential informant that a "drug vending operation" was being conducted out of the first floor apartment at 456 Lincoln Street in York, Pennsylvania. On September 5, 2000, Detective McBride picked up the trash placed in the alley to the rear of 456 Lincoln Street. In this trash pull, Detective McBride recovered, among other things, approximately 12 sandwich baggies that had been cut up in a method consistent with packaging controlled substances, and marijuana stems that field tested positive. (Govt. Ex. 1.) On September 7, 2000, Detective McBride again pulled the trash behind 456 Lincoln Street and recovered a marijuana joint, a marijuana stem, and a bill and a note addressed to Zulieka Woodward of 456 Lincoln Street. (Id.) Additionally, Detective McBride found one sandwich baggie that had been cut up with the corners missing. (Id.) On the basis of the foregoing information, on September 7, 2000, Detective McBride applied for and obtained a warrant to search the first floor apartment at 456 Lincoln Street to search for the following items:
Marijuana, a Schedule I controlled substance along with any other drugs and/or paraphernalia, packageing [sic] materials, scales, business records and other documentary and physical items relating to the possession, distribution and sale of narcotic and dangerous drugs, also any person there to prevent the concealment or destruction of evidence.
On September 8, 2000, Detective McBride, accompanied by six other law enforcement officers, executed the warrant to search the first floor apartment at 456 Lincoln Street. This search yielded, inter alia, approximately $600 in cash, a scale, a quantity of cocaine,*fn1 loose marijuana and a marijuana "blunt" cigarette, several papers addressed to Anthony Alston, and a photograph of Zulieka Woodard and Anthony Alston. (Id.)
Immediately following this search, Detective McBride applied for a second search warrant, this time to search Anthony Alston's apartment at 1210 West King Street, York, Pennsylvania. In support of this second application, Detective McBride submitted a very brief affidavit, set forth in its entirety below:
The undersigned is Det. James McBride, who is presently assigned to the Vice and Narcotics Division of the York City Police Dept. Based on the following information I believe that there is probable cause to believe that a drug vending and/or storage operation is being conducted from the [1210 West King Street] apartment. On 9-8-00 at approx. 0935hrs officer executed a search warrant at 456 Lincoln St. 1st Fl. and recovered a large quantity of cocaine, [illegible], cash and paraphernalia, also marijuana. Field tested positive for marijuana and cocaine. Among the cocaine was [sic] papers to Anthony Alston of 1210 W. King St. Officers talked to Zulieka Woodard of 456 Lincoln St. 1st Fl. and learned that her boyfriend Anthony Alston stays over night from time to time and lives at 1210 W. King St. 2nd Fl. She advised that the cocaine found in her apartment was Anthony Alston's. The quanity [sic] of cocaine recovered was several ounces yet there was only a small amount of cash. Woodard advised that Alston stays over night and then returns to his apartment of 1210 W. King St. Due to the size of this operation in my experience there should be more cash involved and probable cause to believe that Anthony Alston would store more quanity [sic] of cocaine and cash at his apartment. A criminal history check of Anthony Alston showed that he has a prior record for possession with intent to deliver controlled substance. Ms. Woodard advised that [Alston] drives a light colored 1990 Honda PA Reg # CCB-2812 to get from W. King St. to Lincoln St. and back. (Govt. Ex. 2.)
On the basis of the foregoing affidavit, a magistrate issued the requested warrant. On September 8, 2000, Detective McBride and three other law enforcement officers searched Defendant's apartment less than 2 1/2 hours after the search of 456 Lincoln Street. The search of Defendant's apartment yielded, inter alia, a loaded .380 semi-automatic handgun and ammunition.
On September 8, 2000, Defendant was charged in the Court of Common Pleas of York County with possession with the intent to deliver cocaine, criminal conspiracy to possess cocaine with the intent to deliver, and unlawful possession of a firearm. Following a suppression hearing held January 29, 2001, the Court of Common Pleas upheld the search of 456 Lincoln Street, but found the search warrant for 1210 West King Street lacked probable cause and therefore suppressed the seizure of the firearm from Anthony Alston's apartment. Following a jury trial held in July 2001, Defendant was found guilty of possession with intent to deliver cocaine and conspiracy with intent to deliver cocaine. Defendant was permitted to remain free on bail pending sentencing, and thereafter failed to appear.
On October 10, 2001, Defendant was indicted in federal court for possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1). On October 4, 2005, Defendant was arraigned before Magistrate Judge J. Andrew Smyser, and pled not guilty to the charge.*fn2 On November 21, 2005, Defendant moved to suppress the seizure of the .380 handgun recovered during the search of 1210 West King Street. The Government filed a timely brief in opposition to the motion. On January 24, 2006, the Court held an evidentiary hearing on the motion during which Detective McBride testified.
The Fourth Amendment to the United States Constitution provides:
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. "One's home is sacrosanct, and unreasonable government intrusion into the home is 'the chief evil against which the wording ...