The opinion of the court was delivered by: Judge Conner
Presently before the court is defendants' motion to suppress (Doc. 71) all evidence seized pursuant to a warrant executed on March 5, 2007 at Apartment C-42 of an apartment complex located at 85 Bridlewood Way ("the Bridlewood Way apartment"). The court held an evidentiary hearing on defendants' motion on December 18, 2007.*fn1 (See Doc. 83.) The motion has been fully briefed and is ripe for disposition. For the reasons that follow, the motion will be denied.
On May 2, 2007, defendants Randell Jackson ("Randell") and Shawn Jackson ("Shawn") were indicted by a grand jury. The indictment charges each defendant with possession of cocaine base with the intent to distribute, conspiracy to distribute cocaine base, possession of a firearm by a convicted felon, and possession of a firearm during and in connection with a drug trafficking offense. (Doc. 1.) On May 22, 2007, defendants entered pleas of not guilty to each count in the indictment. (Docs. 15, 16.) The allegations in the indictment are based, in large part, upon evidence seized pursuant to search warrants from two separate locations: (1) the Bridlewood Way apartment, and (2) the home of defendants' mother, who resides at 2890 Forrest Lane in York, Pennsylvania ("the Forrest Lane residence").
The facts giving rise to these two searches are as follows. On March 5, 2007, two Bridlewood Way employees, namely maintenance worker Keith Morgan ("Morgan") and property manager Robin Reed ("Reed"), contacted the Springettsbury Township Police Department to assert a drug complaint. (Tr. at 7.) Detective Raymond Craul ("Detective Craul") and a fellow officer met with Morgan and Reed and discovered that Morgan had uncovered evidence of drug activity while investigating a water leak in Apartment C-42. (Doc. 71-2 at 2; see also Tr. at 7-8.) Four days earlier, Morgan had received an emergency complaint that water was leaking from Apartment C-42 into the apartment on the floor below. When Morgan entered Apartment C-42, he discovered that the toilet had malfunctioned and overflowed. (Tr. at 8.) Morgan immediately contacted the apartment's lessee, Zuny Santiago ("Santiago"), and asked her permission to turn off the apartment's water supply. She granted the requested permission. (Id. at 17.) Four days later, Morgan reentered the apartment to repair the problem. (Id.) While in the apartment, Morgan observed that it was sparsely furnished with a sofa, television, and safe. (Doc. 71-2 at 2; see also Tr. at 12-13.) In the kitchen, Morgan noticed several bottles of hydrochloric acid, three bottles of fingernail polish remover, five boxes of baking soda, pans bearing a white residue, and an off-white chunky substance spilled onto the counter and floor. Morgan, believing the substance to be methamphetamine and fearing for the safety of the other residents of the apartment complex, removed a small portion of the substance from the counter and placed it in an envelope. Morgan provided the sample to Detective Craul, who conducted a field test and discovered that the substance tested positive for cocaine. (Doc. 71-2 at 2; see also Tr. at 8, 12.) Reed informed Detective Craul that neighbors had reported high traffic into and out of the apartment during the late evening hours. (Doc. 71-2 at 2.) Based upon this evidence, Detective Craul applied for and was issued a search warrant for Apartment C-42 by Magisterial District Judge Harold Kessler ("Judge Kessler"). Detective Craul applied for the search warrant in person. (Tr. at 17.) Judge Kessler dated, time-stamped, and sealed the search warrant, but neglected to sign it. (Doc. 71-2 at 1.)
At approximately 3:17 p.m., Detective Craul and a number of other officers, including Corporal Craig Fenstermacher ("Corporal Fenstermacher") of the Pennsylvania State Police, executed the search warrant. (Doc. 37 at 1.) The search revealed 1.5 kilograms of cocaine and assorted drug trafficking paraphernalia. (Id.) At approximately 7:15 p.m., Randell Jackson ("Randell") used a key to enter the Bridlewood Way apartment, and he was taken into custody. (Doc. 29-2 at 2.) The officers noted that the apartment was sparsely furnished and contained no food or clothing items. The officers deemed this consistent with a "stash house," meaning that "the primary reason for [the apartment's] use [was] to store the cocaine at a location away from the possessors' actual residence, thus attempting to insulate them from the cocaine." (Id.) The officers determined Randell's residence to be 2890 Forrest Lane in York, Pennsylvania. (Id. at 2-3.) Believing that additional evidence would be located there, Corporal Fenstermacher applied for and was issued a search warrant for 2890 Forrest Lane. (Id. at 1.) The officers executed the warrant at the Forrest Lane residence at approximately 9:50 p.m, and the search uncovered various weapons, drugs, and drug paraphernalia allegedly belonging to both Shawn and Randell. (Doc. 29 ¶ 4; Doc. 29-2 at 4-6.)
Defendants proffer the following arguments in favor of suppression: (1) that the evidence uncovered in both searches must be suppressed because the Bridlewood Way search warrant was unsigned, and (2) that the evidence uncovered in both searches must be suppressed because the Bridlewood Way employees were acting as agents of the government when they uncovered evidence of drug activity. The court will address these issues seriatim.
A. Unsigned Search Warrant
Defendants argue that the evidence uncovered in both searches must be suppressed because the Bridlewood Way search warrant was unsigned. The government counters that the warrant contains sufficient indicia of issuance to be valid and that, even if the warrant were invalid, the good faith exception insulates the search. See United States v. Leon, 468 U.S. 897 (1984). The court will turn first to the question of whether the unsigned warrant was issued.
Provided that a search warrant is applied for in person, the text of neither the Fourth Amendment nor Federal Rule of Criminal Procedure 41 requires the issuing authority to sign the warrant. See U.S. CONST. amend. IV; FED. R. CRIM. P. 41(e)(3)(D) (limiting the requirement that an issuing authority must "immediately sign the original warrant" to telephonic warrants); see also United States v. K. Pierce, 493 F. Supp. 2d 611, 640 (W.D.N.Y. 2006). Instead, the Fourth Amendment dictates that a warrant shall not "issue" unless it is supported by probable cause.
U.S. CONST. amend. IV. Generally, an issuing authority's finding of probable cause is conveyed via his or her signature on a warrant. However, signing a search warrant is just one of a number of methods that an issuing authority may use to signal that the warrant complies with the Fourth Amendment's probable cause requirement. Accord Perrin v. City of Elberton, No. 03-106, 2005 WL 1563530, at *8 (M.D. Ga. July 1, 2005) ("[W]hile an unsigned warrant may not be per se insufficient under the Fourth Amendment, it must be clear to the arresting officers that the substantive requirements of the Fourth Amendment were met -- that a neutral and detached magistrate made a finding of probable cause."); United States v. Evans, 469 F. Supp. 2d 893, 897 (D. Mont. 2007) ("Issuance serves to demonstrate that a neutral and detached magistrate has reviewed the warrant application and affidavit and made an independent and objective determination that probable cause exists to justify the search."). In the absence of a signature, "a court may consider other evidence that the judge found probable cause and approved the warrant." Perrin, 2005 WL 1563530, at *8; see also United States v. Hondras, 296 F.3d 601, 602 (7th Cir. 2002) (stating that issuance is "not synonymous with signing"); Evans, 469 F. Supp. 2d at 897 (stating that issuance requires that a warrant "contain some indication that the search is officially authorized"). To hold otherwise would elevate form over substance and allow inadvertent, procedural errors to vitiate substantively valid warrants. Accord United States v. Turner, 558 F.2d 46, 50 (2d Cir. 1977) (referring to the issuing authority's responsibility to sign a search warrant as a "purely ministerial task" and holding that the Fourth Amendment is satisfied provided that he or she "performs the substantive tasks of determining probable cause and authorizing the issuance of the warrant").
Accordingly, the question becomes what "other evidence" is sufficient to indicate that the issuing authority made a finding of probable cause.*fn3 Other United States District Courts have suggested that the following can constitute indicia of issuance: (1) an indication on the warrant of the date before which the search must be conducted,*fn4 (2) the presence of a case number indicating that the warrant has been filed, (3) the presence of the issuing authority's initials or other imprimaturs of judicial authority on the warrant, and (4) an in-person acknowledgment by the issuing authority to the affiant that probable cause has been found. See, e.g., Evans, 469 F. Supp. 2d at 897 (holding that an unsigned warrant had not been validly issued where the first two indicia were absent); K. Pierce, 493 F. Supp. 2d at 640 (holding that an unsigned warrant had been validly issued where the affiant personally appeared before the magistrate judge who had placed his initials and the abbreviation "USMJ" for United States Magistrate ...