The opinion of the court was delivered by: Judge Sylvia H. Rambo
Before the court is Tristan Green's motion to suppress the physical evidence and statements that were the product of a search and seizure by agents of the Bureau of Alcohol, Tobacco, and Firearms ("ATF"). For the reasons that follow, the motion will be granted.
Tristan Green and his co-defendant Otis Montgomery were indicted by a grand jury on January 30, 2008. Count I of the indictment charges Green with conspiracy to make false statements to ATF in the purchase and transfer of firearms to a convicted felon, in violation of 18 U.S.C. § 371. In Count II of the indictment, Green is charged with knowingly making a false and fictitious written statement in the purchase of a firearm, in violation of 18 U.S.C. § 922(a)(6) and 924(a)(2), and § 2. In Count III, Green is charged with being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Counts IV and V charge Green with impeding an ATF agent engaged in official duties, in violation of 18 U.S.C. § 111.
Montgomery filed a motion to suppress the physical evidence and statements obtained as a result of his seizure, and the search of his apartment by ATF agents. After a hearing, on October 22, 2008, this court granted the motion and suppressed the use of the evidence against Montgomery. Thereafter, Green was granted leave to file a motion to suppress, and Green's motion to suppress (Doc. 64) and brief in support thereof (Doc. 65) were filed on December 4, 2008. On December 18, 2008, the government filed a response. (Doc. 69.) On January 14, 2008, the court held a suppression hearing. Accordingly, Green's motion to suppress is ripe for disposition.
At the suppression hearing the government presented testimony from ATF Agent Ryan Kovach and Pennsylvania State Trooper Eric Guyer. The court credits the candid and undisputed testimony of the agents and makes the following findings of fact:
On December 7, 2007, a sales clerk at Gander Mountain, a sporting goods store in Harrisburg, Pennsylvania, contacted ATF agent Ryan Kovach to report what he believed to be a suspicious purchase of three firearms. Kovach interviewed the clerk, reviewed the surveillance tape of the transaction, and learned the following information: The purchaser, Otis Montgomery, had been accompanied by another individual, who handled the weapons and advised Montgomery about the purchases. The other individual showed particular interest in the Taurus revolver, which Montgomery showed little interest in, but purchased anyway. Altogether, the three weapons cost about $2000, but Montgomery was short of money to pay for them. Montgomery went back to his vehicle with the other individual to retrieve more cash and returned alone. Montgomery paid for the firearms with cash, using twenty dollar bills. Based on these facts, Agent Kovach suspected that Montgomery purchased the weapons for someone else, which would constitute an illegal transaction known as a straw purchase.
Kovach decided to interview Montgomery about the purchase. Kovach found Montgomery's address by checking the form Montgomery used to purchase the firearms. Montgomery's apartment was located at 713 South George Street, apartment 1b, in York, Pennsylvania. Kovach twice visited the apartment, but was unable to contact Montgomery. However, on one of the trips, Agent Kovach observed a piece of mail sticking out of Montgomery's mailbox in the vestibule to the apartment building. The mail was addressed to Shompre Jones, who Kovach assumed to be Otis Montgomery's girlfriend. Kovach ran a motor vehicle check for Jones and learned that a black Lincoln Navigator was registered in her name.
On December 12, 2007, Agent Kovach returned to the apartment with State Police Trooper Eric Guyer to try to locate Montgomery. Both agents were dressed in plainclothes and carried weapons in holsters under their jackets. After ringing the buzzer to Montgomery's apartment with no answer, the agents returned to their car parked to the rear of the building. The agents noticed a black Lincoln Navigator parked in the lot behind the apartment. Upon checking the license plate, the agents realized it was Jones' vehicle. As the agents were preparing to leave, a silver Lincoln Navigator entered the parking lot and parked next to Jones' vehicle. The agents noticed that the license plate number was one digit off of the license for Jones' vehicle. According to Agent Guyer, this is an indication that the vehicles were purchased at the same car dealership, one after the other. From this, the agents inferred that the individual in the vehicle was associated with Otis Montgomery.
There was only one occupant in the vehicle, a black male in his mid-twenties, later identified as Defendant Tristan Green. The agents observed Green exit the vehicle and walk towards the back of the apartment building. At that point, the agents exited their vehicle and Agent Kovach shouted "Hey Otis" to Green, who responded, "I'm not Otis." Agent Kovach testified that he thought the individual might have been Otis Montgomery because, according to Kovach, he matched the general description of Montgomery. Agent Kovach had previously observed Montgomery on the surveillance tape at Gander Mountain, and knew that Montgomery was a black male in his mid-twenties, and approximately 6'4 in height. By contrast, at 5'11, Green was six inches shorter than Montgomery, and he wore his hair in cornrows, while Montgomery did not. When asked about this discrepancy, Agent Kovach maintained that in his opinion, as a large black male in his twenties, Green matched the general description of Montgomery. Kovach further noted that at this point, he had never seen Montgomery in person.
After Green explained that he was not Otis Montgomery, the agents identified themselves as law enforcement officers and asked Green to produce identification. Green complied, and the agents each examined the identification for a few seconds before immediately returning it to Green. The agents asked Green if he knew Otis Montgomery, and he responded that he did not. Green also told the agents that he did not want any trouble. Agent Kovach told Green that Montgomery was not in any trouble and that the agents wanted to speak to Montgomery. The agents also told Green that they thought he knew Montgomery because of the similarity in the vehicles and license plates. At this point, Agent Kovach testified that he did not know who Tristan Green was and did not suspect him of any involvement in the suspected straw purchase.
Green admitted that he knew Montgomery, and the agents asked him how they could contact Montgomery. Specifically, the agents asked if Green would give them Montgomery's cell phone number. Green responded that he did not have Montgomery's cell phone number. When asked how he usually contacted Montgomery, Green said he goes to the door and ...