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United States v. Crews

February 20, 2009

UNITED STATES OF AMERICA,
v.
DEWAYNE CREWS, DEFENDANT.



The opinion of the court was delivered by: Conti, District Judge.

MEMORANDUM OPINION

Pending before the court is a motion to suppress physical evidence (Doc. No. 73), and a motion to suppress statements (Doc. No. 85) filed by defendant, Dewayne Crews ("Crews"). The court held evidentiary hearings concerning these suppression motions on September 16, 2008 and September 17, 2008. After consideration of the evidence submitted at the hearings, the proposed findings and arguments of counsel, the court will deny defendant's motion to suppress physical evidence, and grant, in part, defendant's motion to suppress statements. On this 20th day of February 2009, the court makes the following findings of fact and conclusions of law with respect to defendant's motions to suppress:

I. Findings of Fact

1. On July 6, 2006 - in a state criminal case - Crews was sentenced to one to twelve months by the Washington County Court of Common Pleas. The first thirty days were to be served in jail with work release, and the rest on probation. (Suppression Hr'g Tr. 43 (Sept. 17, 2008) ("Hr'g Tr. II").)

2. At the time of his sentencing, Crews gave his address as 952 Second Street, Monessen, PA. (Id. 71-72.) A July 13, 2006 entry in computer records kept by the probation office reflected a change in defendant's residence from 915 Second Street, Monessen, PA, to 456 Third Street, Donora, PA. (Suppression Hr'g Tr. 15 (Sept. 16, 2008) ("Hr'g Tr. I"); Gov. Ex. 2.) Defendant denied that he had changed his residence to 456 Third Street, but admitted that he had lived at that address with his girlfriend. (Hr'g Tr. II 71.)

3. On July 27, 2006, Crews reported to probation and met with Washington County Probation Officer Joseph Brownlee ("Brownlee"). (Hr'g Tr. I 18:11.)

4. At the July 27, 2006 meeting, Brownlee reviewed with Crews the conditions of supervision, including, inter alia, Condition No. 1, which provides: "Report to your probation officer as directed, and permit a [probation officer] to visit you at your residence, and submit to warrantless searches of your residence, vehicle, property and/or person including any drug and alcohol testing." (Id. 25:10-25.)

5. Brownlee assigned Anthony Mori ("Mori") of the Washington County Adult Probation Office to supervise Crews (Id. 15.)

6. After securing employment at Pirrini TV in Belle Vernon, Crews reported for his sentence on July 28, 2006. (Hr'g Tr. II 44.) Crews continued his employment during his incarceration, and earned approximately $260 each week in cash. (Id. 44-45.)

7. On August 26, 2006, Crews was released from jail. (Id. 45.)

8. Crews reported to probation as required on August 31, 2006 accompanied by the three-year- old son of his girlfriend. (Id. 49.) Crews met with Mori at the Donora Police Department where probation and parole had an office. (Hr'g Tr. I 32.)

9. Mori testified that during meetings with his wards, he typically would question his wards about contact with law enforcement, their living arrangements, whether they were employed or whether their employment had changed. (Id.) Mori testified that Crews resided at 456 Third Street, Donora, Pennsylvania with his girlfriend, Jody Hill ("Hill"), based on his communications with Crews at the August 31, 2006 meeting. (Id. 31.) Mori also administered drug tests during these appointments. (Id. 33.)

10. At the August 31, 2006 meeting, Crews was given an instant drug test, and he tested positive for THC (marijuana), cocaine and opiates. (Id. 33-34.) After Mori told Crews about the positive drug test, Crews admitted that he had smoked marijuana, and that he had been in contact with cocaine. Crews denied using cocaine and explained that the opiates may have been from his use of pain medication. (Id. 35.)

11. At that point Mori physically searched Crews for contraband by patting him down. (Id.) Mori found two cell phones and $407.00 in cash during his search of Crews. (Id. 35; Hr'g Tr. II 51.) Mori attached significance to the presence of the cash and cell phones. Mori testified that, based upon his experience, the presence of "more than one cell phone is something indicative of the drug trade." (Hr'g Tr. I 39.) Mori was also concerned about the presence of the $407.00. Given Crews' employment situation, Mori testified that the presence of that amount of unsubstantiated cash could be indicative of criminal activity.

(Id.)

12. Mori placed Crews in handcuffs and told him that he intended to search the residence located at 456 Third Street. (Hr'g Tr. I 38.) Crews told Mori that nobody was home and requested several times to call Hill, to tell her where he was, and to arrange transportation for her son. (Id.; Hr'g Tr. II 49.) Mori testified that Crews was anxious and repeatedly requested to call Hill at least half a dozen times. (Hr'g Tr. I 38, 85.) Mori testified that Crews' requests were cause for concern because he had been confronted with situations in the past where a probationer tried to contact a third party in an attempt to destroy contraband or evidence of additional violations prior to a search of the probationer's residence (Id. 86).

13. Crews was placed in a holding cell at the Donora Police Station, for about 10 minutes, and Mori decided to search Crews' residence for additional evidence of violations. (Hr'g Tr. II 51; Hr'g Tr. I 36, 76.)

14. Mori acknowledged that Crews was not free to leave at the point he was handcuffed. (Hr'g Tr. I 59.)

15. When asked, "Is that why you arrested Mr. Crews following the positive urine analysis test, or did you arrest him?" Mori responded, "He was placed in custody at that point." (Id. 85.)

16. Crews was transported handcuffed in a police vehicle to 456 Third Street. Officer Massafra ("Massafra"), a police officer with the Borough of Donora, and Police Superintendent James Brice ("Brice") transported Crews while Mori drove his own vehicle. (Id. 36, 40; Hr'g Tr. II 24.)

17. Brice was in uniform and carrying a weapon. (Hr'g Tr. I 76; Hr'g Tr. II at 8.) Massafra was not in uniform, but was armed with a visible firearm. (Hr'g Tr. I 9; Hr'g Tr. II 27.) Mori did not have a weapon. (Hr'g Tr. I 76-77.)

18. During the search of 456 Third Street, Crews remained handcuffed and confined to the living room supervised by Brice. At no time during the search was Crews permitted to leave or wander about the residence, and Miranda warnings were never given to Crews. (Hr'g Tr. I 80; Hr'g Tr. II 10, 14.)

19. Mori began the search of the residence in the upstairs bedroom accompanied by Masafra and Hill. (Hr'g Tr. I 41). Mori testified that this was the bedroom that Crews shared with Hill. (Id. 41, 80.)

20. When asked, "How did you know he had slept in that bedroom?" he answered, "There was something -- there were men's and women's clothes hanging in the closet. Um, to my knowledge, based on my discussions with him during the appointment, it was only, he, Jody, and her children that stayed there. I don't know if the children stayed there all the time, or if all of her children stayed there, but I know this was a home he had shared with her." (Id. 91.)

21. Mori found a bulletproof vest, a bag of crack cocaine and a digital scale in the closet of the ...


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