The opinion of the court was delivered by: Judge Conner
Presently before the court is defendant Timothy S. Patterson's motion (Doc. 26) to suppress evidence seized during a warrantless search of a vehicle he was operating on October 15, 2008. The court held an evidentiary hearing on defendant's motion on February 25, 2009, (see Doc. 41 at 1), after which the parties filed supplemental briefs in support of their respective positions, (see Docs. 46, 47). For the reasons that follow, the motion will be denied.
On October 22, 2008, defendant was indicted by a grand jury. The indictment contains three counts and charges defendant with (1) possession of cocaine base with intent to distribute in violation of 21 U.S.C. § 841(a)(1); (2) intentional and knowing possession, carrying, and use of a firearm during, in relation to, and in furtherance of a drug trafficking offense, in violation of 18 U.S.C. § 924(c); and (3) being a felon in possession of a firearm that was transported in interstate commerce, in violation of 18 U.S.C. § 922(g)(1). (See Doc. 1.) On October 28, 2008, defendant entered a plea of not guilty to the indictment. (See Doc. 14.) The allegations in the indictment arise from the seizure of a firearm and cocaine base, discovered by parole officers on October 15, 2008 during the search of an automobile recently occupied by defendant. On December 3, 2008 defendant filed a motion to suppress the fruits of that search.
The events underlying defendant's indictment date back to April 2008, when defendant-a parolee serving a term of intermediate punishment*fn2 -was released to the custody of Dauphin County Adult Supervision and Parole. (See Doc. 41 at 4.) Defendant was thereafter placed on electronic monitoring, under which he agreed to several supervisory conditions, to wit: random search of his person, property, and place of residence; to refrain from acquiring, carrying or possessing pagers, cellular telephones, police scanners, and cash in excess of $50 without a valid receipt; and to regularly update his parole officer regarding his employment prospects and work schedule. (Id. at 7; id., Exs. A-C.) Additionally, defendant was not permitted to leave his residence for any non-employment purpose. (Doc. 41 at 7.) With respect to each of these conditions, defendant signed consent forms indicating that he understood and acquiesced in the relevant provision. (See id., Exs. A-C.)
Parole officer Kelly Evans testified that defendant's compliance with the terms of his supervision was "terrible" and that he "violated [the terms] quite often." (Id. at 8.) On July 2, 2008, defendant removed the electronic monitoring device from his person and discarded it in a wooded area off East Park Drive in Harrisburg, Pennsylvania. (Id. at 9.) A warrant was subsequently issued for defendant's arrest on July 7, 2008, (id. at 9-10), and the United States Marshal's Fugitive Task Force was charged with locating and detaining him. (See id. at 12-13.) The Marshals made several unsuccessful attempts to apprehend defendant over the next several months. (Id. at 13.)
In the fall of 2008, parole officer Tom Walton ("Walton") was working with the Marshal's Task Force on a warrant detail, one target of which was defendant. (Id. at 12-13.) Walton testified that the Marshals received information indicating that defendant was living with his girlfriend in the President's Drive housing projects in Hummelstown, Pennsylvania. (Id. at 13.) In addition, the Marshals learned that defendant was driving a gray Cadillac with a landau top. (Id.) Armed with this information, Walton and another parole officer, Anderson,*fn3 traveled to the President's Drive housing projects at 6:30 a.m. on October 15, 2008. (Id. at 14.) Walton observed a gray Cadillac parked outside of building number one that matched the description obtained by the Marshals. (Id.) The two officers surveilled the area for approximately an hour, during which time no one approached the vehicle and Walton observed no unusual activity. (Id.) The officers then left the scene. (Id.)
Walton and Anderson returned to the housing complex at 11:45 a.m. and noticed that the Cadillac was parked in a different location outside of building number one. (Id. at 15.) After watching the area for forty-five minutes, defendant emerged from building number one carrying a small child in his arms. (See id.) Walton estimated that he was approximately 100 yards from defendant at this time and stated that "[t]he general description that we had of [defendant], it matched the gentleman that was coming out [of building number one]." (Id.) Defendant advanced toward the Cadillac, entered on the driver's side, sat the child on the center console, and started the ignition. (See id. at 15-16.) Once defendant entered the vehicle, Walton and Anderson approached. (Id. at 15.) Walton testified that defendant was inside the Cadillac with the engine running for "[m]aybe fifteen to twenty seconds" before the officers reached the vehicle. (See id. at 25-26.) Walton added, "once [I] got close enough to the car I could see that it was [defendant] in the driver's seat." (Id. at 16.)
Walton ordered defendant to remove the keys from the ignition and exit the vehicle. (Id. at 17.) Defendant complied with respect to the keys, but "grabbed his son" and refused to exit the Cadillac. (Id.) Walton then opened the driver's side door, grabbed one of defendant's arms, and pulled him out of the vehicle. (See id.) Defendant continued to hold onto the child with his other arm, but as soon as defendant was outside of the vehicle, Anderson removed the child from his possession. (See id. at 17, 34-35.) Walton then placed defendant in handcuffs and searched his person, discovering $480 in twenty-dollar bills, a small bag of marijuana, and a partially-used marijuana cigarette. (Id. at 17-18.)
As Walton was conducting the search, two unidentified females approached the scene. (See id. at 18.) The record is unclear from whence these individuals came, but they approached Walton from behind as he was searching defendant. (See id. at 28, 35.) Walton described the scene as follows:
When Mr. Anderson grabbed the child, at that point I handcuffed [defendant] and immediately began to search his person. At that point I heard the young ladies behind me asking what was going on.
I don't recall exactly what they said, but at some point between me pulling [defendant] out of the vehicle and searching him they had exited [building number one] and come up behind me. (Id. at 35.) Walton explained to the two females that defendant was under arrest and instructed them to vacate the scene. (Id. at 18.) The two females began to speak to defendant, however, and he instructed them "not to say anything" and to "get into the vehicle and leave." (See id. at 18-19, 35.) Defendant repeated this instruction two or three times. (Id. at 18-19, 36.)
In the midst of this exchange, Anderson informed Walton that there was a firearm resting in the driver's side door compartment of the Cadillac. (Id. at 19.) Anderson apparently observed the weapon after defendant was removed from the vehicle and the driver's side door was left ajar. (See id.) Walton testified that "[a]s soon as [Anderson] advised me that there was a gun in the door I looked at the door and it was very visible." (Id.) Walton immediately placed defendant into the back seat of the officers' vehicle and Anderson contacted county communications to procure assistance from a Swatara Township police officer. (Id. at 19, 36.) Neither Walton or Anderson touched the firearm. (See id. at 20.) Swatara Township police officers arrived approximately ten minutes later and took possession of the weapon. (Id.)
After the officers arrived, Walton requested defendant's permission to search the interior of the Cadillac. (Id. at 30.) Defendant refused, claiming that he was not the vehicle's owner and therefore was unable to grant the request. (Id. at 20.) Walton asked for permission several times more, but defendant repeatedly refused. (See id.) Walton then searched the vehicle without defendant's consent.*fn4 (Id. at 20-21.) In the center console, Walton discovered two small plastic bags; the first contained "a small amount" of marijuana and the second contained crack cocaine. ...