The opinion of the court was delivered by: Judge Munley
Before the court is defendant's motion to sever defendant and suppress evidence. (Doc. 143). Having been briefed and a hearing held, the matter is ripe for disposition.
A grand jury indicted the Defendant Imani Simelani and ten other individuals on April 4, 2007. (Doc. 1). The indictment charged defendant with one count of conspiracy to knowingly and intentionally distribute and possess with intent to distribute more than fifty grams of cocaine base (crack) and in excess of five-hundred grams of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A). The indictment also alleged that defendant knowingly and intentionally distributed and possessed with intent to distribute cocaine on August 8, 2006. A third count in the indictment charged plaintiff with unlawful and intentional distribution of crack cocaine on January 24, 2007.
After his arrest on these charges, defendant on October 12, 2007 filed a motion to sever the defendant's case from the other ten defendants and suppress evidence. (Doc. 143). He filed a brief in support of that motion on October 22, 2007. (Doc. 147). After numerous requests for continuances by the government as the case against plaintiff's co-defendants wound its way through the court, and after an order from the court, the government finally filed a brief in opposition to that motion on March 24, 2009. The court held a hearing on the motion on May 27, 2009. After the hearing, the court ordered the parties to file supplemental briefs, if they so desired. The time for filing such briefs has now passed, and the matter is ripe for disposition.
The court will address each motion in turn.
A. Motion to Sever Defendant
At the hearing on plaintiff's motion, the parties agreed that the motion to sever was moot, as the other defendants had pled guilty to the charges and will not be going to trial. (See Transcript of Suppression Hearing, held May 27, 2009 (Doc. ) (hereinafter "T.") at 3). As such, the court will deny the motion as moot.
B. Motion to Suppress Police Identification
Defendant also seeks to suppress the January 24, 2007 identification of him as the driver of a green Mitsubishi Gallant by a Pennsylvania State Police Trooper who stopped that vehicle after it was allegedly involved in the sale of crack cocaine to a confidential informer. He contends that the Trooper stopped his car without probable cause.
Pennsylvania State Police Trooper John Gill testified at the hearing on defendant's motion. (T. at 4-31). Trooper Gill related that he had worked for the Pennsylvania State Police since 1990. (Id.). Gill was involved as one of the lead agents in the investigation that led to defendant's arrest. (Id. at 5). He testified that on January 24, 2007 he was working with a confidential informant who he hoped would attempt to purchase controlled substances. (Id.). That informant had assisted the police since 2005, and had been involved in "numerous" controlled buys of illegal drugs. (Id. at 6). The informant had proved reliable in the past, and had been an active informant in the investigation that led to defendant's arrest. (Id.).
On January 24, 2007, Gill met with the informant to arrange a controlled purchase of crack cocaine from Susan Hunsicker, another defendant in the case. (Id.). Gill testified that defendant was using the street name "E" at that time. (Id.). The informant contacted Hunsicker in an attempt to make the controlled purchase, and Hunsicker told them she would meet them in Nesquehoning, Pennsylvania. (Id. at 7). A few minutes later, Hunsicker called back and told the informant she would send "E" instead of making the delivery herself, and that he would be driving a Mitsubishi with a sun roof. (Id.).
Officers then searched the informant and provided that person with marked currency. (Id.). The search revealed that the informant possessed no illegal drugs or money other than that which police gave him. (Id.). Gill testified that the buy was to take place at a CVS drugstore in Nesquehoning Borough in Carbon County, Pennsylvania. (Id. at 7-8). At approximately 8 p.m. on January 24, 2007, he and three undercover troopers were conducting surveillance in the parking lot and observed "E" arrive in a green Mitsubishi Gallant. (Id. at 8). He was the driver of the vehicle, which Gill reported was registered to Susan Hunsicker. (Id.). Gill and the other officers observed "E" exit the vehicle and meet with the informant at a ...