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United States v. Snard

September 28, 2009

UNITED STATES OF AMERICA
v.
TIMOTHY SNARD DEFENDANT



The opinion of the court was delivered by: James Knoll Gardner, United States District Judge

OPINION

This matter is before the court on Defendant's Motion to Suppress filed May 27, 2009. The United States' Response in Opposition to Defendant's Pre-trial Motions*fn1 was filed on June 11, 2009. On July 6, 2009, the Memorandum of Law in Support of Defendant's Motion to Suppress was filed. On August 20, 2009 I conducted a hearing and closing arguments on Defendant's Motion to Suppress and took the matter under advisement. For the reasons expressed below, I deny Defendant's Motion to Suppress.

PROCEDURAL HISTORY

On March 31, 2009 a federal grand jury returned a three-count Indictment charging defendant Timothy Snard with possession with intent to distribute crack cocaine*fn2 , in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C) (Count One); possession of a firearm*fn3 during and in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1) (Count Two); and convicted felon in possession of a firearm or ammunition in violation of 18 U.S.C. § 922(g)(1) (Count Three). These charges arise out of defendant's arrest on a New York State parole violation on September 12, 2008.

On April 28, 2009 defendant Timothy Snard made his initial appearance, was arraigned and pled not guilty to all charges, before United States Magistrate Judge Henry S. Perkin.

On May 27, 2009 defendant filed the within motion to suppress. In his motion, defendant seeks to suppress "any and all items seized during the search of the hotel room in which defendant was arrested; or, in the alternative,...the gun found in or under the bed which was seized during the search of the hotel room in which the defendant was arrested." The items seized included "a handgun with a loaded magazine and a bag containing 39 rocks of an off white substance consistent with crack cocaine, and a bag of green leafy vegetable matter consistent with marijuana....two digital scales, razor blade, box of clear plastic baggies..., and two cigars, and the room key...."*fn4

On August 20, 2009 I conducted a hearing on defendant's motion. Testimony was presented from one government witness.*fn5

The government introduced three exhibits into evidence at the hearing. In addition, defendant introduced two exhibits into evidence at the hearing.

FACTS

Based upon the pleadings, the testimony of the witness, the exhibits presented at the hearing conducted August 20, 2009, and my credibility determinations, I find the following to be the pertinent facts.

At 5:10 p.m. on September 12, 2008, Allentown Police Officer John W. Brixius, III received a call in his patrol car from the Allentown Communications Center. The call directed him to proceed to room 434 of the Hotel Traylor, located at 1444 Hamilton Street, Allentown, Lehigh County, Pennsylvania, to investigate a "wanted party".

Officer Brixius was informed that the directive was based on information received in a call to the Communications Center. The call screen in Officer Brixius' police vehicle identified the caller as Sade Johnson. The Communications Center advised Officer Brixious that Miss Johnson stated that there was a wanted party, a Victor Brewington or Timothy Snard, in room 434, and that there was a gun, and possibly drugs, in the room. The female caller also told the Communications Center that Timothy Snard's birth date was September 19, 1982, which the dispatcher passed on to Officer Brixius.

When Officer Brixius received that information, he tried to confirm the warrant by programming the information which he had received about Timothy Snard into the mobile version of the National Crime Information Center ("NCIC") which was in his police patrol car.

Officer Brixious checked to see if there was an entry. He received information back from NCIC on his vehicle screen that Timothy N. Snard was a black male, six feet, five inches tall, weighing 200 pounds, with brown hair and eyes, light skin, and a small tattoo on his left arm. In addition, the NCIC report stated that he was born on September 19, 1981 (the same month and day reported by Miss Johnson, but one year earlier than the year she provided).

Furthermore, the NCIC report indicated a number of aliases for Mr. Snard. They included Nathaniel Brewington, Victor D. Brewington, Victor N. Brewington and Brown Oval. The report stated that defendant was wanted for a parole violation by the State of New York. It also indicated "full extradition unless otherwise noted". However, there was nothing "otherwise noted" in the report.*fn6

At 5:39 p.m. Officer Brixius was able to confirm that the New York State Parole Department in Albany was willing to extradite defendant Snard. The parole department notified the Allentown Communications Center and then faxed the Communications Center a Hit Confirmation Response. It confirmed that the Allentown Police should take defendant into custody and hold him for extradition to New York.*fn7

Because a gun was mentioned by the caller, Sade Johnson, numerous Allentown Police officers were dispatched to the Hotel Traylor. In addition to Officer Brixius, they included Officer Kyle Pammer and Officers Turoczi, DeWalt and Kocher.

When they arrived at the Hotel Traylor, the officers proceeded to the fourth floor to locate defendant. Room 434 is at the end of a hallway with a four-foot section where the officers could be trapped. As a result Officer Brixius determined that because Miss Johnson had mentioned a firearm, it was best for officer safety to attempt a ruse to get defendant to open the door without the officers having to arm themselves and possibly being in a bad position to move.

Officer Brixius knocked on the door of room 434. A person inside the room responded, "Who is it?" Officer Brixius responded, "J". The voice inside the room asked, "Who are you looking for?" Officer Brixius responded, "T". The voice answered, "You have the wrong room."

At this point Officer Brixius knocked at the door again and stated, "It's the Allentown Police" and commanded the occupant to open the door. The voice inside the room asked, "Who are you looking for?" Officer Brixius responded, "Timothy Snard." The voice responded back, "Just a minute." From this point, about a minute elapsed before defendant opened the door to his hotel room. Officer Brixius heard the speaker move away from the door when he said, "Just a minute."*fn8

The door was opened by the occupant, defendant Timothy Snard. Defendant was wearing a white tank top and grey thin boxer-type shorts. He had no shoes or socks on.

Officer Brixius observed a tattoo on defendant's left arm on his bicep that said "Vic" and concluded that "Vic" was consistent with the wanted person's alias: Victor Brewington. Officer Brixius also observed that the occupant was a black male who appeared to be about six feet, five inches tall, and to weigh about 200 pounds, which was consistent with the individual wanted for a parole violation in New York, as described in the NCIC report. Based on his observations, Officer Brixius determined that the individual in the doorway was the person that the officers were looking for.

Officer Brixius asked defendant what his name was, and defendant identified himself as Victor Brennington.*fn9 One of the officers asked defendant to turn around. He did so, and one of the officers handcuffed him behind his back.

Defendant asked why he was being arrested, and one of the officers responded that it was for a parole warrant.

Defendant then asked, "Can I get my clothes?", and walked hurriedly back into the room and sat on a bed. All of the officers walked in and trailed behind him to prevent him from going any further. Officer Brixius requested defendant to stand up, and Officer Kocher directed defendant to stand with him back at the doorway. Defendant walked back to the hall doorway where Officers Kocher, Pammer and DeWalt all stayed with him.

Officer Turoczi then re-entered the room, followed by Officer Brixius to check for other possible assailants for officer safety and to conduct a "span of control" search in the area where they were going to seat defendant to assist him in getting dressed.

As Officer Brixius walked back into the room he observed several items in plain view. He saw "baggies" (small plastic bags typically used to package a sandwich, but which are frequently used to package cocaine). The baggies were observed on a nightstand to the left of the bed.

As he approached the bed, Officer Brixius observed a digital scale*fn10 on a desk which was a few feet from the foot of the bed. There was also a digital scale and a razor on a nightstand to the right of the bed. Officer Brixius also saw a Hotel Traylor key for room 434 and two Dutch Masters cigars on the bed.

Officer Brixius did not have to move any articles out of the way, open any drawers, or go into any closets to see any of those items. Neither Officer Brixius nor Officer Turoczi did that, nor did they look anywhere where a person could not be concealed. After the officers entered the hotel room, less than a minute elapsed until they observed these items.

Based upon his experience as a police officer, Officer Brixius believed that the baggies, scales and razor were all used for measuring, cutting, weighing and packaging crack cocaine.

Officer Turoczi went to check the bathroom for occupants. After he did so and returned, Officer Brixius asked Officer Turoczi to cover Officer Brixius as Officer Brixius lifted the box spring and mattress to check under the bed. "Cover" means that Officer Turoczi would be armed to protect Officer Brixius if someone were under the bed. As a result, Officer Turoczi was a few feet away from Officer Brixius with his gun drawn in a position to protect Officer Brixius as he lifted the bedding.

Before he lifted the bedding, Officer Brixius looked at the bed and saw no bulges or anything sticking out from it. He also walked over to the bed and ...


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