The opinion of the court was delivered by: Terrence F. McVerry United States District Court Judge
Pending before the Court are the following motions filed by Defendant Clifford Aley: MOTION TO SUPPRESS EVIDENCE (Document No. 30); MOTION TO COMPEL THE GOVERNMENT TO PROVIDE DEFENDANT WITH A STATEMENT OF UNCHARGED MISCONDUCT EVIDENCE (Document No. 31); MOTION TO SUPPRESS INTERCEPTED TELEPHONE CALLS (Document No. 32); and MOTION TO DISMISS INDICTMENT (Document No. 33). The government filed responses in opposition to each motion (Document Nos. 36-39). The Court conducted a hearing and argument on September 10, 2009. Subsequently, Defendant filed a supplemental brief in support of his motion to suppress telephone calls (Document No. 45), to which the government has responded (Document No. 46). The motions are now ripe for disposition.
Aley is charged in a two-count indictment at Crim. No. 08-321 with possession of two unregistered firearms (a short-barreled shotgun and a "street-sweeper") from September 2005 -February 2006, in violation of 26 U.S.C. § 5861(d). As set forth in the Application and Affidavit for Search Warrant prepared on February 22, 2006 by Special Agent Kevin Kauffman, Aley had become a "person of interest" in a homicide investigation that had been ongoing since 2000.
On April 20, 2005, Aley was convicted in the Court of Common Pleas of Beaver County, Pennsylvania of simple assault, a misdemeanor, and sentenced to two years probation for the use of physical violence against his co-habitating girlfriend. Affidavit ¶ 4. In June 2005, Aley was charged with three counts of hindering apprehension in connection with the homicide investigation. According to a confidential source, on July 3, 2005, Aley transported several boxes of firearms from a trailer in Ohio to Houston Mini-Storage, Unit # 95, in Houston, Pennsylvania. Affidavit ¶ 7. Aley turned himself in on July 5, 2005 and remained in custody in the Mercer County Jail. In January 2006, Aley was convicted of the charges for hindering apprehension and sentenced to imprisonment for 18-48 months. In February 2006, state police obtained a judicial order which authorized them to retrieve recorded phone calls that Aley had made from the Mercer County Jail. During phone calls on January 5-6, 2006, Aley allegedly stated that he needed to have certain items removed from Unit # 95 as quickly as possible. Affidavit ¶ 9.
On February 22, 2006, the owner of Houston Mini-Storage opened Unit # 95 (with no police present) to inventory the contents for possible sale because Aley was three months behind in his rent and in default on his lease. Pursuant to the rental agreement, following a default the property in the storage unit is considered to be abandoned. The owner saw several firearms. Agent Kauffman opined that there was probable cause to believe that the storage unit contained firearms, ammunition, related equipment and indicia of ownership "which are property that constitutes evidence of the commission of a criminal offense; or are contraband, the fruits of crime, or things otherwise criminally possessed; or are property designed or intended for use or which is or has been used as the means of committing a criminal offense, specifically Possession of a Firearm or Ammunition by a Person Convicted of a Misdemeanor Crime of Domestic Violence, in violation of Title 18, United States Code, Section 922(g)(9).
The Magistrate Judge issued the search warrant on February 22, 2006. During the search, agents seized numerous legal firearms, as well as the two allegedly illegal firearms described in the instant indictment. The Court will address the pending motions seriatim.
Motion to Suppress Evidence
Aley recognizes that in accordance with United States v. Leon, 468 U.S. 897 (1984), police officers may usually rely in good faith on a magistrate judge's issuance of a search warrant. However, Aley contends that in this case, reliance on the warrant was not reasonable because there was deliberate and/or recklessly false material information in the affidavit. Specifically, Aley argues that the only evidence of a crime was based on the averment that Aley had been convicted of a misdemeanor crime of domestic violence, when in actuality, Aley had been convicted of simple assault. Aley argues that to serve as the predicate "misdemeanor crime of domestic violence" for a violation of 18 U.S.C. § 922(g)(9), the domestic violence must be an element of the offense. Aley quotes the statutory language but does not cite any case law in support of this proposition. Aley further argues that the agents violated the "Particularity Clause" of the Fourth Amendment by indiscriminately seizing all of the firearms found in the storage unit.
The government, in response, argues first that Aley has failed to establish that he had a reasonable expectation of privacy in the storage unit to object to the search. The government argues that in any event, the application was truthful and was consistent with the legal test for a "misdemeanor crime of domestic violence" set forth in United States v. Hayes, 129 S.Ct. 1079 (2009). In essence, Hayes held that the "domestic relationship" was a fact that must be proven beyond a reasonable doubt, but was not an element of the predicate offense. Id. at 1082. Finally, the government contends that the warrant was sufficiently particular.
The Court agrees with the government. As an initial matter, Aley had defaulted on his rent payments and the terms of his rental agreement provided that upon default the contents of the storage unit would be deemed abandoned. Thus, Aley's expectation of continued privacy as to the storage unit was not objectively reasonable. See United States v. Andujar, 209 Fed. Appx. 162, 166-67 (3d Cir. 2006) (unpublished) (holding that the defendant had no reasonable expectation of privacy as to search of storage unit). Defendant did not dispute this conclusion during the oral argument.
Even assuming, arguendo, that Aley had a sufficient interest in the storage unit, he has failed to establish the "deliberate or reckless falsehood" exception to Leon. The affidavit clearly, and correctly, recited that Aley had been convicted of "Simple Assault." ¶ 4. Aley has not contested the truth of the averment that the assault was committed upon his co-habitating girlfriend. Paragraph 12 of the Affidavit does not make any false representations of fact, but merely indicates Agent Kauffman's belief that items would be found which would constitute, inter alia, a violation of § 922(g)(9). The holding in Hayes confirmed the interpretation of § 922(g)(9) which had previously been adopted by the vast majority of the Courts of Appeals. There is absolutely no reason to conclude that Agent Kauffman's understanding that the simple assault described in ¶ 4 could serve as the predicate offense was deliberately or recklessly false. To the contrary, Hayes confirms that Agent Kauffman's understanding was correct.
Finally, the search warrant did not violate the Particularity Clause. The warrant sufficiently described the place to be searched and the items to be seized. The firearms at issue in this indictment were clearly within the scope of the warrant, which covered "any and all firearms," in addition to ammunition, indicia of ownership ...