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United States v. Scott

November 20, 2009


The opinion of the court was delivered by: Judge Conner


Presently before the court are five motions filed by defendant Donald A. Scott ("Scott") in anticipation of his criminal trial, including motions (1) to suppress physical evidence, (2) to suppress identification testimony, (3) to compel production of Brady material, (4) to compel production of Rule 404(b) information, and (5) to bifurcate trial on the charges arising under 18 U.S.C. § 922(g).*fn1 (See Docs. 139, 141, 143, 145, 147.) The court held an evidentiary hearing on Scott's motions on August 26, 2009,*fn2 after which the parties filed supplemental memoranda supportive of their respective positions. (See Docs. 185, 194.) For the reasons that follow, the motions will be granted in part and denied in part.

I. Findings of Fact*fn3

In the spring of 2008, police departments in multiple south-central Pennsylvania jurisdictions began investigating a series of armed robberies that occurred in and around Cumberland County, Hamilton Township, and Franklin County. (See Hr'g Ex. 2.) The incidents targeted individuals believed to be involved in drug trafficking activity; the perpetrators wore masks, were several in number, and physically assaulted some of the victims during the course of each offense. (See id.) In May 2008, the Carlisle Borough police department identified Scott and indicted co-conspirator Chance Bonner as potential suspects in this crime spree.*fn4 (Id. at 2 ¶ 3.)

A. May 2008 Apartment Search

On May 14, 2008, Carlisle Borough police detective Jeffrey Kurtz ("Kurtz") interviewed a confidential informant who assisted Scott in one or more robberies. (See Hr'g Tr. at 55-57; Hr'g Ex. 2 at 2 ¶ 7.) The informant alerted Kurtz to an apartment at 4064 Rawleigh Street, in Lower Paxton Township, where Scott purportedly was storing stolen property and firearms.*fn5*fn6 (See Hr'g Tr. at 55-58; Hr'g Ex. 2 at 2 ¶¶ 7-8.) Kurtz immediately swore out an affidavit of probable cause wherein he erroneously averred that his conversation with the informant transpired on May 15, 2008. (See Hr'g Tr. at 44-45; Hr'g Ex. 2 at 2 ¶ 7.) Kurtz thereafter met with a Dauphin County district justice, and applied for and received a warrant to search the Rawleigh Street apartment. (See Hr'g Tr. at 45-46.)

The warrant identified numerous items to be searched for and seized, to wit:

(1) a white Dell Inspiron 530S desktop computer, (2) a widescreen seventeen-inch flat panel television, (3) Gucci prescription sunglasses, (4) identification cards belonging to those victimized by the robberies, (5) thirty-two inch and forty-two inch black Sony flatscreen televisions, (6) a Sony Playstation and Playstation video games, and (7) firearms and related paraphernalia. (See Hr'g Ex. 2 at 1.) Several of these items were reported stolen in one of the many robberies at issue in the instant investigation. (See Hr'g Tr. at 51, 55.) The affidavit of probable cause, which was attached to the warrant, catalogued additional stolen property, including Motorola, Samsung, and LG cellular telephones allegedly taken from various robbery victims.*fn7

(See Hr'g Ex. 2 at 2 ¶ 4.) The warrant does not incorporate the affidavit of probable cause. (See Hr'g Ex. 2.)

Kurtz executed the warrant shortly after it was issued. (Hr'g Tr. at 45.) In the master bedroom of the apartment, officers located and seized several items of interest, including two pairs of Motorola two-way radios; a total of eight cellular telephones; a wallet and corresponding identification belonging to Ronald James Curry; an Apple MacBook computer, Dell Inspiron 1501 laptop computer, and Dell Inspiron 530S desktop computer; one small bag of marijuana; and a bulletproof vest.*fn8 (Hr'g Tr. at 46, 48; Hr'g Ex. 2.) Officers also discovered one additional computer, but they did not seize this computer because they determined that it belonged to the apartment tenant, Samantha Jackson. (See Hr'g Tr. at 49.)

After the search was complete, agents of the Cumberland County Computer Forensics Unit activated both the cellular telephones and computers in an effort to verify the owner of each device. (See Hr'g Tr. at 51-52, 62; see also Hr'g Ex. 3.) It is undisputed that Scott is the owner of but one of these items: the Dell Inspiron 1501 laptop computer. (See Hr'g Tr. at 42, 62; see also Hr'g Ex. 3.) Information recovered from the Dell Inspiron 530S desktop computer suggests that it is the property of Michael Pearson and Ruth Ann Miller, targets of a robbery perpetrated in April 2008, see infra.*fn9 (See Hr'g Ex. 3.) In addition, several of the cellular telephones appear to belong to victims of the reported robberies. (See id.) Kurtz did not obtain a second search warrant prior to requesting the forensics unit's examination of these electronic devices.

B. Alleged Identification in June 2008

In June 2008, Scott was arrested and placed into the State Correctional Institution at Camp Hill ("SCI-Camp Hill") for violating the conditions of his parole. (See Hr'g Tr. at 28.) Shortly thereafter, on June 9, 2008, Michael Pearson ("Pearson") was also admitted into this correctional facility for incarceration. (Id. at 20.) Pearson had been robbed and beaten by masked gunmen two months earlier and, as noted above, some of his personal property was recovered in the Rawleigh Street apartment. (See Hr'g Exs. 4-5.) Pearson was unable to identify his attackers, however, and never informed police that Scott was the perpetrator of the crime. (See id.)

Within four days of Pearson's entry into SCI-Camp Hill, prison authorities issued an order requiring the separation of Scott from Pearson. (See Hr'g Tr. at 20; Hr'g Ex. 1.) The order stated that "inmate Pearson should be separated from inmate Scott as inmate Scott is believed to have kidnapped and stabbed inmate Pearson and he almost died. Inmate Pearson's girlfriend was also raped during this incident."*fn10 (Hr'g Ex. 1.) Lieutenant Albert Tarantella ("Tarantella"), a reception lieutenant at SCI-Camp Hill, testified that the separation order was submitted by Tanya Brandt, an administrator at the Pennsylvania Department of Corrections' central office. (Hr'g Tr. at 18.) Tarantella was uncertain who made the separation request. (Id. at 18, 22.) ...

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