The opinion of the court was delivered by: Judge Vanaskie
On April 9, 2009, almost six months after the Hon. James F. McClure, Jr., of this Court denied Defendant Sean Best's motion to suppress evidence, defendant Best, represented by counsel other than the attorney who had represented him at the time of the suppression ruling, moved for reconsideration of Judge McClure's decision. He also sought to advance a "supplemental" motion for suppression. Defendant Best's motion for reconsideration of Judge McClure's October 22, 2008 ruling and his supplemental suppression motion present for resolution the following issues:
! Does evidence presented at hearings conducted by Judge McClure on April 21 and 27, 2009 undermine his prior determination that law enforcement officers did not conduct an illegal search of the residence located at 608 McMinn Avenue, Williamsport, Pennsylvania, incident to the arrest of Defendant Best on October 2, 2007?
! Does evidence that one of the law enforcement officers participating in Best's arrest on October 2, 2007 was disciplined in connection with activities involving a search that occurred nearly one year after Best's arrest in a completely unrelated matter warrant re-opening the suppression hearing record?
! Should Best be allowed to present a "supplemental" motion to suppress challenging the sufficiency of the affidavit submitted in support of the search warrant issued on October 3, 2007 when he had an ample opportunity to present this issue in his original suppression motion?
! If it is appropriate to consider the supplemental motion, was there sufficient information in the affidavit supporting the search warrant application to provide probable cause for issuance of the search warrant?
Because the judge issuing the search warrant had an ample basis for finding a fair probability that evidence of criminal activity would be found at the McMinn Avenue property and there is no evidence that the decision to seek a search warrant was the product of a warrantless search, the motion for reconsideration and supplemental motion for suppression (Dkt. Entry 726) will be denied.*fn1
A lengthy investigation into crack cocaine trafficking in the Williamsport area culminated with the issuance of a number of arrest and search warrants on October 1, 2007. Among the individuals named in arrest warrants were Sean Best and Leanika Johnson, who were residing at that time at 608 McMinn Avenue, Williamsport, Pennsylvania. Believing that they did not have probable cause to secure a warrant to search the McMinn Avenue premises at that time, law enforcement officials did not include this location in a search warrant application presented to the Hon. Malcolm Muir on October 1, 2007.*fn2
At approximately 6:30 a.m. on October 2, 2007, a team of law enforcement agents from the Federal Drug Enforcement Agency ("DEA"), the Pennsylvania State Police ("PSP"), and the Williamsport City Police Bureau arrived at 608 McMinn Avenue to execute the warrants to arrest Best and Johnson. The law enforcement team included Sergeant Joseph Tripp, Corporal James Warner, and Trooper Tyson Havens of the PSP, along with Chief of Police Gary Whiteman and Lieutenant David Bailey of the Williamsport Police Department. Notably, DEA Special Agent Timothy Crowley, who was the lead investigator for this matter and the affiant on search warrant applications, was not present at the McMinn Avenue location. Instead, he was executing arrest and search warrants at a different location.
The law enforcement team gained access to the interior of 608 McMinn Avenue when defendant Best's son, Ivan Northington, answered their knock at the front door of the residence. Ivan was handcuffed and the law enforcement team proceeded to the second floor where they secured Best and Johnson. After Best and Johnson were escorted to the first floor, a protective sweep of the premises was conducted. No contraband was found or seized during the protective sweep.
Approximately thirty minutes after the arrival of the law enforcement team at 608 McMinn Avenue, Best and Johnson were removed from the premises and transported to police headquarters. Most of the arrest team also departed at that time. Remaining behind with Ivan Northington (a high school student), his brother Donovan (a middle school student), and Ms. Johnson's eight-month old infant were Corporal Warner and Sergeant Tripp of the PSP and Chief Whiteman and Lieutenant Bailey of the Williamsport Police Department. Lieutenant Bailey was a canine handler, and had his patrol dog with him.
The law enforcement officers had remained at the premises awaiting the arrival of staff of the Lycoming County Children and Youth Services ("C&Y") to take custody of Ivan, Donovan, and the eight-month old baby. At approximately 7:00 a.m. on October 2, 2007, Heather Wood of C&Y, accompanied by Captain William Weber of the Williamsport Police Department, arrived at 608 McMinn Avenue. Ms. Wood retrieved items for the infant from the first floor, while Captain Weber accompanied Ivan and his brother Donovan to the second floor, where they retrieved items necessary to attend school that day. Ivan and Donovan placed their belongings in separate duffle bags. Upon their departure from the residence, the patrol canine handled by Lieutenant Bailey conducted a sniff of the duffle bags before they entered the C&Y minivan.*fn3
At the evidentiary hearing held on April 21, 2009, Ivan testified that he saw Lieutenant Bailey enter the premises with the patrol dog as the C&Y minivan was pulling away. Lieutenant Bailey testified that he did not recall going into the home. He also testified that he did not recall having his patrol dog sniff the duffle bags.
Ivan and Donovan were transported to the Williamsport police headquarters. They were then taken to school. Later during that day, Ivan's mother, who resides in Philadelphia, arrived to take Ivan and Donovan back to Philadelphia. Ivan, accompanied by Joseph Weber of C&Y, returned to 608 McMinn Avenue at approximately 2:00 p.m. He and Ivan were able to enter the premises without difficulty.*fn4 Ivan, who at all times was accompanied by Mr. Weber, retrieved clothing and personal belongings for him and his brother, and then left the premises.*fn5
At the time that Special Agent Crowley applied for search warrants for other locations on October 1, 2007, he and the Assistant United States Attorney had determined that they did not have sufficient information to support a finding of probable cause to believe that evidence of criminal activity would be found at 608 McMinn Avenue. Accordingly, they did not have the authority to search the premises at that time, and Defendant Best, at the time of his arrest, refused to consent to a search of the property.
At approximately 11:00 a.m. on October 2, 2007, PSP Trooper Kim Bedell had his narcotics canine, Ellie, check the exterior of 608 McMinn Avenue for drugs. Specifically, Trooper Bedell, who had been at another of the locations where arrests had taken place earlier that morning, had the narcotics dog sniff the exterior of building in the vicinity of the front and rear doors as well as the window seams to determine whether narcotics could be detected to be present at that location. The canine search was negative.
On October 3, 2007, DEA Special Agent Crowley appeared before Judge Muir to secure a search warrant for 608 McMinn Avenue. Although the law enforcement officials had believed that they lacked probable cause to search this property before seeing Judge Muir on October 1, 2007, Special Agent Crowley had received information after securing those warrants from one of the confidential informants upon whom he had relied to obtain those warrants. This information indicated that Best had stored a quantity of drugs at 608 McMinn Avenue.
The affidavit submitted in support of the application consisted of the first 37 paragraphs of the affidavit that had been used to secure warrants to search the other properties mentioned above, along with the following additional paragraphs:
38. 608 McMinn Avenue is the residence of Leanika Johnson, a/k/a, "Pookie" and Sean Best, a/k/a, "Shiz". Johnson and Best are known as being members of a drug trafficking organization led by Dorothy Robinson, a/k/a, "Dorothy Johnson," a/k/a "Mae-Mae," with multi-state ties to Florida and Alabama. During the time of this conspiracy of January 1, 2003, to the present, Johnson and Best have been responsible for the distribution of kilograms of cocaine and crack cocaine in the Williamsport, Pennsylvania, area.
39. Sean Best and Leanika Johnson previously sold crack cocaine and cocaine from addresses they resided in to include 723 High ...