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United States v. Livingston

April 30, 2010


The opinion of the court was delivered by: Judge Conner


Presently before the court are three motions filed by defendant DeShawn Livingston ("Livingston") in anticipation of his criminal trial. Livingston has moved to (1) suppress physical evidence seized in connection with the investigation into the above-captioned matter, (2) compel production of Brady material, and (3) compel production of Rule 404(b) evidence. (See Docs. 163, 165, 211.) The court held evidentiary hearings on Livingston's motion to suppress on January 22, 2010 and February 19, 2010. (See Docs. 257, 264.) For the reasons that follow, the motions will be granted in part and denied in part.

I. Findings of Fact*fn1

The events underlying the present motions date back to the morning of April 20, 2008, when Richard Wilson ("Wilson"), a patrolman with the Susquehanna Township police department, received notice of an incident of domestic violence. (Doc. 257 at 4.) The victim in the altercation identified herself as Jasmine Williams and requested that Wilson meet her at a Shop & Drive convenience store located at the corners of Edgemont Road and Herr Street in Susquehanna Township. (Id.) Unbeknownst to Wilson at the time, the victim's actual name was Annelise Scherrer ("Scherrer"), but this was a fact she did not volunteer. (Id. at 10-11.)

Wilson met Scherrer at the Shop & Drive shortly after receiving her report. (Id. at 4.) He was accompanied by Richard Adams ("Adams"), a corporal with the Susquehanna Township police department. (Id. at 24.) Scherrer told the officers that Livingston, her live-in boyfriend, had been arrested for driving under the influence of alcohol in the early hours of the morning. (Id. at 6.) He then returned home high on crack cocaine, struck Scherrer in the face, and threatened to pistol whip her. (Id. at 5-6.) Both officers observed swelling on the right side of Scherrer's face consistent with her allegations. (Id. at 5, 25.)

After taking her statement, the officers informed Scherrer that they intended to proceed to the couple's apartment and arrest Livingston for simple assault. (Id. at 6, 26.) Scherrer then repeatedly warned the officers to proceed with caution. (Id. at 6-7.) According to Wilson, [S]he told us to be careful, that she said he's very violent and that he is scared of being robbed and he has a gun under his bed, and that if he hears any noises that for his safety he always gets the gun for fear that he is going to be robbed. (Id. at 6.) In addition, Scherrer provided Wilson with a key to the apartment and said, "this key opens the back door." (Id. at 6-7.) Wilson testified that he did not request the key, but that Scherrer simply "presented a key to me without me asking her." (Id. at 8.) Neither officer requested Scherrer's identification or any proof that she lived at the apartment with Livingston.*fn2 (See id. at 15.)

Scherrer's characterization of Livingston as intoxicated and potentially violent led Wilson and Adams to request backup support and to equip themselves with bullet-resistant helmets. (See id. at 8, 26-27.) They were soon joined by three additional officers and immediately traveled to Livinston's apartment at 2004 Clayton Avenue. (See id. at 8, 26-27.) The officers approached the back door led by Adams, who was holding a large bullet-proof shield. (Id. at 11, 29.) Adams opened the back door using the key provided by Scherrer, identified that police were entering the apartment, and commanded Livingston to show himself. (See id. at 11, 29.) After repeating this instruction several times, the officers entered the apartment. (See id. at 11-12.)

The back door opened into a narrow hallway, and as the officers cautiously proceeded forward, Adams continued to call out to Livingston. (See id. at 11-12, 30-31.) Finally, Livingston emerged in a doorway directly in front of the officers. (Id. at 30.) Adams told Livingston he was under arrest and to get on the floor. (Id. at 30-31.) For several seconds, Livingston did not move. (See id. at 12, 31.) Adams testified that he "seemed like he was processing what to do." (Id. at 31.) Rather than obey Adams' command, however, Livingston began to move to his right, prompting Adams to "amp up" his directives. (See id. at 12, 31.) Livingston then laid down as ordered and the officers rushed forward to secure the area. (See id. at 12-13, 31.)

Wilson secured Livingston by applying handcuffs while Adams attempted to ensure no other individuals were present in the room. (See id. at 13.) Approximately four to six feet from where Livingston was lying was an inflated air mattress. (Id. at 12-13, 32.) Adams kicked the mattress, causing it to bounce into the air and revealing a loaded revolver that had been concealed beneath the mattress. (Id. at 32.) According to both officers, Wilson's restraint of Livingston was simultaneous to Adams' discovery of the firearm. (See id. at 19, 32-33.)

Wilson immediately transported Livingston out of the apartment and placed him into the back of a police cruiser. (Id. at 14.) After he was read his Miranda rights, Livingston explained that the name "Jasmine Williams" was an alias, relayed Scherrer's real name, and revealed that there were multiple warrants outstanding for her arrest. (Id.) When the officers returned to the Susquehanna Township police station, Adams verified that the information supplied by Livingston was accurate, confirming that there were numerous outstanding warrants for Scherrer's arrest and in excess of one thousand dollars in unpaid fines. (Id. at 14, 34.) Scherrer contacted Adams one hour later to inquire whether it was safe for her to return to the apartment and gather her possessions. (Id. at 14, 34.) Adams indicated that the apartment was secure and said that he would meet her at the residence. (Id. at 14, 34.) When Scherrer arrived, Adams placed her under arrest. (Id. at 14, 34.)

Shortly after her arrest, Wilson transported Scherrer to the Dauphin County prison for temporary detention. (Id. at 21.) Scherrer told Wilson during the drive that Livingston was involved in at least one robbery in the city of Harrisburg. (Id. at 21-22.) Wilson relayed this information to John O'Connor ("O'Connor"), a detective with the Harrisburg police department. (Id. at 22, 44.) O'Connor then interviewed Scherrer, who told him about a robbery in which "an old lady [was] tied up and . . . the items that were taken were an X-Box 360, a Playstation, flat screen TVs, and that these guys were masked, [and] DeShawn had a mask in the house." (Id. at 45.) Scherrer's description was consistent with the circumstances surrounding an unsolved home invasion robbery that occurred on January 2, 2008, at 218 South 15th Street in Harrisburg.*fn3 (Id. at 44-45.) According to Scherrer, the stolen X-Box 360 and Playstation were still inside Livingston's apartment, along with the mask and camouflage gloves that Livingston wore during commission of the offense. (See id. at 46.) Scherrer also described a laptop computer within Livingston's residence; her description matched that belonging to a missing laptop from the January 2 robbery. (See id.)

O'Connor immediately applied for and obtained a warrant to search Livingston's apartment. (See id. at 46-47; see also Doc. 213-2.) The warrant identified the following items to be seized: (1) a black HP Compa[q] NX6110 laptop computer; (2) a Playstation 3 game set; (3) an X-Box 360; (4) a black ski mask; (5) green gloves; (6) a black hoodie; (7) black Timberland boots; and (8) any and all papers or photographs identifying an individual named "DC," who was believed to be Livingston's co-conspirator in the offense. (See Doc. 213-2.) O'Connor executed the warrant at 1:46 p.m. on April 21, 2008, and seized, inter alia, a black ski mask and brown gloves, black Timberland boots, one black hooded sweatshirt, an X-Box 360 and Playstation 3 gaming system, scales, and several documents identifying Livingston as the apartment's occupant. (Id.) O'Connor also seized a black Motorola cellular telephone, which was not identified in the warrant, but which matched the description of a cellular telephone stolen during the January 2 robbery. (See Doc. 257 at 51.)

Contrary to Scherrer's assurances, however, O'Connor did not come upon a laptop computer during the apartment search. (See id. at 55.) O'Connor questioned Scherrer about this, and she told him that Livingston's mother, Constance Livingston ("Constance"), must have removed it from the residence. (Id.) O'Connor and several detectives therefore traveled to Constance's home at 2022 Chestnut Street in Harrisburg to request that she turn over the computer. (See id.) According to O'Connor, when Constance opened the front door, he said, "I want the computer that you took out of 2004 Clayton Avenue, Apartment 4." (Id. at 60.) Constance then complied and surrendered the laptop. (Id. at 55.)

At some point over the course of the following week, O'Connor interviewed Scherrer again. (See id. at 56, 65-66.) She explained that Livingston's mother was in possession of a blue Ozark bag containing $20,000 in stolen cash. (See Doc. 213-3.) Based upon this information, O'Connor obtained a warrant to search Constance's home on April 29, 2008, and officers thereafter seized a wooden marijuana pipe, a shotgun, and a blue bag. (See id.; see also Doc. 257 at 56.) The blue bag contained no cash, and officers were unable to locate the $20,000 alluded to by Scherrer. (Id. at 65-66.)

On February 25, 2009, Livingston was indicted by a grand jury. The indictment contains fifteen counts and charges Livingston with criminal conspiracy to commit an offense against the United States in violation of 18 U.S.C. § 371, two counts of interference with interstate commerce by threats or violence in violation of 18 U.S.C. § 1951, two counts under 18 U.S.C. § 924(c)(1)(A)(i)-(ii) for use of a firearm during and in relation to a crime of violence, and one count of possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g). (See Doc. 1.) On March 17, 2009, Livingston entered a plea of not guilty to the indictment. (Doc. 56.)

Livingston now presents three pretrial motions for the court's review. First, he claims that his arrest on April 20, 2008 was illegal and moves to suppress (1) the firearm seized during his arrest, (2) all evidence seized from the subsequent search of his apartment, and (3) the laptop computer provided to the police by Livingston's mother. (See Docs. 211, 247.) In his second motion, Livingston moves to compel the government to produce Brady material. (Doc. 163.) Finally, Livingston seeks the production of information pertaining to other crimes, wrongs or acts potentially admissible under Federal Rule of Evidence 404(b). (See Doc. 165.) Each of these motions has been fully briefed and is ripe for disposition.

II. Discussion

A. Motion to Suppress ...

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