MEMORANDUM OPINION AND ORDER
Now pending before the Court are numerous pretrial motions filed by Defendant: MOTION TO SUPPRESS (Document No. 25); MOTION FOR DISCOVERY (Document No. 27);
MOTION FOR EARLY DISCLOSURE OF ALL JENCKS ACT MATERIAL (Document No. 29);
MOTION REQUESTING NOTICE PURSUANT TO RULE 404(B) (Document No. 30); MOTION TO COMPEL DISCLOSURE OF PLEA BARGAINS, PREFERENTIAL TREATMENT, AND PROMISES TO GOVERNMENT WITNESSES (Document No. 31); and SUPPLEMENTAL MOTION TO SUPPRESS EVIDENCE (Document No. 47).
Defense counsel has also submitted briefs in support of the motions. The government filed an omnibus response to the original motions (Document No. 36) and a separate response to the Supplemental Motion to Suppress Evidence (Document No. 50).
Both parties have filed multiple motions for extensions of time.*fn1 The hearing on suppression of evidence was originally scheduled in July 2009, but was postponed numerous times. Eventually, the Court held a suppression hearing on March 24, 2010. At Defendant's request, the Court permitted further post-hearing briefing. The official transcript was filed on May 5, 2010. Both sides again filed numerous requests for extensions of time. The government's reply brief on the suppression motion was due August 9, 2010 but was not filed until August 23, 2010.*fn2 Needless to say, the issues are ripe for disposition.
Factual and Procedural Background
Claus is charged in a one-count indictment with possession with intent to distribute less than 50 kilograms of marijuana, on or about February 23, 2009, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(D). The charge arose out of a "knock and talk" encounter with Defendant's live-in partner, Karen Henderson, on February 23, 2009 and a subsequent search of Claus' home and property.
A. Motions to Suppress Evidence
Defendant contends that all evidence found in his home at 1123 James Street, Turtle Creek, Pennsylvania should be suppressed because the search was warrantless and non-consensual. Defendant's supplemental motion contends that evidence derived from a search of Defendant's truck and trailer pursuant to a search warrant obtained on February 25, 2009 should also be suppressed as "fruit of the poisonous tree."
At the suppression hearing, Thomas Dunlevy, a police Sergeant for the City of Duquesne assigned to a DEA taskforce, Swissvale police officer Charles Watson, West Homestead police officer Herbert Strobel, investigator Barry Fox, and Karen Henderson, Defendant's long-time partner, testified. There are two significant interactions that must be evaluated: (1) the initial "knock and talk" exchange between the officers and Ms. Henderson which resulted in their entry into the home; and (2) the subsequent obtaining of a written consent form executed by Defendant Arthur Claus.
Officers Dunlevy, Strobel and Vijay Nemani chose to engage in a "knock and talk" at Defendant's home on February 23, 2009 because they suspected that Claus was engaged in illegal drug activity. They did not have a search warrant. The officers knew that Claus was born in 1959 and had two prior drug convictions in Phoenix and St. Louis. They were dressed in plain clothes but had necklace-type badges that identified them as police officers. The officers had conducted a short surveillance, which disclosed that a dark truck had recently been parked in the driveway. They had also reviewed the property description and knew that it was a large lot which contained outbuildings. They did not know whether Claus was at home.
The house has two stories and has a large, fenced-in front porch (22' x 70"). It is located below street level and to approach the front door, the officers were required to proceed down a narrow, steep, twelve-foot concrete staircase. At the time of the initial encounter, approximately 4:20 p.m., two large German Shepard dogs were on the front porch barking. Ms. Henderson came outside and the officers identified themselves and asked to speak to Arthur Claus. Ms. Henderson is a short, gray-haired, soft-spoken lady appearing to be in her fifties in age. There is no evidence that Henderson has a criminal record or had any previous encounters with law enforcement agents. Henderson and Claus had lived together at the home for ten years or so. Henderson stated that Claus was not home and that she did not know when he would return. She offered to take their phone number and have Claus call them. Ms. Henderson took the dogs inside and came back to the door. While Ms. Henderson was inside, all of the officers moved from the top of the staircase down onto the porch near the door. The officers persisted in asking her questions. Henderson was evasive and again denied that Claus was home. She denied knowing who owned the truck parked in their driveway. It was a cold and windy day. Dunlevy asked to speak to her inside the home to keep his notes/papers from blowing. The officers testified that Ms. Henderson invited them to come in. Ms. Henderson testified that she did not invite them in, but rather that the officers kept walking towards her and, before she realized it, they were inside.
The Court finds that Ms. Henderson's testimony is not entirely credible. The Court credits Ms. Henderson's testimony that she was nervous, upset and scared. On the other hand, despite Henderson's denial at the suppression hearing some thirteen months after the encounter, the ...