The opinion of the court was delivered by: Chief Judge Kane
Before the Court is Defendant Bryan Mitchell's motion to suppress evidence. (Doc. No. 18.) Defendant moves to suppress evidence of firearms found pursuant to a warrantless search of a residence in which he was present on October 13, 2009. For the reasons that follow, the motion will be denied.
1. Factual Background*fn1
At all times relevant to this order, Defendant Bryan Mitchell was under supervision by the Dauphin County Adult Probation Office ("DCAPO") for having possessed a firearm without a license. Prior to commencing probation, Mitchell had been given a form entitled "Dauphin County Conditions of Probation/Parole/Intermediate Punishment." The form notified him that, as part of his probation, he was "subject to a search of [his] person, property, place of residence, and seizure of all contraband found therein." (Ex. 1.)
On October 13, 2009, DCAPO received information from a confidential source ("CS") that Defendant was distributing firearms from 1411 South Fifteenth Street, Apartment 202, in Harrisburg.*fn2 The CS more particularly stated that the firearms were being held in a "dark" duffel bag which contained "machine gun-type" and "MAC 11" rifles. The CS had delivered accurate tips to the probation office on approximately three prior occasions.
Upon receiving the tip from the CS, Probation Officer Tim Kinsinger began investigating by calling his deputy director and requesting assistance from Assistant Supervisor Kelly Evans. Evans agreed to assist in the investigation of Mitchell. Evans attempted to contact Mitchell's primary case agent, Tina Trostle, but Trostle was unavailable. Evans did, however, retrieve and read Trostle's notes on Mitchell prior to acting on the tip. Trostle had indicated in her notes that Mitchell's sister, Chelsea, had told her that Mitchell was residing at 1411 Fifteenth Street with his girlfriend, Shahayla Aldridge. There was no indication whether Trostle had investigated the accuracy of the representation that Mitchell resided at 1411 Fifteenth Street.
Later the same day, Evans and Kinsinger decided to investigate the CS's tip by going to 1411 Fifteenth Street. Because they were concerned that firearms would be present, Evans and Kinsinger arranged for Harrisburg police officers to accompany them to the residence. Accordingly, on October 13, 2009, Kinsinger, Evans, and several unidentified police officers knocked on the door at 1411 Fifteenth Street, Apartment 202. They announced themselves as "probation." Defendant Mitchell opened the door, and the officers immediately entered the apartment with their guns and flashlights drawn. Mitchell was instantly detained. Within seconds of the entry, a 9 mm Smith and Wesson handgun was seen near Mitchell's person.*fn3 The officers then performed a protective sweep of the apartment, looking only for other persons present, and found Shahayla Aldridge, Mitchell's girlfriend, and their toddler son, Bernai.
Once the officers discovered that the apartment was rented exclusively in Aldridge's name, the officers asked for her permission to search the residence. Prior to receiving her consent, the officers informed her that she could be charged with possession of any contraband found in the apartment, and that, as a result, she might lose her residence. She signed a consent form. (Ex. 2.) Before any search pursuant to the consent took place, however, Mitchell provided the officers with the location and contents of the duffle bag.*fn4
Mitchell testified that they had only been at Aldridge's home for approximately forty-five minutes when the probation and police officers arrived. Mitchell further clarified that, for approximately one month prior to the events of October 13, 2009, he and Aldridge had been living exclusively at his mother's residence: 623 Second Street, Highspire. Not only had the two been living at the Second Street residence, he claimed, but power had been disconnected from the 1411 Fifteenth Street residence for approximately a week. Mitchell and Aldridge both testified that they traveled to her apartment on October 13, 2009, only to empty the refrigerator in light of the power disruption and to clean the residence. In fact, Mitchell unequivocally stated that he had not been in the residence for approximately a month prior to the incident, that he had no intention of remaining in the apartment, that his ride was actually late in picking them up from the apartment, that he had no personal belongings at Aldridge's apartment, and that he had never resided in the apartment. Aldridge confirmed Mitchell's statements by revealing her understanding that Mitchell was prohibited from living in her apartment complex.
Defendant's mother, Michelle Mitchell, also testified regarding Defendant's residence. She corroborated Mitchell and Aldridge's testimony that Mitchell had been living with her in Highspire. She confirmed that Aldridge had also been living at the Highspire residence for the entire month preceding the events at issue in this case. She explained that the family had been living together and supporting one another through the recent loss of her other son, Defendant's brother.
On April 16, 2008, Mitchell was sentenced to Dauphin County Court for carrying a firearm without a license. He was paroled on March 27, 2009, at which point he came under the supervision of the DCAPO. On April 7, 2010, Mitchell was indicted for violation of 18 U.S.C. § 922(g)(1), knowingly possessing a firearm as a previously-convicted felon. (Doc. No. 1.) Defendant entered a plea of not guilty. (Doc. No. 9.) On May 18, 2010, Mitchell filed a motion to suppress evidence found as a result of the events outlined above. (Doc. No. 18.) On ...