The opinion of the court was delivered by: Terrence F. McVerry United States District Court Judge
MEMORANDUM FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER OF COURT
Presently before the Court for disposition is Defendant Jamill Denson's MOTION TO SUPPRESS EVIDENCE (Document No. 1236). The government, with the Court's permission, filed an Omnibus Response to all pretrial motions (Document No. 1321), including a specific response to Denson's motion to suppress evidence. The Court conducted an evidentiary hearing on August 18, 2010 regarding the motion, at which testimony was presented from police officers Sean Rattigan and Eric Harpster on behalf of the government. Shelly Everett, a neighbor of Denson, testified on his behalf.
In Denson's motion, he seeks to suppress evidence obtained by police in searches of 806 and 817 Estella Avenue, 628 Calera Avenue, and 703 Taft Avenue, Pittsburgh, Pennsylvania, on September 18, 2008. However, at the evidentiary hearing, counsel for Denson clarified that he is challenging only the search at 817 Estella Avenue (the "Denson House"). In essence, Denson contends that law enforcement agents conducted a warrantless search of his premises at 817 Estella Avenue, based on stale information, during the afternoon hours of September 18, 2008 prior to the issuance of a search warrant by a United States Magistrate Judge at approximately 8:00 p.m. on the evening of September 18, 2008.
The government contends that Denson has not established standing to invoke his right to a reasonable expectation of privacy inside the House. The government also contends that the agents were permitted and justified to secure the location to prevent the destruction of evidence, and that no information learned during the time the police engaged in securing the premises was included in the affidavit which supported the application for a search warrant presented to the Magistrate Judge, and that the agents searched the Denson House pursuant to a valid search warrant based on probable cause.
A. Background of the Investigation
The charges in this case stem from a multi-agency law enforcement investigation of drug trafficking in the Brookline, Beltzhoover and Mount Washington neighborhoods of Pittsburgh, Pennsylvania. The investigation began in October 2007 with controlled purchases of cocaine from Defendants Leon Hudson and Bruno Desimone. The government then obtained court-authorized Title III wiretap intercepts on five cellular telephones utilized by Jamill Denson and co-Defendants Nicholas Mihelcic, Anthony Terry and Victor Nelson from May 2008 through September 2008. On September 17, 2008, agents intercepted phone calls which provided information that a shipment of 10-15 kilograms of cocaine was expected to arrive the next day. Agents arrested Anthony Terry, Jamill Denson and Victor Nelson on September 18, 2008, but the anticipated shipment of cocaine did not materialize. That evening, agents executed search warrants and seized extensive evidence, including over $150,000 in cash. To date, over twenty of the Defendants charged in the Superseding Indictment have pled guilty.
B. Government's Attempt to Supplement the Record
The government was apparently surprised when the defense presented a witness, Shelly Everett, to testify at the suppression hearing. Ms. Everett lived next door to the Denson House on Estella Avenue. In response to Ms. Everett's testimony, the government called officer Eric Harpster as a rebuttal witness. During oral argument after both sides rested, the Assistant United States Attorney commented that he might request a renewed hearing. However, the government did not actually ask to keep the record open or to reopen the hearing. Instead, the government attached to its post-hearing brief an affidavit signed by four officers who participated in the seizure/search of the House.
The Defendant has objected to the government's attempt to supplement the record in this manner. The Court agrees with Defendant. The government, which has the burden of proof to demonstrate the probable cause and reasonableness of the search, rested its case. It did not seek to hold the record open for the introduction of additional evidence. Nor did the government request to reopen the proceeding. The government's current tactic would preclude the Defendant from having an opportunity to cross-examine the "new" witnesses. Moreover, these witnesses cannot be considered to be "new," as their existence and involvement were well-known to the government at the time of the initial hearing. Rather, the government made a knowing and informed decision that it did not need to present their testimony at the hearing -- a decision it appears to now regret.
The government's attempt to remedy its decision to not call these officers as witnesses by submitting a post-hearing affidavit is not appropriate and would deprive Defendant of his right to cross-examine these witnesses. The affidavit is hereby STRICKEN and will not be considered by the Court in ruling on the Motion to Suppress.
Preliminarily, the government objected that Denson lacks standing to challenge the search of the House. The Court finds that Denson has standing to challenge the search at 817 Estella Avenue as counsel produced a deed reflecting Denson's ownership of the property which was admitted into evidence. In addition, the affidavit of probable cause prepared by FBI Special Agent Todd Prewitt in support of the application for a search warrant averred that the Allegheny County real estate website lists Denson as the owner of the subject property.*fn1 Although the Court agrees that it is Defendant's initial burden to establish ...