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United States of America v. John Edward Dono

March 17, 2011

UNITED STATES OF AMERICA
v.
JOHN EDWARD DONO



The opinion of the court was delivered by: McLaughlin, J.

MEMORANDUM

The defendant is charged with one count of being a felon in possession of a firearm and one count of possessing a firearm with an altered/obliterated serial number. The defendant has moved to suppress evidence that was seized pursuant to a parole search of his home and statements made while in custody thereafter. The Court held an evidentiary hearing on January 26, 2011, after which it received further briefing on the motion. The Court will grant the defendant's motion.

In this case, a police detective received reliable information that the defendant was in possession of a firearm. The detective contacted the defendant's parole agent, but only informed the parole agent that he had received an anonymous tip. Without additional investigation, the parole officer then conducted a warrantless search of the defendant's home and recovered a weapon. In its initial brief in opposition to the motion, the government believed that the parole agent was aware of the reliable information possessed by the detective. See Opp'n at 2.*fn1 At the evidentiary hearing, the government conceded that reasonable suspicion must be measured by what the parole agent knew at the time of the search. After the evidentiary hearing, the government requested the opportunity to submit additional briefing to address whether the detective's knowledge may be imputed to the parole agent under the collective knowledge doctrine. The Court allowed the government to do so, and the defendant submitted a reply brief.

I. Findings of Fact

On February 4, 2010, Detective Jason Harris of the Newtown Township Police Department spoke on the phone with Johnnille Dono, the adult daughter of the defendant John Edward Dono. Ms. Dono told Detective Harris that her father was on parole and in possession of an AK-47-style rifle and a handgun. Ms. Dono explained that she resided with the defendant and the defendant had asked Ms. Dono to conceal the rifle inside her closet. Detective Harris followed up with an in person meeting with Ms. Dono on Friday, February 5, 2010. At this meeting, Johnnille Dono confirmed the identity of her father, and expressed her desire not to cooperate any further for fear of reprisal. After this conversation, Detective Harris confirmed that Mr. Dono was currently on probation or parole under Pennsylvania supervision.

Detective Harris contacted Pennsylvania State Parole Agent Aileen Sabol and stated that he had received "an anonymous tip from an uncooperative individual" that there was one, if not two, firearms on Mr. Dono's property. (N.T. 7:22-25.) Detective Harris did not relate any of the other specifics of which he was aware to Agent Sabol, such as location of the weapon in the house, the relationship of the tipster to Mr. Dono, that he had met with the tipster in person, or circumstances surrounding the delivery of the weapon to Mr. Dono's home. Agent Sabol agreed that Detective Harris essentially said that he had received a tip that there may be a gun in the home with no other information.

Agent Sabol did not conduct any other investigation after receiving the tip from Detective Harris, nor did Detective Harris direct or instruct Agent Sabol to pursue the lead. Agent Sabol testified: "[Detective Harris] told me he had received an anonymous tip that Mr. Dono possibly had weapons in his house. And he was telling me, because he knows that we make our visits at home, so for safety purposes." (N.T. 44:16-19.) After receiving the tip, Agent Sabol consulted with Agent Edward McGuire, and decided to consult with her supervisor, David thorStraten-Mohr. The supervisor instructed the parole agents to "wait for the weekend, to see if the police could develop any information." (N.T. 45:18-22.)*fn2 Before reaching the decision to search Mr. Dono's home, the parole agents reviewed Mr. Dono's criminal history. Agent Sabol described Mr. Dono's record as including at least one conviction in federal court and at least four convictions in state court, which included assaultive convictions and drug use. There had been no problems or issues with Mr. Dono during his supervision.

Without any additional information, the agents decided that, "in the interest of public safety and the safety of Mr. Dono's family, that [they] had to search the residence." (N.T. 45:23-46:9.) Agent Sabol then contacted Detective Harris to inform him that the parole agents planned to search Mr. Dono's home, and they requested that Detective Harris bring uniformed police officers to provide backup. Detective Harris was not involved in the decision to conduct a parole search of Mr. Dono's home.

On or about February 9, 2010, Agent Sabol and the state parole agents conducted a search of the house. Detective Harris and the uniformed police officers did not assist in the initial search. During the initial search, Detective Harris testified that he remained outside of the house, and then waited in the kitchen after it became apparent that the defendant "wasn't going to create a problem[.]" (N.T. 28:17-20.) Agent Sabol recovered an AK-47 style rifle in the closet of Ms. Dono's bedroom. After the rifle was found, Detective Harris obtained a search warrant to search the rest of the house. The Newtown Township Police Department then took possession of the weapon. Following the seizure of the weapon, the defendant was transported from his residence to the Newtown Township Police Station. The defendant was read his Miranda rights and interviewed by Detective Harris and Agent Sabol.

As a condition of Dono's parole, Dono agreed to the search policy of the Pennsylvania Department of Probation and Parole that allows for warrantless searches. (See N.T. 42:24-43:6.)

II. Analysis

The United States Court of Appeals for the Third Circuit has concluded that parole officers acting pursuant to Pennsylvania's warrantless search condition must have reasonable suspicion in order to search the residence of a parolee. United States v. Baker, 221 F.3d 438, 440 (3d Cir. 2000). Reasonable suspicion is a "particularized and objective basis for suspecting the particular person . . . of criminal activity." United States v. Brown, 448 F.3d 239, 246 (3d Cir. 2006). To decide whether "reasonable suspicion" exists, courts consider the totality of the circumstances. United States v. Williams, 417 F.3d 373, 376 (3d Cir. 2005). An anonymous tip, without more, does not provide reasonable suspicion. Florida v. J.L., 529 U.S. 266, 274 (2000) ("[W]e hold that an anonymous tip lacking indicia of reliability of the kind contemplated in Adams and White does not justify a stop and frisk whenever and however it alleges the illegal possession of a firearm."). Reasonable suspicion must be measured by what the officers knew before they conducted their search. Id. at 271.

In certain situations, the reasonable suspicion of one officer may be transferred to another officer under the "collective knowledge" doctrine. See, e.g., United States v. Hensley, 469 U.S. 221, 232 (1985) (holding that police officers in one jurisdiction may rely on a "wanted flyer" issued by another department where the issuing department had a reasonable basis for issuing the flyer and stop is made in objective reliance on the flyer); United States v. Burton, 288 F.3d 91, 99 (3d Cir. 2002) ("An officer can lawfully act solely on the basis of statements issued by fellow officers if the officers issuing the statements possessed the facts and circumstances necessary to support a finding of the requisite basis."); United States v. Colon, 250 F.3d 130, 136 (2d Cir. 2001) (declining to extend collective knowledge doctrine where non-officer emergency dispatch possessed information sufficient for reasonable suspicion, but information was not conveyed to arresting officers).

The defendant has moved to suppress the gun that was found in his home on the grounds that the parole agents lacked reasonable suspicion to conduct the search. The analysis as to whether the parole agents' search was permissible under the Fourth Amendment involves three parts. As an initial matter, the Court addresses whether Detective Harris had reasonable suspicion to suspect that Mr. Dono was illegally in possession of a firearm. The Court then addresses whether Agent Harris had reasonable suspicion to conduct the search of Mr. Dono's home. Concluding that Detective Harris had reasonable ...


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