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United States of America v. Allen Brown Also Known As Allan Brown

April 8, 2011

UNITED STATES OF AMERICA, PLAINTIFF,
v.
ALLEN BROWN ALSO KNOWN AS ALLAN BROWN, DEFENDANT.



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

MEMORANDUM OPINION AND ORDER OF COURT

Pending before the Court is the GOVERNMENT'S MOTION TO RECONSIDER ORDER GRANTING SUPPRESSION ON THE BASIS OF NEWLY DISCOVERED EVIDENCE (Document number 74), the OPPOSITION BY ALLEN BROWN TO GOVERNMENT'S MOTION TO RECONSIDER ORDER GRANTING SUPPRESSION ON THE BASIS OF NEWLY DISCOVERED EVIDENCE (Doc. No. 76), and the government's reply to Defendant Brown's response in opposition (Doc. No. 77). The government's motion is ripe for disposition.

PROCEDURAL HISTORY AND BACKGROUND

The facts of the underlying crime and criminal investigation thereof have previously been outlined by the parties before this Court and the U.S. Court of Appeals for the Third Circuit in U.S. v. Brown, Court of Appeals Docket # 09-3643, and are generally not in dispute. On October 1, 2007, two armed men robbed the S & T Bank in Ford City, Pennsylvania, at approximately 9:15 a.m. In the course of the robbery, the two men wore identical Halloween scream-type masks that covered their entire heads. They robbed the bank at gunpoint, and upon exiting the bank building, fled on foot and proceeded in the direction of the Armstrong County School District Administration building. At the time, an unattended school district delivery van was parked outside the administration building, with its doors open and the keys in the ignition, as the driver was making a delivery inside the building. The van was presumably taken by the bank robbers and driven to an area approximately one half mile away, where it was apparently abandoned along Hobson Drive, near the intersection with Pennsylvania State Route 66 ("SR 66"). Hobson Drive is a two-lane road with no curbs or sidewalks. Approximately thirty (30) minutes later, the van was found at that location and processed by police. Upon search, the police recovered one of the two scream-type masks inside the van. The second mask was not found.

Shortly after the robbery, a criminal investigation was initiated by the Pennsylvania State Police ("PSP"). The investigation was led by Trooper First Class Shane W. Lash from the nearby Kittanning station. Special Agent Robert Smith of the Pittsburgh branch of the Federal Bureau of Investigation ("FBI") also responded to the robbery scene that morning. Special Agent Smith and Trooper Lash agreed that the PSP would assume the lead role in the investigation. Trooper Lash did, however, provide Special Agent Smith with updates regarding the status of the investigation. Doc. No. 75, Transcript of suppression hearing at p. 43.

As part of the investigation, PSP Troopers conducted numerous interviews of potential witnesses. Several witnesses stated that between 8:00 a.m. and 9:00 a.m. on the morning of the robbery, they observed an unoccupied car parked in the same spot where the stolen van was later found on Hobson Drive. See, U.S. v. Brown, 647 F.Supp.2d 503 (W.D.Pa. 2009). The witnesses' descriptions of the vehicle were generally consistent: two described it as a silver Volkswagen Jetta, one as a gray car, one as a silver car, and one as a white car with a blue stripe. Id. Each witness recalled seeing something hanging from the driver's side mirror, and two witnesses described the car as having white license plates (one specifically identified the plates as Maryland plates.) One witness reported seeing a black male driving the same car away from the area at approximately 9:25 a.m., ten minutes after the robbery. Special Agent Smith did not participate in the interviews of the witnesses who provided this information. Doc. No. 75 at p. 87.

This interview information became known to Special Agent Smith through conversations with Trooper Lash, who also memorialized same in a PSP Incident Report. Special Agent Smith incorporated this information in a draft affidavit of probable cause for a search warrant on or about January 23, 2008. Id. at pp. 87-88. Special Agent Smith did not receive a copy of Trooper Lash's report until January 26, 2008, three days after drafting the affidavit. Id. at p. 90.

Defendant Brown moved to suppress the DNA evidence from the scream-type mask on the basis of purportedly false information in the affidavit of probable cause, particularly information contained in paragraph 7(c), which stated:

Police interviews of various witnesses following the robbery reported witnessing the stolen Armstrong County School Administration van meet up with a silver Volkswagen Jetta having a possible Maryland registration. Witnesses then observed the silver Jetta drive away from the area where the van was left parked.

During the suppression hearing on July 31, 2009, Special Agent Smith testified regarding the statements in paragraph 7(c) as follows:

Q. Now, during the course of the investigation, did you personally get involved in the interview of any of the witnesses who observed the Volkswagen Jetta?

A. I did not.

Q. Did you get involved in the interviews of anyone relative to the van being stolen?

A. I did not.

See Transcript of Suppression Hearing filed at Doc. No. 75 at 84-85. Special Agent Smith further testified in relevant part regarding any notes of his investigation:

Q. So the personal notes that you took, where are those now?

A. I have no idea. They weren't associated with any particular 302 or report that I would have been producing, so ...


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