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United States of America v. Wayne Waters

July 14, 2011

UNITED STATES OF AMERICA
v.
WAYNE WATERS



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

MEMORANDUM

Indictment No. 11-100 charges Defendant with distribution of cocaine base ("crack cocaine") in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C) (Count I); possession of crack cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C) (Count II); possession of 32 grams of crack cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B) (Count III); and possession of firearms and ammunition, namely two Heckler & Koch .45 caliber semiautomatic pistols, one loaded with seven live rounds of ammunition, the other loaded with eight live rounds of ammunition, and an additional 15 rounds of .45 caliber ammunition, in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1).

Defendant has filed a Motion to Suppress evidence seized from his home pursuant to a warrant on the ground that the affidavit of probable cause supporting the warrant falsely and misleadingly omitted material information. See Franks v. Delaware, 438 U.S. 154 (1978). On June 7, 2011, we held argument on Defendant's Motion and granted the request for a Franks Hearing contained therein. We held the Franks Hearing on June 7 and 8, 2011. We have considered the evidence presented and the arguments made by counsel on June 7 and 8 and in the Motion and memoranda of law. For the reasons that follow, the Motion to Suppress is denied.

I. BACKGROUND

The Defendant was arrested on March 10, 2010. After his arrest, Philadelphia police officers searched his home, located at 1915 South Norwood Street, Philadelphia, Pennsylvania, and seized, among other things, the drugs and firearms that are the subject of Indictment No. 11-100. According to the Government, the officers conducted the search pursuant to a properly issued warrant. According to Defendant, the officers conducted the search before applying for the warrant, moved evidence (a shoe box, plate and a bag) from a second-floor bedroom closet to the dining room table on the first floor of the house, and then procured the warrant and removed the evidence from the house. The Government does not dispute that police officers entered 1915 South Norwood Street before they applied for the warrant, but maintains that the police officers did not conduct the search that resulted in the seizure until after the warrant was issued.

A. The Warrant

The warrant authorizing the search of 1915 South Norwood Street was signed by the issuing magistrate at 9:05 p.m. on March 10, 2010. (Warrant at 1.) The affidavit of probable cause, which was signed by Philadelphia Police Officer Kapusniak, contains the following information:

1. At 2:45 p.m. on March 10, 2010, Officer Kapusniak and Officer Kelly went to the 1900 block of South Norwood Street to investigate illegal sales of narcotics and weapons offenses. (Aff. at 1.)

2. At 3:00 p.m., Officer Kapusniak observed a black male (Theodore Wright) approach 1915 South Norwood Street and another black male (Wayne Waters) exit the house and meet Wright on the porch. Wright handed United States currency to Waters who then handed small dark colored items to Wright. Wright left the property and walked north on Norwood Street, then east on Mifflin Street. Philadelphia Police Officer Schaffling stopped Wright on South 21st Street and recovered from him two black tinted packets each containing crack cocaine. (Id.)

3. At 3:25 p.m., a black female approached 1915 South Norwood Street while she was using a cell phone. Waters exited the house, also using a cell phone. The black female handed Waters United States currency and he dropped small dark colored items into her hand. She left the property, walked south on Norwood Street, and was seen entering 2113 McKean Street. (Id.)

4. At 4:10 p.m. a black male (Arnold Mercer), approached 1915 South Norwood Street and stood outside the property using a cell phone. Waters then exited the house, also using a cell phone. Mercer handed Waters United States currency and Waters handed Mercer small dark colored items. Mercer left the property and walked south on Norwood Street, then east on McKean Street. Police officers stopped Mercer on McKean Street and recovered from him a cell phone and two black tinted packets each containing crack cocaine. (Id.)

5. Waters left 1915 South Norwood Street at 4:20 p.m and walked to 2113 McKean Street, where he was stopped by Philadelphia Police Officer Aponte, who recovered the following items from him: three black tinted packets each containing crack cocaine, $132, one set of keys, and two cell phones. (Id.)

6. Police Officers were then directed to secure 1915 South Norwood Street pending application for a search and seizure warrant. (Id. at 1-2.)

According to the warrant, the search took place at 9:30 p.m. on March 10, 2010, and the police seized narcotics, money, guns, ...


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