The opinion of the court was delivered by: Terrence F. McVerry United States District Court Judge
MEMORANDUM OPINION AND ORDER OF COURT
Pending once again before the Court is DEFENDANT ALLEN BROWN'S MOTION TO SUPPRESS EVIDENCE UNDER FRANKS V. DELAWARE WITH CITATION TO AUTHORITY. Doc. No. 51. This most recent occasion is the result of the April 8, 2011, Memorandum Opinion and Order of Court (Doc. No. 80) granting the GOVERNMENT'S MOTION TO RECONSIDER ORDER GRANTING SUPPRESSION ON THE BASIS OF NEWLY DISCOVERED EVIDENCE (Doc. No. 74). Defendant's motion to suppress, originally filed on June 25, 2009, sought to suppress the biological material obtained from him on February 20, 2008 pursuant to a search warrant, and the results of a DNA analysis performed on the biological material. Doc. No. 51. The basis for the motion was Defendant's contention that the affidavit of probable cause in support of the application for the search warrant contained material omissions and false statements, and, therefore, failed to establish probable cause. Id.
A hearing on the motion was conducted on July 31, 2009, after which the Court granted Defendant's motion and suppressed the evidence in a Memorandum Opinion and Order of Court dated August 12, 2009. See Doc. No. 60 (reported at U.S. v. Brown, 647 F.Supp.2d 503 (W.D. Pa. 2009)). In so doing, the Court found that subparagraph 7(c) of the affidavit of probable cause contained certain materially false statements; statements that were made with a reckless disregard for the truth; and that such statements were material to the finding of probable cause. Id. Setting aside the affirmative misstatements of the subparagraph, as required under the stricture of the United States Supreme Court decision of Franks v Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), the Court found probable cause was lacking in the application for the warrant to seize the DNA evidence, and granted the motion. Id. The Court also found that the affidavit of probable cause contained material omissions, specifically information involving Defendant's uncle and possible suspect, John Wingate. Id. While the Court found that the material false statements coupled with the omissions justified granting Defendant's motion, the Court did not rule on whether the omissions, in and of themselves, warranted suppression. Id.
A series of evidentiary and procedural developments have occurred that affect the Court's previous ruling, the germane details of which will be described infra. For the reasons as set forth herein, the Court will vacate its original order granting Defendant's motion to suppress the evidence, and will deny the motion to suppress evidence filed at Doc. No. 51.
BACKGROUND AND PROCEDURAL HISTORY
The facts of the underlying crime and investigation 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 a scream-type mask inside the van. The second mask was not found.
Shortly after the robbery, an 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 periodic updates regarding the status of the investigation. See Doc. No. 75, Transcript of the July 31, 2009 suppression hearing at Tr. p. 43.
On or about January 23, 2008, at the request of Trooper Lash, Special Agent Smith prepared an affidavit to support a search warrant application for the collection of a DNA sample from Defendant. The affidavit was prepared by an Assistant United States Attorney in Pittsburgh with information from Special Agent Smith, who reviewed and authorized the affidavit before forwarding it to the Baltimore field office of the FBI on or about February 4, 2008, with instructions to apply for the search warrant. On February 14, 2008, Special Agent James J. Mollica, Jr., presented the application and affidavit for a search warrant to U.S. Magistrate Judge Thomas DiGirolamo in Greenbelt, Maryland, who reviewed it and issued the warrant on February 14, 2008. See Search Warrant, filed at Doc. No. 51 as exhib. 1.
As the record now reveals, a divergence occurred between what actually followed in the course of the investigation in and around October of 2007, and what key participants of the investigation were subsequently able to recall about the course of the investigation at the time Defendant's motion to suppress was originally considered in the summer of 2009. A description of the development of the evidentiary record as presented to the Court is appropriate.
1. July 2009: First Suppression Hearing
The following description reflects the evidence presented during the suppression hearing conducted on July 31, 2009 (the "first suppression hearing"), and was the factual basis for the Court's original ruling to grant Defendant's motion to suppress. In the early stages of the investigation, PSP Troopers conducted numerous interviews of potential witnesses. Several witnesses reported having seen an unoccupied car parked in the same spot where the stolen van was later found on Hobson Drive between 8:00 a.m. and 9:00 a.m. on the morning of the robbery. See Brown, 647 F.Supp.2d at 507. 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 general 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. See Transcript of Suppression Hearing filed at Doc. No. 75 at p. 87.
The information from these witnesses 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 the 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 first suppression hearing, 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?
Q. Did you get involved in the interviews of anyone relative to the van being stolen?
See Doc. No. 75 at 84-85. Special Agent Smith further testified regarding any personal notes he took during the course of the investigation. More specifically, he was asked by counsel for Defendant about any notes he may have taken during his conversations with Trooper Lash:
Q. Trooper Lash communicated with you, correct?
A. At some point I believe he did.
Q. He updated you on the progress of the investigation on November 13, correct, 2007?
A. Possibly. I'm not sure of the exact date but --
Q. When you had these conversations with Trooper Lash, did you make any record of them to assist you in remembering your conversations with him?
A. I may have take a few personal notes but nothing that would be entered into the file. This is a permanent record.
Q. So, you didn't like, for example, prepare a memorandum or 302, something of that nature, heard from Lash, told me Myschisin thinks it's John Wingate? You didn't do anything like that kind of chronological thing for the file?
A. No, realizing he had his own particular file and again realizing - well, my understanding - well, my position was that we were assisting in the investigation, but again, the state troopers were the lead agency. So the reports would have to be filed with them.
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 they could have been thrown away.
Q. You might have just written it down and thrown it away, but you don't know?
Q. Would they be in the file?
A. Typically, when I would save notes is when they would be as a result of a particular interview, not necessarily with a trooper or another officer unless they had substantive information to provide.
Q. So you had no personal notes to refer to then when you prepared the affidavit, correct?
A. I may have taken notes of the occasion I spoke with Trooper Lash but after producing the affidavit and reviewing it and believing it to be true and correct, I most likely threw those notes away.
A. I don't have them so I have to say I did.
Id. at pp. 100-02. Upon conclusion of the hearing, this Court found:
Defendant challenges paragraph 7(c), correctly asserting that "the affidavit stated falsely that witnesses reported seeing a stolen Armstrong County School District van, which was the apparent getaway vehicle, 'meet up with a silver Volkswagen Jetta having a possible Maryland registration,' and that 'witnesses then observed the silver Jetta drive away from the area where the van was left parked.'" Doc. # 51 at p. 2. The government concedes that the first sentence of paragraph 7(c) is false. Doc. # 53. The Court agrees. From the testimony and evidence, no witnesses saw the subject ...