The opinion of the court was delivered by: (Chief Judge Kane)
On December 1, 2010, a grand jury returned a four count indictment against Defendant Seth Williams charging Defendant with: (1) distribution and possession with intent to distribute crack cocaine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(iii) in Count 1; (2) possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 941(c)(1)(A)(i) in Count 2; (3) possession of a firearm by a felon in violation of 18 U.S.C. § 922(g)(1) in Count 3; and (4) being an unlawful user of a controlled substance in possession of a firearm in violation of 18 U.S.C. § 922(g)(3) in Count 4. (Doc. No. 1.) Defendant entered a plea of not guilty on December 3, 2010. (Doc. No. 10.) On June 23, 2011, Defendant filed a motion to suppress evidence. (Doc. No. 57.) The Court held a hearing on the motion on October 27, 2011, and on October 31, 2011. Following the hearing, Defendant filed a supplemental brief on November 16, 2011 (Doc. No. 86), and the United States filed a supplemental response on November 29, 2011 (Doc. No. 87). The motion is now ripe for disposition. For the reasons stated more fully herein, the Court will deny Defendant's motion to suppress the evidence uncovered at his apartment.
On October 5, 2010, in response to reports of a possible burglary in progress, the Swatara Township Police Department dispatched units to 229 Francis L. Cadden Parkway, Apartment 204, Harrisburg, Pennsylvania. (Doc. No. 57-1, Ex. A.) Upon arrival, the responding officers saw a masked person dragging a female toward the front door of the apartment. (Id.) The police made contact with the individuals inside the apartment, and they agreed to come out. (Id.) Four individuals were removed from the apartment, including Defendant who was found with his arms and legs bound with duct tape. (Id.)
Patrolman Ashley Wilt submitted an affidavit of probable cause in which she stated that after the four individuals were removed from the apartment without incident, she conducted "a cursory search of the apartment for other occupants." (Doc. No. 57-1, Ex. B.) She stated that after entering the living room and master bedroom she detected the odor of fresh marijuana. (Id.) She further stated that she found "a wad of money wrapped in rubber bands" on a couch. (Id.) Based on the odor of marijuana, Patrolman Wilt sought a search warrant to conduct a search of the apartment. (Id.) A warrant was issued, and the search resulted in the discovery of, inter alia, suspected marijuana, suspected cocaine, three firearms, and ammunition. (Id.)
"The proponent of a motion to suppress bears the burden of establishing that his Fourth Amendment rights were violated." United States v. Correa, 653 F.3d 187, 190 (3d Cir. 2011) (citing Rakas v. Illinois, 439 U.S. 128, 132 n.1 (1978); United States v. Stearn, 597 F.3d 540, 551 (3d Cir. 2010)). The applicable standard of proof is the preponderance of the evidence standard. United States v. Matlock, 415 U.S. 164, 178 n.14 (1974). Where the search in question was conducted pursuant to a warrant, the reviewing court is to uphold the warrant where there is a "substantial basis" for the finding of probable cause. United States v. Hodge, 246 F.3d 301, 305 (3d Cir. 2001).
Defendant moves to suppress the evidence obtained during the search of 229 Francis L. Cadden Parkway, Apartment 204, Harrisburg, Pennsylvania. In Defendant's initial motion he argued that the affidavit of probable cause used to obtain the search warrant was defective because: (1) the affidavit relied on evidence obtained as a result of an unlawful search; and (2) the affidavit of probable cause contained false and misleading statements. Following the hearing, the Court granted Defendant leave to file a supplemental brief on the issue of whether the Court should suppress the evidence because the warrant did not satisfy the Pennsylvania rule against nighttime searches. The Court will consider these three arguments seriatim.
A. Warrantless Protective Sweep
Defendant first challenges the protective sweep of the apartment performed by Patrolman Wilt without a warrant. Specifically, Defendant argues, "if the Court excluded the information from the unlawful 'cursory search' of the apartment, there would be no basis for the Magistrate to make a probable cause determination. This cursory search was done without a warrant and without exception to the warrant requirement." (Doc. No. 58 at 6.) This challenge is wholly without merit.
The Supreme Court defines a "protective sweep" as "quick and limited search of premises, incident to an arrest and conducted to protect the safety of police officers or others." Maryland v. Buie, 494 U.S. 325, 327 (1990). The protective sweep is confined to "a cursory visual inspection of those places in which a person might be hiding" and may be conducted without a warrant. Id. An officer may conduct a protective sweep without a warrant in those circumstances where the searching officers possess "a reasonable belief based on specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warranted the officer in believing that the area swept harbored an individual posing a danger to the officer or others." Id. (citing Michigan v. Long, 463 U.S. 1032, 1049-50 (1983)).
Given the facts at issue here, the Court must conclude that Patrolman Wilt conducted a lawful protective sweep of the apartment. Officers were called to the scene based on a reported robbery in progress. When they arrived, the officers saw a man in a ski mask pulling a woman into an apartment. The police secured four individuals from the apartment, including Defendant whom police found bound with duct tape in the master bedroom. In light of these facts, it was eminently reasonable for Patrolman Wilt to conduct a protective sweep of the apartment to ensure that no other individuals were inside. Indeed, in circumstances such as this, it would have been decidedly unreasonable and irresponsible to simply assume, without conducting a cursory sweep, ...