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United States of America v. Paul Perminter

January 30, 2012

UNITED STATES OF AMERICA
v.
PAUL PERMINTER, JR., DEFENDANT.



The opinion of the court was delivered by: Judge Nora Barry Fischer

MEMORANDUM OPINION

I. INTRODUCTION

Presently before the Court is a motion to suppress evidence filed by Defendant Paul Perminter, Jr. ("Defendant") on May 26, 2011. (Docket No. 30). The Government opposes said motion. (Docket No. 33). Pre-hearing briefs were submitted by both parties and a suppression hearing was held on October 12, 2011. (Docket Nos. 30, 33, 34). The transcript of said hearing has been produced and fully considered by the Court. (Docket No. 55). The Court also ordered the parties to submit proposed findings of fact and conclusions of law and responses to same. (Docket No. 49). Defendant filed his proposed findings of fact and conclusions of law on December 14, 2011, (Docket No. 56), but the Government has not made any further submissions, despite the Court's Order.

Upon consideration of the parties' submissions, the evidence presented during the motion hearing and for the following reasons, the Court finds that the challenged evidence was obtained in violation of the Fourth Amendment. Accordingly, Defendant's motion to suppress [30] is granted.

II. BACKGROUND

a.Findings of Fact

The credible evidence offered at the October 12, 2011 suppression hearing, including the testimony of Probation Officer William Kimmel*fn1 and the presented documentary evidence, established the following facts. (See Docket Nos. 30-2, 55, 50-1, 50-2, 50-3, 50-4, 50-5, 50-6).

Defendant is charged by way of indictment with one count of possession of a firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e) arising from his possession of a Glock, Model 27, .40 caliber pistol on June 18, 2009 and a number of prior convictions for drug trafficking offenses. (Docket No. 1). The indictment alleges that Defendant was previously convicted of possession with intent to deliver controlled substances in the Court of Common Pleas, Beaver County, in two cases on September 25, 2001 and another two cases on May 2, 2005. (Id.). His rap sheet also includes: federal charges of possession with intent to deliver cocaine in 1989; state charges of receiving stolen property in 1989; distribution of cocaine while armed in 1992; misdemeanor conviction for violation of Pennsylvania drug statutes in 1992; and violations of the Pennsylvania drug statutes in 1996. (Docket No. 55 at 20). In addition, Defendant was shot and injured during a drug-related gun battle, leaving him partially paralyzed and confined to a wheelchair. (Id. at 17-9).

After serving a sentence of two (2) to four (4) years' incarceration, Defendant was paroled from state custody on February 13, 2008. (Id. at 50; Docket No. 50-2, Def. Ex. G). Defendant's parole "maxed out" or was scheduled to end on June 21, 2009. (Docket No. 50-5, Def. Ex. M; Docket No. 55 at 18). Defendant was subject to strict conditions while on parole. (Docket No. 30-2). Among these conditions, he agreed to: comply with all municipal, county, state and federal laws; abstain from unlawful possession or sale of narcotics, dangerous drugs, controlled substances and drug paraphernalia; refrain from possession of firearms, ammunition or other weapons; maintain regular contact with parole supervision staff; submit to urinalysis testing; and achieve negative test results for the presence of controlled substances and other drugs. (Id.). In addition, Defendant expressly agreed to warrantless searches of his residence by parole supervision staff. (Id.). This condition states that:

I expressly consent to the search of my person, property, and residence without a warrant by agents of the Pennsylvania Board of Probation and Parole. Any items, the possession of which constitutes a violation of parole/reparole shall be subject to seizure, and may be used as evidence in the parole revocation process. (Docket No. 30-2 at 1).

Defendant was supervised by parole officers in the Beaver Falls sub office of the Pennsylvania Board of Probation and Parole -- the office which handles cases in the area of Defendant's approved residence. (Docket No. 55 at 15-7). Agent David Sedon was initially assigned to Defendant's case. (Id. at 17). Parole officer William Kimmel of that office began to supervise Defendant in early 2009. (Id. at 15-16). Kimmel testified that he has been a parole officer for sixteen and a half years. (Id. at 16). He spent the entirety of his career within the Pittsburgh district but had previously worked at the Pittsburgh and McKeesport offices before taking a position at the Beaver Falls office. (Id.). In this role, he typically handles around sixty (60) cases at a time. (Id. at 113-14).

Defendant's approved residence was a one bedroom, handicapped accessible apartment in a public housing development in Ambridge, Pennsylvania.*fn2 (Id. at 45-6, 61, 98). Kimmel described this as a "high crime, high drug activity area" and expressed some reservations to others about Defendant making his residence there given his criminal past. (Id. at 48). However, despite these general concerns, Kimmel testified that he had never personally observed any illegal activity in the immediate area surrounding the residence during his supervision of Defendant. (Id. at 60).

Kimmel testified that the Defendant was fully compliant with his conditions of parole throughout the entire time he had supervised him. (Id. at 20, 32, 39, 82). Kimmel explained that he had nothing but routine contacts with Defendant throughout his supervision of him, including several nondescript visits to his approved residence. (Id. at 17, 20, 26, 50). Kimmel pointed out that he made an unannounced visit to Defendant's home on June 12, 2009 at approximately 1:15 p.m. (Id. at 80). Defendant was not home at that time. (Id.). But, Kimmel explained that Defendant was permitted to be outside of his residence during the day and the fact that he was not home at that time was not a violation of any condition of his parole. (Id.). Kimmel also attempted to contact Defendant by phone around this time but was unable to reach him. (Id. at 80-1). Again, this was not seen as a violation of any condition.*fn3 (Id. at 81). Kimmel further acknowledged that Defendant never tested positive for drug use, despite the fact that multiple drug tests were taken. (Id. at 49). In all, Kimmel admitted that between February 12, 2008 and June 17, 2009, his office had no information of any parole violations committed by the Defendant. (Id.). He expressly testified that at that time, his office had "[n]othing that we could act on. Nothing that was obviously evident to us." (Id.).

Then, at approximately 12:00 p.m. on Wednesday, June 17, 2009, Kimmel was leaving the office for his lunch break when a secretary at his office informed him that he had a telephone call regarding the Defendant. (Id. at 51). Kimmel delayed his lunch break and took the call.

Kimmel testified that the caller requested confidentiality and respecting the caller's wishes he did not attempt to elicit such information. (Id. at 54). Indeed, the Government objected to any questioning of Kimmel regarding the identity of the caller, including the caller's gender, race or any other descriptive traits.*fn4 (Id. at 84). Thus, the caller was truly anonymous and remains anonymous. Kimmel further explained that the caller did not provide him with any reason he or she had for making the call and actually "evaded" answering why he or she was calling. (Id. at 54). It appears that he also did not retrieve any information about the caller from which he could follow-up at a later time. To this end, the telephone call was not recorded. (Id. at 56). It was also not "logged in" to a record book because the office does not log calls. (Id. at 92).

There are also no contemporaneous records of the conversation with the anonymous tipster. In this regard, Kimmel could not recall if he took any handwritten notes of the call but, upon reviewing his file, he was unable to find any such notes. (Id. at 52, 57, 88). Kimmel, therefore, explained that if he had taken any such notes, he had since destroyed them. (Id. at 86). The only records of the call which Kimmel maintained included his recitation of the events in two reports, a supervision summary report and a supplemental report. (Id. at 90-91; Def. Ex. G & H). Both of these reports were produced on June 30 or July 1, 2009, approximately two weeks after the search of Defendant's residence. (Id.).

Kimmel generally testified regarding the content of the anonymous tip, admitting that his testimony was not "verbatim." (Id. at 52). At times during this portion of his testimony, Kimmel appeared to read directly from the supervision summary report and supplemental report. (Id. at 52-56). In this Court's estimation, Kimmel's testimony regarding the content of the tip was very vague and the details he provided shed little light on whether his testimony reflected the content of the tip which was actually made to him during the brief phone conversation on July 17, 2009 or if the description of the tip included in his reports was influenced by the outcome of the search and the contraband items which were actually found in Defendant's apartment.

As to the specifics, Kimmel told the Court that the anonymous caller advised him that he or she had been inside the Defendant's residence within the week prior to June 17, 2009 and that the Defendant "was selling crack cocaine and marijuana on a regular basis out of his apartment." (Id. at 52, 95). The caller stated that the marijuana was located in the kitchen along with a scale and the crack cocaine was in a bedroom dresser. (Id. at 53). The caller did not provide any information about the packaging of the narcotics but advised that there was a "substantial amount" of marijuana in the residence. (Id. at 54). Kimmel continued that the caller had told him that the Defendant kept a gun at all times either in his bedroom or in his wheelchair. (Id. at 53). The gun was described to him only as a black, automatic handgun, after some brief questioning by Kimmel elicited further information pertaining to the gun. (Id. at 53-54).

Kimmel then testified that the caller "seemed" sincere because the caller was "adamant" about the fact that the Defendant had contraband at the residence. (Id. at 55). Kimmel did not perceive any slurring of the caller's speech and, as a result, did not feel that the caller was under the influence or not of a "sane mind." (Id.). Kimmel testified that he asked the caller to repeat the allegations a second time while they remained on the phone and found no inconsistencies between the caller's first and second recitations of the allegations. (Id. at 55). Kimmel also stated that the "caller gave detailed information regarding the interior of the ...


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