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United States of America v. Arthur Thornton

May 10, 2012

UNITED STATES OF AMERICA
v.
ARTHUR THORNTON, DEFENDANT.



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

OPINION

I. INTRODUCTION

Presently before the Court is Defendant's Motion to Suppress Evidence. (Doc. No. 15.) In the Motion, Defendant challenges the sufficiency of a probable cause affidavit submitted in support of a search warrant.The Government filed a Response in Opposition (Doc. No. 23), and the Court held a hearing on the Motion on March 19, 2012.*fn1 Upon consideration of the parties' briefs, and the evidence offered and the arguments of counsel at the hearing, Defendant's Motion to Suppress will be denied.

II. FACTUAL BACKGROUND

Defendant Arthur Thornton is charged in the Indictment with offenses involving or related to the possession and distribution of controlled substances.*fn2 (Doc. No. 1.) Supporting five of the Counts is evidence seized during a November 19, 2010 search of Defendant's home, a residential property located at 855 Brill Street in Philadelphia, Pennsylvania.*fn3 The residence was searched pursuant to a search warrant obtained by Philadelphia Police Officer Brian Myers.*fn4

(Doc. No. 23, Ex. G-1.) In the Motion to Suppress, Defendant argues that the affidavit of Officer Myers in support of the warrant was defective because it lacked probable cause.*fn5

Integral to this dispute is the affidavit of probable cause drafted by Officer Myers. This affidavit led to the issuance of the warrant by a duly authorized magistrate for the search of Defendant's residence at 855 Brill Street and for the seizure of the controlled substances and related items. The warrant permitted the seizure of any items used to manufacture and distribute drugs covered by the Pennsylvania Controlled Substances Act. (Doc. No. 23, Ex. G-1.)

The affidavit of probable cause, prepared by Officer Myers, states in full:

AFFIDAVIT OF PROBABLE CAUSE*fn6 Between the dates of 11-13-10 and 11-14-10*fn7 (days are staggered to protect the identity of the Confidential Informant) P/O Myers met with a Confidential Informant ["C/I"] who relayed information of a B/M identified as Arthur Thorton [sic] operating a [t]annish colored Hummer H2 vehicle selling Percocet's [sic] and Oxycotine using a cell phone# 267-407-9550 in the 35th [D]ist. Area. The C/I also relayed information that Thorton [sic] keeps the pills in a clear sandwich bag and hides the bag in the [H]ummer by the front passenger seat. Based on this information P/O Myers along with P/O Woertz#7328 met with the C/I [and] search[ed] the C/I for any illegal contraband or [United States Currency ("USC")] with negative results. The C/I dialed the cell# 267-407-9550 and spoke to a male voice on the phone, the C/I and Male voice agreed to purchase (2) Oxy 80 pills (Oxycotine 80 milligrams) and (2) Percocet's [sic] for $130 in the confines of the 35th Dist[.] (Location confidential to protect the identity of the C/I). P/O Myers supplied the C/I with $130 pre[-]recorded [buy money], P/O Myers observed the C/I meet with a B/M (I'd hearing, Defendant withdrew the staleness argument. Accordingly, the staleness argument is discussed only briefly in this Opinion. See footnote 8, infra. [identified] as Arthur Thorton [sic]) who was operating a tan in color Hummer H2 with a Pa # HNB 2224, the C/I was observed handing Thorton [sic] the pre[-]recorded buy money and in return Thorton handed the C/I small objects. The C/I left the area[,] meeting with P/O Myers and P/O Woertz turning over (2) green pills scored 80 OP alleged Oxycotine along with (2) white pills alleged Percocet's [sic]. The C/I was again searched for any illegal contraband or USC with negative results. The pills were placed on [Property Receipt ("Pr")]#2946101. P/O Brown followed Thorton [sic] to the area of 20th and Nedro St[.] where P/O Brown observed Thorton [sic] meet with a B/M wearing a grey sweatshirt. P/O Brown observed the B/M hand Thorton [sic] USC and in return Thorton [sic] handed the B/M objects. The B/M left the area in a black vehicle and Thorton [sic] left the area followed to 855 Brill St[.] where Thorton [sic] entered the property out of sight.

Between the dates of 11-15-10 and 11-16-10 P/O Myers#6657 along with P/O Brown#4617 met with the same C/I searching the C/I for any illegal contraband or USC with negative results while P/O Woertz set-up a surveillance of 855 Brill St[.] observering the Hummer H2 Pa# HNB 2224 parked on the block. A short time later P/O Woertz observed Thorton [sic] exit 855 Brill St[.] entering into the Hummer leaving the area. P/O Myers instructed the C/I to call Thorton [sic] to purchase Oxycotine. The C/I dialed cell# 267-407-9550 speaking to a male voice on the phone. The C/I and the male voice agreed to purchase (2) oxy 80's (Oxycotine) for $90 in the confines of the 35th. P/O Woertz followed Thorton [sic] to the C/I where P/O Myers observed the C/I engage Thorton [sic] in conversation. The C/I handed Thorton [sic] the $90 pre[-]recorded buy money and in return Thorton [sic] handed the C/I small objects. The C/I left the area[,] meeting with P/O Myers [and] turning over (2) green pills scored 80 alleged Oxycotine which P/O Myers later placed on Pr#2946223. The C/I was again searched for any illegal contraband or USC with negative results.

P/O Myers ran the Hummer H2 Pa# HNB 2224 thru BMV with no owner information available since the tag [was] in temporary status. Based on your Affiant P/O Myers' experience in narcotics[, he] believes Thorton [sic] is storing and selling narcotics out of 855 Brill St[.] due to the fact that Police observed Thorton [sic] sell narcotics to a C/I then return to 855 Brill St. Thorton [sic] was also observed exiting 855 Brill St[.] and followed by police to a location where Thorton [sic] again sold to a C/I. (Doc. No. 23, Ex. G-1 "Affidavit of Probable Cause.")

As noted above, on November 19, 2010, members of the Philadelphia Police Department's Narcotics Field Unit, along with several deputized federal task force officers, executed the warrant to search the residence at 855 Brill Street and seize contraband related to Defendant's drug trafficking operation. At 6:35 a.m., the officers entered the residence and discovered Daneen Thornton, Defendant's wife, and two minor children sleeping on the couch in the living room. The officers found a third minor child sleeping in a basement room.

The officers located Defendant on the second floor in a bedroom. He appeared concerned with the bedroom closet and directed his movements toward the closet. The officers ordered Defendant to freeze and show his hands. He then sat on the bed and ...


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