The opinion of the court was delivered by: Judge Nora Barry Fischer
Presently before the Court is a motion to suppress evidence filed by Defendant Ernest Thomas Harris ("Defendant") on February 21, 2012.*fn1 (Docket No. 42). Defendant seeks to suppress the 9 millimeter Luger caliber "R-P" ammunition which was obtained by Pittsburgh Police upon execution of a search warrant at a residence in the Hill District of Pittsburgh on July 31, 2010. (Id.). He claims that the search warrant obtained by the police is not supported by probable cause and, alternatively, that the affidavit contains material falsehoods or omissions which undermine the Magistrate Judge's finding of probable cause. (Docket Nos. 42, 69, 76). The Government opposes Defendant's motion. (Docket No. 52, 69, 77).
Pre-hearing briefs were submitted by both parties and a suppression hearing was held on April 24, 2012. (Docket Nos. 42, 52, 67). The transcript of said hearing has been produced and fully considered by the Court. (Docket No. 69). The Court also ordered the parties to submit proposed findings of fact and conclusions of law. (Docket No. 68). Defendant filed his proposed findings of fact and conclusions of law on June 19, 2012, (Docket No. 76), and the Government filed its proposed findings of fact and conclusions of law on July 6, 2012, (Docket No. 77).
Upon consideration of the parties' submissions, the evidence presented during the motion hearing and for the following reasons, Defendant's motion to suppress  is denied.
A.Charges and Potential Penalties
Defendant was charged by Indictment with two counts of possession of a firearm and/or ammunition by a convicted felon in violation of 18 U.S.C. § 922(g)(1) on August 24, 2011. (Docket No. 1). Count One of the Indictment charges Defendant with unlawful possession of 9 millimeter Luger caliber "R-P" ammunition on July 31, 2010 while Count Two charges Defendant with unlawful possession of a 40 S&W caliber semiautomatic Glock pistol, bearing serial # DPC284US and 40 S&W caliber "R-P" ammunition on June 1, 2011. (Id.). The Indictment alleges that Defendant was previously convicted of the following crimes in the Court of Common Pleas of Allegheny County: receiving stolen property (auto), receiving stolen property (sportswear), retail theft and criminal conspiracy on September 20, 1988, at Docket CC# 198802769; delivery of cocaine, possession with intent to distribute cocaine and criminal conspiracy, on September 29, 1993, at Docket CC# 199303220; and, terroristic threats on April 8, 2010 at Docket CC#200910468. (Id. at ¶¶ 1, 2, 4). The Indictment further charges that Defendant was convicted of the crime of possession of a firearm by a convicted felon in the United States District Court for the Western District of Pennsylvania on February 12, 2002, at Docket No. 02-25. (Id. at ¶ 3).
The Court accepted Defendant's nolo contendre plea to Count Two of the Indictment on December 20, 2011. (Docket Nos. 31, 32). As to Count Two, the Presentence Investigation by the Probation Office was completed with the attendant procedures required under the Local Criminal Rules. (Docket Nos. 47, 57, 60, 63). The Court then issued its Amended Tentative Findings and Rulings on April 16, 2012, addressing the parties' objections and setting forth the potential penalties as to Count Two, which include a statutory maximum sentence of ten years and an advisory guideline range of 120 months, given that the applicable advisory guideline range (135-168 months) is above the statutory maximum sentence. (Docket No. 66). However, as the Court recognized, the disposition of Count One, which remains pending, will affect the potential penalties in this case. (Id. at 1). Like Count Two, Defendant faces a statutory maximum sentence of ten (10) years at Count One, if convicted. (Docket No. 2). Further, the advisory guideline range will need to be recalculated based on any subsequent convictions. (Docket No. 66 at 1, 13).
The credible evidence offered at the April 24, 2012 suppression hearing established the following facts. The Government introduced its Exhibit 1 into evidence without objection from the defense and said exhibit was admitted. (Docket No. 69 at 25-26). Exhibit 1 consists of an Application for Search Warrant and Authorization, a supporting Affidavit of Probable Cause, and a Receipt/Inventory of Seized Property. (Govt. Ex. 1, Docket No. 67-2).
Pittsburgh Police Officer Brian Schmitt presented an Application for Search Warrant and Authorization and supporting affidavit to the Hon. Richard D. Olasz, Jr., Magisterial District Judge, on July 31, 2010, requesting that a warrant be issued to search a residence at 8 Roberts, Street, Pittsburgh, PA 15219. (Id.). The warrant was issued at 5:00 p.m. on that date upon a finding of probable cause by Magistrate Judge Olasz. (Id.). Specifically, the warrant identified the items to be searched and seized as: [a]ny and all items taken from victim Thomas Boyd in a robbery that occurred on 7/30/2010, to include a white gold diamond ring with cross inlays, and a black and gray semi automatic handgun. Any letters, documents, or other items of indicia to establish ownership and /or control of the residence at 8 Roberts Street, Pgh Pa 15219. (Id. at 2). The premises to be searched were described as:
Residence located at 8 Roberts Street, Pgh Pa 15219. Located in the Hill District Area of the City of Pittsburgh. This being a red brinck [sic] row house home located in the rear of the complex. #8 is marked on the door of the building. To include curtledge [sic] of the home. (Id.). The warrant also identifies "Marsha Bacon/Earnest Harris" as the "name of owner, occupant or possessor of the premises to be searched" on the application. (Id.). Finally, the warrant incorporates by reference an attached sworn affidavit by Officer Schmitt. (Id.).
The entirety of the affidavit of probable cause states that "probable cause belief is based upon the following facts and circumstances":
Officer Schmitt has been a Police Officer almost five years with the City of Pittsburgh and was assigned to in [sic] plain clothes from May of 2007 to September 2009. During that time, Officer Schmitt's main objective has been the suppression of drug and gun violence. During this time, Officer Schmitt has been involved in hundreds of drug arrests along with over fifty controlled buys and narcotics related search warrants. Officer Schmitt has also attended drug trafficking and interdiction school sponsored by ILEE and training sponsored by the Northeast Counter Drug Training Facility, along with training sponsored by the Pittsburgh Police Academy.
On 7/30/2010 at 1615 hours, Officers [sic] Spangler and Officer Thiros along with Officers Rosato and Carruba were dispatched to 2042 Centre Ave. (Big Toms Barber Shop) for a Robbery.
Once on scene Officers spoke with Thomas Boyd who stated that he was in his barber shop when known actor, Ernest Harris who at the time just received a haircut from one of his employees. Harris is also known to Officer Thiros who has had personal encounters with him in the past.
Boyd stated that Harris was telling him that he needs to pay him for security for his business. Boyd said "nahh i don't need any security" Harris became angry and kept on stating that you need to pay me for security and no one will bother you. Boyd again stated that he is fine and does not need any security.
Harris left the business then returned into the business a short while later, with a gray and black pistol pointed at Boyd then punched Boyd on the right side of the face, cocked the pistol and told him to give him his money and the silver ring on his finger. Harris also said "You should have paid me for security"
Harris took $205 Dollars US Currency (20's and 5) and a Silver Diamond Ring with Cross Inlays valued at approximately $2500-3000.
Harris left the bushiness and jumped into a red SUV parked on Erin Street and made right hand turn onto Centre Ave and continued west towards town.
Officers know Harris to reside at 8 Roberts Street, Pittsburgh, PA 15219.
Unit 3210 Officers O'Malley, Zigarella, along with unit 3226 and Szuch went to 8 Roberts Street to do a knock and talk. At 8 Roberts Street, Officers spoke to Harris' aunt, Marsha Bacon and ...