The opinion of the court was delivered by: Schiller, J.
Before the Court is Defendant Daniel Johnson's motion to suppress. On May 2, 2012, law enforcement officers conducted a warrantless search of Johnson's apartment. The Government argues that Johnson's adult son who resides in the apartment, Damir Johnson, consented to the search. Damir Johnson disputes the Government's claim. The Court held a suppression hearing on August 13, 2012, and allowed the parties to file additional briefs in support of their positions. Based on the record before the Court, the Court concludes that the Government has failed to sustain its burden and will therefore grant Daniel Johnson's motion to suppress with the exception of the motion to suppress the search of his cell phone.
In April 2012, the FBI learned that Daniel Johnson had contacted a cooperating witness about payment for a previous drug transaction. Johnson had supplied $2,000 for a drug transaction involving a cooperating witness who was provided placebo pills by the Philadelphia Police Department ("PPD"). The cooperating witness sold the placebo pills to a third party affiliated with Daniel Johnson and the cooperating witness reported that Johnson was involved in the drug deal.
Based on instructions from the FBI and the Narcotics Field Unit of the PPD, the cooperating witness agreed to provide Johnson with narcotics rather than money. Johnson and the cooperating witness were recorded over the next several days; Johnson said that he wanted back the money he had supplied in the previous drug deal because the pills were fake. The cooperating witness informed Johnson that he could give him narcotics to substitute for the money owed Johnson.
After several recorded phone conversations, the cooperating witness agreed to meet Johnson in the parking lot of the Rite-Aid Pharmacy at 13th Street and Girard Avenue. At approximately 4:55 p.m. on May 2, 2012, Philadelphia Police Officer Robert Clark and FBI Special Agent Kevin Coleman met with the cooperating witness and gave him two amber pill bottles, both containing placebo pills but appearing to be Oxycodone in dosages of 40 mg and 80 mg. They also provided the cooperating witness with an audio transmitter.
At approximately 5:11 p.m., PPD and FBI officers observed Daniel Johnson leave his residence at 1730 West Girard Avenue. He drove a silver Nissan Titan pick-up truck to the parking lot of the Rite-Aid Pharmacy at 13th Street and Girard Avenue. The FBI and PPD followed Johnson to this location. Four minutes later, Johnson was seen leaving his car and entering the car of the cooperating witness, which was also in the parking lot of the Rite-Aid Pharmacy. Officer Clark and Special Agent Coleman were able to see the cooperating witness's vehicle and were able to hear the conversation between Johnson and the cooperating witness. Johnson told the cooperating witness that he would accept narcotics and that "their slate would be wiped clean as far as the debt that the [cooperating witness] had owed to Mr. Johnson." (Suppression Hr'g Tr. at 21.) Through the transmitter provided to the cooperating witness, Officer Clark heard Johnson say that Johnson preferred "30's," which Officer Clark believed to be 30 mg Oxycodone pills. The cooperating witness then provided Johnson with one of the amber pill bottles containing placebo pills but appearing to be 80 mg Oxycodone pills. At approximately 5:23 p.m., Officer Clark and Special Agent Coleman saw Johnson exit the cooperating witness's vehicle with amber colored pill bottles similar to the ones provided to the cooperating witness and enter his Nissan Titan. Approximately one minute later, Johnson exited his vehicle without the pill bottles and re-entered the cooperating witness's vehicle. At 5:25 p.m., the cooperating witness gave a pre-arranged signal to PPD officers before he started to leave the Rite-Aid parking lot with Johnson. The cooperating witness's vehicle was stopped and Johnson was arrested by another unit. The scene was secured, and officers opened the door of Johnson's Nissan Titan, where inside they discovered in the middle console one amber pill bottle-the other amber pill bottle was located in the cooperating witness's vehicle-containing placebo pills provided to the cooperating witness.*fn1 On the passenger seat were two notebooks with handwritten notes about drugs, filled out prescriptions, and two prescription receipts not in Daniel Johnson's name.
B. Search of 1730 West Girard Avenue and Interview of Daniel Johnson
Officer Clark and Special Agent Coleman placed Johnson in their vehicle and proceeded to Apartment 3 at 1730 West Girard Avenue. Johnson was told that police were watching his apartment, that he was being arrested, and that officers planned to go to his residence and talk to whoever was there. Johnson told officers that he had a son, Damir Johnson, who was ill, and that his son was at the apartment. Special Agent Coleman remained near his vehicle with Johnson while other agents conducted a search of Johnson's apartment. During this time, Special Agent Coleman was advised by officers conducting the search that narcotics and a firearm were recovered from the apartment. Daniel Johnson overheard that officers located a gun at his apartment. At approximately 6:40 p.m., Johnson was provided his Miranda warnings, and he signed a consent form waiving his right to remain silent and was interviewed by Special Agent Coleman. During the interview, Johnson informed officers that he bought the gun found in his residence about five years before for protection, and that he did not have a legal permit to carry the weapon. He also reported that the pills found inside his residence and his Nissan Titan were bought from various people. Johnson also said that he would try to sell the pills from the cooperating witness for $20-$25 per pill. He also stated that the names on the prescriptions were the names of the people who sold him pills. While in the vehicle traveling from the Rite-Aid to his apartment, Johnson verbally consented to a search of his cell phone, and he later signed a consent form allowing the FBI to search his cell phone.
1. Law enforcement's version of the apartment search According to Officer Clark, he and other officers knocked on the door of Johnson's apartment, which was opened by a man who identified himself as Johnson's son. The officers explained that Daniel Johnson was under arrest and asked Daniel Johnson's son, Damir Johnson, if they could come in. Damir Johnson allowed the officers in. He was briefly handcuffed for officer safety while officers checked for additional people in the apartment. Once officers determined that no other individuals were in the apartment, the handcuffs were removed from Damir Johnson and he was brought into the front room of the apartment. Officer Clark and another special agent explained to Johnson's son why they were there and that they were not at the apartment to investigate him. Officers also verbally asked Damir Johnson if they could search the apartment and they informed Damir Johnson that he was not required to consent to the search. Officer Clark testified that Johnson's son "gave us verbal approval to search the property." (Id. at 65.) At that time, the search of the property commenced. Damir Johnson directed law enforcement to the rear bedroom, where Daniel Johnson resided.
Officer Clark and Special Agent Tyler Hanna agreed that they should get a written consent form, and Special Agent Hanna left the apartment to get the form. Special Agent Hanna returned with the consent to search form, which Damir Johnson read and signed at 6:35 p.m. Thus, according to Officer Clark, the search did not commence until after officers got verbal permission from Damir Johnson, but the search was ongoing when Johnson's son provided written consent, and it continued for approximately twenty minutes thereafter.
On a shelf in an open closet right outside of Daniel Johnson's bedroom, officers found a loaded semi-automatic handgun. Inside Daniel Johnson's bedroom, officers found 126 yellow Endocet pills, thirty-seven blue Xanax pills, a bag containing marijuana, a clear jar that officers believed contained fentanyl citrate, nineteen green pills in a clear plastic baggie, approximately $1,000 in cash, two photos of Daniel Johnson, numerous ...