Paul S. Diamond J.
In 2011, Defendant Edgardo Martinez, a suspect in a 2006 New Jersey homicide, was detained in Philadelphia by police who were executing an “Emergent Order for Investigative Detention” to collect Defendant’s DNA. Under New Jersey law, such an “Emergent” Order— once signed by a New Jersey Superior Court Judge—authorizes the police, on less than probable cause, to detain a suspect to obtain evidence of his “physical characteristics.” After stopping Defendant pursuant to the Order, officers took a buccal swab, which indicated that Defendant’s DNA did not link him to the 2006 homicide. Officers found a loaded firearm in his waistband, however, and a full magazine for the weapon in his car. As a result, Defendant has been charged with possession of a firearm by a convicted felon. 18 U.S.C. §§ 922(g)(1) and 924(e).
The “Emergent” Order—obtained and executed some five years after the 2006 homicide—was supported by the Affidavit of a New Jersey Detective, who sought the review of a Philadelphia Assistant District Attorney and a Common Pleas Court Judge. Remarkably, the Assistant District Attorney and the Judge approved the document even though no such Emergent Order exists under Pennsylvania law, even though the Order includes an explicit finding of less than probable cause to detain Defendant forcibly for up to five hours, and even though the Affidavit—stripped of its misleading, incredible, and confusing observations—plainly does not make out probable cause.
Defendant moves to suppress the gun and magazine. Because the Emergent Order is not based on probable cause, and because the good faith exception does not apply, I will grant Defendant’s Motion.
FINDINGS OF FACT
Having conducted a suppression hearing, I make the following findings pursuant to Federal Rule of Criminal Procedure 12(d).
At the hearing, the Government called New Jersey Detective Stacie Lick, and Philadelphia Police Detective Dennis Watson and Sergeant Thomas Rehiel. Defendant called no witnesses. I credit Detective Watson and Sergeant Rehiel, who testified only as to the detention of Defendant and execution of the Order. I credit Detective Lick only in part.
A. 2006 New Jersey Homicide
On January 20, 2006, Washington Township Police found Juan Cuevas, Sr. dead in his home in Sewell, New Jersey, the victim of “blunt force trauma to the head.” (Lick Aff. ¶¶ 5-6, ECF No. 34, Ex. B.) Cuevas’s children were in the home during the attack. (Aff. ¶ 10.) Through Detective Lick’s Affidavit and testimony, the Government offered cursory detail respecting the Cuevas investigation. At the crime scene, police extracted DNA from a straw and a cigarette butt believed to have been used by the attackers. (Aff. ¶ 5.) In 2009, when Ms. Lick was assigned to the Cuevas investigation, she had been a Detective with the Major Crimes Unit of the Gloucester County, New Jersey Prosecutor’s Office for approximately 6 years, and had served as an Investigator for 3 years with the state Attorney General. (Hr’g Tr. 3:2-13, 11:7-14, Feb. 19, 2013, ECF No. 46; Aff. ¶ 1.) She had also received extensive law enforcement training. (Aff. ¶ 2.) The Government presented no other evidence as to the nature, scope, or circumstances of the murder investigation, whether any other officers were assigned to the matter, or how far the investigation progressed. To date, no one has been prosecuted for the Cuevas killing. (Hr’g Tr. 14:12-19.)
B. Detective Lick Seeks an Emergent Order
During her two year investigation, Detective Lick identified Defendant as a suspect in the Cuevas homicide. (Hr’g Tr. 3:14-24.) She sought to compare his DNA to that recovered from the crime scene. (Id.) Accordingly, sometime in 2011 (she did not indicate when), she prepared an “Emergent Order for Investigative Detention” and a supporting Affidavit, by which she sought to collect Defendant’s DNA. (Hr’g Tr. 4:6-7.) This is the only such order Detective Lick has prepared in her 13 years in law enforcement. (Hr’g Tr. 17:7-13.)
New Jersey law provides that a judge may issue, “[p]rior to the filing of a formal criminal charge against a person, an order authorizing the temporary detention of that person and compelling that person to submit to non-testimonial identification procedures for the purpose of obtaining evidence of that person’s physical characteristics.” N.J. C.R. 3:5A-1. The emergent order may issue if a judge finds “a reasonable and well-grounded basis from which to believe that the person sought may have committed the crime, ” and that “the results of the physical characteristics obtained . . . [will] determine whether or not the individual probably committed the crime.” Id. 3:5A-4. The judge may issue the order without notice to the person to be detained if the judge “is satisfied that its underlying purpose would be frustrated were notice to be given, ” and certifies that “the matter is emergent.” Id. 3:5A-6. The order may authorize officers “to use reasonable force in effectuating the detention of the person.” Id. Because she had not reviewed applicable law, Detective Lick was not aware that an emergent order is void if not “served within five days of its signing.” Id. 3:5A-7; (Hr’g Tr. 17:22-25, 18:4-5.)
C. The Order and Supporting Affidavit
At the hearing, the Government introduced Detective Lick’s Affidavit and the Emergent Order itself. (Hr’g Tr. 5:9-13.) The Affidavit is an extremely confusing agglomeration of facts, many of which are misleading, contradictory, incredible, or unreliable.
Detective Lick included in her Affidavit an extended account of the Gloucester Township home invasion and robbery of the Moreno family—crimes that are utterly unrelated to Defendant or to Detective Lick’s investigation of the Cuevas homicide. (Aff. ¶ 9.) Detective Lick thus averred that, “four masked individuals” entered the Moreno home “in an attempt to rob the owner.” (Id.) The assailants, members of a gang “known by police to invade the homes of narcotics dealers who reside in the suburbs, ” encountered “seven children who they bound with duct tape.” (Id.) The Moreno children described the armed assailants as “wearing all black clothing, with masks covering the majority of their faces.” (Id.) The children also reported that one of the assailants asked the others whether the “Washington Township home was in close proximity to Atlantic City.” (Aff. ¶ 7.)
According to Detective Lick, “[t]he Moreno children provided police with descriptions of the suspects and composite sketches were made of same.” (Id.) Yet, the Affidavit also notes the “marked similar[ity]” between Defendant and a composite sketch provided by the Cuevas children. (Aff. ¶ 14.) Detective Lick did not explain why she averred that the Cuevas children had provided a sketch of a suspect that was actually provided by the Moreno children. Moreover, during the hearing, Detective Lick again conflated the Moreno and Cuevas crimes, testifying that the Cuevas children provided the composite sketch. (Hr’g Tr. 13:2-9.) Detective Lick did not testify that she actually saw the composite sketch, that she had compared it with Defendant’s appearance, or that she even knew what Defendant looked like (other than the extremely general description in the Affidavit). (Aff. ¶ 24.) The Government did not identify the officer who prepared the composite sketch, call that officer as a witness, or introduce the sketch.
Detective Lick also averred that the investigation of the Moreno home invasion “led to the numerous Communications Data Warrants and Search Warrants, all of which are on file with the Superior Court of New Jersey and are incorporated herein by reference.” (Aff. ¶ 8.) Yet, Detective Lick mistakenly testified that she obtained these warrants in connection with the Cuevas investigation. (Hr’g Tr. 11:18-12:5.) Once again, none of these warrants had anything to do with the Cuevas investigation.
The similarities between the Moreno home invasion and the Cuevas homicide—the reference to “Gloucester Township” (which is not in Gloucester County), the presence of children, the mention of “Washington Township, ” the discussion of narcotics dealers—make the inclusion of the Moreno information particularly misleading. Moreover, as I have described, Detective Lick (without any correction by the Prosecutor) compounded the confusion during the suppression hearing by again conflating information relating to the Moreno and Cuevas investigations. Only after the suppression hearing did the Government feebly acknowledge that the Moreno information was improperly included in the Lick Affidavit:
The detective’s affidavit contains some information which appears unconnected or unrelated to this investigation, such as paragraph 9 of the affidavit, which describes a separate home invasion. Either because of an omission or for another reason, paragraphs 7 through 9 of the affidavit provide no information relevant to the probable cause determination in this matter.
(Gov’t’s Proposed Findings of Fact and Conclusions of Law ¶ 12, ECF No. 50.) The Government has not explained why it waited until after the hearing to make this acknowledgment, or why it allowed the Detective to include the “unrelated” information in her suppression testimony. To say the least, Detective Lick’s misleading Affidavit combined with her badly mistaken testimony undermines her credibility.
Detective Lick also averred that a confidential informant provided “[m]embers of the FBI” with information respecting Defendant. (Aff. ¶ 10.) The Affidavit does not indicate how the information was conveyed, or where, when, or to whom it was conveyed. (See id.) The informant described Cuevas as a narcotics dealer, and Defendant as one of his “peddlers.” (Id.) According to the informant, Defendant purchased cocaine from Cuevas and sold it at Defendant’s nightclub until December 2005, when the nightclub closed following a stabbing. (Id.) The informant said that Defendant, in need of money, went with two others to rob Cuevas’s home because he heard that Cuevas was expecting a large drug shipment there. (Id.) The informant knew that Cuevas’s children were in the home during the attack, and that Cuevas died from injuries he had sustained. (Id.) Detective Lick made no attempt to corroborate any part of the informant’s narrative:
[Prosecutor] Q: With regard to the information provided to you, by informants in this investigation, had you done anything or received any other information from that informant in order to cause you to believe that the information being provided by the informant was reliable for purposes of the affidavit?
[Detective Lick] A: No.
(Hr’g Tr. 21:13-18; see also Hr’g Tr. 14:1-11; 15:11-16.)
Detective Lick averred that she spoke with Cuevas’s sister, who said that Omar Maldonado had told Cuevas’s wife that Defendant “may have taken part” in the Cuevas homicide. (Aff. ¶ 11.) Maldonado explained the basis of that belief to Detective Lick on March 8, 2010 (over a year before she sought the Emergent Order), when Maldonado said that he and Defendant had been employed by Cuevas as drug couriers. (Aff. ¶ 12.) On the night of Cuevas’s death, drug courier Benny Rosario told Maldonado that Rosario and Defendant were “traveling from Atlantic City, ” thus placing Defendant in New Jersey—albeit some 53 miles away from Cuevas’s home—on the night of the murder. (Id.)
Detective Lick averred that shortly after Cuevas’s 2006 murder, DEA Agent Randy Sampson (who had been investigating Cuevas) told her that Rosario owed money to Cuevas “for narcotics dealings.” (Aff. ¶ 13.) Detective Lick averred that this information corroborated “Maldonado’s assertions some four years later concerning Rosario’s employment with Juan Cuevas, Sr.” (Id.) Detective Lick included no other information in the Affidavit to corroborate Maldonado’s account. (Hr’g Tr. 19:11-13.)
Detective Lick also noted that Defendant “has a lengthy record dating back to 1989; including criminal convictions for Criminal Conspiracy, Robbery, Theft, Assault, Weapons Offenses and Receiving Stolen Property.” (Aff. ¶ 20.) Finally, Detective Lick averred that Defendant has “multiple previous and non-verified residential and business addresses” (one of which is included twice). (Aff. ¶ 19.) Because Detective Lick did not check this information, she did not know that one address was Defendant’s primary residence; the others were properties he owned. (Hr’g Tr. 15:17-16:9.)
Pared down to its credible, relevant, and corroborated facts, the Affidavit indicates that Cuevas was murdered in Sewell; that Defendant may have been a drug courier for Cuevas; that Defendant, who was over 50 miles from the Cuevas residence on the night of the murder, has a serious criminal record that does not include drug dealing; and that Defendant was a Philadelphia resident.
Detective Lick began her Affidavit as follows: “Based on the information set forth below . . . there is probable cause to believe that, in or upon Edgardo Martinez . . . exists evidence of [the Cuevas murder].” (Aff. ¶ 4.) Yet, Detective Lick contradicted this statement later in her Affidavit. “Based on . . . the facts recited in this application, I have reason to believe and do believe that on the person of Edgardo Martinez is evidence [related to the Cuevas homicide].” (Aff. ¶ 15 (emphasis added).) Detective Lick testified before me that the Emergent Order “operates as less than probable cause.” (Hr’g Tr. 18:14-17.) Plainly, her averment that she believed she had made out probable cause is not credible.
D. The Emergent Order is Reviewed and Approved in Philadelphia
Detective Lick sought judicial approval to “apprehend and hold [Defendant] for a period of time not to exceed five hours to collect and seize the specimens, namely buccal swabs.” (Aff. ¶ 21.) Detective Lick prepared her draft Order and Affidavit using New Jersey forms. (Hr’g Tr. 4:6-5:24.) Although Detective Lick was “operating under the direction or supervision of a[n] Assistant District Attorney in the State of New Jersey”—Paul Colangelo—he provided her with no legal advice. (Hr’g Tr. 18:6-10.) “Because [Detective Lick] wasn’t aware of how to proceed in the state of Pennsylvania, ” she provided her draft Order and Affidavit to Philadelphia Assistant District Attorney Lynne O’Brien for review. (Hr’g Tr. 6:16-17.) The Government did not call Ms. O’Brien as a witness. According to Detective Lick, Ms. O’Brien revised only the document’s format, not its substance. (Hr’g Tr. 6:24-7:4; 19:25-20:6). She did not explain to Detective Lick that Pennsylvania law does not authorize such ...