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United States v. Davis

United States District Court, Western District of Pennsylvania

April 9, 2014

UNITED STATES OF AMERICA
v.
MARCUS DAVIS

MEMORANDUM OPINION

Mark R. Hornak, United States District Judge

Mr. Davis is charged with one count of possession of a firearm by a convicted felon under 18 U.S.C. §§ 922(g)(1), 924(e). Pending before the Court is Mr. Davis's Motion to Suppress Evidence and Statements, which seeks to exclude from evidence statements he allegedly made and a firearm seized when law enforcement officers conducted a search of his residence pursuant to a search warrant on June 15, 2012. The Court held a suppression hearing on the Motion on November 12, 2013, after which it invited supplemental briefing from the parties.

The Court has considered the Defendant's Motion, ECF No. 25, and attached documents, ECF Nos. 25-1 - 25-5, the hearing transcript and exhibits, the United States' Response in Opposition, ECF No. 27, the Defendant's Reply, ECF No. 32, the Defendant's Supplemental Post-Hearing Memorandum, ECF No. 43, the United States' Supplemental Brief Regarding Suppression Issues, ECF No. 44, and the Defendant's Reply to the Government's Post-Hearing Brief, ECF No. 46. For the reasons that follow, the Court will grant in part and deny in part the Motion to Suppress.

I. BACKGROUND

On June 15, 2012, Greensburg City Police Detective Jerry Vernail ("Det. Vernail") obtained a search warrant from a state judge for the residence located at 31 Westminster Ave., Greensburg, PA, authorizing a search for drugs, drug-related items[1], and weapons. ECF No. 25-1. The affidavit of probable cause made by Det. Vernail stated that during May and June 2012, Det. Vernail had received information that Mr. Davis was selling crack cocaine from his residence at 31 Westminster Ave. Id. Det. Vernail also stated that he received a tip from a "concerned citizen" that Mr. Davis might be in possession of a firearm, which as a convicted felon Mr. Davis was prohibited by law from having. Id. Det. Vernail and a colleague. Detective Tony Marcocci ("Det. Marcocci"), then learned from a confidential informant that they could purchase cocaine from Mr. Davis. Id. The affidavit further related that several days prior to the application for the warrant, law enforcement conducted a controlled purchase of cocaine by the informant from Mr. Davis. Id. Officers searched the informant prior to the purchase and found no contraband or money on his person. Id. They then observed Mr. Davis leaving 31 Westminster Ave., meeting with the informant, and returning directly to 31 Westminster Ave. Id. The officers searched the informant again and found a substance that tested positive as cocaine.[2] Id.

Based on that affidavit, a Westmoreland County Court of Common Pleas Judge found probable cause to issue a search warrant for the residence at 31 Westminster Ave. for drugs, drug-related items, and weapons. Id. Det. Vernail and six (6) other law enforcement officers including Det. Marcocci executed the warrant that same day. ECF No. 25-3 at 6. The officers knocked at the back door of the residence, and a woman answered the door and allowed them to enter. ECF No. 25-4 at 1. As they entered, they encountered Mr. Davis standing in his underwear at the top of a stairway.[3] Id; ECF No. 38 at 80. Det. Marcocci asked Mr. Davis to come down the steps, and he complied. Id. The officers then had Mr. Davis lie face down on the floor and handcuffed him. Id. The officers advised Mr. Davis that he was not under arrest. Id.

They ordered Mr. Davis to remain seated in the living room, still in handcuffs and underwear, while they proceeded to search the residence. Id. During the search, the officers found a .45 caliber Smith & Wesson revolver "from under the mattress where [Mr. Davis] slept." ECF No. 25-3 at 6. They then arrested Mr. Davis on the charge of possession of a firearm by a prohibited person. ECF No. 25-5 at 2.

On November 21, 2012, over five months after the execution of the search warrant, Det. Vernail filed a supplemental narrative to the incident report he prepared on the day of the arrest, which read in relevant part:

On Tuesday November 20, 2012 I had a conversation with [Assistant District Attorney] James Lazar during which he suggested I expound on the supplement of June 15, 2012...Davis was advised the weapon was located and advised that a Comcast Cable technician found the weapon in the rafters in the basement while performing cable work. The technician gave the weapon to Davis who said he didn't know what to do with the gun and then placed it under his mattress.

ECF No. 25-3 at 6. This was the first mention of such a statement by Mr. Davis - neither Det. Vernail nor Det. Marcocci referenced Mr. Davis making any statement in the reports they filed the day the search was executed. See ECF Nos. 25-3 and 25-4. Det. Vernail also did not include the statement in his affidavit of probable cause in support of the criminal complaint he filed in state court or in his testimony at the state preliminary hearing. ECF Nos. 25-5, 25-2.

On November 12, 2013, Det. Vernail testified before this Court at the suppression hearing on the Defendant's Motion.[4] He admitted that his November 12, 2012 supplemental report was the first time he had made any mention of Mr. Davis's alleged statement, claiming that he did not include the statement in his initial report because he did not think it was relevant. ECF No. 38 at 64-65. Det. Vernail also testified for the first time in this Court that Mr. Davis had asked him why he was being arrested, to which Det. Vernail said that he responded that the officers had found a gun. Id. at 63-64. Det. Vernail acknowledged at the suppression hearing that he had not made any reference to that question from Mr. Davis in his supplemental report or in any prior report or testimony. Id. at 77. In response to a question from the Court, Det. Vernail stated that Mr. Davis was not free to leave during the search, and it was his intention all along to place Mr. Davis under arrest on state drug charges, although he had no arrest warrant for Mr. Davis on such charges.[5] had affirmatively told Mr. Davis that he was not under arrest, and had not told Mr. Davis of his intent to arrest him. Id. at 83-84, 86. Det. Vernail further acknowledged that he did not provide Mr. Davis with Miranda warnings when he placed him under arrest or before engaging in any sort of conversation with him.[6] Id. at 86. The Court invited the parties to file supplemental briefs as a follow up to the suppression hearing. They accepted that invitation.

Mr. Davis argues that his alleged statement should be suppressed for two reasons: first, because there is insufficient evidence that he made the statement in question (or any statement about the gun), and second, if the Court finds that there is sufficient evidence of the statement, it should be suppressed because the officers did not give him Miranda warnings prior to his making it. The Government retorts that Det. Veraail's testimony about the statement was credible, and the statement should not be suppressed because Mr. Davis was not in custody or subject to interrogation at the time he made it.

Mr. Davis also contends that the firearm found during the search should be excluded from evidence because the search warrant was not supported by probable cause. According to the Government, this Court should in essence defer to the state judge's finding of probable cause or conclude that even if the state judge erred in finding probable cause for the search warrant, the firearm should not be suppressed because the officers acted ...


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