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United States v. Gay

United States District Court, W.D. Pennsylvania

July 27, 2015

UNITED STATES OF AMERICA,
v.
TONY GAY, Defendant.

MEMORANDUM OPINION

NORA BARRY FISCHER, District Judge.

I. INTRODUCTION

Presently before the Court is a motion to suppress evidence filed by Defendant Tony Gay on November 11, 2014. (Docket No. 25).[1] The Government opposes said Motion. (Docket No. 32). Pre-hearing briefs were submitted by both parties and a suppression hearing was held on April 9, 2015. (Docket Nos. 32, 38, 39). The transcript of said hearing has been produced and fully considered by the Court. (Docket No. 43). The Court also ordered the parties to submit proposed findings of fact and conclusions of law and responses to same. (Docket Nos. 40, 46). Defendant filed his Proposed Findings of Fact and Conclusions of Law on June 15, 2015. (Docket No. 44). The Government filed its Proposed Findings of Fact and Conclusions of Law on June 16, 2015. (Docket No. 45). Both parties filed responsive briefing on June 29, 2015. (Docket Nos. 47, 48).

Upon consideration of the parties' submissions, the evidence presented during the motion hearing and for the following reasons, the Court will deny all of Defendant's motions.

II. BACKGROUND

a. Findings of Fact

The credible evidence offered at the April 9, 2015 suppression hearing, including the testimony of Parole Officer Michelle Contis and Parole Supervisor Timothy Wolfe[2] and the presented documentary evidence, established the following facts.

Defendant is charged by way of indictment with: (1) possession with intent to distribute 100 grams or more of heroin, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(i); (2) possession of a firearm after having been previously convicted of a felony, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e); and (3) possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)(i). (Docket No. 1). The indictment alleges that Defendant was previously convicted of three counts of manufacture, delivery, or possession with intent to manufacture or deliver a controlled substance on September 20, 2011 in the Court of Common Pleas of Allegheny County. (Docket No. 1).

On January 28, 2013, Defendant was paroled from the Pennsylvania Department of Corrections after serving his sentences in the above referenced cases. (Tr. 8:5-8);[3] ( see also Docket No. 44 at ¶4). His case was assigned to Parole Officer Michelle Contis[4] of the Pennsylvania Board of Probation and Parole. (Tr. 5:2-3; 8:5-8); ( see also Docket No. 44 at ¶7). As a parolee, Defendant was subject to certain conditions of release. (Tr. 8:13-17); ( see also Docket No. 44 at ¶ 10). Amongst Defendant's conditions are the following:

• "Effective 1/30/13 your nightly curfew is from 8:00 p.m. to 6:00 a.m.;" (Ex. 2);[5] (Tr. 18:22-19:6);
• "You will not use, possess or control any illegal drug or controlled substances unless it has been prescribed for you by a licensed physician and is in its original container with the prescription affixed on it. You will not be present at or frequent any place where such illegal drugs or controlled substances are sold, kept or used;" (Ex. 2); (Tr. 20:11-17);
• "You are not to possess any drug paraphernalia as described by the Controlled Substance, Drug, Device and Cosmetic Act;" (Ex. 2); (Tr. 20:20-21);
• "You are restricted from any use of a motor vehicle without a valid drivers' license and insurance;" (Ex. 2); (Tr. 23-24);
• "NO GANG ACTIVITY' You are prohibited from associating with, meeting with, talking to, contact with, or communication with current or former members of any gangs or gangs with whom you have ever associated or been affiliated. You will not wear or display any gang colors or paraphernalia, " (hereinafter, the "Gang Condition"); (Ex. 2); (Tr. 21:2-6); and
• "Do not meet or communicate with persons who you know, or should know, have ever been criminally charged with a controlled substance offense, or who use, possess or sell controlled substances without license or prescription to do so." (Ex. 2); (Tr. 22:8-11).

Although the Gang Condition is listed as a "Special Condition of Parole, " it is imposed on all individuals who are paroled, and was not imposed for any reason specific to Defendant's history or circumstances. (Tr. 136:9-18).

In addition, Defendant executed the following as a condition of his parole:

I expressly consent to the search of my person, property and residence, without a warrant, by agents of the Pennsylvania Board of Probation and Parole. Any items, the possession of which constitutes a violation of parole, shall be subject to ...

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