U.S. v. Brown

• Citation: 647 F.Supp.2d 503
• Decision Date: 12 August 2009
• Docket Number: No. 2:08-cr-299.,2:08-cr-299.
• Parties: UNITED STATES of America, Plaintiff, v. Allen BROWN also known as Allan Brown, Defendant.
• Court: United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. Western District of Pennsylvania

647 F.Supp.2d 503

UNITED STATES of America, Plaintiff, v. Allen BROWN also known as Allan Brown, Defendant.

No. 2:08-cr-299.

United States District Court, W.D. Pennsylvania.

August 12, 2009.

COPYRIGHT MATERIAL OMITTED

James H. Love, United States Attorney's Office, Pittsburgh, PA, for Plaintiff.

MEMORANDUM OPINION AND ORDER OF COURT

TERRENCE F. McVERRY, District Judge.

Pending now before the Court is the DEFENDANT ALLEN BROWN'S MOTION TO SUPPRESS EVIDENCE UNDER FRANKS V. DELAWARE WITH CITATION AUTHORITY filed by Defendant Allen Brown (Document number 51), the GOVERNMENT'S RESPONSE TO DEFENDANT'S MOTION TO SUPPRESS EVIDENCE UNDER FRANKS V. DELAWARE filed by the United States of America (Doc. # 53), and DEFENDANT ALLEN BROWN'S REPLY TO THE GOVERNMENT'S RESPONSE TO DEFENDANT'S MOTION TO SUPPRESS EVIDENCE UNDER FRANKS V. DELAWARE WITH CITATION OF AUTHORITY (Doc. # 55). On July 14, 2009, an evidentiary hearing was ordered to consider the motion, and the hearing was conducted on July 31, 2009. All parties were represented by counsel who presented and argued the issues skillfully and effectively. The motion is now ripe for disposition.

Based on the testimony and evidence presented during the suppression hearing and the applicable law, the Court issues the following Findings of Fact and Conclusions of Law pursuant to Federal Rule of Criminal Procedure 12(d). For the reasons that follow, the Court will grant Defendant's motion.

FINDINGS OF FACT

The facts surrounding the bank robbery and subsequent criminal investigation are basically not contested. On October 1, 2007, two armed men robbed the S & T Bank in Ford City, Pennsylvania, at approximately 9:15 a.m. In the course of the robbery, the two men wore identical Halloween scream-type masks covering their entire heads. Upon exiting the bank building following the robbery, the two men fled and proceeded in the direction of the Armstrong County School District Administration building. At the time an Armstrong County School District delivery van was parked outside the administration building. The van's doors were open and the keys were in the ignition as the driver was making a delivery inside the building. The unattended van was presumably taken by the bank robbers and driven to an area approximately one half mile from the bank, where it was apparently abandoned along Hobson Drive, near the intersection with Pennsylvania State Route 66 ("SR 66"). The van was located and processed by police later that morning. The police recovered one of the two Halloween masks inside the van. The second mask has not been recovered.

Shortly after the robbery, a criminal investigation was initiated by the Pennsylvania State Police ("PSP"). The investigation was led by Trooper First Class Shane W. Lash, a criminal investigator from the nearby Kittanning station. Special Agent Robert Smith of the Pittsburgh branch of the Federal Bureau of Investigation ("FBI") also responded to the robbery scene that morning. Special Agent Smith and Trooper Lash agreed that the PSP would assume the lead role over the investigation, given, among other considerations, the fact that the Kittanning PSP station was located much closer to the scene of the crime.

As part of the investigation, PSP Troopers conducted numerous interviews of potential witnesses. See, generally, Def. Exhibit D (PSP investigation report dated Nov. 14, 2007); see also, Doc. # 51-3 pp. 1-26, (an expanded copy of the PSP investigation report attached as Exhibit 2 to Defendant's motion to suppress, comprised of the report dated Nov. 14, 2007, and the supplemental report dated Jan. 24, 2008). The information obtained in the course of those interviews is the focus of Defendant's challenges to the affidavit in support of the search warrant.

On October 1, 2007, Eva Marie Forncerk was interviewed by Trooper Lash. She was waiting at a bus stop close to the intersection of SR 66 and Hobson Drive that morning. She recalled having seen a small white car driving along Hobson Drive between 7:50 a.m. and 8:00 a.m. in the area where the van was later recovered. The car stopped, the ignition was turned off, and the car sat for approximately ten minutes, before backing up and proceeding away along SR 66. At the time, she did not see the vehicle's registration or the occupants. Def. Ex. D at p. 5.

On October 1, 2007, Robert Nason Nimerosky was interviewed by Trooper Timothy Amy. He recalled seeing a small silver vehicle pass him along Hobson Drive. As it passed him, the vehicle was driving away from SR 66 before turning around in a parking lot and proceeding back in the direction SR 66. At approximately 9:15 a.m., he saw the same vehicle parked along Hobson Drive where the van was later found. The car had a white wash cloth hanging from the driver's side mirror. Def. Ex. D at p. 14.

On October 2, 2007, the Pittsburgh field office of the FBI issued an informational bulletin referred to as a letterhead memorandum, or "LHM", which described the robbery and suspects, and indicated that the suspects remained at large and were armed and dangerous. Def. Ex. B.

On October 3, 2007, Melissa Elaine Turek was interviewed by Trooper Richard Fennell. She recalled seeing a silver Volkswagen Jetta parked along Hobson Drive close to SR 66 at approximately 8:16 a.m. on the morning of the robbery. The vehicle had duct tape around the driver's side mirror. She also saw two people wearing dark clothing with hooded sweatshirts walking along Route 66. At approximately 9:25 a.m. that same morning, she saw the same vehicle traveling southbound on Route 66 driven by someone wearing a white t-shirt. She did not see if someone else was in the car. Def. Ex. D at p. 12.

On October 9, 2007, Fely Rupert was interviewed by Trooper Lash. She lives along Hobson Drive. At approximately 8:10 a.m. on the morning of the robbery, she left her house to travel to a local grocery store. She saw a foreign made white car with a blue stripe parked at the end of Hobson Drive near SR 66. She saw a rag hanging off of the driver's side mirror. When she returned to her house at approximately 8:15 a.m., the car was still parked there. She did not see anyone walking nor did she see the license plate on the car. Def. Ex. D at p. 8.

On October 9, 2007, Ms. Myschisin, one of the bank employees present during the robbery, informed Trooper Lash that "the other tellers and herself feel that the voice of the robber that took them back to the furnace room sounded like John Wingate [Defendant's uncle] ... who is one of their customers." Def. Ex. D at p. 9.

On October 11, 2007, Louis John Dowling was interviewed by Trooper Lash. He was traveling along SR 66 on the morning of the robbery. Between 8:15 and 8:30 a.m., he saw two black males walking northbound along the side of SR 66 just beyond the intersection with Hobson Drive. Id.

On October 12, 2007, Douglas R. Shreffler was interviewed by Trooper Lash. At approximately 8:00 a.m. on October 1, 2007, he saw a silver Volkswagen Jetta parked on Hobson Drive at the place where the van was later recovered. The vehicle had an out of state registration on the front with a white license plate with blue or black lettering. There was a bag hanging from the front left mirror. Id.

On November 1, 2007, Edward Bell, Jr. was contacted by Trooper Lash. He informed Trooper Lash that John Wingate has a nephew who goes by the nickname of "Dinky" who lives in Maryland, drives a silver car, and visits Wingate frequently. Def. Ex. D at p. 11.

On November 3, 2007, John Wingate was interviewed by Trooper Lash in Stanley's Bar in Ford City. Wingate admitted that he has a nephew who goes by the name "Dink", who is the son of his sister Judith Brown and lives in Temple Hills, Maryland. Wingate admitted that "Dink" had visited him during the middle of September of 2007, but denied that "Dink" was in the area during the weekend of the robbery. Id.

In an interview conducted on November 4, 2007, Maxine L. Russell informed Trooper Lash she saw "Dink" come into the Ford City Citgo station where she worked on the Saturday before the robbery which would have been September 29, 2007. He was driving a burgundy and tan Mitsubishi Montero. John Wingate was with him at the time, along with a third person. Def. Ex. D at pp. 11-12.

Also on November 4, 2007, Judith Brown was contacted via telephone by Trooper Lash and admitted she has a son Allan Brown who has the nickname "Dink". Def. Ex. D at p. 12.

On November 11, 2007, Rosealee Brumbaugh was interviewed by Trooper Lash. She recalled seeing a gray car with Maryland plates parked along Hobson Drive on the morning of the robbery. A rag was hanging from the driver's window. Def. Ex. D at p. 13.

While the investigation was led and conducted in large part by the Pennsylvania State Police, the FBI did provide occasional support. On November 13, 2007, Trooper Lash updated Special Agent Smith on the status of the investigation via telephone. Trooper Lash also asked Special Agent Smith to arrange to have federal agents in Baltimore check the residence of Allan Brown¹ in order to attempt to locate a silver Volkswagen Jetta, and to take photographs of it and any other vehicles that may be located at the residence. Special Agent Smith also indicated that agents should also attempt to interview Defendant's mother, Judith Brown. Def. Ex. D at p. 12.

Special Agent Smith proceeded to make the request of the FBI Baltimore field office on November 14, 2007, in the form of an electronic communication.² Def. Ex. A.

On November 15, 2007, Trooper Lash received a report from Special Agent James Mollica of the Baltimore field office, forwarded by Special Agent Smith, which detailed an interview with Judith Brown. Among other things, she admitted that Defendant owns a silver Volkswagen Jetta and that he visited his uncle John Wingate in Ford City, PA, at the end of September. Doc. # 51-3 at p. 25.

On December 11, 2007, John Wingate was interviewed...