USA v. BROWN
| Decision Date | 08 April 2011 |
| 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 | U.S. District Court — Western District of Pennsylvania |
OPINION TEXT STARTS HERE
Pending before the Court is the GOVERNMENT'S MOTION TO RECONSIDER ORDER GRANTING SUPPRESSION ON THE BASIS OF NEWLY DISCOVERED EVIDENCE (Document number 74), the OPPOSITION BY ALLEN BROWN TO GOVERNMENT'S MOTION TO RECONSIDER ORDER GRANTING SUPPRESSION ON THE BASIS OF NEWLY DISCOVERED EVIDENCE (Doc. No. 76), and the government's reply to Defendant Brown's response in opposition (Doc. No. 77). The government's motion is ripe for disposition.
The facts of the underlying crime and criminal investigation thereof have previously been outlined by the parties before this Court and the U.S. Court of Appeals for the Third Circuit in U.S. v. Brown, Court of Appeals Docket # 09-3643, and are generally not in dispute. 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 that covered their entire heads. They robbed the bank at gunpoint, and upon exiting the bank building, fled on foot and proceeded in the direction of the Armstrong County School District Administration building. At the time, an unattended school district delivery van was parked outside the administration building, with its doors open and the keys in the ignition, as the driver was making a delivery inside the building. The van was presumably taken by the bank robbers and driven to an area approximately one half mile away, where it was apparently abandoned along Hobson Drive, near the intersection with Pennsylvania State Route 66 ("SR 66"). Hobson Drive is a two-lane road with no curbs or sidewalks. Approximately thirty (30) minutes later, the van was found at that location and processed by police. Upon search, the police recovered one of the two scream-type masks inside the van. The second mask was not found.
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 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 in the investigation. Trooper Lash did, however, provide Special Agent Smith with updates regarding the status of the investigation. Doc. No. 75, Transcript of suppression hearing at p. 43.
As part of the investigation, PSP Troopers conducted numerous interviews of potential witnesses. Several witnesses stated that between 8:00 a.m. and 9:00 a.m. on the morning of the robbery, they observed an unoccupied car parked in the same spot where the stolen van was later found on Hobson Drive. See, U.S. v. Brown, 647 F.Supp.2d 503 (W.D.Pa. 2009). The witnesses' descriptions of the vehicle were generally consistent: two described it as a silver Volkswagen Jetta, one as a gray car, one as a silver car, and one as a white car with a blue stripe. Id. Each witness recalled seeing something hanging from the driver's side mirror, and two witnesses described the car as having white license plates (one specifically identified the plates as Maryland plates.) One witness reported seeing a black male driving the same car away from the area at approximately 9:25 a.m., ten minutes after the robbery. Special Agent Smith did not participate in the interviews of the witnesses who provided this information. Doc. No. 75 at p. 87.
This interview information became known to Special Agent Smith through conversations with Trooper Lash, who also memorialized same in a PSP Incident Report. Special Agent Smith incorporated this information in a draft affidavit of probable cause for a search warrant on or about January 23, 2008. Id. at pp. 87-88. Special Agent Smith did not receive a copy of Trooper Lash's report until January 26, 2008, three days after drafting the affidavit. Id. at p. 90.
Defendant Brown moved to suppress the DNA evidence from the scream-type mask on the basis of purportedly false information in the affidavit of probable cause, particularly information contained in paragraph 7(c), which stated:
Police interviews of various witnesses following the robbery reported witnessing the stolen Armstrong County School Administration van meet up with a silver Volkswagen Jetta having a possible Maryland registration. Witnesses then observed the silver Jetta drive away from the area where the van was left parked.
During the suppression hearing on July 31, 2009, Special Agent Smith testified regarding the statements in paragraph 7(c) as follows:
Q. Now, during the course of the investigation, did you personally get involved in the interview of any of the witnesses who observed the Volkswagen Jetta?
A. I did not.
Q. Did you get involved in the interviews of anyone relative to the van being stolen?
A. I did not.
See Transcript of Suppression Hearing filed at Doc. No. 75 at 84-85. Special Agent Smith further testified in relevant part regarding any notes of his investigation:
Q. So the personal notes that you took, where are those now?
A. I have no idea. They weren't associated with any particular 302 or report that I would have been producing, so they could have been thrown away.
Q. You might have just written it down and thrown it away, but you don't know?
A. Yes.
Q. Would they be in the file?
A. Typically, when I would save notes is when they would be as a result of a particular interview, not necessarily with a trooper or another officer unless they had substantive information to provide.
Q. So you had no personal notes to refer to then when you prepared the affidavit, correct?
A. I may have taken notes of the occasion I spoke with Trooper Lash but after producing the affidavit and reviewing it and believing it to be true and correct, I most likely threw those notes away.
Q. Most likely or did?
A. I don't have them so I have to say I did.
Id. at pp. 101-02. Upon conclusion of the hearing, this Court found:
Defendant challenges paragraph 7(c), correctly asserting that "the affidavit stated falsely that witnesses reported seeing a stolen Armstrong County School District van, which was the apparent getaway vehicle, 'meet up with a silver Volkswagen Jetta having a possible Maryland registration,' and that 'witnesses then observed the silver Jetta drive away from the area where the van was left parked.'" Doc. # 51 at p. 2. The government concedes that the first sentence of paragraph 7(c) is false. Doc. # 53. The Court agrees. From the testimony and evidence, no witnesses saw the subject vehicles stopped, parked, or present at the same place at the same time, and no witnesses saw any person(s) moving from one of the vehicles to the other.
The government appealed the suppression of evidence, during the process of which it conceded that the warrant affidavit contained a materially false statement at paragraph 7(c). More particularly, the government acknowledged in its motion for reconsideration that "based on the information it had at the time [of the suppression hearing and the appeal process], the government informed both this Court and the Court of Appeals that no witness had ever reported seeing the Jetta 'meet up with' the van." Doc. No. 74 at ¶ 2. The government now seeks to reopen the suppression hearing. See id. Attached to the government's motion are various materials, specifically, email correspondence between law enforcement agents and prosecutors, a handwritten statement of purported witness Tom Klingensmith, and an unsigned, undated note, allegedly authored by Special Agent Smith. The government now contends that on January 24, 2011, days after the decision was issued by the Court of Appeals which affirmed the suppression of the evidence, witness Klingensmith approached the Pennsylvania State Police with information that he had seen the van and the Jetta together on Hobson Drive shortly after the bank robbery, and provided a written statement to that effect. Id. at ¶ 5. The written statement detailed that Klingensmith was interviewed by a law enforcement officer (not identified by name or by organization within the statement itself) on the day of the robbery and that he relayed his information about having seen the vehicles at that time. Id. at ¶ 9. Special Agent Smith was subsequently notified of witness Klingensmith's recent contact with the state police. According to the government, the following sequence ensued:
As is typically the case, Agent Smith maintained two different types of case files regarding the instant bank robbery investigation: (1) the official case file that included all official records and reports related to the investigation and (2) a drop file including telephone numbers and other personal notes and contact information. Although Agent Smith reviewed his official case file prior to the initial suppression hearing and had not seen any information relating to the van and the Jetta meeting up, he did not review his drop file prior to the hearing. However, after receiving Trooper Lash's call about Mr. Klingensmith's phone call to [PSP] Corporal Murphy [on January 24, 2011], Agent Smith searched his drop file. Agent Smith recovered his handwritten note indicating that he had talked with Mr. Klingensmith previously, and that Mr. Klingensmith had in fact stated that he had seen the van and the Jetta meet up as reported in the warrant affidavit - refreshing Agent's Smith recollection as to the basis for his inclusion of paragraph 7(c) in the warrant affidavit. This handwritten note had not been formalized into an official contact or an FBI Form 302 and was therefore...
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