United States v. Brooks (358 F. Supp. 3d 440, 2018)

Joy Flowers Conti, Senior United States District Judge

I. INTRODUCTION

Pending before the court is a motion to suppress evidence and statements (ECF No. 38) filed by defendant Jamal Brooks ("Brooks"). Brooks is charged in a criminal indictment with possession of a firearm and ammunition by a convicted felon on August 22, 2017, in violation of 18 U.S.C. § 922(g)(1). The charge in the indictment is based upon three firearms and ammunition recovered from a search of Brooks' residence conducted pursuant to a search warrant on August 22, 2017. Brooks in the motion to suppress and supplemental submissions argues that law enforcement violated his rights guaranteed by the Fourth and Fifth Amendments to the United States Constitution and the evidence and statements obtained from those violations should be suppressed.

On February 12, 2018, the government filed a response in opposition to Brooks' motion to suppress. (ECF No. 43.) On February 23, 2018, Brooks filed a supplemental brief with respect to the motion to suppress. (ECF No. 44.) On March 19, 2018, the government filed a response in opposition to Brooks' supplemental brief. (ECF No. 52.) On March 25, 2018, Brooks filed a reply brief with respect to the motion to suppress. (ECF No. 53.)

On October 12, 2018, the court held a hearing with respect to Brooks' motion to suppress. The parties entered exhibits into evidence and the government presented the testimony of three witnesses. On November 15, 2018, the parties each filed proposed findings of fact and conclusions of law. (ECF Nos. 82, 83.)

On November 28, 2018, the court sua sponte raised the issue of inevitable discovery with respect to the search of the crashed gray sedan and requested the parties to brief the issue. The court inquired whether additional evidence was necessary. On November 30, 2018, the parties filed their supplemental briefs. (ECF Nos. 89, 90.) Brooks did not request the record be reopened for additional evidence. To the contrary, Brooks objected to reopening the record. (ECF No. 89.) The government requested an opportunity to reopen the record to present testimony by Howard Burton, the chief of police for the Penn Hills Police Department, about the Penn Hills Police Department's inventory policy. (ECF No. 90 ¶ 6.) The court denies the government's request because the record is sufficient without that additional evidence.

The motion to suppress having been fully briefed is now ripe to be decided by the court. The court makes the following findings of fact and conclusions of law.

II. FINDINGS OF FACT

A. Warrantless Search of the Gray Nissan Rental Car on July 23, 2017

1. On July 23, 2017, at 3:28 a.m., Adam Lawrence ("Lawrence"), a police officer with the Penn Hills Police Department, and other police officers were dispatched to a residence on Leechburg Road in Penn Hills, Pennsylvania, for a reported burglary in progress involving "possible kidnapping" and "reports of gunshots." (H.T. 7/10/2018 (ECF No. 67) at 18-19.)

2. Prior to being dispatched to the incident on Leechburg Road, Lawrence, who was in a police uniform, was at a gas station with other police officers. (Id. ) Once the police officers received the call with respect to the incident on Leechburg Road, they drove with lights and sirens on toward that area. Lawrence's marked police car was the last in a line of police cars heading in the direction of the Leechburg Road. (Id. at 19.)

3. While the other police cars drove straight on Verona Road in Penn Hills, Pennsylvania, Lawrence took an alternate route via Shannon Road to "cover more area and maybe encounter suspects fleeing[.]" (Id. at 19-20.)

4. Once Lawrence turned onto Shannon Road, he saw a vehicle in his lane of travel, i.e., driving in the opposing lane of travel. (H.T. 7/10/2018 (ECF No. 67) at 20.) Lawrence explained:

They just passed a vehicle coming to the end of the roadway which is a T intersection with the stop sign. The stop sign is on their end, and I had to lock up my brakes, stop to avoid a head-on collision with them, and they proceeded past me and ran the stop sign and turned left on to 2nd Street.

(Id. ) The vehicle observed by Lawrence was a "newer" gray sedan, i.e., a 2016 Nissan Altima, with an Ohio registration plate and had two occupants, i.e., a driver and front seat passenger. (Id. at 20, 23; Gov't Ex. 3.) Lawrence described the driver as a "light skinned black male with black dreadlocks." (Id. at 23.) Lawrence could not describe the passenger of the vehicle. (Id. )

5. Brooks "is not a light skinned black male[.]" (H.T. 7/10/2018 (ECF No 67) at 49; H.T. 10/12/2018 (ECF No. 84) at 24.)

6. Lawrence explained that the gray sedan, which almost struck his police vehicle, appeared to be "trying to quickly get away from a certain area" and was coming from the direction of Leechburg Road where the robbery had taken place. (H.T. 7/10/2018 (ECF No. 67) at 24.) He suspected that the vehicle was involved in the robbery that had taken place at the residence on Leechburg Road. (Id. ) Lawrence, therefore, turned his police vehicle around and began to pursue the gray sedan. (Id. )

7. Lawrence pursued the gray sedan as it drove down various streets in the area, and he observed several traffic violations during the pursuit. (H.T. 7/10/2018 (ECF No. 67) at 25.) For example, the gray sedan did not have its lights on, which made it more difficult for the vehicle to be detected. (Id. ) The gray sedan was travelling at a rate of approximately forty to fifty miles per hour on side streets and residential streets, which have speed limits of twenty-five miles per hour. (Id. at 26.)

8. Lawrence attempted to conduct a traffic stop on the gray sedan. (Gov't Ex. 5 ¶ 18.)

9. He eventually lost sight of the gray sedan because he could not see the vehicle's taillights. (H.T. 7/10/2018 (ECF No. 67) at 26.)

10. A few moments after Lawrence lost sight of the gray sedan, a police officer with the Verona Police Department located the vehicle crashed nearby at the intersection of Penn Street and Allegheny Avenue in Verona Borough, Pennsylvania. (H.T. 7/10/2018 (ECF No. 67) at 26-27; H.T. 10/12/2018 (ECF No. 84) at 29.) The vehicle was wrecked into a fence of a parking lot, there were no occupants inside the vehicle, the engine was running, and the vehicle was partially on the roadway. (H.T. 7/10/2018 (ECF No. 67) at 27-28; H.T. 10/12/2018 (ECF No. 84) at 30.)

11. Lawrence did not see anyone exit the vehicle. (H.T. 10/12/2018 (ECF No. 84) at 26.) He believed, however, that the occupants ran away from the vehicle. (Id. ) He explained:

[G]iven the time that, you know, the distance that they were ahead of me until the time that I covered that distance, when they had turned right where they crashed and didn't negotiate the turn properly, it wasn't that long. So, there is no way that they were walking. They had to have got out and run. I mean, I was there within seconds passing by and I would have noticed people walking.

(Id. )

12. Lawrence determined the vehicle was registered to Enterprise Rental Car, also known as "EAN Holdings." (H.T. 7/10/2018 (ECF No. 67) at 28; H.T. 10/12/2018 (ECF No. 84) at 15, 33.) The vehicle was rented from Enterprise Rental Car by Brooks. (H.T. 10/12/2018 (ECF No. 84) at 45.)

13. Lawrence and other police officers with the assistance of two police service dogs searched the area in which the gray sedan was crashed in an attempt to locate its occupants. (H.T. 7/10/2018 (ECF No. 67) at 28-29.) The police officers did not locate either occupant of the vehicle. (H.T. 10/12/2018 (ECF No. 84) at 32.)

14. After Lawrence briefly participated in the search for the occupants of the vehicle, he returned to the crashed gray sedan to conduct an inventory search of the vehicle. (H.T. 7/10/2018 (ECF No. 67) at 29.)

15. Lawrence testified that he conducted an inventory search of the crashed gray sedan because "[i]t was involved in a crash, after a vehicle pursuit[,]" and, therefore, it was subject to being impounded by the Penn Hills Police Department. (H.T. 10/12/2018 (ECF No. 84) at 8-9.) Lawrence explained: "The driver and the other occupant of the vehicle fled after crashing the vehicle and we were unable to locate them." (Id. )

16. Lawrence conducted an inventory search of the vehicle at the scene of the crash, i.e., it was not towed to a separate location prior to Lawrence's inventory search. (H.T. 10/12/2018 (ECF No. 84) at 36.)

17. On July 23, 2017, the Penn Hills Police Department had a policy in place with respect to the "Inventory of Impounded Vehicles" (the "inventory policy"). (H.T. 10/12/2018 (ECF No. 84) at 6; Gov't Ex. 2.)

18. The inventory policy, in pertinent part, provided:

It shall be the policy of the Penn Hills Police Department that all vehicles impounded by the authority and direction of the Department shall be examined and inventoried immediately upon acceptance into the custody and control of the Penn Hills Police Department or as soon after as is practical under the circumstances.

A. Officer Responsibility

1. The Penn Hills Police Department Impounded Vehicle Information Sheet and an inventory of personal items of value in said vehicle will be completed and submitted by the officer who took custody or control of the vehicle or his designee.

2. Containers found within the impounded vehicle shall be opened and inventoried, unless the contents can be easily ascertained from examining the exterior of the container. If the container is locked and cannot be opened without damaging [the] same, it shall not be forced open, but rather noted on the inventory sheet as a locked container.

3. If the impounded vehicle is part of a crime and/or is suspected to contain evidence, and a search of it becomes necessary, the vehicle will be secured at the Penn Hills Police Department impound facility[ ] until the proper search procedure can be carried out.

4. After the aforementioned procedure has been carried out, the vehicle shall be secured in the Penn Hills Police Department impound area, or other areas utilized by the department for the storage of vehicles.

5. If there is no need to retain the impounded vehicle, the officer who took control and custody of said vehicle, or his designee, shall make arrangements to have said vehicle returned to the owner as soon as possible.

(H.T. 10/12/2018 (ECF No. 84) at 6-7; Gov't Ex. A at 1-2.)

19. On July 23, 2017, at 5:25 a.m., Lawrence completed a Vehicle Impound Record, which is a document used in the ordinary course of business by the Penn Hills Police Department. (H.T. 10/12/2018 (ECF No. 84) at 10-11; Gov't Ex. 3.) Lawrence completed the form immediately after the inventory search of the crashed gray sedan. (H.T. 10/12/2018 (ECF No. 84) at 12.)

20. Lawrence's search of the crashed gray sedan included a search inside a black backpack found in the backseat of the vehicle and a search inside a red duffel bag found inside the trunk of the vehicle. (H.T. 10/12/2018 (ECF No. 84) at 13.) According to Lawrence, the contents of the two bags could not be easily ascertained without opening them. (Id. at 13-14.)

21. The Vehicle Impound Record also included a "Vehicle Recovery/Tow Notification," which was a letter the Penn Hills Police Department used to notify the registered owner of the vehicle that the vehicle is being towed and to provide the registered owner of the vehicle contact information for the place to which the vehicle is being towed. (Id. at 14; Gov't Ex. 3 at 3.)

22. Lawrence was unable to contact Enterprise Rental Car, i.e., the registered owner of the crashed gray sedan, because it was in the middle of the night. (Id. at 14.) Lawrence, therefore, prepared the Vehicle Recovery/Tow Notification to be sent to Enterprise Rental Car. (Id. )

23. From inside a blue grocery store bag on the floorboard in front of the driver's seat of the crashed gray sedan the following items were recovered: (a) a "SIG Sauer 22 caliber pistol with the serial number of F309749" (H.T. 7/10/2018 (ECF No. 67) at 31-32), which was registered to Tia Collins, who was one of the victims in the alleged robbery on Leechburg Road (id. at 32; Gov't Ex. 5 ¶ 17); and (b) a "Taurus 9 millimeter pistol" with serial number "TJN07656" and a corresponding magazine with eight, nine millimeter cartridges (H.T. 7/10/2018 (ECF No. 67) at 33-34).

24. A magazine that corresponds to the "SIG Sauer 22 caliber pistol" that had ten, twenty-two caliber cartridges in it was also found in the crashed gray sedan. (H.T. 7/10/2018 (ECF No. 67) at 31.)

25. From inside the red duffel bag found in the trunk of the crashed gray sedan the following items were recovered: (a) a stainless steel "Taurus 357 caliber revolver" with serial number GY69526 and "five 357 cartridges...inside the cylinder on the revolver" (H.T. 7/10/2018 (ECF No. 67) at 32-33); (b) a "Mossberg 12 Gauge Shotgun" and four, twelve-gauge shotgun shells (id. at 34); and a cardboard box containing a 50-round capacity nine-millimeter drum-style magazine, (id. at 37.)

26. A "Ruger 22 caliber pistol" with serial number 36521861 was found in the center console of the crashed gray sedan. (H.T. 7/10/2018 (ECF No. 67) at 33.) A magazine containing .22 caliber ammunition was located inside the "Ruger 22 caliber pistol" and one round was chambered in the firearm. (Id. at 34-35.)

27. Another magazine containing .22 caliber ammunition was recovered from inside a red and black bag found in the backseat of the crashed gray sedan. (Id. at 35.)

28. A nine-millimeter pistol extended magazine with thirty, nine-millimeter cartridges inside it was located in a black nylon backpack in the backseat of the crashed gray sedan. (H.T. 7/10/2018 (ECF No. 67) at 35-36.) A number of items were inside the black nylon backpack with the nine-millimeter extended magazine, including:

- a bag of plastic zip ties;

- a set of handcuffs;

- black gloves;

- a black face mask;

- a red knife;

- a silver flashlight;

- a black tossle cap; and

- a small black flashlight.

(Id. at 36.)

29. A "knotted plastic bag containing multiple cartridge casings" and one, nine-millimeter cartridge were inside a Taurus box that contained the Taurus .357 caliber firearm and was found in the trunk of the crashed gray sedan. (H.T. 7/10/2018 (ECF No. 67) at 36.) The cartridge casings were empty, meaning they were not live ammunition and did not contain a projectile. (Id. at 36-37.)

30. A "federal ammunition box" containing fifteen "22 caliber cartridges" was inside a black nylon small carrying bag located in the front section of the vehicle. (H.T. 7/10/2018 (ECF No. 67) at 37.) That ammunition could function with the "Ruger 22 Pistol" that was in the center console of the crashed gray sedan. (Id. )

31. Assorted ammunition and magazines for ammunition for firearms were found throughout the crashed gray sedan. (H.T. 7/10/2018 (ECF No. 67) at 34.)

32. Clothing items, including a black ski mask, black gloves, and blue latex gloves, were also found in the crashed gray sedan. (Id. at 38-39.)

33. Three Pennsylvania State Police records of sale, a receipt from a gun purchase, and warranty cards for Taurus firearms listed in Brooks' name were found inside the crashed gray sedan. (H.T. 7/10/2018 (ECF No. 67) at 39.) A grocery store receipt was also found inside the crashed gray sedan. (Id. )

34. The documentation for the Taurus firearms listed Brooks' name and address and was consistent with the Taurus .357 caliber firearm found in the crashed gray sedan. (Id. at 40.) The address provided for Brooks was "literally...down the road from where the vehicle was found crashed." (Id. at 40.)

35. The following items were also found in the crashed gray sedan:

- Monroeville Dodge key chain;

- Chrysler key fob;

- handcuff key;

- house key;

- Giant Eagle card registered to Brooks' girlfriend R'Vaenita Squires ("Squires");

- Dick's Sporting Goods card registered to Squires;

- Louis Vuitton monogram wallet with the initials JMB embroidered on it, which contained a driver's license for "Jamal Brooks;"

- two credit cards in Brooks' name;

- Enterprise Rental Car business card;

- Anthony Arms membership card; and - Crown Royal bag, which contained an e-cigarette and metal grinder.

(H.T. 7/10/2018 (ECF No. 67) at 40-41; Gov't Ex. 5 ¶¶ 23, 24.)

36. At approximately 5:25 a.m., after Lawrence inventoried the contents of the crashed gray sedan, the vehicle was towed to "Don Kuhn in Penn Hills." (H.T. 10/12/2018 (ECF No. 84) at 36, 41.)

B. DuThinh's Surveillance of 1204 Wade Street, Aliquippa, Pennsylvania

37. In late July 2017, DuThinh spoke with a detective from the Penn Hills Police Department about the events of July 23, 2017, of which Brooks was a suspect. (H.T. 10/12/2018 (ECF No. 84) at 56-57.)

38. DuThinh learned that Brooks rented the crashed gray sedan and the Penn Hills Police department found Brooks' property inside the vehicle. (H.T. 10/12/2018 (ECF No. 84) at 57.) DuThinh obtained Brooks' address at 1204 Wade Street, Aliquippa, Pennsylvania ("1204 Wade Street") from the driver's license found inside the crashed gray sedan. (Id. )

39. In August 2017, DuThinh conducted surveillance of 1204 Wade Street on four separate days over a span of three weeks to determine whether Brooks lived at that residence. (H.T. 10/12/2018 (ECF No. 84) at 57-58; Gov't Ex. 5.)

40. DuThinh obtained from the Penn Hills Police Department the Chrysler key fob found in the crashed gray sedan. (H.T. 10/12/2018 (ECF No. 84) at 47.) The key fob was a "one in-laid piece" comprised of a metal key and keyless entry system. (Id. at 48.)

41. On August 17, 2017, DuThinh traveled to 1204 Wade Street. (H.T. 10/12/2018 (ECF No. 84) at 47.)

42. Upon DuThinh's arrival at 1204 Wade Street, a "Chrysler was parked in the driveway. It was backed in." (H.T. 10/12/2018 (ECF No. 84) at 48.)

43. The government entered into evidence a photograph taken by "Google Maps" of 1204 Wade Street, which depicted the Chrysler parked in the driveway of 1204 Wade Street. (H.T. 10/12/2018 (ECF No. 84) at 48-49; Gov't Ex. 4.)

44. DuThinh testified that the photograph accurately depicted 1204 Wade Street on August 17, 2017, including the manner in which the Chrysler was positioned in the driveway. (H.T. 10/12/2018 (ECF No. 84) at 49.) DuThinh, however, retrieved the photograph from Google Maps after August 17, 2017, and did not know when Google Maps captured the image. (Id. at 61.)

45. DuThinh was asked whether the location of the vehicle as depicted in the photograph was the "precise location as...[he] saw it on August 17[, 2017.]" (Id. at 61.) DuThinh responded: "I can't say precise. It's oriented and parked in the driveway, whether it's slightly forward, slightly back. But it is in and around that area." (H.T. 10/12/2018 (ECF No. 84) at 61.) He confirmed that it was "possible that...[the] vehicle was not located precisely as it's depicted...[in the photograph]." (Id. at 62.)

46. DuThinh walked onto the empty lot to the right of 1204 Wade Street. (H.T. 10/12/2018 (ECF No. 84) at 50.) DuThinh described the empty lot:

It's distinctly an empty lot. It's all grass versus the driveway. I would have approached there because I was concerned being too close and being discovered. So, first, I am hitting the keyless entry and then I move towards the rear and peeked over.

(Id. at 61.)

47. He stood approximately three to four feet from the Chrysler in the unkempt grassy area. (Id. at 50.) DuThinh was not "very close" to the short, white brick wall located behind the Chrysler. (Id.; Gov't Ex. 4.) DuThinh approached the vehicle from the front driver's side of the car. (H.T. 10/12/2018 (ECF No. 84) at 50.)

48. DuThinh stood "on that little, the corner of the grass...[between] the sidewalk, and the driveway." (H.T. 10/12/2018 (ECF No. 84) at 51.)

49. DuThinh did not enter the driveway of 1204 Wade Street; he did not enter the front yard of the residence; and he did not walk onto the front porch of the home. (H.T. 10/12/2018 (ECF No. 84) at 51-52.)

50. DuThinh used the keyless entry on the Chrysler key fob and heard the doors lock. (H.T. 10/12/2018 (ECF Non. 84) at 51.) He did not physically touch the vehicle or use the metal key in the lock on the door of the vehicle. (Id. at 50, 52.)

51. DuThinh walked parallel to the Chrysler toward the back of the house, stood at the back of the Chrysler, and "peeked to the rear of the vehicle, and identified the license plate." (H.T. 10/12/2018 (ECF No. 84) at 54, 59.) It was from that "vantage point" that DuThinh was able to view the license place which read: "JYS2961." (Id. at 54-55.)

52. DuThinh had to "bend...[his] body around to look at...[the] license plate." (H.T. 10/12/2018 (ECF No. 84) at 59.)

53. DuThinh did not walk onto the driveway or back of the property located at 1204 Wade Street to view the license plate. (H.T. 10/12/2018 (ECF No. 84) at 55, 59.)

54. DuThinh determined the Chrysler was registered to Roosevelt Reese ("Reese"). (H.T. 10/12/2018 (ECF No. 84) at 55.) DuThinh believed Reese was a relative of Squires. (Id. at 55-56.)

55. On the same day, DuThinh spoke to an employee of the United States Postal Service at the post office. (H.T. 10/12/2018 (ECF No. 84) at 59-60.) The employee "stated that she recognized...[Brooks' name] or had seen someone matching that description at that residence." (Id. at 60.) DuThinh could not recall the employee's name or whether he showed her a photograph of Brooks. (Id. )

C. DuThinh Obtained a Search Warrant for 1204 Wade Street

56. On August 21, 2017, DuThinh applied for a search warrant to search 1204 Wade Street. (H.T. 10/12/2018 (ECF No. 84) at 63.) DuThinh authored the affidavit of probable cause (the "affidavit") attached to the application. (Id. )

57. DuThinh in the affidavit relied upon the events of July 23, 2017, including the information received from the robbery victim, Tia Collins, and her husband, Cordell Collins, and information received from Lawrence about the subsequent police chase of the gray sedan. (H.T. 10/12/2018 (ECF No. 84) at 65; Gov't Ex. 5 ¶¶ 4, 17, 18.)

58. With respect to DuThinh's relevant training and experience, the affidavit of probable cause, in pertinent part, provided:

As a Special Agent with the ATF, your affiant has experience with and is responsible for investigating violations of federal firearm laws. In the course of my training and experience, your affiant became familiar with the methods and techniques associated with the possession and distribution of firearms, the distribution of narcotics, and the organization of firearms.

...

[Y]our affiant has been involved in the use of...preparing and executing search warrants which have led to the seizure of firearms, narcotics, contraband, and evidence of criminal activity.

...

Through training and experience, your affiant is aware that often, home invaders possess firearms, ammunition, and other dangerous weapons in their residences, businesses, and automobiles to protect their profits from those who might attempt to forcibly take them. Typically home invaders maintain possession of the firearms for extended periods of time. In addition, based on your affiant's training and experience, your affiant is aware that home invaders maintain possession of their equipment and, "tools of the trade", such as masks, restraints (to include hand-cuffs, zip ties, rope) and gloves.

...

Your affiant is aware that home invaders often use their automobiles to transport themselves, as they require expeditious means of travel away from their victims and to elude police. Home invaders often use their vehicles to store their tools of the trade so they are readily available.

...

Your affiant is aware based on his training and experience and knowledge of this investigation in particular, that although home invaders that obtain firearms through straw purchasers tend to want to distance themselves from any connection to the acquisition of the firearms, often times they retain records and other information that provide evidence of the fact that the firearm(s) in question was purchased for them. Such records can include, but are not limited to, gun boxes (which often times have the serial number of the firearm purchased), receipts reflecting the purchase information, firearm accessories (such as extra magazines, sights, scopes, and back straps), and ammunition.

(Gov't Ex. 5 ¶¶ 2, 9, 10, 12.)

59. The affidavit provided that DuThinh personally participated in the investigation of Brooks and received information from "other ATF Special Agents, Penn Hills Police Department...and witnesses." (Id. ¶ 6.)

60. DuThinh alleged that he had "probable cause to believe that the firearms contained...[in 1204 Wade Street] will constitute and contain evidence that BROOKS possessed said firearms after having been convicted of a crime punishable by a term of imprisonment greater than a year." (Id. ¶ 7.)

61. With respect to the events that occurred on July 23, 2017, the affidavit provided that: (a) Tia Collins dialed 9-1-1 and reported she was robbed by two persons wearing dark clothes and masks, she was struck in the back of her head, and her purse was stolen, which contained a pistol; and (b) her husband, Cordell Collins, arrived home and the two suspects fired shots at him before they drove away in an unknown vehicle. (Gov't Ex. 5 ¶ 17.)

62. The affidavit explained that shortly after Tia Collins' telephone call to 9-1-1:

- an officer with the Penn Hills Police Department "observed a vehicle driving erratically" (id. ¶ 18);

- the officer attempted to conduct a traffic stop on the vehicle, which was a dark gray Nissan Altima rented from Enterprise Rental Car (id. );

- the vehicle did not come to a stop, turned off its lights, eluded the officer, and "crashed" (id. );

- the officer eventually located the dark gray vehicle but did not locate its occupants (id. ); and

- the officer "described the operator as a light-skinned, black male with braided hair." (Gov't Ex. 5 ¶ 18.)

63. The affidavit provided that police officers recovered from the dark gray vehicle, among other things: five firearms, including a firearm purchased by Tia Collins and a firearm purchased by Brooks; "paperwork related to BROOKS's purchase of a firearm[;]" a wallet with the monogram "JMB[;]" Brooks' driver's license with 1204 Wade Street listed as his address; a Giant Eagle Advantage Card and a Dick's Sporting Goods Card registered to Brooks' girlfriend, Squires; a cellular telephone with a telephone number belonging to Brooks and with an associated address of 1204 Wade Street; a Chrysler automobile key; drug paraphernalia; handcuffs; zip ties; gloves; masks; and clothing. (Gov't Ex. 5 ¶¶ 19, 20, 24, 25.)

64. With respect to DuThinh's surveillance of 1204 Wade Street and the Chrysler parked in the driveway of that address, the affidavit provided:

On two previous occasions your affiant observed a gold/silver Chrysler sedan (PA registration: JYS-2961) parked in the driveway of...[1204 Wade Street]. On August 17, 2017, your affiant and ATF SA Kevin Kauffman approached the Chrysler sedan with the Chrysler automobile key which was recovered from the...[dark gray vehicle]. Your affiant successfully activated the vehicle's keyless entry system with the key.

(Gov't Ex. 5 ¶ 26.)

65. According to the affidavit, DuThinh believed evidence that Brooks committed theft of a firearm, possession of a stolen firearm, and possession of a firearm and ammunition by a convicted felon, would be found at 1204 Wade Street and in the Chrysler. (Id. ¶ 30.)

66. With respect to the timeliness of the application for a search warrant, the affidavit explained:

Your affiant submits to you that this application is not stale, in that based on your affiant's training, knowledge and experience, your affiant knows that individuals who own and possess firearms routinely retain them for extended periods of time and often store them in areas under their control, such as their personal residences in order to protect the weapons, which are valuable, and to use the weapons for personal protection.

(Gov't Ex. 5 ¶ 31.)

67. Prior to authoring the affidavit, DuThinh conducted a criminal history search of the robbery victim Tia Collins, and her husband, Cordell Collins. (H.T. 10/12/2018 (ECF No. 84) at 65.)

68. Tia Collins was previously arrested but had no record of conviction. (Id. at 67; Gov't Ex. 6.) At some point after DuThinh's investigation of Brooks concluded, he learned that Tia Collins was being investigated for Medicare fraud. (H.T. 10/12/2018 (ECF No. 84) at 73-74.)

69. Cordell Collins had a record of arrests. He was arrested on felony drug charges in New York, Texas, and Pennsylvania, but the charges did not result in criminal convictions. (H.T. 10/12/2018 (ECF No. 84) at 67; Gov't Ex. 6.) In 1998, he sustained a felony drug conviction in Pennsylvania and was sentenced to a period of imprisonment. (Id. at 68; Gov't Ex. 6.)

70. DuThinh did not include the criminal histories of Tia Collins or Cordell Collins in his affidavit of probable cause. (H.T.

10/12/2018 (ECF No. 84) at 68.) He did not "feel it had any bearing on their testimony as victims." (Id. )

71. Prior to submitting the search warrant affidavit, DuThinh: met with a Penn Hills Police Department detective to discussed the incident involving Tia Collins and Cordell Collins on July 23, 2017; conducted two interviews of Tia Collins and Cordell Collins; reviewed the evidence; "did a record sale for the pistol that was recovered[;]" and determined the statements given by Tia Collins and Cordell Collins were corroborated by other evidence obtained by the Penn Hills Police Department. (H.T. 10/12/2018 (ECF No. 84) at 68-69.) Based upon the foregoing, DuThinh "believed...[Tia Collins and Cordell Collins] were being truthful and they gave a consistent account of what happened." (Id. at 69-70.)

72. DuThinh had "suspicions," but not evidence, that the robbery of Tia Collins on July 23, 2018, was drug related. (H.T. 10/12/2018 (ECF No. 84) at 70.) Similarly, DuThinh knew a nightclub owned by Tia Collins and Cordell Collins was "suspected to be" involved in criminal activity, but he did not have any evidence that it was involved in criminal activity. (Id. at 70-71.) DuThinh did not include in the affidavit of probable cause his suspicions that the robbery was drug related or that the nightclub was involved in criminal activity. (Id. )

73. On August 21, 2017, a magistrate judge signed and approved DuThinh's application search warrant for 1204 Wade Street. (Gov't Ex. 5 at 1-2.)

D. Execution of the Search Warrant at 1204 Wade Street on August 22, 2017

74. On August 22, 2017, at approximately 6:00 a.m., a search warrant was executed at 1204 Wade Street. (H.T. 10/12/2018 (ECF No. 84) at 94.)

75. DuThinh and Joseph Price ("Price"), an agent of the Bureau of Alcohol, Tobacco, and Firearms, were present at the search of 1204 Wade Street on August 22, 2017. (H.T. 10/12/2018 (ECF No. 84) at 81, 94.) DuThinh advised Price that 1204 Wade Street was the target of the search warrant and that three occupants, including Brooks, might be inside the home. (Id. at 82.)

76. DuThinh and "[n]o less than ten" law enforcement officers "approached the residence, called in, knocked and announced." (H.T. 10/12/2018 (ECF No. 84) at 94, 100.)

77. Squires first came to the top of the stairs, and law enforcement called her down the stairs. (H.T. 10/12/2018 (ECF No. 84) at 94-95.) Brooks appeared at the top of the stairs and was called down by law enforcement. (Id. ) Two children appeared and were also called downstairs by law enforcement. (Id. )

78. Price was on the porch of 1204 Wade Street with Brooks during the tactical and secondary searches of 1204 Wade Street. (H.T. 10/12/2018 (ECF No. 84) at 83-85.) Other members of law enforcement were inside the residence at that time. ( Id. at 83.) Brooks was handcuffed and seated when he was on the porch with Price. (Id. at 83-84, 91-92.)

79. Squires' and Brooks' two children were also on the porch during the tactical and secondary searches of 1204 Wade Street. (Id. at 84.)

80. At the time Brooks was with Price on the porch of 1204 Wade Street, Brooks had not been advised of his rights guaranteed by the Fifth Amendment to the United States as set forth in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). (Id. )

81. Price told Brooks that he was not the case agent, he did not know about the investigation of Brooks, and that he was concerned with law enforcement safety. (H.T. 10/12/2018 (ECF No. 84) at 85-86.) Price explained:

I had to ask him, I said, look, is there anything in this house that could get anybody hurt to include, you know, fentanyl, carfentanil, weapons, anything like that.

...

When I pose the question, is there anything that could get anybody hurt, I just give some examples. I don't go through everything that could hurt somebody, but I don't specifically, you know, do you have this type, this type, this type. But those are the main ones over the last years maybe you got to ask them.

...

I say, are there any types of drugs in there, fentanyl, that type of stuff, weapons, firearms.

(Id. at 85, 92-93.)

82. DuThinh was on the porch with Price and Brooks when Price asked Brooks about hazards in the home. (H.T. 10/12/2018 (ECF No. 84) at 97.) DuThinh explained:

Special Agent Price asked Mr. Brooks if there's any dangerous, anything that could harm us or his family inside the home. He said there were two firearms, one pistol in the closet of his bedroom and then one rifle in the basement behind a curtain.

(Id. at 97-98.)

83. Price testified with respect to the timing of his question to Brooks:

My interaction with him was when we brought him out on the porch. We had, the initial search had been done, then the secondary, bodies that hide. I had to ask him, I said, look, is there anything in this house that could get anybody hurt to include, you know, fentanyl, carfentanil, weapons, anything like that.

(Id. at 85.)

84. DuThinh testified that Price questioned Brooks before the "full-on, thorough search of the residence." (Id. at 98.) He explained:

It was probably possibly between the first search and the secondary search. But definitely before the full-on, thorough search of the residence.

(Id. )

85. Price explained the reason he asked Brooks about hazards in the house:

We have to be more careful with the fentanyl, carfentanil, stuff like that. I mean, I always ask that question, because as the on-scene commander, the safety and security of the people that I'm in charge of is one of my duties. It's one that I ask all the time, if I have the opportunity to ask.

(H.T. 10/12/2018 (ECF No. 84) at 87.) DuThinh explained that Price asked about hazards in the home "for our safety as we search and for when we bring in Ms. Squires and the two children into an area." (Id. at 98.)

86. Price explained that he questioned Brooks about hazards in the home because he knew Squires and the children were going to be given permission to enter the home during the search. (Id. at 87.) Price explained:

Eventually, we were going to allow, once we cleared the living room, we were going...[to] allow them to go back to the living room, the...[girlfriend], and the children, once we had a place for them to go to.

...

Normally, we don't let them free run of the house. They were not under arrest or detained. If memory serves me,...they had school that day, which I think they were still in their pajamas. We gave them an opportunity to go to their room. We...would escort them to get clothing, stuff like that, go to the bathroom. But they weren't free to go throughout the house by themselves.

(Id. at 85-87.)

87. Price believed law enforcement was at 1204 Wade street for firearms. (Id. at 93.)

88. Brooks "offered up knowledge of two guns in the house[,]" but did not claim ownership in the firearms. (H.T. 10/12/2018 (ECF No. 84) at 86.)

89. Squires and the two children were permitted to reenter the residence during the execution of the search warrant. (Id. at 86-87, 96.) They could move about the house with law enforcement watching them. (Id. at 86-87, 98-99.)

90. Brooks was escorted to the backyard of the residence during the search for evidence in the residence. (Id. at 99.) According to DuThinh, he read Brooks his Miranda rights at that time, and Brooks verbally acknowledged his rights but refused to sign a waiver. (Id. at 99, 104-05; Def. Ex. D.)

91. As this court explained in its Findings of Fact and Conclusions of Law dated September 19, 2018, law enforcement seized from 1204 Wade Street three firearms, various caliber ammunition, a quantity of marijuana, two digital scales, and gun boxes. (H.T. 7/10/2018 (ECF No. 67) at 61-62.) Law enforcement also seized "large duffel bags containing dark colored clothes, tools [they]...believe to be involved in home invasions, for instance, like saws, picks, hammers." (Id. at 68.) "[A] bandana, propane tanks, hammer, screwdriver, and bolt cutters in additional to ammunition" were found in one backpack inside the home. (Id. at 69.)

III. CONCLUSIONS OF LAW

A. The warrantless search of the crashed gray sedan

Standing

1. Brooks argues the evidence recovered from Lawrence's warrantless search of the crashed gray sedan should be suppressed and any reference to it excised from DuThinh's affidavit of probable cause in support of his application to search 1204 Wade Street because the evidence was obtained in violation of Brooks' rights guaranteed by the Fourth Amendment. (ECF No. 83 ¶ 52.)

2. The court will first consider whether Brooks has standing to challenge the search of the crashed gray sedan.

3. The Fourth Amendment to the United States Constitution provides that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause...." U.S. CONST. amend. IV.

4. "The touchstone of the Fourth Amendment is reasonableness." Florida v. Jimeno, 500 U.S. 248, 250, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991) ; United States v. Price, 558 F.3d 270, 277 (3d Cir. 2009) ("[T]he Fourth Amendment does not prohibit all searches-only those that are unreasonable." (citing Illinois v. Rodriguez, 497 U.S. 177, 183, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990) ) ).

5. Evidence obtained from an unreasonable search must be suppressed as " 'fruit of the poisonous tree.' " United States v. Brown, 448 F.3d 239, 244 (3d Cir. 2006) (quoting Wong Sun v. United States, 371 U.S. 471, 487-88, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963) ).

6. "As a general rule, the burden of proof is on the defendant who seeks to suppress evidence." United States v. Johnson, 63 F.3d 242, 245 (3d Cir. 1995). Once the defendant establishes a basis for his motion, the "burden shifts to the government to show that the search or seizure was reasonable." Id. The government must prove by a preponderance of the evidence that "each individual act constituting a search or seizure under the Fourth Amendment was reasonable." United States v. Ritter, 416 F.3d 256, 261 (3d Cir. 2005).

7. Here, the government argues that Brooks-who rented the gray sedan from Enterprise Rental Car - does not have standing to challenge the search of the crashed gray sedan because he abandoned the vehicle by fleeing from the vehicle once it was crashed into the fence. (ECF No. 82 ¶¶ 13-31.)

8. The Third Circuit Court of Appeals has explained:

A warrantless search of property is permissible under the Fourth Amendment where the owner has abandoned his reasonable expectation of privacy in that property. United States v. Fulani, 368 F.3d 351, 354 (3d Cir. 2004) (citing Abel v. United States, 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960) ). This determination must be made from an objective viewpoint, and proof of intent to abandon must be established by clear and unequivocal evidence. Id. We look at the totality of the facts and circumstances in making such a determination. See id.; McKenney v. Harrison, 635 F.3d 354, 359 (8th Cir. 2011). In most cases, disclaiming ownership or physically relinquishing the property is sufficient to establish abandonment. United States v. Liu, 180 F.3d 957, 960 (8th Cir. 1999).

United States v. Harrison, 689 F.3d 301, 306 (3d Cir. 2012).

9. In United States v. Moody, 485 F.2d 531 (3d Cir. 1973), federal agents, who were all Caucasian, received tips that the vehicle of the defendant, who was African-American, was being used to make deliveries of "nontaxpaid whiskey." Id. at 533. The federal agents conducted surveillance on the defendant, his home, and his vehicle.

Id. at 532-33. On one occasion while the federal agents were conducting surveillance, the defendant saw two of the federal agents approach his car. Id. at 532. On the same day, the federal agents, who were not wearing any kind of identification, began to follow the defendant in unmarked police vehicles. Id.

10. The court described the next series of events as follows:

As the defendant stopped at a traffic light, one of the agents pulled alongside his car and stared at him for several seconds. The defendant, seeing the agent, sped away and a chase ensued. After several turns, the defendant stopped his car in the traffic lane and successfully escaped on foot. Thereafter, one of the agents moved the vacant car to the side of the road, and using the keys left in the ignition, opened the car's trunk and discovered the illegal whiskey.

Moody, 485 F.2d at 533.

11. The defendant challenged the search of his vehicle. Id. The government argued that the defendant abandoned his vehicle, and, therefore, he lacked standing to challenge its search. Id.

12. The court of appeals affirmed the district court's decision that the government did not satisfy its burden to show by clear and unequivocal evidence that the defendant intended to abandon his vehicle. Id. The court explained:

The only facts from which one can infer intent indicate that the defendant, a black man, was aware that his vehicle was being followed by several unidentified white men and that earlier two men (again white) had approached his car. On these facts one could reasonably reach two conclusions: that he knew he was being followed by law enforcement agents and was seeking both to avoid arrest and abandon the incriminating evidence in the trunk of his car; or, that he believed he was being pursued by private citizens who intended to do him harm, and that he only left his car temporarily in order to escape this danger. Since only the former state of mind would constitute an abandonment, the evidence on the issue is ambiguous and cannot support a finding that the car and its contents were abandoned.

Moody, 485 F.2d at 533.

13. Similarly, in this case, the government failed to adduce clear and unequivocal evidence that Brooks intended to abandon the gray sedan.

14. This court in its findings of fact and conclusions of law dated September 19, 2018, found that the government proved by a preponderance of the evidence that Brooks was the passenger in the gray sedan that led Lawrence on a police chase and crashed into a fence.

15. The government did not present any evidence at the hearing with respect to the motion to suppress that anyone witnessed the circumstances in which Brooks exited the vehicle once it crashed into the fence. Lawrence's testimony that "no way that they were walking...[t]hey had to have got out and run" does not rise to the level of clear and convincing evidence of Brooks' intent to abandon the vehicle. (H.T. 10/12/2018 (ECF No. 84) at 26.)

16. There was circumstantial evidence adduced to show that Brooks may have known that the gray sedan was being chased by a police officer, i.e., Lawrence was in a marked vehicle, he had his lights and sirens on, the gray sedan turned its headlights off and was being driven erratically, and Lawrence attempted to conduct a traffic stop on the vehicle.

17. Under the circumstances presented in this case, however, the evidence does not clearly and unequivocally show that Brooks intended to abandon the crashed gray sedan.

18. Having concluded that Brooks has standing to challenge the search of the crashed gray sedan, the court will consider whether the search was reasonable under the Fourth Amendment.

Inevitable Discovery

19. In determining whether reasonableness exists in the context of a warrantless search, the Court of Appeals for the Third Circuit in United States v. Mundy, 621 F.3d 283, 287 (3d Cir. 2010), explained:

Warrantless searches and seizures are presumptively unreasonable and are therefore prohibited under the Fourth Amendment, unless an exception applies. California v. Acevedo, 500 U.S. 565, 580, 111 S.Ct. 1982, 114 L.Ed.2d 619 (1991) ("It remains a cardinal principle that searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment-subject only to a few specifically established and well-delineated exceptions." (quotation marks omitted) ); see also Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). "Such exceptions are based on the Supreme Court's determination that a particular search is reasonable, that is, that the government's legitimate interests in the search outweigh the individual's legitimate expectation of privacy in the object of the search." United States v. Salmon, 944 F.2d 1106, 1120 (3d Cir. 1991).

Id.

20. An exception to the warrant requirement for a search is the inevitable discovery doctrine. Nix v. Williams, 467 U.S. 431, 449, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984).

21. The parties did not raise or address the inevitable discovery exception to the warrant requirement. Upon review of their proposed findings of fact and conclusions of law, however, it became apparent to the court that inevitable discovery may apply to Lawrence's warrantless search of the crashed gray sedan.

22. The Third Circuit Court of Appeals in United States v. Sinkler, 267 F. App'x 171 (3d Cir. 2008), has explained that a district court may deny a motion to suppress "on a ground it raised sua sponte as long as it does not deprive...[the defendant] of the 'opportunity to adduce evidence in his favor.' " Id. at 174 (quoting United States v. Salazar, 805 F.2d 1394, 1400 (9th Cir. 1986) ).

23. The court, therefore, ordered the parties each to file a supplemental brief addressing whether the inevitable discovery exception applied to Lawrence's inventory search of the crashed gray sedan. The parties were permitted to cite to evidence of record and request a reopening of the record to introduce additional evidence in support of their submissions.

24. Brooks in his supplemental brief did not request to reopen the record and objected to reopening the record for the government to present evidence. (ECF No. 89 ¶ 4.) Brooks argued that: (a) the government waived any argument about the inevitable discovery doctrine by failing to raise it, and (b) in any event, the government did not satisfy its burden to show the inevitable discovery doctrine applies in this case. (Id. ¶¶ 2-3, 5-7.)

25. The government, which does not concede that Lawrence's inventory search was improper, argues that the evidence seized from the crashed gray sedan should not be suppressed because it would have been inevitably discovered by a proper inventory search. The government also requests the court to reopen the record to present evidence about the Penn Hills Police Department's inventory policy. (ECF No. 90.)

26. The court having provided the parties an opportunity to be heard and for Brooks to present evidence with respect to the inevitable discovery exception will consider its application to the facts of this case.

27. First, the court rejects Brooks' arguments about waiver. As discussed above, a district court may decide a suppression motion on an issue raised sua sponte by the court so long as the defendant has an opportunity to present evidence on the issue. See Sinkler, 267 F. App'x at 174.

28. In Sinkler, the doctrine of inevitable discovery was first raised on appeal by the Third Circuit Court of Appeals. The court of appeals remanded the case to the district court "for further factual findings" about, among other things, whether evidence in issue would have been discovered "as part of a properly conducted inventory search pursuant to established police department procedures." Id. at 173.

29. On remand, the district court decided the suppression motion based upon the inevitable discovery doctrine. The defendant on appeal of that decision by the district court argued that "when the District Court raised the doctrine sua sponte in its opinion, it violated his constitutional Due Process rights by denying him the opportunity to respond." Id.

30. The court of appeals rejected the defendant's argument. It explained:

While the government may not have expressly used the words 'inevitable discovery' during the remand proceedings, it was not a legal theory snatched out of thin air by the District Court. This Court's prior opinion clearly made inevitable discovery an issue to be considered by the trial court on remand.

Id. at 175. The court of appeals affirmed the decision of the district court, which denied the defendant's suppression motion based upon the doctrine of inevitable discovery. Id. at 175-76.

31. In other words, the Third Circuit Court of Appeals in Sinkler considered the doctrine of inevitable discovery and ruled in the government's favor on the issue even though the court of appeals-and not the government-first raised the issue. The court of appeals determined the defendant had an opportunity to present evidence on the issue, and, therefore, his due process rights were not violated by the courts consideration of the issue.

32. Similarly, here, the court-having given defendant an opportunity to present evidence and argument on the doctrine of inevitable discovery-may consider the issue without offending defendant's due process rights. The court need not reopen the record for the government to present additional evidence because the record is sufficient for the court to rule upon the issue of inevitable discovery.

33. Where "the prosecution can establish by a preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawful means...the deterrence rationale has so little basis that the evidence should be received." Nix, 467 at 444, 104 S.Ct. 2501.

34. In United States v. Bansal, 663 F.3d 634 (3d Cir. 2011), federal agents were conducting surveillance of the defendant on the day they intended to execute a search warrant at his apartment. The agents learned that the defendant was going to flee the county, and, therefore, stopped his vehicle and arrested him. Id. at 664. The federal agents knew that the defendant's "vehicle was under a forfeiture order, and this subject to impoundment" pursuant to an indictment that was issued against him. Id. The federal agents, therefore, conducted an inventory search of the defendant's vehicle and recovered various pieces of evidence that were later introduced into evidence at the defendant's trial. Id. The defendant filed a motion to suppress the evidence, which the district court denied. Id.

35. The Third Circuit Court of Appeals held that the inventory search was proper "because the forfeiture order authorized agents to take custody of the car[,]" and, "[a]fter taking custody of property, officers may make a warrantless inventory search so long as the search is conducted pursuant to standardized procedures." Bansal, 663 F.3d at 664.

36. The court of appeals also noted that: "[E]ven if the search did violate [the relevant]...procedures in some way, any evidence obtained from...[the defendant's] car at the scene eventually would have been discovered pursuant to impoundment under the forfeiture order. This places this case squarely within the 'inevitable discovery rule.' " Id. (citing Nix, 467 U.S. at 443-44, 104 S.Ct. 2501 ).

37. In United States v. McMillan, 227 F.Supp.3d 432 (W.D. Pa. 2017), police officers conducted a lawful arrest of the defendant for possessing a firearm in his vehicle without a license. Id. at 441. The officers began to search the defendant's vehicle after they arrested him and found heroin in the vehicle. Id. The defendant filed a motion to suppress the evidence. Id. The court held that the search was not a valid search incident to arrest. Id. The court agreed with the government, however, that the heroin should not be suppressed because of the inevitable discovery doctrine. McMillan, 227 F.Supp.3d at 441.

38. The court explained:

In this case, Defendant's car (a rental car) was to be towed, and was towed, from the scene, ECF No. 32-3, and the "Towing and Tow Pound Procedures: Inventories" of the Pittsburgh Bureau of Police indicate that "towing officer[s]" have a duty to inventory cars that are being towed. U.S. Ex. 2 at 1. Additionally, at the Hearing, one of the officers (Officer Obsenica) explicitly testified that an inventory search was conducted in this case pursuant to the relevant policy, and there is no evidence in the record to contradict that testimony. ECF No. 30 at 27:5-27:9, 88:18-21. The Court concludes that the United States has established by a preponderance of the evidence that the heroin would inevitably have been discovered via the inventory search conducted pursuant to, and consistent with, the "Towing and Tow Pound Procedures: Inventories." On this ground, the Court holds that the heroin should not be suppressed.

Id. at 443 (footnotes omitted).

39. Here, the government proved that the Penn Hills Police Department had a policy with respect to the "Inventory of Impounded Vehicles" due to "either a crime or an accident." (Gov't Ex. 2.) The gray sedan was in an accident, its occupants were not at the scene of the crash when it was discovered by law enforcement, and law enforcement could not locate the occupants. The vehicle, therefore, was subject to be impounded pursuant to the inventory policy.

40. Brooks argues that the government failed to satisfy its burden to show the inventory search exception to the warrant requirement applies to Lawrence's search of the crashed gray sedan because "the warrantless search conducted did not comply with the stated policy." (ECF No. 83 ¶ 46.) Brooks explained:

Specifically, Officer Lawrence clearly suspected that the Nissan had been involved in a crime - the Leechburg incident for which he had received a dispatch call while on patrol that night. Pursuant to the Penn Hills Police Department inventory policy, when an "impounded vehicle is part of a crime and/or is suspected to contain evidence, and a search of it becomes necessary, the vehicle will be secured at the Penn Hills Police Department impound facility until the proper search procedure can be carried out." Gov't Exhibit 2 at ¶ A.3. Here, Officer Lawrence deviated from the stated policy because he conducted the search right on scene, rather than first securing the car at the Penn Hills Police Department impound facility.

(Id. )

41. Brooks also argues that Lawrence conducted the search of the crashed gray sedan because of his "suspicion" that the crashed gray sedan was the car used by the suspects to flee the incident on Leechburg Road. (Id. ¶ 47.) According to Brooks:

The inventory was not conducted for purposes of protecting the property in the car against claims of loss, but was rather an extensive and complete search for evidence of criminality. Indeed, Officer Lawrence began immediately seizing items that he thought were evidence of the Leechburg incident while conducting the "inventory search." Officer Lawrence's motivation in conducting the search defeats application of the inventory search exception to the warrant requirement.

Id.

42. Brooks' arguments are unavailing because a lawful inventory search of the crashed gray sedan at the Penn Hills Police Department impound facility would have resulted in Lawrence inevitably discovering the same evidence that he obtained from his search at the scene of the crash.

43. The evidence shows that but-for the location of the inventory search, Lawrence complied with the inventory policy.

44. He accepted "custody and control" of the crashed gray sedan as soon as was "practical under the circumstances," i.e., the police officer from Verona who found the crashed gray sedan stayed with the vehicle until Lawrence conducted the inventory search, which occurred within forty minutes of first receiving the telephone call about the incident on Leechburg Road. (Gov't Ex. 2); (H.T. 10/12/2018 (ECF No. 84) at 36.)

45. Lawrence completed "an inventory of personal items of value" in the crashed gray sedan. (Gov't Ex. 2 at A(1); Gov't Ex. 3.)

46. Lawrence testified that opening the black backpack and red duffel bag and identifying each item in the bags was necessary to ascertain the contents of the bags to inventory them. (Gov't Ex. 3 at A(2); H.T. 10/12/2018 (ECF No. 84) at 13-14.)

47. Based upon the foregoing, even if Lawrence first towed the crashed gray sedan to the impound facility, he would have inevitably discovered the same evidence found in the vehicle at the scene of the crash.

48. The court gave the parties an opportunity to reopen the record and present evidence with respect to these issues. Brooks, however, did not request the court to reopen the record to present evidence about why a search conducted at the impound facility would have resulted in Lawrence recovering different or less evidence from the crashed gray sedan.

49. Based upon the foregoing, if Lawrence had the crashed gray sedan towed to the Penn Hills Police Department impound facility for a "lawful" inventory search, he would have inevitably discovered the same evidence found in the vehicle at the scene of the crash. The evidence recovered by Lawrence from the crashed gray sedan will not, therefore be suppressed.

50. The motion to suppress with respect to this issue will be denied.

B. DuThinh's surveillance of 1204 Wade Street and the Chrysler

51. Brooks argues that DuThinh-without a warrant-invaded the curtilage of 1204 Wade Street during his investigation of the Chrysler parked in the driveway of the home, and, therefore, any evidence seized as a result of that search should be suppressed and excised from DuThinh's affidavit of probable cause. (ECF No. 83 ¶¶ 53-68.) Brooks cites Collins v. Virginia, --- U.S. ----, 138 S.Ct. 1663, 1670, 201 L.Ed.2d 9 (2018), in support of his argument.

52. In Collins, a driver of an orange and black motorcycle committed a traffic infraction and eluded the police on two separate occasions. Id. at 1668. The police officers learned the motorcycle "likely was stolen" and was possessed by the petitioner, Collins. Id. One of the police officers, Officer Rhodes, learned the address of a residence at which the motorcycle was parked, drove to the home, and parked on the street. Id. Rhodes saw "what appeared to be a motorcycle with an extended frame covered with a white tarp" in the driveway of the residence. Id.

53. The Court in Collins described the relevant portion of the residence and driveway as follows:

[T]he driveway runs alongside the front lawn and up a few yards past the front perimeter of the house. The top portion of the driveway that sits behind the front perimeter of the house is enclosed on two sides by a brick wall about the height of a car and on a third side by the house. A side door provides direct access between this partially enclosed section of the driveway and the house. A visitor endeavoring to reach the front door of the house would have to walk partway up the driveway, but would turn off before entering the enclosure and instead proceed up a set of steps leading to the front porch. When Officer Rhodes searched the motorcycle, it was parked inside this partially enclosed top portion of the driveway that abuts the house.

Collins, 138 S.Ct. at 1670-71.

54. Rhodes, "who did not have a warrant,"