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UNITED SATES OF AMERICA v. CONLEY

June 30, 1994

UNITED SATES OF AMERICA,
v.
JOHN F. "Duffy" CONLEY, WILLIAM C. CURTIN, SHEILA F. SMITH, JOHN FRANCIS "Jack" CONLEY, THOMAS "Bud" McGRATH, MARK A. ABBOTT, THOMAS ROSSI, WILLIAM STEINHART, ROBERTA FLEAGLE, ROBIN SPRATT, MONICA C. KAIL, WILLIAM J. REED, JOANNE T. SMITH, KENNETH "Ron" GOODWIN, LAWRENCE N. "Neudy" DEMINO, SR., CHRISTOPHER "Chris" KAIL, JOSEPH A. DEVITA, FRANK GAROFALO, THOMAS D. CIOCCO, MICHAEL SUKALY, PHILLIP M. "Mike" FERRELL, ANESTOS "Naz" RODITES, and WILLIAM E. RUSIN, Defendants.



The opinion of the court was delivered by: DONALD J. LEE

 MEMORANDUM OPINION

 INTRODUCTION

 All of the searches and seizures on December 19, 1989 were conducted pursuant to warrants issued on the basis of a single master affidavit. *fn2" As the affiant on the master affidavit was FBI Special Agent John Donnelly ("S.A. Donnelly"), and there are other master affidavits in the record, the December 19, 1989 master affidavit will be referred to as the "Donnelly affidavit."

 John Francis "Jack" Conley ("Jack Conley") challenges all of the federal searches conducted on December 19, 1989. Although he is conceded to have "standing" to challenge the federal search of the premises of 930 Saw Mill Run Boulevard, the record does not reflect his standing to challenge any other search. *fn3" Without regard to any taint from his suppressed statements, John F. "Duffy" Conley ("Duffy Conley") has "standing" to challenge the seizure and search of his poker machines because of his ownership interests in the machines and his reasonable expectation of privacy in the internal compartments of the machines. *fn4" Duffy Conley's "standing" is limited to those locations from which video poker machines of which he has claimed ownership for purposes of pretrial motions were seized. See Document No. 826. *fn5"

 Defendants Duffy Conley, Jack Conley and Sheila Smith have standing to challenge the December 19, 1989 search of the 930 Saw Mill Run premises. Duffy Conley has standing to challenge the search of the 3100 Windgap Avenue premises. Further, Duffy Conley has standing to challenge the probable cause upon which his video poker machines were seized and the warrants pursuant to which they were searched. See supra, note 4. Jack Conley, of course, has standing to move to suppress his own statement, which is averred to be involuntary and, in addition, tainted by the alleged illegality of the December 19, 1989 search of the Saw Mill Run premises.

 The Court has suppressed Duffy Conley's October 30, 1989 statement at the Main Motel. As to Duffy Conley, the Government concedes that all reference to the statement must be stricken from the Donnelly affidavit, upon which all the warrants executed on December 19, 1989 were issued.

 Because Duffy Conley has "standing" to challenge every search that is subject to challenge by any Defendant, the Court first will review the Donnelly affidavit, but with all reference to the suppressed statements excised, to determine if such probable cause remains that a neutral magistrate would have issued the subject warrants. Only if the Court concludes that probable cause is lacking in the modified Donnelly affidavit will the Court review the Donnelly affidavit as written to determine if the issuing authority had a substantial basis for concluding that evidence of a crime would be found at each of the locations searched. Finally, whatever the outcome of the preceding two inquiries, the Court will address the motion to suppress Jack Conley's December 19, 1989 statements.

 SEARCH AND SEIZURE

 The Donnelly Affidavit

 On December 19, 1989, United States Magistrate Judge Ila Jeanne Sensenich signed search warrants for fifteen retail business establishments, fourteen vehicles, two trailers and two offices/warehouses on the basis of the facts contained in the Donnelly affidavit. The Donnelly affidavit itself is a one-hundred page document, with an additional twenty-one page expert's affidavit incorporated by reference.

 The following is a brief summary of the information in the Donnelly affidavit. S.A. Donnelly prepared the affidavit on the basis of his personal knowledge, conversations with FBI agents, Pennsylvania State Police officers and City of Pittsburgh Police officers, a review of FBI reports, Pennsylvania State Police reports and City of Pittsburgh Police reports, a review of a taped conversation between City of Pittsburgh Police officer Reyne Kascuta and William C. Curtin, the expert opinion of William L. Holmes, and a review of the records of an Allegheny County Investigative Grand Jury.

 The Government, in its proposed findings of fact has described the affidavit as including more or less thirteen categories of information. The first four categories relate federal statutory and case law and state statutory and case law with respect to video poker machines and gambling. The fifth category describes the operation of video poker machines as gambling devices and refers the reader to the expert's affidavit of William L. Holmes. The sixth category of information includes a detailed description of the operation of Duffy's Vending, a/k/a Three Rivers Coin, as an illegal gambling business. The seventh type of information relates the taped conversation between Reyne Kascuta, an undercover City of Pittsburgh Police officer posing as a location owner, and William C. Curtin, the general manager of Duffy's Vending/Three Rivers Coin, as Curtin gave his "pitch" to the officer. Eighth, the affidavit relates the substance of Duffy Conley's now-suppressed October 30, 1989 statements. Ninth, the affidavit indicates that Curt in had stated that Duffy Conley drives a Chevrolet sedan equipped with three phones and that his car is his office. Tenth, the affidavit indicates that Duffy Conley, William Curtin and Three Rivers Coin maintain two headquarters: the Windgap premises and the Saw Mill Run premises. Eleventh, the affidavit describes the "establishments" or "stops" (which will be referred to hereafter in this Memorandum Opinion as "locations") at which Three Rivers Coin maintained video poker machines. Twelfth, the affidavit indicates that from several sources the affiant had confirmed that the video poker machines at the locations named in the affidavit are maintained by Duffy Conley, Curtin and Three Rivers Coin. Thirteenth, the affidavit indicates that investigation within the seven preceding days had revealed that the machines at the listed locations were operational and available to the public. The affidavit also indicates that, on the basis of the expert's affidavit, the types of machines being employed had been transported in whole or in part in interstate commerce. The affidavit then summarized by location the investigative activities of law enforcement personnel. The affidavit concludes by indicating that location operators maintain independent records of pay-offs, etc.

 The foregoing summary, of course, cannot do justice to the information included in the Donnelly affidavit's combined 121 pages. As necessary to address the Defendant's challenges, the Court will cite specifics of the Donnelly affidavit.

 Standard of Review for Excised affidavits

 When a court reviews an affidavit from which unconstitutionally seized evidence has been excised, it must independently determine if such probable cause remains within the affidavit that a neutral magistrate would have issued the subject warrants. See United States v. Herrold, 962 F.2d 1131, 1143 (3d Cir. 1992); see also id. at 1144. If such probable cause remains, the fruits of the searches conducted pursuant to the hypothetical modified affidavit come from a source independent of the constitutional violation, and the fruits of the searches are not tainted fruits of the poisonous tree. Herrold, 962 F.2d at 1140-44. *fn6"

 Probable cause is to be determined under the totality of the circumstances. Illinois v. Gates, 462 U.S. 213, 238, 76 L. Ed. 2d 527, 103 S. Ct. 2317 (1983). The determination of probable cause entails "a practical, common sense decision whether, given all the circumstances set forth in the affidavit . . . including the 'veracity' and the 'basis of knowledge' of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place." Id.

 The Court of Appeals for the Third Circuit has recently summarized the law regarding the age or "staleness" of information contained in an affidavit of probable cause. The Court of Appeals stated:

 
Age of the information supporting a warrant application is a factor in determining probable cause. See United States v. Forsythe, 560 F.2d 1127, 1132 & n. 6 (3d Cir. 1977); see also United States v. McNeese, 901 F.2d 585, 596 (7th Cir. 1990). If too old, the information is stale, and probable cause may no longer exist. McNeese, 901 F.2d at 596. Age alone, however, does not determine staleness. "The determination of probable cause is not merely an exercise in counting the days or even months between the facts relied on and the issuance of the warrant." United States v. Williams, 897 F.2d 1034, 1039 (10th Cir. 1990), cert. denied, 500 U.S. 937, 111 S. Ct. 2064, 114 L. Ed. 2d 469 (1991). Rather, we must also examine the nature of the crime and the type of evidence. See United States v. Tehfe, 722 F.2d 1114, 1119 (3d Cir. 1983), cert. denied, 466 U.S. 904, 104 S. Ct. 1679, 80 L. Ed. 2d 154 (1984); Forsythe, 560 F.2d at 1132; see also United States v. McCall, 740 F.2d 1331, 1335-36 (4th Cir. 1984).

 United States v. Harvey, 2 F.3d 1318, 1322 (3d Cir. 1993); see also United States v. Stiver, 9 F.3d 298, 300-01 (3d Cir. 1993), cert. denied, 127 L. Ed. 2d 425, 114 S. Ct. 1115 (1994).

 The Saw Mill Run Premises

 Duffy Conley contends that the Donnelly affidavit fails to establish probable cause to search the Saw Mill Run premises because it fails to state any relevant information indicating that evidence of gambling would be found on the premises. Specifically, the warrant mentioned video poker machines, but the Donnelly affidavit included no facts to justify a conclusion that video poker machines would be found on the premises. Duffy Conley contends that the only mention of the Saw Mill Run premises was included at page 62 of the Donnelly affidavit, which states "The evidence indicates that John 'Duffy' Conley, William J. [sic] Curtin and Three Rivers Coin Company maintain two headquarter offices and warehouses for their illegal gambling business," Donnelly affidavit at 62, and names the Saw Mill Run premises and the Windgap premises as the two headquarters. Duffy Conley contends that no factual information supports this conclusion with respect to the Saw Mill Run premises.

 The Court concludes that the Donnelly affidavit provided probable cause to search the Saw Mill Run premises. The warrant does reference video poker machines, but it also includes numerous other categories of evidence and items to be seized. In its brief, the Government summarized the evidence related in the Donnelly affidavit regarding the Saw Mill Run premises as follows:

 
With respect to the [Saw Mill Run premises], the affidavit states that the administrative office of Duffy's Vending was located at 930 Saw Mill run and certain employees of Duffy's Vending were located there. [Donnelly Aff.] at 21, 39, 41. At this location on September 23, 1988, the City of Pittsburgh Police seized contracts signed by Duffy's Vending specifying the locations of the poker machines owned by Duffy's Vending. Id. at 21. Video poker machines were kept here. Id. at 24. Daily work assignments are dispatched by radio and/or telephone from this location. Id. at 21-22, 40. Money Collected from the video poker machines is delivered to either Helen (last name unknown), Sheila Smith or John Conley, Sr. here. Id. at 22, 26, 39. This is the location where the "collectors" give their "codes" to Sheila Smith and where the collection slips are received. Id. at 38-40. Sheila Smith, who was in charge of the books and paying the bills for Duffy's Vending/Three Rivers Coin Company, worked here. Id. at 41. Helen Grosskopf, who prepared the "daily report" for Duffy's Vending concerning how much money was collected on a particular route and deposits made [sic], worked here. Id. at 39-40. This is the location where all but one of the vehicles observed at 3100 Windgap are registered with the Pennsylvania Department of Motor Vehicles. Id. at 64-65. "All of the financing" ...

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