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UNITED STATES v. DALY

August 7, 1996

UNITED STATES OF AMERICA
v.
MICHAEL DALY



The opinion of the court was delivered by: ROBRENO

 AND NOW, this 7th day of August, 1996, upon consideration of defendant's Motion to Sever Counts I and II (doc. no. 13), defendant's Motion to Suppress Evidence (doc. no. 14), the responses and the supplemental submissions thereto (doc. nos. 15, 21, 22, 25, 33, & 34), following an evidentiary hearing on July 17-18, 1996, it is hereby ORDERED that the motions are DENIED on the terms set forth below:

 I. FACTUAL AND PROCEDURAL BACKGROUND

 1. Defendant Michael Daly ("Daly") was charged by a grand jury with two counts of possessing cocaine with intent to distribute, in violation of 21 U.S.C. ยง 841(a)(1), at two separate locations in Philadelphia, Pennsylvania, on November 21, 1995, and on January 20, 1996. He moves this Court to suppress evidence which he claims the Government seized in violation of his rights under the Fourth Amendment to the United States Constitution.

 2. Daly contends "that there did not exist a substantial basis for the issuing authority to believe that contraband would be found at the [defendant's apartment at the Hill Tower Apartments] on November 21, 1995," Def.'s Mot. to Suppress, doc. no. 14, at P 4, that the affidavit in support of the search warrant presented materially false and misleading information which affected the issuance of the warrant, and that the detectives lacked exigent circumstances to enter and search his apartment on that date. With respect to the search of the apartment at 11909 Academy Road on January 20, 1995, Daly argues that the detectives lacked probable cause and that they acted in bad faith, since they searched the apartment before the search warrant was signed and never delivered the warrant to the premises.

 A. The Hill Tower Apartment

 3. The first part of defendant's motion to suppress concerns the evidence seized on Daly's person and in Daly's apartment at the Hill Tower Apartments on November 21, 1995. The search warrant for Daly's apartment is based on the sworn affidavit of Philadelphia County Detective Michael J. Reynolds ("Reynolds"), who is employed by the Philadelphia District Attorney's office, Dangerous Drug Offender Unit, and who possesses extensive experience and training in the legal enforcement of narcotics trafficking.

 4. Reynolds attests that on November 20, 1995, he was called by Montgomery County Narcotics Unit Detective Tony Spagnoletti ("Spagnoletti"), whom Reynolds had personally known for three years. Spagnoletti had received information from a confidential informant ("CI") regarding the activities of Daly. Spagnoletti represented to Reynolds that the CI had provided him with accurate narcotics-related information in the past. *fn1"

 5. The CI had informed Spagnoletti that Daly made trips to Florida at least once a month to purchase cocaine with his brother, William Daly, or with an associate, Thomas Craig Reilly ("Reilly"). Further investigation by Spagnoletti revealed that William Daly had been arrested on cocaine charges on July 23, 1995. Spagnoletti himself had arrested Reilly on January 11, 1994, on charges of delivering marijuana.

 6. In addition, the CI identified the vehicles owned by Daly and described specifically the method by which Daly conducted drug transactions with his customers. The CI told Spagnoletti that Daly was often high on cocaine. Because the CI had also observed handguns and a shotgun owned by Daly, he was to be considered armed and dangerous.

 7. On November 16, 1995, Spagnoletti was informed by the CI that Daly and Reilly were in Florida purchasing a large quantity of cocaine and that Daly would return in several days. On November 20, 1995, at approximately 1:30 p.m., the CI told Spagnoletti that Daly and Reilly had returned from Florida with a large quantity of cocaine and that an individual with whom the CI was personally acquainted had observed the cocaine and a large sum of money inside Daly's apartment. Later that day, the CI called Daly at his apartment and had a drug-related conversation during which Daly admitted to having a large quantity of cocaine for sale.

 8. After receiving this information from Spagnoletti, Reynolds dialed a digital display pager telephone number that had been provided to Spagnoletti by the CI. A few minutes later, a person identifying himself as "Mike" called Reynolds back. Reynolds' attempt to discover with the aid of Caller ID the number from which "Mike" had returned his call revealed that the number was a "private" listing and that the listing for Michael Daly's telephone number at the Hill Tower apartment was also unpublished.

 9. That evening, Reynolds traveled to the Hill Tower apartment complex with the CI and another detective, at which time the CI reiterated his information concerning Daly. The CI then identified another vehicle belonging to Daly which was parked in the lot of the apartment complex.

 10. On November 21, 1995, at approximately 3:05 p.m., surveillance units at the Hill Tower complex observed a male fitting the description of Daly arrive and park one of the vehicles described by the CI. A check revealed that the vehicle was registered to Daly. The male, identified as Daly, entered the apartment building and proceeded up to the sixteenth floor.

 12. Detectives then proceeded to Daly's sixteenth floor apartment, number 16B, fearing that other persons were in the apartment and had observed the apprehension of Daly in the parking lot, in order to secure the premises before executing a search. There, they observed drug paraphernalia in plain view. All these activities and observations, including the events after Daly's exit from the building, were included in Reynolds' affidavit.

 13. At the evidentiary hearing on July 17-18, 1996, several witnesses testified regarding the events leading up to Daly's November 21 arrest, including Reynolds, Spagnoletti, the detectives at the Hill Tower apartment complex, Reilly, Ed Bradley (an innocent bystander who observed the arrest), Daniella Desiderio (Daly's friend), Joseph McCarrick (Daly's friend), and Daly himself. Reilly testified that he had never travelled to Florida with Daly and that he had never been involved in drug trafficking activities with Daly. Desiderio and McCarrick testified that they had seen Daly in Pennsylvania on November 18, 1995; however, Daly revealed that he had been in Florida from November 12 to 14. Reynolds testified that he began preparing his affidavit in support of the warrant earlier on the day of November 21, 1995.

 14. The detectives' testimony revealed that they had begun their surveillance of the Hill Tower apartment complex at approximately 11:00 a.m. Moreover, the four detectives who had set up surveillance had been wearing plain clothes and had been driving an Acura Legend and a BMW. In addition, when the detectives "approached" Daly to speak with him, they drove the BMW immediately behind Daly's vehicle and effectively "blocked" his car into its parking space. Daly had not yet entered the vehicle and immediately fled on foot, under the belief, according to Daly, that he was being accosted by drug dealers, not police officers.

 15. After the detectives apprehended Daly, two of them accompanied him to the BMW, where they awaited the issuance of the search warrant. Believing that Reilly may have been in Daly's apartment and could have destroyed evidence while in the apartment, the other two detectives went upstairs to secure the apartment, where they observed drug paraphernalia in plain view. Defendant produced photographs which revealed that a person in the apartment could not see activity in the parking lot unless he or she were standing outside on the balcony.

 16. The search warrant was signed by the issuing authority at approximately 4:35 p.m., whereupon Reynolds contacted the detectives at the scene and informed them they could commence their search. Reynolds himself arrived with the warrant at approximately 5:10 p.m., by which time the search of apartment 16B was nearly completed.

 B. The Academy Road Apartment

 17. The second half of defendant's motion to suppress concerns the evidence seized at the apartment at 11909 Academy Road on January 20, 1996. The search warrant for this apartment was also based on the sworn affidavit of Detective Reynolds.

 18. After Daly was arrested on November 21, 1995, he posted bail on December 7, 1995, but failed to appear for his preliminary hearing five days later. A bench warrant was issued for his arrest.

 19. On January 11, 1996, Reynolds was first contacted by Special Agent Judith Tyler ("Tyler"), with whom Reynolds had previously worked in her capacity as a narcotics investigator with the Federal Bureau of Investigation. Tyler had called to inquire whether Daly was a fugitive in Philadelphia. She informed him that a confidential source ("CS"), who was known by her to be accurate and reliable, had told her that he knew Daly.

 20. The CS stated that Daly had dyed his hair and was seeking false identification in order to elude law enforcement authorities. The CS also told Tyler that Daly was planning to travel by car to Florida on January 12, 1996, in order to obtain cocaine for distribution in Philadelphia, that Daly would return to Philadelphia on January 15, 1996, and that this was Daly's modus operandi for acquiring cocaine. The CS later informed Tyler ...


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