The opinion of the court was delivered by: Arthur J. Schwab United States District Judge
MEMORANDUM ORDER RE: MOTION TO SUPPRESS (DOC. NO. 55)
After careful consideration of defendant's Motion for a Suppression Hearing and to Suppress All Evidence Gained by the Government as a Result of Illegal Searches (doc. no. 55), the government's response thereto (doc. no. 177), defendant's reply to the government's response (doc. no. 182), the applications for search warrants and supporting affidavits of probable cause, and the search warrants themselves, the Court rules: (1) that the search warrants were valid and that the probable cause recited in the related affidavits was more than adequate; (2) to the extent defendant is requesting a hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978), that no Franks hearing is necessary; (3) that the execution of the warrants as to the seizure of the computers was proper; and finally, (4) that the Court will conduct an evidentiary hearing on the execution of the warrant as to the seizure of the "boxes." Accordingly, defendant's Motion for a Suppression Hearing and to Suppress All Evidence Gained by the Government as a Result of Illegal Searches (doc. no. 55) is DENIED in its entirety, except as to defendant's request for an evidentiary hearing on the execution of the warrant related to the "boxes." Said hearing shall occur on Thursday, June 8, 2006 from 8:15 a.m - 11:15 a.m.
I. The Search Warrant Application Process
A. Probable Cause Existed
In order to determine whether the search warrants were valid, the Court must first ascertain whether the probable cause asserted in the affidavits was adequate. "Probable cause for searching a particular place exists in an affidavit when the affidavit sets forth facts constituting a substantial basis for finding a fair probability that first, a crime has been committed, and second, the particular place may contain the fruits, instrumentalities or evidence of the crime committed." United States v. Conley, 813 F.Supp. 372, 381 (W.D. Pa. 1993), rev'd on other grounds (citing Illinois v. Gates, 462 U.S. 213, 236, 238-39 (1983)) (other citations omitted). The Court need not determine whether probable cause actually existed, but rather, whether the issuing magistrate had a "substantial basis" for finding probable cause. United States v. Hodge, 246 F.3d 301, 305 (3d Cir. 2001)(citations omitted).
In Illinois v. Gates, the United States Supreme Court instructed judicial officers reviewing an application for a search warrant to analyze the facts set forth in the affidavit of probable cause in light of the "totality of the circumstances," to determine whether probable cause to issue a warrant exists. The Court stated as follows:
The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him [or her], including the "veracity" and "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.
This Court, in reviewing the issuing U.S. Magistrate Judge's determination of probable cause, is required to afford "great deference" to the U.S. Magistrate Judge's determination and should not interpret the affidavits in a hyper-technical manner, but rather, should review the affidavits in a "commonsense manner" to determine whether the U.S. Magistrate Judge had a substantial basis for concluding that probable cause existed. Id. at 236, 238. The Court must therefore confine itself to the facts that were before the U.S. Magistrate Judge. In other words, the Court must confine itself only to the application and supporting affidavit and cannot consider extraneous information. Hodge, 246 F.3d at 305. In resolving questionable cases, the preference for the warrant process, and deference to the U.S. Magistrate Judge's probable cause determination, should prevail. United States v. Jones, 994 F.2d 1051, 1055 (3d Cir. 1993). Gates, 462 U.S. at 236-237. Moreover, direct evidence linking the place to be searched with a crime is not required for a warrant to issue. Jones, 994 F.2d at 1056. Rather, "probable cause can be, and often is, inferred by considering the type of crime, the nature of the items sought, the suspect's opportunity for concealment and normal inferences about where a criminal might hide" the items sought to be obtained. Id. at 1056.
While defendant argues that there was no probable cause to support issuance of the search warrants, and raises numerous interesting, but ultimately irrelevant, arguments, the government asserts that under the totality of circumstances analysis set forth in Gates, there was sufficient information presented to the U.S. Magistrate Judge to support a finding of probable cause, and the Court agrees.
Applying the above standard to the application for the search warrants and affidavits challenged here, the Court finds that the U.S. Magistrate Judge had a substantial basis for her determinations that there was probable cause to support the search warrants.
Except for the descriptions of the places to be searched and items to be seized, Special Agent Bradley W. Orsini's separate affidavits of probable cause accompanying the applications for the three search warrants at issue are virtually identical.*fn1 As recited in the first paragraph, the averments of each affidavit are based upon his personal participation in the investigation, interviews of twenty witnesses, including current and former Deputy Coroners and other employees of the Allegheny County Coroner's Office ("ACCO"), identified in the affidavits as ACCO 1 through ACCO 16, conversations with other federal, state and local law enforcement officers, information from confidential sources, documents, photographs and reports prepared by other law enforcement agents. Affidavit, ¶ 1. The purpose of each application for a search warrant was "to search for and seize instrumentalities, fruits, and evidence of violations of Embezzlement and Theft, in violation of Title 18, United States Code, Sections 666, Scheme to Defraud of Intangible Right to Honest Services, in violation of Title 18, Unites States Code, Sections 1341, 1343, and 1346." Affidavit, ¶ 3.
Specifically, the affidavits recite that ACCO is a department of Allegheny County, Pennsylvania, which receives substantial funding from the federal government through the United States Department of Justice and through federal grants to the County and to the Commonwealth of Pennsylvania. Affidavit, ¶ 3.*fn2 In a summary paragraph, the affidavit sets forth a number of ways in which defendant allegedly uses the resources and personnel of Allegheny County in violation of the above cited "federal anti-corruption statutes" (as well as criminal and ethical laws of the Commonwealth of Pennsylvania), which are: use of ACCO staff for private business and personal matters; use of the ACCO Histology and Photography Labs for private business matters; use of ACCO funds, office space and parking space for private business matters, and attempted concealment and removal of evidence. Affidavit, ¶ 5. Paragraphs 6 through 23 of the affidavits describe the matters summarized in more detail, and list the sources of the information.
For example, paragraph 6 states that 13 current and former ACCO Deputy Coroners and other employees provided information that defendant uses the Deputy Coroners as chauffeurs for his private business, for defendant, his associates and others, for which he receives financial benefits, as well as for routine personal matters, and required them to place high priority on those matters, which were known as "Wecht details." Affidavit, ¶¶ 6 -11. The affidavit further stated that ACCO employees provided information that defendant used the Histology Lab to perform private autopsies for which he received financial benefit, used the Photography Lab to take photgraphs at private seminars for which he received financial benefit, and used his ACCO secretaries almost exclusively for private business work for which he received financial benefit, such as typing expert reports, thank you notes for ACCO photographers for their work at private seminars, and envelopes for mailings regarding private seminars for which he received financial benefits. Affidavit, ¶¶ 12-18.
The affidavits stated that certain ACCO employees (identified by their designated ACCO numbers) knew that defendant's secretaries placed private business information on ACCO 16's laptop computer, which she took home every night, and on a desktop computer at ACCO which contained logs of private business services performed by ACCO employees at defendant's behest, and that "approximately 20 boxes of files reflecting private autopsy work for the financial benefit of" defendant were hurriedly removed from the ACCO offices to defendant's private pathology office after it had become public that a criminal probe of defendant's use of County resources for private financial gain had begun . Afffidavit, ¶¶ 8, 16, 20-21. These two computers, along with any information storage discs, CDs, zip drives, cartridges and other storage media, and the "approximately 20 boxes" of files related to defendant's private autopsies were listed as the items to be seized in the three respective applications for warrants, which the U.S. Magistrate Judge granted.
Each search warrant issued by U.S. Magistrate Judge Hay sets forth the endorsement that "I am satisfied that the affidavit(s) and any record testimony establish probable cause to believe that the person or property so described is now concealed on the person or premises above-described and establish grounds for issuance of this warrant." The Court agrees and finds that the averments of the affidavit set forth adequate facts and sources of those facts for the U.S. Magistrate Judge to reasonably conclude that probable cause existed that particularly described fruits, instrumentalities or evidence of crimes reasonably likely to be found at the places described therein.
B. Good Faith Exception Applies
Further, the evidence obtained through the searches is admissible under the good faith exception to the exclusionary rule as elucidated in United States v. Leon, 468 897 (1984).
In Hodge, the United States Court of Appeals for the Third Circuit further explained the Leon good faith exception as follows:
The good faith exception instructs that suppression of evidence "is inappropriate when an officer executes a search in objectively reasonable reliance on a warrant's authority. The test for whether the good faith exception applies is whether a reasonably well trained officer would have known that the search was illegal despite the magistrate authorization." The mere existence of a warrant typically suffices to prove that an ...