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United States v. Fields

December 22, 2006

UNITED STATES OF AMERICA,
v.
MARKEIF FIELDS, JEROME GEORGE, AND LEON GLASPIE, DEFENDANTS.



The opinion of the court was delivered by: Judge Jones

MEMORANDUM AND ORDER

THE BACKGROUND OF THIS ORDER IS AS FOLLOWS

Pending before the Court are various suppression motions filed by the above-named Defendants in this action. The pending motions are as follows: Defendant Leon Glaspie's Motion to Suppress (doc. 49) filed on December 1, 2005; Defendant Jerome George's Motion to Suppress (doc. 66) filed on February 23, 2006; Defendant Leon Glaspie's Supplemental Suppression Motion (doc. 87) filed on March 17, 2006; Defendant Jerome George's Supplemental Suppression Motion (doc. 102) filed on April 4, 2006 and; Defendant Leon Glaspie's Second Supplemental Motion to Suppress (doc. 109) filed on April 17, 2006. By previous Order of Court dated October 10, 2006 we granted Defendant Markeif Fields' and Jerome Georges' individual Motions to join in their co-Defendant Leon Glaspie's suppression motions. (Rec. Doc. 242).

PROCEDURAL HISTORY

A hearing was held on the pending motions on five separate days; May 22, 2006; May 31, 2006; June 12, 2006; July 18, 2006 and; August 9, 2006. Testimony was presented by the Government and the Defendants during the hearing. Following the conclusion of the final hearing day, August 9, 2006, we entered an Order setting forth a post-hearing briefing schedule. To date, the parties have complied with the briefing schedule. Accordingly, the motions are fully briefed and therefore ripe for our review.

Since the conclusion of the suppression hearing, Defendants Glaspie and George have pled guilty, pursuant to negotiated plea agreements, to one count informations charging each with a violation of 18 U.S.C. § 371, conspiracy to commit an offense against the United States. See United States v. Glaspie, 4:06-cr-343; United States v. George, 4:06-cr-344. Within the plea agreements, the United States agrees to move for dismissal of the First Superseding Indictment in the above-captioned case as it pertains to Glaspie and George, in exchange for their respective pleas of guilty to violations of 18 U.S.C. § 371.

As a result, the only remaining defendant in this action who has not pled guilty and has standing to proceed on the suppression motions is Markeif Fields ("Fields").*fn1 As Fields notes in his post-hearing submission, the legal principles underpinning his suppression motion are narrower than Glaspie and George's. Therefore the only issues that remain before the Court that were not mooted by Glaspie and George's guilty pleas are the legality of the warrantless entry into Apartment 1, 1920 Riverside Drive, South Williamsport, Pennsylvania on March 11, 2005 and whether probable cause supported the issuance of the search warrant for the same residence on that same date.*fn2

FINDINGS OF FACT

On March 10, 2005, Lieutenant Thomas Ungard ("Lt. Ungard") of the Williamsport Police Department, and a member of the Lycoming County Drug Task Force, had a telephone conversation with a female Confidential Informant ("CI"), during which the CI advised Lt. Ungard of alleged drug dealing activities of two African-American males occurring in the vicinity of 1920 Riverside Drive, South Williamsport, Pennsylvania. (Hearing Transcript Volume I, p. 94-95; Vol. II, p. 42). The CI also advised Lt. Ungard that the names of the two males were Jerome and Leon Robinson, however, the CI informed Lt. Ungard that she believed these names were "bullshit." (Vol. I, p. 94; Vol. II pp. 42, 56). Lt. Ungard traveled to the area identified by the CI and also contacted Sergeant O'Connell of the South Williamsport Police Department to advise him of the information he received from the CI. (Vol. II, p. 26; Vol. V, p. 16).

On the following day, while on duty in the vicinity of the Third and Campbell Streets in Williamsport, Lt. Ungard and Officer Jeremy Brown*fn3 ("Officer Brown") observed an illegal drug transaction between Sharon Jencks, a crack-cocaine user known to the officers, and an unidentified African-American male. (Vol. I, pp. 6, 61, 96). The officers confronted Jencks, who admitted that she had just purchased crack-cocaine from Greg Cummings ("Cummings"). The officers thereafter located and arrested Cummings in the vicinity of 770 West Fourth Street, Williamsport, which was known to the officers as a drug activity area. (Vol. I, p. 62-63).

Immediately upon his arrest, Cummings displayed a willingness to cooperate. He accordingly indicated to the officers that he was concerned that individuals, who had exited a nearby barbershop and thus presumably had observed his arrest would tip off the individuals for whom he worked. Cummings requested to be moved around the corner and out of the view of these individuals. (Vol. I, 63-64, 98). Officer Brown observed a black male, who "looked like a barber" talking on a cell phone. (Vo. II, p. 65). Cummings stated that did not know the man, but opined that he knows "the guys I work for, he might be calling them now, he did know for sure." (Vol. I, pp. 64, 99). Cummings told the officers that based on this he assumed that there would be a "tip off" to his South Williamsport suppliers of his arrest. (Vol. I, pp. 63-64, 98). Cummings further told the officers that "if we wanted to get to the place, we needed to hurry up and move . . . word on the street is going to hit his employers, the defendants, that he was busted." (Vol. II, pp. 65-66, 69). The officers never questioned the individuals observed making telephone calls outside the barbershop, nor did Cummings identify those persons by name; he merely stated that the individuals "had contacts to those in the Southside,*fn4 and get me out of here." (Vol. II. 23-24). Notably, the individuals were never questioned by the officers, nor were they identified.

Uniformed officers transported Cummings to Williamsport City Hall, where he was interrogated. During interrogation, he continued to assert that his suppliers in Southside might have been tipped off about his arrest by the on-lookers who were talking on their cellular phones, and told the officers to go now or otherwise the evidence would be cleaned up, removed or destroyed. (Vol. II, p. 91). Cummings told the officers that he obtained the cocaine the night before at the apartment in South Williamsport from black males named Jerome and Keith. (Vol. II, p. 66).

Approximately fifteen to twenty minutes after arriving at Williamsport City Hall with Cummings, Lt. Ungard left and traveled to the vicinity of 1920 Riverside Drive. (Vol. I, 106-107). When Lt. Ungard arrived, he positioned himself so that he could observe the entry/exit street door leading into 1920 Riverside Drive. (Vol. I, p. 114). While Lt. Ungard was conducting this surveillance, he was aware that the Cummings' alleged sources were African-American males who lived in the apartment building with a Caucasian female. Lt. Ungard observed an African-American male exit 1920 Riverside Drive, and was concerned that the black male was leaving the scene with drugs. Lt. Ungard also observed an African-American male enter the residence and a Caucasian female exit. (Vol. I, p. 113-114). Lt. Unguard made no attempt to detain or follow the exiting individuals. (Vol. I, p. 110-112).

While Lt. Ungard was conducting surveillance of the 1920 Riverside Drive location, Officer Dustin Kreitz ("Officer Kreitz") of the Williamsport Police Department and Lycoming County Drug Task Force was in the process of assembling an entry team, as directed by Lt. Ungard. Based upon his surveillance, Lt. Ungard called Officer Kreitz and told him to speed up the process of assembling the entry team. (Vol. I, p. 114). Lt. Ungard also advised Officer Damon Hagan ("Officer Hagan") of the Williamsport Police Department and Lycoming County Drug Task Force of Lt. Ungard's plan to make entry into Apartment 1, 1920 Riverside Drive, detain any individuals inside, and then apply for a search warrant. (Vol. III, p. 20). Officer Hagan was told that "exigent circumstances" were present necessitating warrantless entry into the residence to prevent possible evidence destruction. (Vol. I, p. 114). Prior to the entry, Lt. Ungard also advised Sergeant Terrence O'Connell ("Sgt. O'Connell") of the South Williamsport Police Department that he was concerned the occupants of Apartment 1, 1920 Riverside Drive had been tipped off and that evidence would be removed or destroyed. (Vol. V, p. 20; Vol. I, p. 117).

Ultimately, the entry team assembled at 1920 Riverside Drive with entry equipment, including a door ram, approximately one and a half hours after Cummings had been arrested. (Vol. 1, p. 117). The team entered the building through the street door and went up the narrow staircase to Apartment 1. (Vol. I, p. 117). With the ramming device in hand, Lt. Ungard knocked twice on the apartment door, announced "police," and heard physical movement in the apartment. (Vol. I, pp. 69, 119, 121). A male voice asked "who is it" after the first knock and sounded as if he was "hurry[ing] away." (Vol. I, p. 69). A female voice responded "who is it" to the second knock without hurrying away. (Vol. I, p. 69).

Lt. Ungard broke through the door with the ramming device. (Vol. I, p. 69, 120). Simultaneous to the officers' entry, apartment occupant Sophia Moyle ("Moyle") unlocked the door, which is how the door was ultimately opened, and the officers gained access to Apartment 1. (Vol. I, p. 72, 120). The entry team entered the apartment with weapons drawn, dispersed to the various rooms within, and ordered the occupants to get down on the ground. (Vol. I, pp. 72-73, 121-122). The officers handcuffed the occupants behind their backs and searched them. (Vol. I, 121-122).

In the search of the apartment, a baggie containing suspected marijuana was found in the immediate physical proximity of an individual named Devin Hockaday ("Hockaday"). When questioned about the suspected marijuana, Hockaday told the police that it belonged to him. During the search of Hockaday's person, officers found a sum of $403.00 in cash on him. (Vol. II, p. 75; Vol. I, p. 75; Vol. V, p. 44).

During the initial entry, Lt. Ungard found a safe in a bedroom closet with clothes strewn on top of it. (Vol. I, p. 126). Lt. Ungard testified that he did not move the save or try the lock until after the search warrant was obtained, at which point he removed it from the closet. (Vol. 1, pp. 77, 126). Officer Finnerty and Sgt. O'Connell, however, contradicted Lt. Ungard's testimony, testifying that they observed the safe on the dining room table, and that St. O'Connell photographed it in that position prior to the search warrant being obtained. (Vol. I, p. 30-31; Vol. V, p. 22; Government Exhibit 20.2). A key that had been seized from Glaspie's person was in the lock of the safe when St. O'Connell first photographed it. (Vol. V, p. 34, Gov't Ex. 20.2).

Officers transported the suspects from the apartment to police headquarters after the entry. Lt. Ungard designated Officer Kreitz to secure, and be the affiant for, a search warrant. (Vol. I, p. 34). The warrant was signed and sealed at 8:20 p.m. (Vol. V, p. 112).

The affidavit states that on March 11, 2003, Confidential Informant #04-26 contacted the Lycoming County Drug Task Force and advised officers that "she could and has been regularly purchasing cocaine in the 1900 block of Riverside Dr. From two individuals who identified themselves as Jerome and Keith." (Gov't Ex. 3 at 1). However, as previously noted, Lt. Ungard testified that CI #04-26 told ...


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