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United States v. Nance

October 15, 2010

UNITED STATES OF AMERICA,
v.
MILTON R. NANCE, DEFENDANT.



The opinion of the court was delivered by: Arthur J. Schwab United States District Judge

ELECTRONICALLY FILED

MEMORANDUM AND ORDER OF COURT

I. INTRODUCTION

Defendant Milton Nance is charged in a twelve count indictment with counterfeiting, bank and access device fraud, and identity theft, in violation of 18 U.S.C. " 472, 513(a), 1344(1), 1029(a)(2), and 1028A(a)(1), based on conduct allegedly occurring between January 2008 and August 2008. Before the Court is defendant=s Motion to Suppress (Doc. No. 32) incriminating statements he made to Allegheny County detectives at the Westmoreland County Jail on September 17, 2008, on the grounds that defendant=s statements were coerced by a promise that he would be prosecuted in state court on state charges if he cooperated with the detectives. Defendant also moves to suppress physical evidence that was found and seized pursuant to sequential warrants to search his personal belongings, his car, and his motel room on August 19 and 20, 2008.*fn1

After careful consideration of the motion to suppress, the parties= proposed findings of fact and conclusions of law, and the transcript of the suppression hearing of April 26, 2010 and May 3, 2010, the Court finds that defendant is a thoroughly unbelievable witness, that the testimony of the interrogating detectives is credible and reasonable, that defendant=s statements were made after he had been advised of his Miranda rights and that he understood and knowingly waived those rights, that his statements were not coerced by any false promise and were voluntary, and that the affidavits of probable cause accompanying the applications for search warrants set forth ample probable cause to support the issuance of the several warrants and that the searches and seizures of evidence pursuant to said warrants were lawful. The Court will, therefore, deny the motion to suppress.

II. FINDINGS OF FACT

A. Background

Defendant, Milton Randolph Nance, is a 51 year old adult who earned a Bachelor of Arts degree in Business Administration from the University of Pittsburgh and applied his education to a career of fraud and deceit. Nance has a lengthy criminal record of convictions for fraud and forgery. He was convicted in federal court in November, 1990 of various fraud offenses and again, in a separate case that same year, for credit card fraud. Since 1990, Mr. Nance has been convicted of fraud related offenses in Pennsylvania state court on six different occasions, including for forgery, access device fraud, theft by deception, theft by unlawful taking and receiving stolen property, and identity theft.

On February 5, 2008, Nance was arrested by Jefferson Hills and Pleasant Hills police officers at the Starlight Motel in Pleasant Hills, Pennsylvania, for violating the conditions of his parole and for fraud charges pertaining to counterfeit currency and forged checks. Pursuant to a call by Jefferson Hills and Pleasant Hills police officers, on February 5, 2008, Special Agent ("SA") Benjamin Full interviewed Milton Nance regarding Nance's possession of counterfeit money and checks, after advising defendant of his Miranda rights. Nance understood those rights, and waived his Miranda rights by executing a warning and waiver of rights form before any questions were asked of him.

Full told Nance that investigators like him do not make the ultimate decisions about whether a case will be prosecuted in federal or state court, and that the U.S. Attorneys Office decides whether the case will be prosecuted in federal court. Nance then provided SA Full with the details of his criminal activities involving counterfeit money and counterfeit checks. Thereafter, SA Full searched Nance=s motel room and found clippings of counterfeit currency, tools used to cut currency, such as a razor blade, and other indicia of counterfeiting. In April 2008, SA Full learned that the U.S. Attorneys Office had declined to prosecute the case, and that it had been turned over to the Allegheny County Police Department in May 2008.

A few months later, on May 20, 2008, a Dollar Bank investigator called Detective Corrine Orchowski of the Allegheny County Police Department to examine a suspected fraudulent check that Nance had attempted to negotiate. On May 30, 2008, Orchowski, looking for defendant, contacted defendant=s probation officer. The probation officer told Orchowski that defendant had been mistakenly released from the Allegheny County Jail.

On August 19, 2008, defendant was again suspected of forging checks and counterfeiting currency. Officers of the White Oak Police Department arrested Nance for Theft by Deception and for attempting to use fraudulent checks at a local hotel. The White Oak Police Department requested the Pennsylvania State Police Department to continue the investigation and State Troopers Teko M. Angelicchio and James A. McCutcheon transported Nance to the Westmoreland County Court of Common Pleas to be arraigned.

Two subsequent series of events are at issue in this motion. First, the defendant moves to suppress the collection of physical evidence pursuant to several search warrants after the August arrest; second, defendant moves to suppress incriminating statements he made to two Allegheny County Detectives during an interrogation at the Westmoreland County Jail on September 17, 2008.

B. Collection of Physical Evidence

Incident to Nance=s August 19 arrest, Nance was subjected to a pat-down search of his personal belongings; he had a large amount of items in his pockets. Some of his personal items were secured. A member of the White Oak Police Department provided Troopers McCutcheon and Angelicchio with Nance's personal possessions in a container and told them that White Oak officers had not gone through those items.

Nance was transported together with his belongings to Greensburg, Westmoreland County Pennsylvania, arriving some 35 to 45 minutes later. Pursuant to State Police standard policies to search incident to arrest and to inventory property in an arrestee's possession, Trooper Angelicchio conducted a warrantless search of Nance's possessions while in the processing room on August 19, 2008 pursuant to United States v. Edwards, 415 U.S. 800, 802 (1974) (lawful to conduct searches of personal property of prisoners for evidence and weapons upon arrest and/or after they have been taken into custody).

Trooper Angelicchio located counterfeit federal reserve notes, a credit card in the name of Clayton Hoffer, and receipts in the name of Hoffer in Nance's possessions. in plain view, and at that point ceased his examination of the personal belongings to seek a warrant. Thereafter, the State Troopers filed a series of applications for search warrants, supported by affidavits of probable cause, to search defendant=s additional personal belongings, motel room, and car. The District Justice reviewed the applications and accompanying affidavits, and subsequently issued search warrants. See Applications for Search Warrant, With Affidavit Attached (Docs. No. 36-4, 36-5, 36-6).

The first Affidavit of Probable Cause for a warrant to search defendant‟s personal items stated:

On 08/19/2008 The White Oak Police Department arrested Milton Randolph Nance based upon an arrest warrant issued by District Magistrate James Falcon for Forgery, Criminal attempt/Theft by Deception and Criminal Attempt/Bad Checks. Nance is a B/N-M date of birth 07/13/1958 with no permanent address. Tpr. James McCutcheon and I responded to White Oak Police Department and picked up Nance in order to transport him back to Westmoreland County to be arraigned on the charges. All of the possessions removed from Nance=s pockets were given to me by White Oak officers. Nance was transported to P.S.P. Greensburg without incident. When I was searching through Nance=s belongings for contraband prior to transporting him to the Westmoreland County Prison, a credit card with the name of Clayton Hoffer was observed. I unfolded a large group of papers looking for contraband and I observed a receipt for a stay at a hotel in the name of Clayton Hoffer. As I counted U.S. Currency with his possessions, I observed a 20 dollar bill and a 50 dollar bill that appeared to be fraudulent. A Universal Counterfeit Detector Marker was used on the bills and a positive reaction indicated that the bills were counterfeit. When Nance was processed, N.C.I.C. hits occurred indicating that Nance was wanted by Greensburg City Police Department for Forgery, Criminal Use of Com Facility and unlawful; Use of Computer. There was also a warrant for Nance for a parole violation. Also observed among Nance=s Possession were two cellular telephones, a computer thumb drive, and a wireless internet card.

I am requesting a search warrant to search the personal possessions of Milton Randolph Nance to determine if there is any further contraband relating to the crimes of Forgery, Fraud or Theft.Application for First Search Warrant, Affidavit (Doc. No. 36-4).

Executing this warrant, the troopers found receipts for an ink jet printer and two computers, which prompted a second application for a search warrant for Nance=s motel room in Irwin Township, Pennsylvania, supported by an Affidavit of Probable Cause repeating the averments of the first affidavit and adding the following:

On 08/19/08, a search warrant was obtained to search the personal possession of Milton Randolph Nance to determine if there was any further contraband relating to the crimes of Forgery, Fraud or Theft. As a result of the search warrant, receipts were observed with Nance=s possessions indicating that Nance recently purchased a Compaq computer, a laser jet printer, and a Acer 3000 computer. Nance also had in his possession room keys for a Marriott hotel room. During the course of Nance=s arraignment before MDJ Mahady, Nance indicated that he was staying at the Motel 3, located in Irwin.

I am requesting a search warrant to search the motel 3 room # 25, located at 7578 route 30, Irwin, Hempfield Twp., Westmoreland County, which is currently rented to Milton R. Nance to search for further contraband relating to the crimes of Forgery, Fraud or Theft.

Application for Second Search Warrant, Affidavit (Doc. No. 36-5).

Executing the search warrant, the troopers found in the motel room a computer system that apparently was used to develop counterfeit currency, an empty computer box, a copier, and a scanner which had United States Currency on it. Thereafter, the troopers requested a third search warrant to search Nance=s rented car. The Affidavit of Probable Cause repeated the averments of the previous affidavits, and added the following:

On 8/20/08 a search warrant was obtained for room #25 at Motel 3 in Irwin, PA where Nance had been staying. As a result of the search, counterfeit money was discovered as well as computer equipment to produce counterfeit money. A box for a Compaq lap top computer was found in the room but no computer was discovered. Among Nance=s possessions searched on 08/19/08 a receipt was discovered showing that Nance had recently purchased a Compaq computer and a copier. The copier was discovered in the room with U.S. Currency on the scanner.

I am requesting a search warrant to search the Red Kia Rio Rented by Milton Randolph Nance to determine if there is any further contraband relating to the crimes of Forgery, Fraud or Theft.

Application for Third Search Warrant, Affidavit (Doc. No. 36-6).

The District Justice issued the third warrant and the troopers found additional contraband in the car.

C. The Incriminating Interrogation

On September 17, 2008, Detective Orchowski and Detective Lane Zabelski of the Allegheny County Police Department interviewed Nance at the Westmoreland County Jail regarding Nance=s alleged criminal activities. Upon entering an interrogation room at the Westmoreland County Jail, Orchowski introduced herself and Zabelski to Nance. She explained why she was there and addressed Nance=s concerns regarding the interview taking up his lunch time.

Orchowski stated the Miranda warning before she formally began questioning Nance. Nance signed a waiver stating that he understood his rights and wished to speak with the detectives. Nance was not physically restrained during the interview which lasted approximately an hour and a half. During the interview, Orchowski told Nance that she would charge and prosecute him at the state level if he cooperated. Detective Orchowski testified in relevant part as follows:

BY AUSA

Q: How did you begin the conversation with Mr. Nance?

A: I introduced myself and Detective Zabelski as detectives with the Allegheny County Police.

Q: What did you tell him about what you were investigating?

A: I had asked him if he remembered being interviewed by the Secret Service, to which he acknowledged yes, and told him that the Secret Service had turned over the ...


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