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United States of America v. Raymond Zareck.

December 3, 2010

UNITED STATES OF AMERICA,
v.
RAYMOND ZARECK. DEFENDANT.



The opinion of the court was delivered by: Conti, District Judge

MEMORANDUM OPINION AND ORDER

Pending before the court is a motion to suppress evidence (the "Motion") (ECF No. 37) filed by defendant Raymond Zareck ("defendant" or "Zareck"). On April 13, 2009, the United States government ("government") filed a criminal complaint charging defendant with possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g). (ECF No. 1.) On May 13, 2009, a federal grand jury in the Western District of Pennsylvania returned a one-count indictment charging defendant with that offense. (ECF No. 5.) On November 25, 2009, defendant filed the Motion in which he makes three arguments for suppression of evidence in this matter: 1) the search of his vehicle was conducted without a warrant, probable cause, or exigent circumstance, thereby violating his constitutional rights under the Fourth Amendment of the Constitution of the United States; 2) he made statements while in police custody relating to the purchase or assembly of firework or improvised explosive devices without first being read his Miranda warnings, which violated his constitutional rights under the Fifth Amendment of the Constitution of the United States; and 3) the search of his residence was premised on a fatally flawed affidavit of probable cause, thereby violating his constitutional rights under the Fourth Amendment of the Constitution of the United States.

On December 15, 2009, the government filed a response to the Motion. (ECF No. 52.) On May 27, 2010, the court held an evidentiary hearing on the Motion during which witnesses testified and exhibits were entered into evidence. On June 29, 2010, the court continued the evidentiary hearing. On July 21, 2010, the court held a hearing to determine if defendant was entitled to a hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978), to challenge the truthfulness of factual statements made in the affidavit of probable cause supporting the warrant issued to search his residence. The court ordered the parties to submit proposed findings of fact and conclusions of law addressing three issues: 1) whether the search of the vehicle was appropriate, 2) whether defendant‟s statements should be suppressed, and 3) whether the search warrant was supported by probable cause. The government did so on October 27, 2010; defendant did so on November 3, 2010; and the matter is ripe for the court to make the following findings of fact and conclusions of law.

I. Findings of Fact

Defendant‟s Arrest, Search of Vehicle and Questioning of Defendant

1. Defendant is charged in a federal indictment with possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1).

2. A confidential informant ("CI") informed officers of the Homestead Police Department ("HPD") that defendant would be purchasing illegal narcotics on the evening of April 3, 2009. (Hr‟g Tr. 12, May 27, 2010.)

3. An officer conducted a surveillance of defendant‟s vehicle during the alleged illegal purchase. (Id. at 43.)

4. Officer Fusco ("Fusco") followed defendant‟s vehicle back from the location of the 2 illegal purchase to the Waterfront shopping center where defendant was stopped by Officer Wintruba ("Wintruba"), who was aware that defendant had purchased stamps bags of heroin and two rocks of crack cocaine. (Id. at 43-44.)

5. Wintruba observed the license plate of defendant‟s vehicle at the time defendant pulled into the Waterfront parking lot and just before the officers initiated the arrest. (Id. at 38.) The sticker on the license plate was expired as of December 2008. (Id.) Having an expired registration is an offense for which Homestead Police may tow and conduct an inventory search of a vehicle. (Id.)

6. Wintruba testified that in effectuating the arrest of the passenger in Zareck‟s vehicle, he looked inside the vehicle:

At that time I had a clear, unobstructed view. What I look for, I look at the passenger seat, I look at the arm rest, I look at the floor, I look everywhere where the person inside the vehicle could have an arm‟s reach, what we call wingspan. (Id. at 47.)

7. Wintruba testified that while looking into defendant‟s vehicle, he observed an eight-toten-inch long green rope-like cord sticking out from the vehicle‟s center console. (Id. at 47-48.) Wintruba did not ask defendant what was at the end of the cord because defendant was "fighting to stay inside the running vehicle, left hand on the steering wheel, right hand reaching for the center console, trying to pull away from the officers effectuating the arrest." (Id. at 48.)

8. Wintruba did not observe any weapons, drugs or drug paraphernalia, only a "green rope-like device hanging out of the console." (Id. at 47.)

9. Wintruba did not know what was on the other end of the green wick prior to opening the center console. "I had no idea what was at the end." (Id. at 52.) "I went in there to go ahead and alleviate my concerns." (Id. at 53.) Wintruba described the wick as "very similar to what is used on heavier professional [firework] types." (Id. at 51.)

10. After handcuffing and securing the passenger, Wintruba "opened up the armrest . . . removed [the device] from the vehicle" and then placed the item on the vehicle‟s trunk and photographed it. (Id. at 16.) Wintruba "was concerned with the wick. I‟ve never seen a wick sticking out of a center console before like this, a fuse-type device. Whenever I lifted up the lid, I became alarmed at what I saw." (Id. at 50.) "The wick appeared to be some type of flammable type of device. . . ." (Id. at 50-51.) Wintruba stated:

Once I picked that device up from the center console -- actually, I became extremely concerned and I backed out of the vehicle very cautiously, alerting all the officers around we got a problem. Look what‟s inside his car. Everyone be careful. (Id. at 29.)

In describing the device, Wintruba testified:

If I can recall, it didn‟t feel very light like it was hollow. It was very heavy. I also recall that the ends of the device, of the tube were sealed kind of crudely with some type of sealant, some type of jagged edge type of gray dark matter. It was wrapped in red, kind of like a tether, not real professional or real new. It looked like it was kind of crude. . . . [The device] seemed to be crudely made versus something that was professionally made. (Id. at 30.)

11. Wintruba did not serve in the military or have any ordinance or explosive training, and his department did not have a bomb squad. (Id. at 51).

12. Officer Ronald DePellegrin ("DePellegrin"), of the HPD, described the device as a "cylindrical tube" or "round cylinder object," which did not appear to be metal in composition.

(Hr‟g Tr. 42-43, June 29, 2010.)

13. The officers removed the tube from the vehicle and turned it over to the Allegheny County Bomb Squad ("ACBS"), which later detonated it. (Hr‟g Tr. 15, May 27, 2010; Govt. Ex. 2.)

14. After defendant was removed from the vehicle and placed under arrest, a search of defendant‟s person incident to arrest produced a clear knotted baggie containing seven stamp bags of heroin and two rocks of crack cocaine. (Id. at 44-45.) Wintruba observed the arrest and the search of defendant. (Hr‟g Tr. 17, June 29, 2010.)

15. Fusco gave defendant his Miranda warnings verbally immediately upon arrest. (Id. at 24.)

16. After defendant and the passenger in his vehicle were arrested, officers seized the vehicle. (Hr‟g Tr. 54, May 27, 2010.)

17. Wintruba testified the HPD‟s policy concerning conducting an inventory and towing a defendant‟s vehicle is that once a defendant is in custody, officers do a vehicle inventory, which requires looking inside the center console. "Once the occupants are removed from the vehicle, the vehicle then becomes the responsibility of the Homestead Borough Police Department, at which time an inventory is done and the vehicle is secured to a tow yard." (Id.) The police department has a "form that we document the removal of items or the identification of items inside the vehicle." (Id. at 19.)*fn1

18. The search and seizure of the device preceded the inventory search. (Id. at 54).

19. Defendant was handcuffed behind his back and placed in a police vehicle driven by Wintruba. (Id. at 19.

20. Wintruba initially headed towards the West Homestead Police Station ("WHPS"), approximately one mile from the Waterfront shopping center, and with whom Homestead Police has a contract in order to utilize West Homestead‟s holding cells and processing area. (Id. at 20.) Just before arriving at the WHPS, Wintruba received a radio transmission that he should take defendant to the Homestead Police Station ("HPS") instead. (Id.). Wintruba turned the police vehicle around and headed toward the HPS, which is approximately one mile from the WHPS. (Id. at 20-21.)

21. Wintruba had his radio on scan mode to monitor the local fire departments and ambulance services and recognized the voice of the Homestead Fire Department chief over the radio. (Id. at 21.)

22. Wintruba testified that the chief broadcast something to the effect that "this is a dangerous device. This is an explosive device. Notify the Allegheny County Bomb Squad." (Id.)

23. Upon hearing this broadcast, defendant became "very agitated, ranting, making statements that it isn‟t an explosive device. This isn‟t a big deal. They‟re wrong. He continued on, this is nothing more than a Bumble Bee fireworks that you buy at the Target Store that I disassemble. This is nothing more than this." (Id. at 22.)

24. Wintruba tried to calm defendant down, stating "we‟ll talk about this once we get back to the station. Don‟t get yourself all upset. We‟ll deal with this at the station." (Id.)

25. Once Wintruba and defendant arrived at the station, Wintruba went over "general booking information" with defendant. (Id. at 23.)

26. Wintruba read defendant his Miranda warnings from a warning form. (Id. at 24; Govt. 6 Ex. 1.)

27. Defendant‟s handcuffs were repositioned from the back of his body to the front to facilitate the completion of forms. He initialed each line after statements appearing on the Miranda form were read to him and signed the bottom of the form. (Id. 25.) Wintruba‟s signature also appears at the bottom of the Miranda form, along with the date and the time. (Id.) Wintruba testified that defendant agreed to speak to the officers after waiving his Miranda rights. (Id. at 25-26; Govt. Ex. 1.)

28. Thereafter, defendant was questioned by Wintruba. (Id. at 26.) Initially the questioning "focused in on the drugs he possessed that he just purchased." (Id.)

29. Wintruba testified that defendant became agitated while in the police station upon hearing radio communications regarding the device (Id. at 28), and uttered, "they are Bumble Bee explosives, these are things you can buy at any Target store. He takes these items apart. He does this on his own. He‟s not that dangerous." (Id. at 29.)

30. In light of the information that was coming over the radio channel, the focus of the questioning of defendant changed to address the device that was found in defendant‟s car. (Id.)

31. Wintruba took notes of his interview of defendant "on a long scrap piece of paper . . . and placed into the body of the incident report." (Id. at 73).

32. With respect to the incident report, Wintruba testified:

[S]tarting with Item 33, Line Item 33 clearly states what I found out after the fact from the Allegheny County Bomb Squad with some of the information that came from the briefing.

As I continue to go down to Line Item 40, that‟s when I go ahead and I get into more of the information about some of the items that were coming up during our questioning, some of the items which were given after he was Mirandized and we were having our conversation.

(Id. at 69.)

33. Wintruba acknowledged that the affidavit of probable cause did not contain any statements made by defendant relating to purchasing, possessing, assembling, disassembling, or utilizing fireworks, explosives or IEDs at his residence. (Id. at 73-74.)

The Search Warrant

34. At approximately 2:00 a.m. on April 4, 2009, Wintruba made application for and received a search warrant from the magisterial district justice, who was on duty at the City of Pittsburgh, Pennsylvania magistrate court, for the residence of defendant at 3379 Parkview Avenue, Pittsburgh, Pennsylvania 15213. Defendant‟s residence is located in Oakland section of Pittsburgh. (Id. at 12, 31-34; Govt. Ex. 2.) The Borough of Homestead*fn2 is not within the city limits of Pittsburgh.

35. The scope of the search warrant, i.e. identity of the items to be searched for and seized, was described as: improvised explosive devices, which are a danger to the public and surrounding homes, explosives and bomb-making material, to include explosive powders, components, fuses and instructional material used to manufacture explosive devices. (Hr‟g Tr. June 29, 2010 at 16-17 (Govt Ex. 2)).

36. Wintruba "recall[ed] sitting down [at the HPS] as we were encouraged to go ahead and initiate a search warrant by the experts. We were going over all of our different experiences that evening." (Hr‟g Tr. 79, May 27, 2010.)

37. The search warrant was drafted after Wintruba‟s briefing by members of the ACBS, who were on the scene and had detonated the device seized from defendant‟s vehicle. Concerning the narrative of the search warrant, Wintruba stated:

There was [sic] some things which were pulled out which I believe were put into the narrative of the search warrant. The Allegheny County Bomb Squad was responsible for the go ahead and initiating their own reports and their officers were taking the notes. (Id. at 65.) Wintruba did not recall seeing the notes or reports drafted by members of the ACBS prior to or after drafting the search warrant affidavit. (Id. at 66, 87). The narrative of the affidavit of probable cause provides:

The Homestead Police Department was conducting a narcotic buy bust with in [sic] the borough of Homestead. Officers arrested Raymond J. Zareck with in [sic] his 2007 Chevrolet Malibu SDN at the Waterfront McDonalds. Officers observed a green fuse sticking out of the center console. Officers are familier [sic] with this type of fuse which is consistent with an improvised explosive device. Officers opened the center console & observed a pipe type object which was approximately 8" long. The object was wrapped with tape & had glue on each end. A 12" green fuse was sticking out of one end. The device appeared to be a homemade pipe bomb. Officers secured the area & contacted the Allegheny County Bomb Squad. Raymond Zareck was transported to WHPD then to HPB for processing. Zareck was mirandized and questioned regarding the improvised explosive device. Zareck stated to Ofc. Wintruba & Fusco that he purchases "Bumble Bee" commercial fireworks at Target Department Stores. Zareck then takes the fireworks to his residence at 3379 Parkview Ave. Pittsburgh, PA 15213 disassembles them and creates improvised explosive devices. Zareck stated that he takes the flash powder out of several commercial fireworks and condenses the flash powder into one cardboard tube. He them applies a fuse and glue to each end. Finally he tapes the tube up with cloth tape. Zareck is unsure how much additional flash powder is with in [sic] his residence, but did state that it is not in any type of fire retardent [sic] cabinet nor does he have any type of automatic fire supression [sic] devices. Zareck‟s residence is a row house with multiple family residences on each side.

Homestead Police and Fire Departments evacuated the Waterfront McDonalds & Get Go gas station prior to the bomb squads [sic] arrival. Allegheny County Bomb Squad arrived on scene & took possession of the device. The device was transported to a vacant area on the Waterfront & detonated. Bomb Technicians Robert Synan & Mark Divelbiss advised officers that the device was infact [sic] an improvised explosive device. They went on to state that the flash powder Zareck is using in these types of devices is extremely volitile [sic] & dangerous. In addition, depending on how much flash powder is located with in [sic] Zareckā€Ÿs residence this could prove to be a dangerous and hazardous condition for the surrounding neighbors & the public. The technicians Synan & Divelbiss stated ...


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