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United States of America v. Electronic Filing Olajide Usman Abdul-Ganui

December 14, 2010

UNITED STATES OF AMERICA
v.
ELECTRONIC FILING OLAJIDE USMAN ABDUL-GANUI



The opinion of the court was delivered by: David Stewart Cercone United States District Judge

OPINION

On February 2, 2010, a grand jury returned a four-count indictment against Olajide Usman Abdul-Ganui ("defendant") charging him with (1) conspiring to possess with intent to distribute 100 grams or more of heroin, from on or about December 2009 to on or about January 6, 2010, in violation of 21 U.S.C. § 846; (2) possessing with intent to distribute 100 grams or more of heroin, on or about January 6, 2010, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(i); (3) smuggling goods into the United States, on or about January 6, 2010, in violation of 18 U.S.C. § 545; and (4) importing a controlled substance into the United States, from on or about December 2009 to on or about January 6, 2010, in violation of 21 U.S.C. §§ 952(a) and 960(b)(2)(A).*fn1 Presently before the court is defendant's Motion to Suppress Evidence. For the reasons set forth below, defendant‟s motion will be denied.

On January 5, 2010, an Immigration and Customs Enforcement ("ICE") agent applied for a warrant to search and install a Global Positioning System beeper inside a package containing heroin to be delivered to 2655 Brighton Road, Apt. 3, Pittsburgh, PA 15212. The application was supported by an affidavit and the warrant was issued at approximately 8:50 a.m. that same day. On January 6, 2010, at approximately 9:58 a.m., an undercover United States Postal Inspection Service ("USPIS") inspector conducted a controlled delivery of the package. Defendant answered the door, signed for and took receipt of the package. At approximately 10:01 a.m., the electronic beeper inside the package was activated, indicating the package had been opened. At 10:03 a.m., officers entered the Brighton Road residence. Upon entry, they found defendant in the kitchen holding the contents of the package - a plastic bag containing heroin. No one else was at the residence. Defendant provided the officers with basic information, such as his name, date of birth, social security number, Pennsylvania driver‟s license number and telephone number. He identified himself as a Nigerian-born citizen and a resident alien of the United States. He explained that he first entered the United States in 2001 on a business visa and had been living at the Brighton Road residence with his girlfriend for the last six months. When asked where his resident alien identification card, passport and visa were, defendant indicated his identification card was in his brother‟s possession because he had given it to him for safekeeping after experiencing some domestic issues with his ex-wife. Defendant stated his brother is a truck driver and was out on the road. When asked if he understood English, defendant replied in the affirmative and said that it is the national language of Nigeria and he had gone to a Nigerian high school. Defendant advised that he was in the business of selling used cars. When asked what car he currently was driving, he replied that he was driving a rental vehicle which was parked behind the residence. Defendant gave the officers permission to conduct a search of the rental car and signed an ICE Consent to Search form.

Defendant was read his Miranda rights at approximately 10:30 a.m., and stated he understood his rights. When asked about the package he had just received, defendant became visibly nervous, told the officers he did not violate the law, and claimed he ordered clothes from India. Defendant admitted that the package was for him, but said he had ordered the clothing as a late Christmas gift for another person. When asked who the clothes were for, defendant replied that he did not know, but that he would give them to some of his Jitney customers. When asked how the clothes had been ordered, defendant said he called a 1-800 number. Although he did not know the exact number, he told the officers that he thought it might be in his journal which was located in his rental vehicle. Defendant indicated he had traveled to several countries including India, China, Japan, England, and the United States. He also said he was in India when he was young. Defendant explained that 2002 was the last time he entered the United States and that he had met and married a United States citizen, and lived with her in the East Liberty section of Pittsburgh for five to six years. When asked if he had previously received any packages from India, defendant first stated that he had, but later said that this was his first package from India. He claimed he had received other packages from China that contained clothing which he purchased for resale in the United States. He also used a 1-800 number to purchase the clothing from China and paid for it through Western Union. Defendant also told the officers he wears the clothing and sells it to his jitney customers.

When shown a piece of mail bearing his name and the address of 514 W. North Avenue, Apt. 4, Pittsburgh, PA 15212, defendant claimed his brother lived at that address. When asked if his identification card and passport were there, defendant said they were. Defendant was asked if he would allow the officers to accompany him to that residence to retrieve his documents. He declined, stating that he wanted to call his brother because he did not want the officers to go into his brother‟s residence and anger him.

Upon the officers‟ arrival at the North Avenue apartment, they observed that the front door showed signs of forced entry. They received no response after knocking on the door. They met with a rental agent from Candey Management Corporation, defendant‟s landlord, who informed them that the apartment was a small one-room efficiency and defendant‟s name was the only one on the lease. The landlord also stated that defendant had previously told the agency that he keeps the apartment as an office and lets his brother stay there from time to time. The officers also interviewed the letter carrier to the North Avenue apartment, who indicated that defendant was the only person who received mail at that address.

On January 6, 2010, ICE Special Agent Martin Ryan ("Special Agent Ryan") applied for a search warrant for 514 W. North Avenue, Apt. 4, and attached an affidavit in support thereof. The application informed the issuing magistrate that the apartment was believed to contain controlled substances and evidence of three types of crimes: (1) controlled substance crimes, specifically 21 U.S.C. §§ 841(a)(1), 843(b) and 846; (2) failure to carry alien registration paperwork, in violation of 8 U.S.C. § 1304(e); and (3) providing false facts or statements to law enforcement, in violation of 18 U.S.C. § 1001. Exhibit A. Under the section that set forth the basis for the search under Fed. R. Crim. P. 41(c), the following boxes were marked: (1) evidence of a crime; (2) contraband, fruits of crime, or other items illegally possessed; and (3) property designed for use, intended for use, or used in committing a crime. Id. The attached affidavit did not incorporate or reference any other document. The affidavit contained the above recited facts as well as seventeen paragraphs of information relating to the affiant‟s training and experience as a special agent with ICE regarding drug and contraband smuggling crimes. It also described the place to be searched:

Location: 514 W. North Ave. Apt. #4, Pittsburgh, PA 15212 is described as a (3) story red brick multi-unit structure containing 6 individual apartments. Apartment # 4 is located on the second floor rear of the building, the door is marked # 4.

Affidavit of Martin Ryan, Exhibit B at ¶ 35.

Magistrate Judge Amy Reynolds Hay issued the warrant on the same day. The warrant itself contained an attachment ("Attachment A"), which contained 12 paragraphs of items for which authorization to search was granted. Among the items listed were:

"(f): items of personal property that tend to identify the persons in residence . . . ; (k): controlled substances, to include heroin . . . ; (l): Resident alien identification cards, passports, and VISA‟s of the people mentioned in the Affidavit."

Attachment A to Exhibit A. The search of the North Avenue apartment led to the seizure of a scale, heroin residue, twelve cellular telephones, miscellaneous documents, cash, and a computer.

Defendant objects only to the search of the North Avenue apartment. He brings his motion to suppress on the ground that the warrant which authorized the search was not supported by a showing of probable cause that evidence of any criminal activity would be found there. Additionally, the good faith exception to the exclusionary rule is inapplicable because the affidavit underlying the warrant is so lacking in probable cause that official reliance on it objectively is unreasonable.

The government argues that the magistrate judge had a substantial basis to believe that defendant‟s North Avenue apartment would contain evidence of the alleged crimes. First, the affidavit set forth probable cause to believe that his apartment would contain evidence of drug-trafficking activities. Second, the affidavit also provided probable cause to believe that defendant was not in possession of his immigration papers, that he provided false information to law enforcement officers about his actual residence and that evidence of those offenses would be located at the North Avenue apartment. Finally, defendant purportedly lacks standing to object to the search of the apartment.*fn2

Consideration of all the facts and information submitted to the magistrate judge as well as the permissible inferences drawn therefrom provided a substantial basis for the magistrate judge's finding of probable cause to search defendant‟s North Avenue apartment. Accordingly, defendant‟s motion to suppress must be denied.

It is well-established that the role of a reviewing court in analyzing a magistrate judge's initial probable cause determination is to assess whether the magistrate judge had a substantial basis for concluding that probable cause existed. Illinois v. Gates, 462 U.S. 213, 238 (1983). The United States Court of Appeals for the Third Circuit has explained that "[reviewing courts] are constrained to determine only whether the affidavit provides a sufficient basis for the decision the magistrate judge actually made" and must refrain from engaging in de novo review as to whether probable cause actually existed. United States v. Jones, 994 F.2d 1051, 1057 (3d Cir. 1993) (recognizing that reviewing courts must refrain from making their own assessment as to probable cause). If a substantial basis for the magistrate judge‟s determination exists, then that finding must be upheld notwithstanding the fact that "a different magistrate judge might have found the affidavit insufficient to support a warrant." United States v. Conley, 4 F.3d 1200, 1205 (3d Cir. 1993).

A magistrate judge's finding of probable cause "should be paid great deference by reviewing courts." Gates, 462 U.S. at 236 (quoting Spinelli v. United States, 393 U.S. 410, 419). This is not to say, however, that reviewing courts should simply "rubber stamp a magistrate‟s conclusions." United States v. Whitner, 219 F.3d 289, 296 (3d Cir. 2000). Case law makes clear that this deferential standard urges that "the resolution of doubtful or marginal cases in this area [ ] be largely determined by the preference to be accorded to warrants." Jones, 994 F.2d at 1055 (citing United States v. Ventresca, 380 U.S. 102, 109 (1965)); see also United States v. Stearn, 597 F.3d 540 (2009) (acknowledging the Supreme Court‟s direction that cases which present close calls should be resolved in favor of upholding the warrant) (citing Gates, 462 U.S. at 237 n.10).

In assessing whether probable cause exists, an issuing magistrate judge must "make a practical, common-sense decision" that there is a "fair probability that . . . evidence of a crime will be found in a particular place." Gates, 462 U.S. at 238. The Supreme Court has described probable cause as a "fluid concept-turning on the assessment of probabilities in particular factual contexts." Id. at 232. Probable cause does not require direct evidence linking the crime with the place to be searched. Stearn, 597 F.3d at 554 (opining that while it would be ideal for every affidavit to contain direct evidence, a magistrate may issue a search warrant without it). Courts have recognized that probable cause "can be, and often is, inferred from "the type of crime, the nature of the items sought, the suspect‟s opportunity for ...


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