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United States of America v. Raymond Zareck.

October 26, 2011

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 this Court are supplemental motions to suppress arrest and to identify the confidential informant (ECF No. 111) filed by defendant Raymond Zareck ("defendant" or "Zareck"). On April 13, 2009, the United States ("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 a motion to suppress evidence in which he made three arguments: 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. On December 3, 2010, this court issued a Memorandum Opinion and Order denying the motion to suppress evidence.

On December 9, 2010, Zareck requested leave to file supplemental pretrial motions (ECF No. 109), which this court granted on December 14, 2010 (ECF No. 110). In his supplemental motion, filed on December 22, 2010 (ECF No. 111), Zareck makes the following four arguments: (1) his arrest was illegal because the police officers did not have probable cause to arrest him on a misdemeanor; (2) the arrest was illegal because it was based upon information provided by an informant who was not a credible or reliable source of information; (3) the stop of Zareck's vehicle was pretextual and therefore without reasonable suspicion or probable cause; and (4) the government should be compelled to reveal the informant's identity.

On January 25, 2011, the government filed its response to defendant's supplemental motion (ECF No. 116). This court held a hearing on the supplemental motion on February 25, 2011, March 7, 2011 and May 2, 2011. Both the defendant and the government complied with this court's order to file proposed findings of facts and conclusions of law (respectively, ECF No. 133 and ECF No. 135). The matter is now ripe for the court to make the following findings of fact and conclusions of law.

I. Findings of Fact

1. Officer Matthew Fusco ("Officer Fusco") of the Homestead Borough Police Department had been working on narcotics cases for approximately nine years at the time of the events giving rise to this matter. (Hr'g Tr. Feb. 25, 2011 ("Hr'g Tr. I") at 9.)

2. Officer Fusco received specialized training in narcotics from the Allegheny County District Attorney's Narcotics Task Force and the Pennsylvania Attorney General's Narcotics Task Force. (Id.)

3. Officer Fusco worked with the Drug Enforcement Administration and the Federal Bureau of Investigation on interstate narcotics trafficking matters. (Id.)

4. Officer Fusco was the lead coordinator for all narcotics investigations through the Homestead Police Department at the time of the events in this case. (Id. at 10.)

5. Officer Fusco supervised the investigation conducted by Officer James Wintruba ("Officer Wintruba") into the facts of this case. (Id. at 10, 68.)

6. Officer Wintruba had been a police officer for one and one-half years at the time of the events. (Id. at 99.) Officer Wintruba testified that during that period of time he participated in other drug investigations and worked with other informants. (Id. at 111-13.)

7. On April 1, 2009, Officer Wintruba was on patrol in a fully marked police vehicle when he observed a white Toyota MR2 in Homestead, Pennsylvania, circling a block around a Citgo gas station, at the corner of West Street and 16th Avenue. (Id. at 86-88.)

8. The driver appeared nervous at the sight of Officer Wintruba. (Id. at 86.)

9. The Citgo gas station is a place known for drug activity, as well as for violent activity. (Id. at 87.)

10. Officer Wintruba observed the white Toyota MR2 pulling into the Citgo gas station. (Id. at 88.) He saw two black males approach the driver from the driver's open window and converse with the driver. (Id.)

11. As Officer Wintruba's car passed around the white Toyota MR2, the two black males looked up at his vehicle, turned around and walked away from the white vehicle. (Id.) Officer Wintruba did not observe any kind of hand-to-hand exchange between the two black men and the driver. (Id.)

12. The officer saw the driver frantically look back and forth into his car's mirrors and leave the gas station to head toward the Homestead High Level Bridge. (Id. at 86, 89.)

13. Officer Wintruba decided to intercept the white Toyota. (Id. at 89.) He was able locate it while it was travelling on the Homestead High Level Bridge at a high rate of speed. (Id.)

14. Officer Wintruba initiated a traffic stop of the white Toyota on the bridge. (Id.)

15. Officer Wintruba approached the driver. (Id. at 90.) The driver was extremely nervous, sweating, shaking, upset and his pupils were very small, which is one indicator of possible intoxication from alcohol or controlled substances. (Id.)

16. Officer Wintruba asked the driver to provide his driver license and registration. (Id.) The driver was extremely nervous, shaking, talking in a rambling manner and fumbling his papers. (Id. at 91). The driver was able to provide his license, but not the registration. (Id. at 91.)

17. Officer Wintruba requested back up officers. (Id.) Officer Fusco and Officer Miller arrived as back up. (Id. at 96.)

18. Officer Witntruba asked the driver to get out of the vehicle so that he could perform a series of field sobriety tests. (Id. at 91.) While the driver did well on these tests, he was very nervous, upset and shaking. (Id.) Officer Wintruba believed the driver was under the influence of some sort of medication. (Id. at 91.) Officer Fusco believed the driver was under the influence of narcotics. (Id. at 52.)

19. As the driver exited the vehicle, Officer Wintruba saw, inside the driver's door armrest, a pocket, a razor blade and a short, cut-off drinking straw with some powder residue. (Id. at 92.)

20. In Officer Wintruba's experience, the razor blade was of significance because it posed issues of safety for the officer. (Id. at 92-93.) The razor blade and the straw were also of significance because they are generally used by an individual who inhales powder narcotics. (Id. at 93.)

21. Officer Wintruba made the driver aware that he may be charged with possessing drug paraphernalia. The driver told the officer he wanted to know what he could to help himself. Although Officer Wintruba was interested in learning what help the driver could offer, the officer did not make a final decision at that time about using the driver as an informant. (Id. at 94.)

22. While Officer Wintruba acknowledged that it is not uncommon to come across such kind of offers, he stated that only a small number (ten percent) of would-be informants end up being informants. (Id. at 95.)

23. The driver was taken into custody for disorderly conduct, possessing paraphernalia (id. at 39), and further sobriety testing. (Id. at 96.) His vehicle was towed. (Id. at 11.) The report prepared by Officer Wintruba for the stop did not reference the driver's arrest, the reasons for his arrest, the field sobriety tests, the paraphernalia, or how long the driver was in police custody. (Hr'g Tr. Mar. 7, 2011 ("Hr'g Tr. II") at 27-28, 32-33; Hr'g Tr. I at 40.)

24. At the station Officer Fusco assisted Officer Wintruba in the investigation of the matter. (Hr'g Tr. I at 97.)

25. While at the station, the driver began to relax and willingly answered the officers' questions. (Id. at 98.) He expressed an interest in cooperating with them. (Id. at 11-12, 94.)

26. The driver told the officers an individual named Ray Zareck asked him to go to Homestead to make a drug purchase. (Id. at 99.) The driver stated that Zareck offered him a single stamp bag payment if he would drive to Homestead. (Id.) The driver reported that Zareck gave him a phone number to contact a drug supplier in Homestead. The name of the drug supplier was "Al", (id.), a black male. (Id. at 47.)

27. The driver indicated that he routinely accompanied Zareck when Zareck went to Homestead to make narcotics' purchases. (Id. at 18.) The driver usually made a phone call to arrange the location of the transaction when they came across the High Level Bridge. (Id. at 101.) They would meet at the agreed upon location, exchange money for drugs and leave Homestead. (Id.)

28. The driver described Zareck as a white male who was older than fifty years, wore glasses, had grayish hair, resided in Oakland and drove a newer style, black, large, 4-door sedan. (Id. at 99-101.)

29. Officer Wintruba verified some of the information about Zareck provided by the driver. (Id. 18, 115.) Officer Wintruba was independently able to determine Zareck's age and obtain a photograph of him through the JNET database. (Id. at 18, 115-16.) The description provided by the driver was consistent with the photograph obtained through that database. (Id. at 18, 116.)

30. Officers Wintruba and Fusco were interested in the information provided by the driver because it was factually accurate and was of a nature that would be available only to a person who went to Homestead to purchase heroin or crack cocaine. (Id. at 101.)

31. For example, Officer Fusco was aware from previous investigations that an individual, "Al", was known to the police as a drug dealer operating in the area of Pearl's Cafe in Homestead, (id. at 14), a high violent crime area (id. at 15); Officer Wintruba testified that Officer Fusco recognized the phone number the informant was given to make contact with Al (id. at 101-02); and Officer Wintruba recognized that the procedure followed by Zareck and the informant was similar to the modus operandi of other individuals in the area. (Id. at 102.)

32. In light of the information provided, Officers Wintruba and Fusco believed that the driver was providing reliable information and that he would work well as an informant. (Id. at 17, 103.)

33. Officers Wintruba and Fusco asked the driver to contact the officers the next time Zareck wanted the driver to come to Homestead to make a narcotics purchase. (Id. at 21, 103.)

34. After the driver left, Officer Wintruba ran additional background checks on him. (Id. at 104.) In addition to the information gathered at the time of the stop on the bridge (id. at 97-98), Officer Wintruba checked the JNET database and other records to substantiate some of the information the driver had provided. As a result of the check, Officer Wintruba learned the driver had some minor contacts with the law, but nothing serious (id. at 16, 45, 104), and there were no outstanding warrants for him. (Id. at 41; Hr'g Tr. II at 45-46.)

35. Among other information related by the driver, he disclosed he was a mechanical engineer working daylight shifts for a company located approximately a half-hour away from Pittsburgh, Pennsylvania, he had family in the South Hills area, a girl friend and had recently started consuming heroin. (Hr.'g Tr. I at 16-17, 43-44, 46, 105.) The driver told the officers he was purchasing heroin every couple of days through Zareck, who, in turn, would purchase the drugs from Al. (Id. at 46-47.)

36. The day after this first encounter, on April 2, 2009, the driver, acting as an informant, told Officer Wintruba that Zareck had contacted him about the next purchase of heroin from Al which was to take place that night in Homestead. (Id. at 21, 105.)

37. Officer Wintruba discussed this information with Officer Fusco. The officers decided they would try to observe the vehicle when it came into Homestead in order to determine where the purchase would be made. (Id.) As part of the plan, the officers asked the informant to drive his Toyota MR2 because it was much easier to identify. (Id. at 106.) The officers asked the informant to stay in touch with them via phone or by text messages while he was with Zareck (Id. at 103, 106.)

38. The officers planned to make these observations that night. Contrary to the plan, the informant was not able to convince Zareck to ride with him in his Toyota MR2. The informant notified the officers that Zareck and he would be in Zareck's larger, newer, black, four-door sedan. (Id. at 106-07.) While the informant was not able to provide the registration plate of Zareck's vehicle, he was able to give the officers information about their whereabouts. (Id. at 107-08.)

39. Based on the text messages sent by the informant to Officer Wintruba, the officers learned that Zareck's vehicle entered Homestead, traveled to West Homestead, picked up Al (the drug dealer), Al's three or four-year old child, left the Lowe's movie theater, traveled through Homestead, and went to Al's house. (Id. at 107-08.) At that point, the messaging became sporadic until the informant notified the officers that Zareck and he had obtained some drugs. (Id.)

40. The officers were unable to intercept the vehicle when it left Homestead (id. at 21, 108), and did not see Zareck or any drug transaction. (Hr'g Tr. II at 51.) 41. The officers at that point thought the informant had changed his mind about cooperating with the police. (Hr'g Tr. I at 109.) Officer Wintruba sent a message to the informant asking him to contact the officer as soon as possible to find out what happened. (Id.)

42. Once the informant was in his vehicle, he called Officer Wintruba. As a result of the conversation, the informant went to the Homestead Police station. (Id.)

43. Officers Wintruba and Fusco, who were both present at the station, made it clear to the informant they were not happy with what happened. (Id. at 57, 109.) The informant told the officers he became very nervous and could not go through with the plan to provide additional information about Zareck's movements because he was concerned for his safety. (Id. at 23.) Based on the officers' experience, it is not uncommon for informants to become nervous under the circumstances. (Id. at 23-24, 109-13.)

44. The informant did not appear under the influence of narcotics at the time of his interaction with the officers. (Id. at 22-23, 68, 113-14.)

45. The informant told the officers that Al was unable to supply all the narcotics (heroin and crack) Zareck requested but only a smaller amount, and Zareck was to go back to Homestead the following day (Friday, April 3, 2009) to purchase the additional drugs from Al. (Id. at 113-14.)

46. The informant told the officers that Zareck gave him one stamp bag of heroin as a payment for riding with him on April 2, 2009. (Id. at 113.) The informant put the bag of heroin on ...


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