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United States of America v. David E. Ballard

January 5, 2012

UNITED STATES OF AMERICA
v.
DAVID E. BALLARD



The opinion of the court was delivered by: Surrick, J.

MEMORANDUM

Presently before the Court is Defendant David E. Ballard's Motion to Suppress Search Warrants. (ECF No. 24.) For the following reasons, the Motion will be denied.

I. BACKGROUND

On August 11, 2011, a grand jury returned an Indictment charging Defendant with eight counts of mail fraud, in violation of 18 U.S.C. § 1342 (Counts One through Eight), and five counts of aggravated identify theft, in violation of 18 U.S.C. § 1028A (Counts Nine through Thirteen). (Indictment, ECF No. 9.) The Indictment charges that Defendant devised a scheme to defraud over 1,300 people and to obtain money and property by means of false and fraudulent pretenses. (Id.) Specifically, it is alleged that Defendant obtained personal identification for these individuals in order to open credit card or Internet payment accounts in their names, purchased various items using the accounts without the individuals' permission, and in many instances, intercepted the items after having them sent to the individuals' home or work addresses. (Id.) On August 25, 2011, Defendant was arraigned and entered pleas of not guilty. (Min. Entry, ECF No. 12.) Trial is currently scheduled for January 9, 2012. (Order, ECF No. 16.)

On October 31, 2011, Defendant filed a Motion to Suppress Search Warrants (Def.'s Mot., ECF No. 24), and a Memorandum of Law in support of the Motion to Suppress (Def.'s Br., ECF No. 24-1). Attached as Exhibits to Defendant's Motion are three state search warrants and a federal search warrant. (Id. at Exs. A-G.) Defendant seeks to suppress all of the evidence seized as a result of the execution of these warrants. On November 16, 2011, Defendant filed a Supplemental Motion--Suppression, which requested that the Government produce the originals of the state search warrants at the suppression hearing. (Def.'s Supp. Mot., ECF No. 28.) On November 17, 2011, we granted the Supplemental Motion and ordered the Government to produce the original state search warrant documents, including applications and affidavits for inspection by the Court at the suppression hearing. (ECF No. 29.) The Government responded to the Motion on November 22, 2011. (Gov't's Resp., ECF No. 31). On December 5, 2011, the Government filed a Supplement to United States' Response in Opposition to Defendant David Ballard's Motion to Suppress. (Gov't's Supp. Resp., ECF No. 32.)

A suppression hearing was held on December 6, 2011. (Min. Entry, ECF No. 34.) At the hearing, the Government presented testimony from Detectives James Sloan, Timothy Hartman and Michael Acerenza, all of whom are assigned to the Northwest Detectives Unit of the Philadelphia Police Department. (Dec. 6 Hr'g Tr. 6, 51, 63-64, ECF No. 34.) Detectives Sloan, Hartman and Acerenza were all involved in the search of Safeguard Self Storage Unit 315 and the arrest of Defendant on April 7, 2011. The Government also presented testimony from Detective John Geliebter, who executed the Third State Search Warrant. Finally, we heard testimony from Special Agent Mackenzie Monarko with the Federal Bureau of Investigation ("FBI"). Special Agent Monarko provided testimony about the Federal Warrant issued on August 4, 2011 and the search conducted pursuant to the Federal Warrant on August 5, 2011.

II. FINDINGS OF FACT

James Sloan has been a detective with the Philadelphia Police Department for thirteen years. (Dec. 6 Hr'g Tr. 6.) Detective Sloan is assigned to the Special Investigations Unit, which primarily covers shootings, robberies and burglaries. (Id. at 7.) Prior to becoming a detective, he was a West Philadelphia police officer for six years in the 18th District. (Id.) As a detective and police officer, Detective Sloan has served as an affiant for, and executed, hundreds of, search warrants. (Id.) Timothy Hartman has been a detective with the Philadelphia Police Department for almost six years, and prior to that, was a police officer for six years. (Id. at 52.) Detective Hartman investigates a variety of crimes, including retail thefts, aggravated assaults and shootings. (Id.) He has executed searches pursuant to approximately two to three hundred search warrants during his time as a detective. (Id.) Michael Acerenza has been a detective with the Philadelphia Police Department since 2004 and a police officer before that since 1996. (Id. at 64). He investigates shootings, robberies and burglaries. (Id.) He has executed hundreds of searches pursuant to search warrants. (Id.) Detective John Geliebter has been a detective with the Philadelphia Police Department for thirteen years, and prior to that, was a police officer for five years. (Id. at 71.) Detective Geliebter has been an affiant for, and has executed searches pursuant to, several hundred warrants. (Id.)

Mackenzie Monarko has been a Special Agent with the FBI for five years. (Id. at 85.) She is currently assigned to the cybersquad but was previously assigned to the gang task force. (Id.) She investigates computer intrusion and Internet fraud. (Id.) In her years with the FBI, she has participated in the execution of approximately thirty to forty search warrants.

A. The Burglary Investigation at Safeguard Self Storage

Detective Hartman was instructed by one of his supervisors to investigate a pattern of burglaries at the Safeguard Self Storage facility located at 6224 Germantown Avenue, Philadelphia, Pennsylvania. (Id. at 52-53.) All of the burglaries had been carried out in the same manner, and all involved the theft of electronics, such as televisions and gaming systems. (Id.) Safeguard management had recorded video surveillance showing Defendant entering and exiting the storage facility at various times in the middle of the night. (Id.) Defendant was seen carrying items, such as large screen television sets, on a cart throughout the storage facility but not carrying these items in and out of the facility. (Id. at 54.)

The Safeguard Self Storage facility is an enclosed building. (Id. at 17.) The top of each of the storage units is made of chicken wire. (Id. at 18.) The management of Safeguard Self Storage will periodically look into the units. (Id. at 17.) Based on Defendant's suspicious activities, they looked into Defendant's storage unit on April 5, 2011. (Id. at 17.) Management believed that certain items in the unit had been burglarized from other storage facility tenants. (Id) When management returned to Defendant's storage unit on April 7, 2011, they noticed that one of the items they observed on April 5th that they believed had been burglarized was no longer located in Defendant's unit. (Id. at 18.) Based on this information, Detective Sloan and Detective Hartman believed that Defendant was stealing items out of other storage units, placing them in his unit, and then subsequently moving them out of his unit. (Id. at 18, 53.)

B. The First State Warrant

On April 7, 2011, Detective Sloan obtained search warrant no. 156317 (the "First State Warrant") to search storage unit 315 ("Unit 315") at the storage facility. (Id. at 7 & Def.'s Br. Ex. B.) Unit 315 belonged to Defendant. (Dec. 6 Hr'g Tr. 7.) Detective Pat Murray had been involved in the burglary investigation at the storage facility and asked Detective Sloan to assist him with obtaining the warrant. (Id. at 8.) Detective Murray typed up the First State Warrant. (Id. at 9, 42.) Detective Sloan read it over, had it approved by the Philadelphia District Attorney's office, and swore it out before the magistrate judge. (Id. at 9-10.)

The First State Warrant is two pages long. (Id. at 9.) The first page is the warrant, and the second page is a form 75-51, also known as the "continuation of probable cause." (Id.) Form 75-51 is used when there is not enough space on the warrant to describe all of the facts and circumstances establishing probable cause. (Id.) Located within the probable cause section of the First State Warrant is a notation reading "see 75-51." (Id. & Def.'s Br. Ex. B.) The First State Warrant was based on the following facts and circumstances, as described in the continuation of probable cause:

* On May 31, 2011, Defendant entered the Safeguard Storage facility at approximately 7:35 p.m. and left the facility at 6:15 a.m. the following morning.

* On April 2, 2011, one of the tenants at the storage facility complained that her storage unit was burglarized and two flat screen TV's were taken.

* On April 2, 2011, another tenant reported that her unit was burglarized. The items stolen included a PlayStation 3 game system, a Nintendo Wii game system, an Xbox game system, and a flat screen TV.

* Based on what they believed to be suspicious activity, Safeguard Self Storage management looked inside Defendant's storage unit on May 5, 2011. Management observed a flat screen TV, a PlayStation 3 game system, a Nintendo Wii game system, and an Xbox 360 gaming system.

* Video footage shows Defendant entering the storage facility on April 5, 2011 at 6:17 a.m. empty-handed and leaving at 9:53 a.m. empty-handed.

* On April 6, 2011, Safeguard Self Storage management suspended the access code for Defendant. That day, a third tenant reported that his unit was burglarized and a Skepter flat screen TV was taken.

* On April 7, 2011, Safeguard Self Storage management again looked into Defendant's unit and observed a second flat screen TV that was not present on April 5, 2011. Management also noticed that the Xbox 360 gaming system was missing.

(Def.'s Br. Ex. A.)

The First State Warrant identifies the following items to be searched for and seized: "[Two] 42" Plasma Tv's, Playstation 3 game system, x-box game system, Nintendo games system, 1 Scepter 37" flat screen TV, and any other items of evidentiary value." (Id. at Ex. B; Dec. 6 Hr'g Tr. 10.)*fn1 The detectives understood the phrase "any other items of evidentiary value" to mean evidence relating to the burglary investigation, including things that typically accompany the electronic items listed in the warrant, such as cords, plugs, remote controls, games and paperwork. (Id. at 10, 54, 65-66.) Detective Sloan understood the phrase "any other items of evidentiary value" to mean "other items in reference to the . . . burglaries," such as "tv cords, remotes, any paperwork for the items." (Id. at 10.)*fn2

Detective Hartman understood the phrase to mean that he could search for "any evidence pertinent to the investigation of the burglaries." (Id. at 54.) He thought it justified the search of other missing items as a result of the burglary investigation, even though those items were not listed in the warrant. (Id.) Detective Acerenza understood the phrase to mean that he could search for any items that "pertain to the burglaries," including the electronics reported stolen, the game systems, TVs and "items that also may go along with those items such as plugs to the game systems, the controllers and games." (Id. at 66.)

C. The Search of Unit 315 and Arrest of Defendant

At approximately 7:30 p.m. on April 7, 2011, Detectives Sloan, Hartman and Acerenza arrived at the Safeguard Self Storage facility to execute the First State Warrant. (Id. at 12) At the time, the detectives had not been able to locate Defendant and did not have an address for him. (Id.) The detectives entered Unit 315 and took photographs of the storage unit. (Id. at 13.) The unit was filled with boxes and other items, including two television sets covered in linens. (Id.) There were so many items in the storage unit that the detectives had to remove some of the items and place them in the hallway in order to "open the space up." (Id. at 16.) During the search, the detectives were looking for the electronic items listed in the warrant, as well as games, remote controls, cables or paperwork for those listed items. (Id.)*fn3 The detectives were also looking for items that might have provided information on Defendant's whereabouts. (Id. at

22.) Boxes and containers were opened and looked through in order to search for these items. (Id.) The entire storage unit was searched. (Id. at 45.)

The detectives seized two television sets from Defendant's storage unit. (Id. at 18.) These TVs were later identified by other tenants as having been ...


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