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United States of America v. Kareem Shabazz

February 14, 2012

UNITED STATES OF AMERICA
v.
KAREEM SHABAZZ, DEFENDANT



The opinion of the court was delivered by: Judge Munley

MEMORANDUM

Before the court for disposition is Defendant Kareem Shabazz's motion to suppress. The court held a suppression hearing on October 24, 2011, and the parties have briefed their respective positions. After the completion of the transcript of the hearing, the parties filed supplemental briefs. The matter is thus ripe for disposition.

Background

On October 30, 2010, three individuals entered and robbed the M & T Bank in Hanover Township, Pennsylvania. The robbers escaped without being caught. The Federal Bureau of Investigation ("FBI") investigated the bank robbery. At the suppression hearing on this matter FBI Special Agent Larry Whitehead testified regarding the investigation. (Doc. 67, Transcript of Suppression Hearing, October 24, 2011 (hereinafter "Tr.")).*fn1 A break in the case came on December 27, 2010, when an individual contacted the Scranton FBI office and told FBI Special Agent McMillen that he had information regarding the robbery. (Id. at 9). This individual became a cooperating witness ("CW").

CW identified the bank robbers as "Shabazz" who was staying in Elmira, New York, "Kindo" who resided in Wilkes-Barre, Pennsylvania area with this girlfriend, the third robber "Shay." (Id. at 11-12). "Shay" also had a home in Allentown, Pennsylvania. (Id. at 12). CW indicated that he sought to talk to investigators because he was angry at Kindo for selling heroin to his (CW's) girlfriend. She died from an overdose of the drug in November 2010. (Id. at 12).

CW indicated that he performed favors for Kindo to pay off drug debts incurred by his girlfriend. (Id. at 16). On the day before the robbery he performed one of these favors, that is, he drove to New York City and picked up two black men and drove them to his house in Pennsylvania. He knew one of the men as Shabazz and did not know the other male, who was later identified as James Russell. The men indicated that they were gangsters. (Id. at 17). While in New York on that day, CW also met with Kindo who drove back to Pennsylvania in a black Ford Explorer. (Id. at 16-17).

They arrived in Wilkes-Barre at CW's house at 10 or 11 p.m. (Id. at 17). Shabazz and Russell stayed at CW's home that night, which was the night before the robbery. They brought duffle bags into the house that they had loaded into the car in New York. (Id. at 11). The duffle bags contained a 9mm handgun and a sawed-off shotgun. (Id. at 12). At 4:30 or 5 a.m. the next day, the group left CW's home and drove to Kindo's residence. (Id. at 13). Shay was evidently already at the house with Kindo. While at the residence, CW saw a sawed-off shotgun and two automatic handguns. Shay had another gun which she planned to use during the robbery. (Id. at 18). They discussed robbing the bank.

CW drove Shabazz, Russell and Shay to the bank in his red Chevrolet Cavalier. They waited across the street from the bank for Kindo -who was evidently located somewhere nearby- to give the signal to commence the robbery. (Id. at 19). Once Kindo gave the signal, CW drove into the bank parking lot and dropped off Shabazz, Shay and Russell. (Id.) CW indicated that Shabazz wore a mask, Shay wore a mask and black hooded sweatshirt, and Russell wore all white clothes during the robbery. (Id. at 13).

After dropping the others off to rob the bank, CW drove to the alley behind the bank to await them. (Id. at 19) When CW arrived behind the bank, he left the car to urinate in the alley. While he was still urinating, the three robbers ran down the alley toward the car. (Id. at 19). They entered the car, each holding their own bag of money that had been robbed from the bank. (Id.) The CW re-entered the car and drove them approximately a block to where Kindo waited in his black Ford Explorer. Shay exited the car and entered Kindo's vehicle. Shabazz and Russell told CW to drive them to New York. (Id.)*fn2

Shabazz requested that CW not to take any toll roads while driving them to New York as cameras would record their faces inside the car. (Id. at 19-20). Along the way, CW had to stop for gas, and Shabazz told him that a bank robber should have a full tank of gas. Ultimately, he drove the men to Queens, New York, where they met Kindo and Shay at a local motel. CW drove back to Pennsylvania, evidently alone, after have been provided $100.00 for gas. (Id. at 20).

The FBI obtained CW's report on the matter through several meetings, both over the telephone and in person. CW's version of the manner in which the bank robbery occurred corresponded to evidence that the FBI had already gathered. Including some information that had never been made public. (Id. at 21-22).

The FBI thus enlisted further cooperation from CW in the form of recorded conversations with individuals who had been involved in the robbery. (Id. at 22). On December 28, 2010, CW placed two telephone calls to Shabazz which the FBI recorded. (Id. at 25-37). In the first conversation, the person who answered telephone acknowledged CW's greeting of "Shabazz." (Id. at 25). They engaged in a conversation which referenced the bank robbery, the division of the proceeds from the robbery and a prediction by one of the robbers that they would rob $200,000 from the bank. (Id. at 29).

Eight hours later, the FBI recorded another telephone conversation between Shabazz and CW. (Id. at 34). They discussed a planned home invasion robbery. (Id. at 35). CW was to pick Shabazz up at his residence in New York state and drive him to Pennsylvania to perpetrate the crime. CW asked Shabazz if he would be bringing the "ratchets" which is a euphemism for guns. (Id. at 34). Shabazz indicated that "[w]e got everything on this end." (Id.) Special Agent Whitehead understood this answer to mean that weapons and firearms would be transported in CW's vehicle as it brought Shabazz from Elmira, New York to Pennsylvania. (Id. at 40-41).

Next, on December 29, 2010, the FBI recorded a telephone call between CW and Shaelyn Joy Davis. They made statements about the bank robbery and the division of the proceeds of the robbery. (Id. at 64).

Based upon all of this information, Special Agent Whitehead developed a plan to arrest Shabazz for bank robbery as CW drove him from Elmira, New York to Pennsylvania on December 30, 2010. (Id. at 43). To effectuate a safe arrest, the FBI coordinated with the FBI air surveillance unit, state police helicopters and ground surveillance units from the FBI and the state police. (Id. at 43-44). On the day of the arrest, the investigators outfitted CW with a body recorder, and air and ground surveillance vehicles followed his car. (Id. at 47 - 48). Agents searched both CW and his car before he left to pick up Shabazz. They found no contraband on CW or in his car. (Id. at 47). They told CW to do his best to have Shabazz place any items or bags he had in the trunk of the car with the excuse that he, CW, was a convicted felon and he did not want to get pulled over with any firearms in the car. (Id. at 51).

When CW arrived at the location where he was to pick up Shabazz, air surveillance watched an individual with a dark jacket and blue jeans place bags in the trunk of CW's car. (Id. at 49). Then the individual got in the front passenger seat of the vehicle. (Id.) CW then began the trip back to Pennsylvania. Before he left for Elmira, the FBI had indicated to CW that they would at some point stop his car by having a state police vehicle pull up behind him and activate his lights. (Id. at 50). He was told to immediately pull his car to the right shoulder of the highway as in any routine traffic stop. (Id.) He was told to turn off his vehicle and remove the keys from the ignition. (Id.)

The stop occurred in the southbound lane of Interstate Highway 81 near the Clarks Summit, Pennsylvania exit. (Id. at 52). The stop and arrest went as planned. Shabazz left from the passenger side of the vehicle and the authorities arrested him. (Id. at 55). Incidentally, at the same time as Shabazz's arrest, authorities executed a search warrant in Hanover Township, Pennsylvania and arrested Shaelyn Davis. (Id. at 56).

Special Agent Whitehead believed evidence would be located in the vehicle, namely firearms. (Id.) The officers opened the trunk and found two bags. One was a bluish-green floral suitcase and the other was a blue bag, with no closure on it, a "kind of stuffed sack." (Id. at 57). These bags were not in the trunk when agents searched it earlier in the morning. (Id. at 57-58). The presence of the bags was consistent with air support personnel's report that an individual placed two bags in the trunk when it was in Elmira, New York. (Id. at 58). In the bags the FBI found guns, ammunition and other instrumentalities of crime.

On January 25, 2011, the government filed an indictment against defendant charging him with Bank Robbery, 18 U.S.C. § 2113(d) and 2; Using a Firearm in Furtherance of a Crime of Violence, 18 U.S.C. § 924(c)) and 2; and Possession of Firearm by a Person Convicted of a Crime Punishable by Imprisonment Exceeding One Year, 18 U.S.C. § 922(g)(1) and § 924(e).

Defendant now seeks to suppress the following evidence found in the search of the car: a black duffle bag, a short barreled shotgun, shotgun shells, two handguns, a clip with bullets, a ski mask, a painter suit, gloves and "other items." (Doc. 57, Mot. To Suppress, ¶ 9). He contends that the search and seizure were unreasonable and unconstitutional. Further, defendant argues that all physical evidence and observations of law enforcement officers on the date in questions were "fruit" of the unconstitutional search and seizure and must be suppressed.

Standard of review

The Fourth Amendment to the United States Constitution provides that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . ." "The Amendment guarantees the privacy, dignity, and security of persons against certain arbitrary and invasive acts by officers of the Government or those acting at their direction." Skinner v. Rwy. Labor Exec. Ass'n, 489 U.S. 602, 613-14 (1989).By its own terms, the Fourth Amendment prohibits "unreasonable" searches and seizures. Whether a search and seizure is reasonable, "depends on all of the ...


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