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United States of America v. Thomas Wade

March 26, 2012

UNITED STATES OF AMERICA,
v.
THOMAS WADE, DEFENDANT.



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

MEMORANDUM OPINION AND ORDER

Pending before the court are a motion for a hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978) (ECF No. 57) and a motion to suppress evidence (ECF No. 37) filed by Defendant Thomas Clay Wade ("defendant" or "Wade") in the above-captioned case. On October 12, 2010, a federal grand jury in the Western District of Pennsylvania returned a two-count indictment charging defendant with possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1) and with possession with intent to distribute crack cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(iii). (ECF No. 1.)

On June 28, 2011, defendant submitted an omnibus pretrial filing. (ECF No. 37.) That filing contained: (a) a motion to suppress the drugs and shotgun which were found in the search of Wade's residence; (b) a motion to suppress several confessions made by Wade; (c) a motion for early disclosure of Jencks materials; (d) a motion for early disclosure of Brady materials; (e) a motion for disclosure and exclusion of any evidence of defendant's prior bad acts; (f) a motion for a court order requiring law enforcement agents to retain all rough notes and writings relating to Wade's case; (g) a motion to reveal the identity of the confidential informant who assisted in Wade's investigation; and (h) a motion for leave to file a supplement to defendant's pretrial motions. (Id.) Defendant concurrently filed a brief in support of his motions. (ECF No. 38.)

On September 19, 2011, Wade filed a supplemental pretrial motion requesting disclosure of the identity of the confidential informant used to arrange the controlled buy which ultimately resulted in his arrest. (ECF No. 48.) The supplemental motion requested the confidential informant's telephone number as a purported alternative to disclosing his identity. (Id.) On September 19, 2011, the government filed responses to defendant's pretrial motions. (ECF Nos. 47 & 50.)

On September 20, 2011, the court held a hearing on Wade's myriad pretrial motions. The court denied without prejudice as moot defendant's motion for early disclosure of Jencks material. The court denied without prejudice as moot defendant's motion for early disclosure of Brady material. The court granted in part and denied in part Wade's motion to disclose and exclude uncharged misconduct evidence. The court granted defendant's motion for an order to preserve and retain rough notes and writings. The court denied without prejudice defendant's motion to suppress the drugs and shotgun found during the search of his home, denying defendant's request for a Franks hearing. The court denied without prejudice defendant's motion to reveal the identity of the government's confidential informant. The court granted the motion for leave to supplement and amend his pretrial motions. The court denied defendant's supplemental motion to reveal the confidential informant's identity or telephone number (ECF No. 48). The court took the parties' arguments under advisement with respect to defendant's motion to suppress his confessions and the fruits thereof, which was the only matter not resolved on the record at the hearing. The court continued the hearing to November 22, 2011.

Subsequently, on November 4, 2011, Wade filed a supplemental motion for a Franks hearing. (ECF No. 57.)

At the continued hearing held on November 22, 2011, the court heard arguments and testimony regarding (a) the motion to suppress Wade's confessions and the fruits thereof, the only issue remaining from Wade's omnibus pretrial filing (ECF No. 37), and (b) the motion for a Franks hearing (ECF No. 57). The court set an additional hearing on the motions, which was ultimately held on January 9, 2012. At the conclusion of the January 9, 2012 hearing, the court ordered the parties to file proposed findings of fact and conclusions of law on the two remaining matters. The parties submitted their proposed findings and conclusions on February 24, 2012.

During the three evidentiary hearings on these motions, the court heard testimony from the following government witnesses: (a) Officer William Churilla ("Churilla"); (b) Officer Kevin Merkal ("Merkal"); (c) Officer David Lincoln ("Lincoln"); and (d) Officer William Kelsch ("Kelsch"), all of whom are employed by the Pittsburgh Police Department. Defendant testified. He called the following defense witnesses: (a) Ronald Getner ("Getner"), a private investigator hired to assist in his defense; (b) Kenneth Bush ("Bush"), an acquaintance of defendant whose cell phone was used to place several telephone calls to Wade on the day of the controlled buy; (c) William Smith ("Smith"), a friend of defendant who called Wade on the telephone on the day of the controlled buy; and (d) Shaniqua Johnson ("Johnson"), who was a passenger in Wade's car when it was pulled over by police.

The issues presented in this memorandum opinion and order are (a) whether defendant is entitled to Franks hearing, and (b) whether the court must suppress Wade's confessions as the fruit of an allegedly illegal traffic stop. Defendant argues, in support of the motion for a Franks hearing, that Churilla and Merkel-the dual affiants (see Jan. 28, 2010 Search Warrant (ECF No. 49-1) at 2)-made false statements in the affidavit supporting the application for a warrant to search Wade's residence. Specifically, Wade postulates that no controlled buy was arranged, no confidential informant existed, and that the officers invented the story surrounding the confidential informant in order to manufacture probable cause for the warrant. Evidence was presented at the various hearings on these pending motions regarding defendant's phone records on the day of the controlled buy.

Upon consideration of the parties' submissions and the evidence and testimony presented at the suppression hearing, the court makes the following findings of fact and conclusions of law:

I. Findings of Fact

A. The Controlled Buy and Search Warrant

1. This case involves information obtained from a confidential informant (the "CI"). (Hr'g Tr. Sept. 20, 2011 ("September Transcript") (ECF No. 58) at 50.)

2. On December 24, 2009, Churilla and other Pittsburgh police officers detained the CI for attempting to sell baby powder to police officers. (Id. at 52.) The CI attempted to pass off the baby powder as an illegal drug. (Id.) The CI agreed to provide information to police in exchange for their not filing charges against him for his attempted sale of sham drugs. (Id. at 52-53.) He told police he knew about a person selling drugs in Lawrenceville, Pennsylvania. (Id. at 53.) The CI did not know the real name of the drug dealer in Lawrenceville. (Id. at 54.) He knew the man by the street name of "Spider." (Id.) The investigation led to Wade and his home at 3828 Penn Avenue in the Lawrenceville neighborhood of Pittsburgh, Pennsylvania ("Wade's residence" or the "residence"). (Id.) Police believed that defendant was selling drugs from his residence. (Id.)

3. On January 27, 2010, at approximately 6:30 p.m., Churilla and Merkel met the CI in anticipation of arranging for the CI to buy crack cocaine from Wade. (Id. at 57, 90.) They searched the CI to ensure that he did not have any contraband or money. (Id.) The CI used his cell phone to call Wade. (Id. at 57-58.) The CI arranged to buy a "fifty piece" of crack cocaine in exchange for fifty dollars. (Id. at 59.) After the phone call, Merkel left to set up surveillance on Wade's residence. (Id. at 59-60.) When he arrived at approximately 6:45 p.m., he contacted Churilla to let him know that he was in position, with an unobstructed view of the residence. (Id. at 59-60, 132.) Before Churilla and the CI left the police station, the CI was searched again. (Id.) Churilla drove the CI to within walking distance of Wade's residence, and let him out of the car. (Id. at 60.) He gave the CI fifty dollars as he was leaving the car. (Id.)

4. Churilla telephoned Merkel to inform him that the CI was on his way to Wade's residence. (Id. at 60, 132.) The officers remained on the phone with each other. (Id. at 133.) Churilla watched the CI walk toward the residence until Merkel could see the CI. (Id. at 60.) Merkel had binoculars, but did not need to use them because he was situated approximately twenty-five feet from the front door of Wade's residence. (Id. at 132.) The CI did not stop to talk to anyone. (Id. at 60.) The CI was within the sight of at least one of the officers from the moment he exited Churilla's car to the moment he arrived back to meet Churilla after the drug purchase. (Id. at 60, 133.)

5. Merkel observed the CI arrive at a Wade's residence at approximately 7:00 p.m. (Id. at 132.) Merkel did not observe any activity in or around Wade's residence during the fifteen-minute interim between his arrival and the CI's arrival. (Id.) Merkel observed the CI walk to the front door of the residence. (Id. at 133.) Merkel testified that he "believ[ed]" the CI "made a phone call to let [Wade] know that he was there," but that he was "not sure what happened or if [Wade] answered or not."*fn1 (Id.) The CI walked across the street and sat at a bus stop facing the residence. (Id. at 133-34.) While the CI was sitting at the bus stop, Merkel could not see whether he made any more phone calls-the CI was facing away from Merkel and was wearing a hood. (Id. at 134.) Wade came out of the residence a few minutes later, and the CI gave Wade fifty dollars. (Id. at 133.) Wade counted the money and handed the CI a small quantity of crack cocaine. (Id.) The officers kept the CI under surveillance as he walked back to meet Churilla. (Id. at 135-36.) The substance given to the CI by Wade tested positive as cocaine on a field test kit. (Id. at 136.) Later that night, the officers completed an application for a warrant to search Wade's residence for evidence of drug dealing. (Id.)

6. The next morning, on January 28, 2010, a warrant authorizing the search of Wade's residence was signed. (Id. at 69.)

7. The search warrant described the premises to be searched as follows: The Premises of 3828 Penn Ave. Pittsburgh. Pa 16201. It is a 3 story multi story family residence. The address in question is on the first floor, which leads directly onto Penn Ave. The front door is dark and has the address 3828 affixed to it. There is blue trim with 2 white windows to the right and left of the front door, and the mail box is black and fixed to the right of the front door. And All individuals at the execution of the search warrant.

(Jan. 28, 2010 Search Warrant (ECF No. 49-1) at 1.)

8. The affidavit in support of the application for the search warrant contained the following averments:

On 01/27/2010 at 1830 hrs Officer Merkel and I (Officer Churilla) met with a confidential informant about an individual selling crack cocaine from 3828 Penn Ave Pittsburgh, Pa. 15201. The actor is known to the confidential informant as aka: "Spider". We showed the confidential informant a picture of the individual, who lives at the residence by the name of Thomas Wade . . . , who goes by the street name as "Spider". When the confidential informant saw the picture he/she I.D. Thomas Wade as the individual who is selling the crack cocaine. The confidential informant stated that he only sells fifty pieces ( $50.00 of crack cocaine). Based on this information, the target of our investigation will be Thomas Wade.

The confidential informant then called Mr. Wade by cell phone to the number of 412-583-9683, this number was given to the confidential informant by Thomas Wade. The confidential informant stated to Wade that he was looking for a fifty piece and he was up". Wade state to the confidential informant the "ya hit me up when you get here" . I (Officer Churilla) then searched the confidential informant for monies and contra band with negative results. This search of the confidential informant was witnessed by Officer Merkel.

Officer Merkel then left in an unmarked vehicle and went to the area of 3828 Penn Ave. to take up a fixed and secure location to observe the front door of the residence.

Once in his fixed and secure location Officer Merkel contacted me by cell phone and stated that he was ready. Officer Merkel used a pair of Cannon image stabilizer (15x50 IS UD 4.5 degree) binoculars. The confidential informant was then given fifty dollars of official serialized U.S. currency. . . . This money was photo copied by myself (Officer Churilla) before we left Zone 2 station.

I then contacted Officer Merkel at 1855 hrs and stated to him that I was driving the confidential informant from the our secure location to the target area of 38 28 Penn Ave. I then drove the confidential informant to the mid block of 39th St. (between Butler St. and Penn Ave). The confidential informant the exited my unmarked vehicle at 1857 hrs and started to walk up 39th st. to Penn Ave. I watched the confidential informant walk up the street until Officer Merkel made visual contact with the confidential informant. During this time the confidential informant never stopped to talk with any one. When the confidential informant made his/her way to the corner of 39th and Penn, Officer Merkel saw Thomas Wade exit 3828 Penn Ave. The area of 3828 Penn Ave. is illuminated by several street lights, giving Officer Merkel a clear view of 3828 Penn Ave. and Mr. Wade when he walked from his residence. When Mr. Wade come from the residence, he was wearing brown sweat pants, a dark colored long sleeve tee-shirt, and had braids in his hair. Mr. Wade then meet the confidential informant to the left side of the door of 3828 Penn Ave. Officer Merkel then watched the confidential with his/her right hand give wade the U.S. Currency. Mr. Wade then counted the money and then with his right hand gave the confidential informant the crack cocaine in his/her right hand. Mr. Wade stated to the confidential informant" hit me up when you need more". The confidential informant then walked back down to the 39th street, with Officer Merkel keeping visual contact with him until I (Officer Churilla) stated to Officer Merkel by cell phone that I had a visual contact of the informant. The confidential informant then walked back to the mid block of 39th St. and got back into the unmarked vehicle.

Once back in the vehicle, the confidential informant gave me a ripped knotted baggie corner of crack cocaine. I then drove back to the same secure location and searched the confidential informant for monies and contra band with negative results. This second search was witnessed by Officer Merkel. After finding ...


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