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United States of America v. Harry Katzin

May 9, 2012

UNITED STATES OF AMERICA
v.
HARRY KATZIN, ET AL.



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

MEMORANDUM

INTRODUCTION

Brothers Harry, Michael, and Mark Katzin, each facing charges of pharmacy burglary under 18 U.S.C. § 2118(b) and possession of Schedule II drugs with intent to distribute under 18 U.S.C. § 2118(b), have moved to suppress evidence obtained as the result of the GPS surveillance of a Dodge Caravan driven by Harry Katzin on the night of the brothers' arrest. After the brothers filed their motions and the Court held an evidentiary hearing on the matter, the Supreme Court decided United States v. Jones, 132 S. Ct. 945 (2012), and held that the installation and monitoring of a GPS device on a vehicle traveling on public roads constitutes a Fourth Amendment search. As a result, all parties filed supplemental briefing, and the Court held another hearing on the matter. After carefully considering the briefing and testimony, and, in large measure, as a result of newly governing Supreme Court precedent, the Court grants the suppression motions.

FACTUAL BACKGROUND*fn1

In late 2009, the Philadelphia Police Department approached the FBI about a rash of pharmacy burglaries in northeast Philadelphia and the greater Philadelphia region, primarily of Rite Aid pharmacies. The burglaries appeared linked by a common modus operandi -- the disabling of pharmacy alarm systems by cutting external telephone lines. By May 2010, the FBI had identified Harry Katzin as a potential person of interest. Harry Katzin and another man recently had been apprehended as they attempted to burglarize a Rite Aid in Egg Harbor City, New Jersey. Through background checks, the FBI also learned that Harry Katzin, as well as his brothers Michael and Mark, had criminal histories that included arrests for burglaries and thefts.

As the investigation continued, Special Agent Steven McQueen learned that Harry Katzin was possibly implicated in other suspicious incidents involving Rite Aid pharmacies. For instance, on October 23, 2010, police in Landsdowne, Pennsylvania stopped Harry Katzin after receiving a report of suspicious activity. Police observed at the time that he had cuts on his hands and arguably provocative tools in his car. The police allowed him to go; however, they discovered the next day that the phone lines to a nearby Rite Aid store had been cut, and that burglaries had been attempted at two other local Rite Aid establishments.

In the early morning hours of November 18, 2010, Harry Katzin, Michael Katzin, and one other individual were stopped by police as they sat in a parking lot near a Rite Aid pharmacy in a dark-colored Dodge Caravan registered to Harry Katzin.*fn2 The vehicle was searched, and the police found tools, gloves, and ski masks, which Harry Katzin explained were tools for his employment as an electrician. The police allowed the men to leave. Later that same day, Special Agent McQueen visited the scene and learned that the telephone lines to the Rite Aid pharmacy had been cut; however, it was unclear whether they had been cut the prior evening or sometime in the more distant past. A week later, on November 26, 2010, a Rite Aid in Gibbstown, New Jersey was burglarized using the same method of defeating security, and video surveillance from a nearby grocery store showed a dark-colored Dodge Caravan parked in the shopping center parking lot for a long period of time in the early morning hours of November 26.

In late November or early December of 2010, the FBI performed physical surveillance of Harry Katzin and determined that he often parked the Dodge Caravan on the 3500 block of Mercer Street in Philadelphia, near the home of a relative with whom Harry Katzin seemed to be staying. Because the surveillance team was not able to provide as much coverage of Harry Katzin as desired, Special Agent McQueen requested the installation of a GPS tracker to the Dodge Caravan. A team of agents affixed a battery-powered GPS device to the exterior of the Dodge Caravan while it was parked on the 3500 block of Mercer Street. According to testimony at the September 15, 2011 hearing, the installation took place on December 13, 2010.*fn3

Late on December 15, 2010, while monitoring the information output from the GPS device, Special Agent McQueen noticed that the Dodge Caravan had departed the city of Philadelphia and was traveling north on Interstate 476. Comparing the GPS tracking information to mapping software loaded with Rite Aid locations, Special Agent McQueen determined that the Dodge Caravan took I-476 to I-78, left the highway, and then stopped near a Rite Aid store in Hamburg, Pennsylvania. He enlisted the assistance of the Pennsylvania State Police, who established a perimeter near the Rite Aid. There is no evidence that law enforcement personnel actually saw the Dodge Caravan at the scene of the burglary that occurred at the Hamburg Rite Aid pharmacy; Special Agent McQueen testified that he specifically had instructed state troopers and local law enforcement to keep a wide perimeter so as to ensure that the occupants of the vehicle were not alerted to police presence.

When the Dodge Caravan finally left the Hamburg Rite Aid's vicinity, Special Agent McQueen alerted the state police, and state troopers followed the Caravan back onto the highway. As state troopers followed the car, at no time did they observe the driver violate any traffic laws. Meanwhile, a Hamburg police officer visited the Rite Aid to verify that a burglary had taken place. After receiving confirmation that the Rite Aid had, indeed, been burglarized, the state troopers pulled over the Dodge Caravan. Driver Harry Katzin and passengers Mark and Michael Katzin were arrested, and the Dodge Caravan was taken to state police headquarters. After a search warrant was obtained for the Dodge Caravan, law enforcement officers discovered stolen merchandise from the Rite Aid pharmacy, including the pharmacy's surveillance system and Schedule II drugs, in the vehicle.*fn4 Subsequently, all three of the brothers were charged with pharmacy burglary and possession of Schedule II drugs with intent to distribute.

DISCUSSION

The three Katzin brothers have moved to suppress the evidence discovered as a result of the GPS monitoring of the Dodge Caravan.*fn5 Each argues that the warrantless installation and monitoring of a GPS tracker violated their Fourth Amendment rights, particularly in light of the Supreme Court's recent decision in Jones. Michael and Mark Katzin further argue that, even though Harry Katzin was the driver and only his name is on the Caravan's title, they each have standing to raise objections to the search. The Government counters (1) that reasonable suspicion and/or probable cause without a warrant is sufficient to justify the use of the GPS device, (2) that, in any event, it is entitled to invoke the good faith exception to the exclusionary rule, and (3) that Michael and Mark Katzin lack standing to contest the GPS evidence. Notably, the Government does not raise any independent source or inevitable discovery arguments with respect to the evidence obtained as a result of the GPS tracking in this case.

The Court will begin by analyzing Jones and then will address each of the Government's arguments against suppression.

A. The Supreme Court Jones Decision

While the suppression motions in this case were pending, the Supreme Court decided United States v. Jones, 132 S. Ct. 945 (2012), effectively putting an end to the debate (and the circuit split)*fn6 over whether the installation of a GPS tracker on a vehicle parked in a public street, coupled with the tracking of the vehicle by means of the GPS device, constitutes a search or seizure under the Fourth Amendment. Because the questions answered -- and unanswered -- by the Supreme Court in Jones are integral to reaching a decision in this matter, the Court arguably is obliged to examine it in some detail.

After an extensive investigation of Antoine Jones's possible participation in drug trafficking activities, including the use of visual surveillance and wiretapping, the Government sought a warrant authorizing the use of an ...


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