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United States of America v. Blue Marsh Laboratories

May 24, 2012

UNITED STATES OF AMERICA,
v.
BLUE MARSH LABORATORIES,INC.: & MICHAEL J. MCKENNA, DEFENDANTS.



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

MEMORANDUM

Blue Marsh Laboratories, Inc. and Michael J. McKenna are charged with one count of criminal conspiracy, fifty-one counts of mail fraud, thirty counts of violating the Clean Water Act, and two counts of making false statements. The defendants filed a motion to suppress evidence due to an unlawful search and seizure of Blue Marsh Laboratories, a motion to suppress the statement of McKenna given at the time a search warrant was executed on Blue Marsh Laboratories, a motion to suppress a recorded phone call between McKenna and a cooperating witness of the government, and a motion to bar the government from use of McKenna's prior criminal record. For the following reasons, I will deny the defendants' motions.

I. BACKGROUND

McKenna owns all of the stock in Blue Marsh Laboratories, a commercial chemical testing laboratory in Douglassville, Pennsylvania. On January 9, 2008, agents from the Pennsylvania Attorney General's Office searched Blue Marsh Laboratories pursuant to a warrant issued by Judge Patrick J. Toole, Senior Judge of the Pennsylvania Court of Common Pleas and Supervising Judge of the 27th statewide investigating grand jury. During the course of the search and seizure, the agents removed approximately 84 computer hard drives from the laboratory. Shortly after the search began, McKenna arrived at Blue Marsh Laboratories and spoke with agents at the scene. McKenna terminated the interview after receiving a phone call from his attorney, who advised him not to answer further questions.

On November 19, 2009, Federal agents tape-recorded a telephone call between McKenna and a government witness identified as Chad Stover. Special Agent James Lorah recorded the phone call. The government did not obtain a search warrant. Chad Stover consented to recording the phone call. The government produced the recorded phone call to the defense.

McKenna has a prior criminal conviction for making unsworn falsifications to authorities. McKenna pleaded nolo contendere on two counts of unsworn falsification to authorities for submitting false laboratory results and was found guilty on February 6, 1995. McKenna's certified conviction records show that he was convicted of making written false statements to the state Department of Environmental Resources (predecessor to the Department of Environmental Protection) "regarding false test results" relating to water quality testing.

II. DISCUSSION

A. The Search Warrant was Not Defective Because the Search Warrant was Not a General Warrant, There was Probable Cause to Issue the Warrant and the Warrant was Properly Executed.

The defendants assert various grounds for suppression of evidence seized pursuant to the search warrant executed on January 9, 2008. The defendants argue that the warrant was defective because the warrant was not issued by an authority within the judicial district of the place to be searched, there was no probable cause for issuance of the warrant, it is a general warrant, the warrant does not describe the place to be searched with particularity, the warrant was not served upon the defendants at the time of execution, the warrant does not authorize removal of computer hard drives, the affidavits attached to the warrant were not delivered to the defendant, there was no good cause for sealing the warrant, and there was no good cause for authorizing a night-time search.

For purposes of the Fourth Amendment requirement that the issuance of a warrant be based upon probable cause, the term "probable cause" requires only a probability or substantial chance of criminal activity, not an actual showing of such activity. The United States Supreme Court defines the probable cause necessary to issue a search warrant as "a fair probability that contraband or evidence of a crime will be found in a particular place." New York v. P.J. Video, Inc., 475 U.S. 868, 876 (1986) (quoting Jones v. United States, 362 U.S. 257, 271 (1960)). The Supreme Court applies a "totality of the circumstances" test to determine whether probable cause existed for the issuance of a search warrant. Illinois v. Gates, 462 U.S. 213, 238 (1983). A reviewing court need not determine whether probable cause actually existed, rather, the court must find that there was a "substantial basis for finding probable cause." United States v. Whitner, 219 F.2d 289, 296 (3d Cir. 2000).

The search warrant application signed by Judge Toole was supported by an affidavit of Special Agent Hentz, of the Environmental Crimes Section of the Pennsylvania Attorney General's Office. In his affidavit, Hentz reviews information gathered through witness interviews, which shows that Blue Marsh Laboratories is disregarding legal reporting requirements, falsifying laboratory results and other documents, and failing to maintain standards and procedures required by the laboratory's accreditation status. Hentz sets forth information from interviews with seven different witnesses. The identity of the witnesses and the bases for their knowledge are supplied in the affidavit. The observations of each witness corroborate the premise that Blue Marsh Laboratories and McKenna are violating the law in the procedures they follow and the findings they report. The affidavit of probable cause provided Judge Toole with enough information to believe that evidence of a crime would be found at Blue Marsh Laboratories. Judge Toole, having been provided with the application, affidavit, and attachments, made a reasonable determination that probable cause existed to search Blue Marsh Laboratories' premises.*fn1 I find that there was a substantial basis for finding probable cause and issuing the search warrant.

The warrant was not a general warrant. The warrant specifically described the place to be searched as "Blue Marsh Laboratories, Inc., 1605 Ben Franklin Highway (also known as "Benjamin Franklin Highway") Douglasville, Berks County, Pennsylvania 19518-1938, including the out buildings and outside chemical storage containers." The warrant also lists the items to be seized in "Attachment A." The defendants complain that the warrant did not allow for seizure of computer hard drives. However, the warrant application does authorize seizing the documents on the computers, and the Agent's affidavit specifically contemplates seizing and removing the hard drives at paragraphs XVII and XVIII. Specifically, paragraph XVIII of the affidavit explains that:

Examination and recovery of electronically stored records requires that the computer(s) and storage devices be removed to a laboratory setting for examination and analysis by a qualified computer forensic expert as to this highly technical process which can take many days or weeks to complete. To attempt such examination on-site would be both impractical and invasive.

The warrant also lists the items to be searched for and seized in Attachment A, including "all documents requested in items 1 through 13 inclusive that are maintained in a computer data file, whether connected to a computer or not." There is no merit to the defendants' argument that the agents acted outside the scope of the warrant by physically seizing the hard drives rather than copying the digital evidence from the 84 computer hard drives while on-site during the execution of the warrant on January 9, 2008. The warrant specifically contemplates seizure of the hard drives and does not vest the executing agents with unbridled discretion to rummage around in the defendants' possessions in search of undefined evidence of crimes. The warrant identifies the place to be searched and the things to be seized, including the computer ...


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