The opinion of the court was delivered by: Judge Caputo
Currently before the Court are four pre-trial motions by Defendant Akilah Shabazz. Following a traffic stop of Shabazz's rental car on June 25, 2011, a search warrant was obtained and forged checks and fake identifications were discovered within the vehicle. Shabazz was ultimately charged with federal crimes for, inter alia, aggravated identify theft and fictitious obligations. First, Shabazz seeks to suppress the evidence against him based on the representations made in the affidavit of probable case, and has made a sufficient showing to merit a Franks hearing on this matter. Similarly, this hearing will also address Shabazz's motion to compel videotape of the incident, which the United States represents has been lost. However, Shabazz's motion to preclude evidence outside the scope of the indictment will be denied as moot since the scope of the indictment has since been expanded, and his motion for a lineup will also be rejected as ther will be no in-court identification requiring such a process.
On June 25, 2011, Defendant Akilah Shabazz was a passenger in a vehicle stopped for speeding by Pennsylvania State Police Corporal Michael T. Carroll. Kenneth F. Thompson was driving the vehicle and Defendant Akilah O. Shabazz was in the back seat.
Corporal Carroll testified in his Affidavit of Probable Cause that he smelled marijuana from inside the vehicle, and he summoned a canine unit to further investigate. Shabazz was removed from the vehicle, and the right rear door was left open. Although consent to search the vehicle was denied, the canine entered the vehicle through the open door while executing an outside air sniff. The dog indicated a positive hit for narcotics and a search warrant was obtained. Although no drugs were ultimately discovered, twelve fictitious driver's licenses were found with Shabazz's apparent photograph as well as counterfeit business and personal checks.
The matter was referred to the United States Secret Service. Special Agent David Baker of the United States Secret Service presented an affidavit of probable cause in support of the criminal complaint, and Magistrate Judge Blewitt issued a warrant for Shabazz's arrest on November 1, 2011. On March 6, 2012, Shabazz was indicted with Aggravated Identity Theft under 18 U.S.C. § 1028A(a)(1); Fraud and Related Activity in Connection with Identification Documents under 18 U.S.C. § 1028(a)(3); Fictitious Obligations under 18 U.S.C. § 514(a)(1); and Conspiracy to commit the aforementioned crimes under 18 U.S.C. § 371. (Doc. 22.) Shabazz pleaded not guilty to all counts on March 15, 2012.
A Superseding Indictment was filed on June 12, 2012 for the same four crimes, but expanding the time period to on or about June 1, 2011 through June 30, 2011 and adding additional counts. Specifically, the Superceding Indictment charged Shabazz as a co-conspirator in possessing twenty-three (23) false identification documents, using the social security numbers of ten (10) individuals to unlawfully use such false identification documents, and possessing twelve (12) counterfeit business and personal checks. (Superceding Indictment at ¶¶ 5-7, Doc. 56.) The Grand Jury also charged Shabazz with nine counts of aggravated identity theft for using the identification of nine other individuals, fraud and related activity in connection with identification documents, and seven counts of fictitious obligations for possession with intent to negotiate seven counterfeit checks. (Id. at 8-13.) As above, Shabazz pleaded not guilty to all counts. (Doc. 60.)
In April of 2011, Shabazz filed four motions concerning the evidence sought to be introduced against him in this matter. These four motions are now ripe for the Court's review and will be considered below.
I. Motion to Suppress Pursuant to Fed. R. Crim. P. 12(b)(3)(C) (Doc. 32)
Shabazz seeks to suppress the fruits of an allegedly illegal search of his rental car and requests a Franks hearing. In particular, as the probable cause for the warrant was largely based on a dog sniff, Shabazz argues that "[t]he affidavit of probable cause in support of the search warrant intentionally or recklessly omits reference to the K-9 actually entering the inside of the rental vehicle to conduct two searches for suspected narcotics." (Pet'r's Br. at 6, Doc. 33.) Similarly, Shabazz argues that it would not be possible for the dog to have alerted a detection of drugs as none were ever found. (Id.) As such, Shabazz moves to have all evidence found within the car suppressed.
The Fourth Amendment guarantees 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, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." U.S. Const. amend IV. Such probable cause calls upon the issuing magistrate "to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place." Illinois v. Gates, 462 U.S. 213, 238 (1983). In reviewing a determination of probable cause a district court looks only to whether "the magistrate had a substantial basis for concluding that probable cause existed." Id. And, when evaluating the supporting affidavit to a search warrant, a court must view it "in a common sense and non-technical manner"--focusing "on what the affidavit includes, rather than on what it does not include." United States v. Williams, 124 F.3d 411, 420 (3d Cir. 1997) (citing United States v. Conley, 4 F.3d 1200, 1206, 1208 (3d Cir. 1993)).
While there is a general presumption that an affidavit of probable cause is valid, following the issuance of an ex parte warrant, criminal defendants have the right to challenge the truthfulness of the factual statements contained within the affidavit. United States v. Yusuf, 461 F.3d 374, 383 (3d Cir. 2006). As a preliminary matter, before any hearing is held on the issue, there must be "a 'substantial preliminary showing' that the affidavit contained a false statement, which was made knowingly or with reckless disregard for the truth, which is material to the finding of probable cause." Id. (citing Franks v. Delaware, 438 U.S. 154, 171 (1978)). Reckless disregard for the truth also includes omissions where "an officer recklessly omits facts that any reasonable person would want to know . . . [or] has obvious reasons to doubt the truth of what he or she is asserting." Id. at 383 (quoting Wilson v. Russo, 212 F.3d 781, 783 (3d Cir. 2000)). Yet, even if such false statements are uncovered, a court will then "excise the offending inaccuracies and insert the facts recklessly omitted, and then determine whether or not the 'corrected' warrant affidavit would establish probable cause." Wilson v. Russo, ...