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United States of America v. Melvin Harris

November 9, 2012

UNITED STATES OF AMERICA
v.
MELVIN HARRIS, DEFENDANT.



The opinion of the court was delivered by: Judge Nora Barry Fischer

MEMORANDUM OPINION

I. INTRODUCTION

Presently before the Court is a motion to suppress evidence filed by Defendant Melvin Harris ("Defendant") on February 13, 2012.*fn1 (Docket No. 101). Defendant seeks to suppress body wire interceptions of conversations that he had with an informant which the Government will seek to admit into evidence at the trial of this case. (Id.). He claims that the body wire interceptions were made in violation of federal law as the informant allegedly did not consent to be a party to the intercepted conversations. (Id.). The Government opposes Defendant's motion. (Docket No. 117).

Pre-hearing briefs were submitted by both parties and a suppression hearing was held on June 12, 2012. (Docket Nos. 101, 117, 124). The transcript of said hearing has been produced and fully considered by the Court. (Docket No. 131). The Court also ordered the parties to submit proposed findings of fact and conclusions of law and provided a deadline for the submission of responses to same. (Docket No. 125). The Government filed its proposed findings of fact and conclusions of law on August 14, 2012. (Docket No. 140). After two extensions of time were granted, Defendant filed his proposed findings of fact and conclusions of law on September 18, 2012. (Docket No. 146). The Government then filed its response to Defendant's proposed findings of fact on October 10, 2012.*fn2 (Docket No. 147). No further filings have been made and the motion is now ripe for disposition.

Upon consideration of the parties' submissions, the evidence presented during the motion hearing and for the following reasons, Defendant's motion to suppress [101] is denied.

II. BACKGROUND

A.Charges and Potential Penalties

Defendant was charged by Indictment with one count of conspiracy to possess with the intent to distribute and distribute five grams or more of a mixture and substance containing a detectable amount of cocaine base, in the form commonly known as crack, in violation of 21 U.S.C. § 846, for conduct occurring on May 1, 2008. (Docket No. 1). The Government filed an Amended Indictment Memorandum on August 10, 2011, indicating that the reduced penalties of the Fair Sentencing Act of 2010 apply to this case. (Docket No. 72). As such, the potential penalties in this case are set forth in 21 U.S.C. § 841(b)(1)(C), which provides that, upon a first conviction for a felony drug offense, Defendant may be subject to a term of imprisonment of up to twenty (20) years. 21 U.S.C. § 841(b)(1)(C). However, if this is a second or subsequent felony drug offense, Defendant may be subject to a term of imprisonment of not more than thirty (30) years. Id.

B.Findings of Fact*fn3

At issue in this case is whether the informant voluntarily consented to wear the equipment that was used to intercept his conversations with the Defendant. The informant did not testify at the suppression hearing as the Government declined to present this individual as a witness and the Court denied Defendant's motion to produce this individual at that hearing based on a finding that Defendant had not met his burden to overcome the Government's invocation of its privilege to withhold this individual's testimony at this time. (Docket No. 123). Instead, the Government presented the facts and circumstances of the informant's activities through the testimony of Pittsburgh Police Detective and Drug Enforcement Administration ("DEA") Task Force Officer Fred Woodward, whom this Court found credible.

The credible evidence offered at the June 12, 2012 suppression hearing, including the testimony of Officer Woodward and the documentary exhibits entered into evidence, (Govt. Ex. 2A), established the following facts. (See Docket No. 131).

Officer Woodward has significant experience in law enforcement. (Docket No. 131 at 6). He has been a Pittsburgh Police Detective for the past 19 years. (Id.). In 2001, he started working with DEA on a case-by-case basis. (Id.). Later, in 2006, he became a full-time Task Force Officer with DEA. (Id.). He remains a Pittsburgh Police Detective. (Id. at 24). Officer Woodward has worked with informants on many occasions in both roles. (Id. at 6). As such, Officer Woodward testified that he is familiar with the protocols for signing up informants that must be followed by the City of Pittsburgh Police and the DEA. (Id. at 23-26, 47). Officer Woodward explained that the requirements placed on law enforcement signing up informants by the DEA are more onerous than the City's processes and procedures given that there are additional levels of bureaucracy in the federal government. (Id. at 23-26, 28). As is discussed below, the informant in this case was signed up as an informant for the City of Pittsburgh Police rather than DEA. (Id. at 9-10, 23-24).

The informant was arrested near the end of 2007 by Pittsburgh Police Officer David Lincoln. (Id. at 7). The arrest stemmed from a traffic stop by Officer Lincoln and a subsequent search during which the informant was found in possession of approximately one ounce of cocaine and possibly a firearm. (Id. at 7, 8, 41). The informant was charged with possession of cocaine in state court. (Id. at 8). At the preliminary hearing in that case, the informant, who was represented by counsel, expressed to Officer Lincoln that he wished to cooperate with law enforcement. (Id.). Officer Lincoln then contacted the DEA through Officer Woodward to determine whether the agency was interested in working with this individual as an informant. (Id. at 9). A meeting was subsequently set up with the informant, Officer Woodward, and Officer Lincoln at the DEA's offices on November 20, 2007. (Id. at 30). Officer Woodward testified that the informant's attorney did not attend the meeting but expounded that Officer Lincoln would have consulted with the attorney before the meeting. (Id. at 56-57).

Officer Woodward described the informant as middle-aged. (Id. at 75). He was unaware of his or her educational background. (Id. at 76). But, he explained that the informant was fairly articulate and was able to read and understand paperwork that the officers had provided to him or her during their meetings. (Id.). Officer Woodward was aware that this individual had prior convictions and involvement with narcotics. (Id. at 52). He further testified that while he did not conduct a drug or alcohol test of this individual, based on his experience dealing with ...


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