The opinion of the court was delivered by: Surrick, J.
Presently before the Court is Defendant Kaboni Savage's Motion to
Suppress Physical Evidence Seized From 3510 Palmetto Street and
Request for a Franks Hearing. (ECF Nos. 398, 400, 415.)*fn1
For the following reasons, the Motion is denied.
On May 9, 2012, a federal grand jury returned a seventeen-count Fourth Superseding Indictment charging moving Defendant Kaboni Savage with conspiracy to participate in the affairs of a racketeering ("RICO") enterprise, in violation of 18 U.S.C. § 1962(d) (Count 1), twelve counts of murder in aid of racketeering, in violation of 18 U.S.C. § 1959(a)(1) (Counts 2-7, 10-15), conspiracy to commit murder in aid of racketeering, in violation of 18 U.S.C. § 1959(a)(5) (Count 9), retaliating against a witness, in violation of 18 U.S.C. § 1513(a) (Count 16), and using fire to commit a felony, in violation of 18 U.S.C. § 844(h)(1) (Count 17). (Fourth Superseding Indictment, ECF No. 480.)*fn3 Defendant was charged along with three co-defendants, Steven Northington, Robert Merritt, and his sister, Kidada Savage. Lamont Lewis was also charged in the First Superseding Indictment. The charges against Lewis were disposed of by guilty plea on April 21, 2011. On March 14, 2011, the Government filed a notice of intent to seek the death penalty against Defendant, Merritt, and Northington. (ECF Nos. 196, 197, 198.) The Government does not seek the death penalty against Kidada Savage.
On February 21, 2012, Defendant filed the instant Motion. (ECF No. 398.) Defendant refiled this Motion, accompanied by a Memorandum of Law, on February 22, 2012. (Def.'s Mot., ECF No. 415; Def.'s Mem., ECF No. 415.) The Government has submitted an Omnibus Response, which addresses Defendant's Motion together with other suppression motions. (Gov't's Resp., ECF No. 466.) Defendant filed a Reply to the Government's Response. (Def.'s Reply, ECF No. 502.)
A suppression hearing was held on June 11 and June 12, 2012. (Min. Entries, ECF No. 516, 519.) At the hearing, the Government presented testimony from Kevin Lewis, a Special Agent with the Federal Bureau of Investigation ("FBI"). (June 11, 2012 Hr'g Tr. 10 (on file with Court).) Special Agent Lewis has been the case agent for the FBI investigation into the Kaboni Savage Organization ("KSO") for the past thirteen years. (Id. at 11.) Special Agent Lewis has been heavily involved in wiretap applications and field work related to the KSO investigation.
On April 7, 2003, agents with the FBI and officers of the Philadelphia Police Department ("PPD") searched a building located at 3510 Palmetto Street, Philadelphia, Pennsylvania ("3510 Palmetto"). The search was conducted pursuant to a warrant issued by United States Magistrate Judge Thomas J. Rueter on April 4, 2003. (Warrant, Gov't's Resp. Ex. A.)
3510 Palmetto "is a two story building with a garage on the first floor." (Warrant Attach.
A.) The garage features a roll-up metal door, which is approximately fifteen feet tall. The building is "the only two story structure" on its block. (Id.) Although other garages adjoin the building, the Warrant does not include those garages. (Id.) 3510 Palmetto was not owned or leased by any of the Defendants in this action. (Gov't's Resp. 11; June 11 Hr'g Tr. 165-66.)
The Warrant was issued based on Special Agent Lewis's Affidavit ("Affidavit"). (Affidavit, Gov't's Resp. Ex. A.) The Affidavit contains, inter alia, the following information obtained from confidential informants ("CIs"), named individuals cooperating with the FBI, intercepted wire and oral communications, and video surveillance of 3510 Palmetto. The Affidavit begins with an extensive history of Defendant's involvement in illegal drug trafficking in Philadelphia and evidence linking Defendant and the KSO with illegal activity. Special Agent Lewis stated that he believed that 3510 Palmetto was used by the KSO as "a 'stash house' to store, process and distribute cocaine." (Affidavit ¶ 4.)
3510 Palmetto first came to the FBI's attention in late 2002. Kareem Bluntly, an associate of Defendant's who was working with the FBI, had mentioned a garage where Defendant and associates were "recompressing kilograms of cocaine." (Id. at ¶ 83.) Bluntly did not identify the exact address, but his description of the garage's location and characteristics allowed Special Agent Lewis to determine that the garage was, in fact, 3510 Palmetto. (Id.)
In February 2003, Special Agent Lewis learned from confidential informant "CI-3" that Defendant, Bluntly, and KSO associate Eugene Coleman frequently visited 3510 Palmetto. (Id. at ¶ 87.) CI-3 informed PPD Detective Thomas R. Zielinski that a blue car, with Pennsylvania Registration Number ENZ-9190, had visited 3510 Palmetto on the evenings of February 4 and February 6. (Id. at ¶¶ 88-89.) The car was registered to "Yusef Billa" (id. at ¶ 88), which is a known alias of Defendant's (id. at ¶ 73).
Special Agent Lewis's Affidavit refers repeatedly to physical surveillance conducted outside 3510 Palmetto during the early months of 2003. This surveillance revealed that, on multiple occasions, individuals connected to the KSO visited the address. For example, on the afternoon of January 30, 2003, Special Agent Lewis and other law enforcement officers observed several vehicles driving between 3643 North Darien Street ("Darien"), Defendant's residence, and 3510 Palmetto, carrying Defendant, co-Defendant Steven Northington, and other unidentified males. (Id. at ¶ 95.) Vehicles registered to "Yusuf Billa" were also observed entering and exiting the 3510 Palmetto premises on February 4, 2003 (id. at ¶ 97) and February 28, 2003 (id. at ¶ 98).
The FBI also conducted extensive video surveillance of the street and sidewalk around 3510 Palmetto. (Id. at ¶ 102 & n.14.) This surveillance revealed that Coleman was "staying at [3510 Palmetto] on almost a nightly basis," and "frequently returns to the location two or three times during the course of a day." (Id. at ¶ 102(a).) Coleman exchanged and accepted packages, removed the trash, and greeted visitors to 3510 Palmetto. (Id. at ¶ 102(b)-(f).) Special Agent Lewis believed, based upon all of the facts and circumstances, that many of these packages to contain drugs or money. (Id. at ¶ 102(f).) The video surveillance also captured images of Defendant standing outside 3510 Palmetto. (Id. at ¶ 103.)
The FBI's video surveillance also recorded events which suggested that a KSO associate, Tyrone Toliver, was murdered at 3510 Palmetto in mid-March 2003. (See generally id. at ¶¶ 104-113.) A cooperating witness, "CW-2," stated that Toliver was a customer of Defendant's, and an associate of Coleman's. (Id. at ¶ 104.) Toliver had been arrested by the PPD in February of 2003 (id. at ¶ 106), and the KSO may have feared that Toliver would cooperate with law enforcement (id. at ¶ 104). Toliver's body was found on March 31, 2003 in a Mercury Grand Marquis, which Toliver had borrowed from an individual named Debbie Woods. (Id. at ¶¶ 107-08.) Toliver disappeared on March 14, 2003. (Id. at ¶¶ 108-09.) According to the 3510 Palmetto video, Coleman and an unidentified black male-believed to be Toliver-exited a Mercury Grand Marquis and entered 3510 Palmetto. Over the course of March 14 and 15, several individuals-including Coleman, Bluntly, and a second unidentified male-entered and exited 3510 Palmetto. (Id. at ¶¶ 110-111.) At one point on March 15, the Grand Marquis pulled into a garage adjacent to 3510 Palmetto, remained for several hours, and then pulled out of the garage. (Id. at ¶ 111.) Based on these observations, Special Agent Lewis concluded that Toliver was probably murdered at 3510 Palmetto between March 14 and 15, 2003. (Id. at ¶ 113.)
Special Agent Lewis's personal observations, intercepted wire and oral communications, video surveillance, and statements from cooperating witnesses and confidential informants formed the basis for the Affidavit. The Warrant specifically delineated eighteen categories of evidence which could be seized. (Warrant Attach. B.)
The Fourth Amendment guarantees the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV. It further provides that "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." Id.; see also United States v. Christine, 687 F.2d 749, 756 (3d Cir. 1982).Evidence obtained in violation of the Fourth Amendment is generally not admissible at trial. See, e.g., Herring v. United States, 555 U.S. 135, 139-40 (2009) (explaining history ofexclusionary rule)."The proponent of a motion to suppress has the burden of establishing that his own Fourth Amendment rights were violated by the challenged search or seizure." Rakas v. Illinois, 439 U.S. 128, 130 n.1 (1978).
A. Defendant's Capacity to ...