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United States v. McAleese

United States District Court, Third Circuit

July 10, 2013

UNITED STATES OF AMERICA, Plaintiff,
v.
FRANK MCALEESE, Defendant.

MEMORANDUM OPINION

Goldberg, J.

Defendant, Frank McAleese, is charged with firearms offenses related to several firearms purchases and sales at Lock’s Philadelphia Gun Exchange (“Lock’s”).[1] The government asserts that McAleese used identification issued in a different name, and falsely certified on firearms purchase forms that he had never been convicted of a felony. (See Indictment, Doc. No. 1.)

McAleese has moved to suppress records of these purchases maintained by Lock’s, as well as in-court identification testimony by certain of Lock’s employees, arguing that such evidence is fruit of an illegal search of a cellular telephone found in his vehicle. For the following reasons, Defendant’s motion will be granted, and the evidence suppressed.

I. Factual and Procedural Background

The firearms charges stem from an investigation by the New Jersey State Police into the death of McAleese’s girlfriend, Carole Brown. As part of their investigation, the State Police obtained a warrant and searched McAleese’s vehicle, a Ford Taurus. Inside the Ford, the officers recovered a cellular phone which was subsequently searched pursuant to a separate warrant. As part of the cell phone search, the State Police investigated the owner of every phone number stored as a contact in the phone’s memory. One of these phone numbers belonged to Lock’s, and the police eventually visited that store and obtained the transaction records and developed the identification witnesses at issue. In arguing that this evidence should be suppressed, McAleese has challenged the legality of both the search of his car which led to the seizure of his cellular phone, and the search of his phone’s memory which led the police to Lock’s.

The first search challenged by McAleese—the search of his Ford Taurus—was conducted pursuant to a warrant issued on November 10, 2011. (Nov. 10, 2011 Warrant, 1/24/13 Hrng. Ex. 7.) The affidavit supporting the warrant, sworn to by Detective Sergeant Francis McGovern, establishes the following facts.

At 11:15 p.m., police were called to the Salem County Hospital after McAleese brought Carole Brown to the Emergency Room in her 2006 Hyundai Tucson.[2] Brown had severe blunt force trauma to the back of her head, and was pronounced dead at 11:25p.m. The State Police spoke with McAleese, who was covered in blood and appeared to be heavily intoxicated. McAleese told police that Brown was his girlfriend, and that the two had been together at her apartment earlier that night. According to McAleese, Brown had driven her car (the Hyundai Tucson) to the “Corner Bar” to purchase narcotics, and when she did not return after an hour, he walked to the bar, found her unconscious in the passenger seat and drove her to the hospital. Through the window of the Hyundai, police observed significant evidence of an assault, including pools of blood and blood spatter, as well as brain and bone fragments.

The police next visited Brown’s home, where McAleese’s 2005 Ford Taurus was parked “haphazardly” in a parking spot in front of Brown’s apartment. One of Brown’s neighbors told the police that shortly before 10:15 p.m. she heard Brown arguing near the rear of Brown’s Hyundai with someone she assumed was McAleese. According to the neighbor, a few minutes later she looked out the window and Brown’s Hyundai was gone, while McAleese’s Ford Taurus remained.

Sergeant McGovern telephoned Brown’s ex-husband, George Brown, who explained that he and Carole Brown had been divorced for approximately twenty-five years, and spoke only occasionally. He was aware that Carole Brown had been dating McAleese intermittently for nearly twenty years.

Based on this information, on November 10, 2011, warrants were issued authorizing the search of both Brown’s Hyundai Tucson and McAleese’s Ford Taurus for any items that might be considered evidence of murder or drug possession. Inside the Ford, a Samsung “Cricket” cellular phone was found, which is the subject of the second search challenged by McAleese.

The search of the Cricket was executed pursuant to a warrant issued on November 15, 2011. The warrant sought permission to search “all information stored in the telephone.” The supporting affidavit, sworn to by Detective Dennis Quinn, also of the New Jersey State Police, reiterated the facts that formed the basis of the November 10, 2011 warrant, which are detailed above. The only additional facts were contained in the final paragraph:

When Frank [McAleese] was placed under arrest, he was found to possess the aforementioned Samsung “Jitterbug” cellular telephone (MODEL SPT-A310, Bearing Serial Number 268435458905807471). During the execution of the search warrant on the vehicle whereupon the crime was committed (2006 Hyundai Tucson, bearing New Jersey Registration YHH13B, and Vehicle identification Number KM8JM 12B86 U2528 78), a Samsung “Cricket” Cellular Telephone, Model SCH-R211, bearing serial number 268435459000212693 was located therein.

(Nov. 15, 2011 Warrant, 1/24/13 Hrng. Ex. 7, § 5, ¶ H (emphasis added).)

The government concedes, as they must, that the facts in the affidavit indicating that the Cricket was found in the vehicle where “the crime was committed” were false. In fact, the Cricket had not been recovered from the Hyundai, where significant evidence of a homicide was found, but rather from McAleese’s Ford Taurus, which had been parked in front of Brown’s house. Detective Quinn acknowledged this mistake during the suppression hearing, confirmed that the affidavit contained false information and characterized the incorrect location of the Cricket as a “typo.” (Nov. 15, 2011 Warrant; N.T. 1/24/13, pp. 35-36.)

Based upon the facts attested to by Detective Quinn, a warrant was approved by a New Jersey Supreme Court Judge that authorized the search of “[a]ll information stored in the telephone, ” and the seizure of evidence “tending to establish the commission of the crimes of” murder, possession of a weapon, possession of a controlled substance or possession of drug paraphernalia. (Nov. 15, 2011 Warrant, pp. 1-2.)

After the Cricket was recovered, it was searched by Detective McDermott, who navigated through the phone and manually recorded all of the data saved on it, including outgoing calls, incoming and missed calls, text messages and stored contacts. (N.T. 1/24/13, p. 98.) After recording the contacts stored in the phone, McDermott began to investigate the identity of those contacts. Among others, a contact was stored in the phone with the name “Lock’s” along with a phone number with a “215” area code. McDermott was able to ascertain that this phone number belonged to Lock’s Philadelphia Gun Exchange. (Id., pp. 97-99.)

McDermott visited Lock’s roughly four months later, in March 2012, as part of a “general canvas” for information relating to McAleese. There, he approached several of Lock’s employees with a picture of McAleese to inquire if they recognized him. Exactly what occurred in the subsequent exchange between McDermott and the employees at Lock’s is the subject of significant dispute, but both the government and McAleese agree that McDermott’s visit resulted in the recovery of records that reflect three gun transactions between Lock’s and McAleese in 2008. Additionally, during McDermott’s initial visit, and subsequent visits by both McDermott and Special Agent Sarah Jane Serafino of the Bureau of Alcohol Tobacco and Firearms (“ATF”), four of Lock’s employees identified McAleese as an individual who had purchased and sold firearms at Lock’s in the past.

The government intends to introduce the records recovered from Lock’s at trial, and to call Lock’s employees to testify that they recognize McAleese as an individual who previously purchased and sold firearms at the store on multiple occasions. McAleese urges that this evidence is inadmissible because it is fruit of an illegal search in that the search of his Ford Taurus, which led to seizure of the Cricket cell phone, was conducted without probable cause. He also asserts that the warrant to search the Cricket was issued based upon a materially false affidavit. McAleese claims that had the government not conducted these ...


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