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United States v. McAleese

United States District Court, Third Circuit

September 30, 2013

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

MEMORANDUM OPINION

Mitchell S. Goldberg, J.

We previously held that witness identification testimony, along with records of firearms purchases, were the fruits of an unlawful search of Defendant Frank McAleese’s cell phone, and accordingly, suppressed this evidence. (Mem. Op., July 10, 2013, Doc. No. 37.) The government has filed a motion for reconsideration of that ruling, relying almost entirely upon United States v. Ceccolini, 435 U.S. 268 (1978). This motion does not ask that we reconsider our conclusion that the search violated the Fourth Amendment and indeed the government seems to “accept[ ]” this finding. (Gov’t Br. at 3.) Rather, the government now urges that Ceccolini, a case not previously mentioned by the government, is “on point, ” and requires us to reverse our decision and find that both the records and the witness testimony are so attenuated from the illegal search as to salvage their admissibility.

For reasons explained below, having carefully considered Ceccolini, we remain convinced that our July 10, 2013 decision was correct.

I. Factual and Procedural Background

The facts of this case were presented in detail in our earlier opinion, and need not be repeated at length here. Briefly, Defendant is charged with offenses related to several alleged firearms purchases and sales which took place at Lock’s Philadelphia Gun Exchange (“Lock’s”). The government asserts that Defendant used identification issued in a different name, and falsely certified on firearms purchase forms that he had never been convicted of a felony. As evidence of these charges, the government obtained the transaction records and witness identification testimony from Lock’s. This evidence was discovered after a search through the “contacts” in Defendant’s cell phone, one of which was Lock’s. It was the search of the cell phone that we found to be unlawful, because it was based upon a warrant that contained a material falsehood made with reckless disregard for its truth. (Mem. Op. at 13.) Specifically, the affidavit in support of the warrant stated that the cell phone was recovered from a Hyundai where Defendant’s girlfriend had been assaulted, when in fact it had been recovered from Defendant’s Ford, which contained no evidence of an assault.

II. Discussion

“The purpose of a motion for reconsideration is to correct manifest errors of law or fact or to present newly discovered evidence.” Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985). Such motions are appropriate where the moving party can demonstrate: (1) the availability of new evidence not previously available; (2) an intervening change in controlling law; or (3) the need to correct a clear error of law or to prevent manifest injustice. Watson v. City of Philadelphia, 2006 WL 2818452, at *2 (E.D.Pa Sept. 28, 2006).

Here, the government asserts that reconsideration is necessary to correct a clear error of law in that the Court’s ruling is contrary to the Supreme Court’s decision in Ceccolini. Defendant responds that the circumstances addressed in that case are factually distinct from those at issue here, and that precedent since Ceccolini indicates that suppression was appropriate.

Before turning to the distinctions between this case and Ceccolini, we note that the Supreme Court decided Ceccolini prior to its ruling in United States v. Crews, 445 U.S. 463 (1980), which we relied upon to support our finding that the testimony of Lock’s employees was fruit of the unlawful search.[1] In Crews, the Supreme Court specifically contemplated the application of the exclusionary rule to live testimony where “the witness’ identity was discovered or her cooperation secured only as a result of an unlawful search or arrest of the accused.” Id. at 471-72. We view the reasoning in Crews to be entirely consistent with the Supreme Court’s previous analysis in Ceccolini and find that both cases support the application of the exclusionary rule in this case.

In Ceccolini, a police officer entered a flower shop for the purpose of conversing with his friend, who was employed as a cashier. 435 U.S. at 269-70. During their conversation, the officer observed an envelope lying on the cash register and, without the cashier noticing, looked inside. Id. at 270. There, the officer found money and “policy slips, ” which he knew to be indicative of gambling. Id. The officer then asked his friend whether she knew who owned the envelope, and she responded that it belonged to Ceccolini, the owner of the store. Id. This incident prompted the FBI, who had previously surveilled Ceccolini’s shop, to interview the cashier about four months later. Id. After Ceccolini denied any involvement in gambling, he was charged and convicted of perjury, largely on the strength of the cashier’s testimony. Id. Following the verdict, the district court granted a defense motion to suppress the cashier’s testimony as a fruit of the officer’s illegal search of the envelope, and set aside the conviction. Id. The Second Circuit affirmed, concluding that “the road to [the cashier’s] testimony from [the officer’s] concededly unconstitutional search is both straight and uninterrupted.” United States v. Ceccolini, 542 F.2d 136, 142 (2d Cir. 1976).

The Supreme Court reversed, concluding that the testimony was too attenuated from the unlawful search to justify application of the exclusionary rule. While reaffirming the principle that “verbal evidence which derives so immediately from [a constitutional violation] is no less the ‘fruit’ of an official illegality than the more common tangible fruits, ” the Court held that “since the cost of excluding live-witness testimony often will be greater, a closer, more direct link between the illegality and that kind of testimony is required.” Ceccolini, 435 U.S. at 275, 78 (quoting Wong Sun v. United States, 371 U.S. 471, 486 (1963)). The court instructed that among the factors that must be considered in deciding whether to suppress live witness testimony are the closeness and directness of the link between the illegality and the testimony, whether the witness was known to the police for reasons other than the search, whether the search was conducted specifically for the purpose of identifying potential witnesses, and the willingness of the witness to testify. Id. at 275-80; see also United States v. Schaefer, 691 F.2d 639, 644 (3d Cir. 1982).

In finding that these factors weighed against excluding the cashier’s testimony, the Supreme Court specifically noted that “[s]ubstantial periods of time elapsed” between the search, the initial contact of the witness, and the trial; that “both the identity of [the cashier] and her relationship with the [defendant] were well known” to police prior to the search; and that there was “not the slightest evidence to suggest that [the officer] entered the shop or picked up the envelope with the intent of finding tangible evidence bearing on” the defendant’s criminal activity. Id., at 280-81. Ultimately, the Supreme Court determined that the exclusionary rule should not apply because it “could not have the slightest deterrent effect on the behavior” of the police. Id.

For several reasons, we conclude that the factors identified in Ceccolini weigh in favor of application of the exclusionary rule in this case.

First, the identity evidence at issue was obtained as a direct result of the unlawful search of Defendant’s phone. (Mem. Op. at 19.) The line between the illegality and the discovery of that evidence could not be more direct. Detective McDermott testified that the recovery of Lock’s contact information from Defendant’s phone was the “only reason” for his visit there, and that no other evidence in his investigation revealed any connection to Lock’s. (N.T. 1/24/13, at 104.) ...


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