GUSTAVE DIAMOND, District Judge.
On March 22, 2013, a criminal complaint was filed against defendant Peter Woodley alleging that he violated various provisions of the Controlled Substances Act relating to the distribution of heroin. On April 16, 2013, a grand jury returned a two-count indictment against defendant charging him with conspiracy to distribute and possess with intent to distribute heroin from in and around December 2011, until in and around August 2012, in violation of 21 U.S.C. §846 (Count One), and possession with intent to distribute heroin on or about March 20, 2013, in violation of 21 U.S.C. §§841(a)(l) and 841 (b)(l)(B)(i).
Defendant has filed the following pretrial motions: (1) Motion to Suppress (Document No. 32); (2) Motion for Discovery (Document No. 28); (3) Motion for Disclosure of Promises of Leniency and/or Existence of Plea Bargain Agreements (Document No. 29); (4) Motion to Dismiss (Document No. 30); and (5) Motion for Ordering of Government's Proof or for a Separate Hearing to Determine the Existence of a Conspiracy (Document No. 31). The government filed an omnibus response to defendant's pretrial motions (Document No. 43), and the court subsequently held oral argument on the motions. After considering the parties' written submissions and the arguments of counsel, defendant's Motion to Suppress will be denied, and his other pretrial motions will be granted in part and denied in part as explained below.
As an initial matter, government counsel submitted at oral argument that the court should decide defendant's Motion to Suppress based on the parties' written submissions because defendant made no allegation of any misrepresentation in the affidavit in support of the application for the search warrant, as evidenced by the fact that he did not file a motion for a Franks hearing.
Pursuant to Franks v. Delaware , 438 U.S. 154, 155-56 (1978), upon an appropriate showing, a defendant has the right to an evidentiary hearing to challenge the truthfulness of statements made in a search warrant affidavit establishing probable cause. To establish that a Franks hearing is warranted, the defendant must make a substantial preliminary showing that the affidavit contained a false statement, which was made knowingly and intentionally or with reckless disregard for the truth, and which is necessary to the finding of probable cause. Franks , 438 U.S. at 155-56, 171. In order to make the substantial preliminary showing, the defendant cannot rest on mere conclusory allegations or a "mere desire to cross-examine, " but rather must specifically identify the alleged false statements or omissions in the affidavit and present an offer of proof contradicting the affidavit, including materials such as sworn affidavits or otherwise reliable statements from witnesses. Id. at 171; see also United States v. Yusef , 461 F.3d 374, 383 n. 8 (3d Cir. 2006).
The government is correct that defendant has not filed a Franks motion arguing that he is entitled to a hearing because the affidavit in support of the application for the search warrant contained factual averments that were deliberately false or made with reckless disregard for the truth. Further, the arguments presented by defendant's counsel at the hearing in no way indicate that defendant would be able to make the substantial preliminary showing required by Franks to establish that he is entitled to a hearing. Although defendant's counsel initially suggested that some of the statements contained in the affidavit in support of the search warrant at issue were not accurate, he later acknowledged that the agent who prepared the affidavit did not intentionally misrepresent facts that would give rise to a Franks hearing. Rather, defense counsel argued that the contents of the affidavit did not establish probable cause to arrest defendant and to seize and search his duffle bag.
Because defendant challenges the probable cause determination, the court will confine its review to the four comers of the affidavit that was before the magistrate judge. See United States v. Zimmerman , 277 F.3d 426, 431, n. 3 (3d Cir. 2002) (when considering a challenge to a search warrant, the district court's review is confined to the contents of the affidavit of probable cause that was before the magistrate). In conducting our review, we are mindful that the task of the magistrate who reviews the affidavit in support of a search warrant is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before her, 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). We also are mindful that our duty as the reviewing court "is simply to ensure that the magistrate had a substantial basis for... conclud[ing] that probable cause existed." Id. at 238-39.
In this case, we review the Affidavit in Support of Application for Search Warrant prepared by Drug Enforcement Administration ("DEA") Special Agent Melissa Cobb, which was before United States Magistrate Judge Maureen Kelly on March 20, 2013. Special Agent Cobb's Affidavit incorporated the Application and Affidavit for Disclosure of Location Data Relating to [defendant's] Wireless Telephone dated March 11, 2013, completed by Narcotics Sergeant Christopher Bouye of the New Castle City Police Department and a Task Force Officer with the DEA. Special Agent Cobb's Affidavit and Sergeant Bouye's Application and Affidavit, which both are attached as exhibits to the government's response, set forth the information that follows.
The DEA, along with local law enforcement agencies, conducted an investigation of a heroin trafficking organization involving an individual known as "P", who was later identified as defendant. In connection with the investigation, the DEA utilized a confidential source ("CS") who had been involved in the organization. The CS is federally charged with participating in the heroin distribution conspiracy, and is cooperating with the government with the hope of reducing his or her sentence.
On March 5, 2013, the CS received an e-mail message from a female who advised that "P" wanted to contact the CS. The female provided the CS with P's telephone number, and the CS spoke with "P" to arrange a meeting to discuss future heroin transactions.
On March 6, 2013, the CS placed a consensually recorded phone call to "P" and arranged to meet him in Pittsburgh. On that day, while under constant surveillance by law enforcement agents, the CS met with "P" and discussed future heroin transactions. The CS told the agents that "P" is from New Jersey and travels to Pittsburgh by Greyhound bus to transport hundreds of bricks of heroin. According to the CS, he/she had purchased heroin from "P" in the past and "P's" mode of travel had been consistent.
During the controlled meeting that occurred, which was recorded with the CS's consent and observed by agents the entire time, "P" advised the CS that he would return to Pittsburgh with several hundred bricks of heroin at the end of the next week. "P" agreed to provide the CS with approximately 100 bricks of heroin when he returned to Pittsburgh. The CS understood that "P" would travel to Pittsburgh by Greyhound bus as he had done in the past.
Based on this information obtained from the CS, on March 11, 2013, Sergeant Bouye applied for and obtained court authorization directing that "P's" telephone company provide data location information, so that the ...