United States District Court, W.D. Pennsylvania
GUSTAVE DIAMOND, District Judge.
On January 15, 2013, defendant James Gray and his co-defendant Tyrone Parker were charged in a one-count indictment with conspiracy to possess with intent to distribute and distribution of 500 grams or more of cocaine from on or about December 5, 2012 to on or about December 6, 2012, in violation of 21 U.S.C. §846. Defendant has filed the following pretrial motions: (l) Motion to Suppress Evidence and Statements (Document No. 53); and (2) Motion to Produce Evidence which the Government Intends to Use Under Federal Rules of Evidence 404(b) and 609 (Document No. 52). The government has filed its Omnibus Response in Opposition to defendant's motions (Document No. 60), and defendant has filed a Reply thereto (Document No. 61). Hearings were held on these matters on December 5 and 9, 2013. After considering the evidence presented at the hearings and the arguments of counsel, defendant's Motion to Suppress will be denied, and his Motion Under Rules 404(b) and 609 will be granted in part and denied in part as explained below.
At the hearings, the government presented testimony by FBI Agent Leonard Piccini, Jr., Pennsylvania State Police ("PSP") Corporal Todd Rudy and PSP Trooper Scott Fidler. Their testimony, and the exhibits received into evidence at the hearings, establish the facts summarized below.
In the fall of 2012, a confidential source ("CS") informed the FBI that Tyrone Parker had traveled from New York to Pittsburgh on three prior occasions to conduct drug transactions with the CS. The CS indicated that Parker previously had used "tail cars" to make the deliveries, meaning that Parker had utilized a courier who drove a second vehicle to actually transport the drugs. In recorded telephone calls, the CS and Parker negotiated a deal for two kilograms of cocaine. Parker planned to travel to Harrisburg, Pennsylvania on December 6, 2012, and then would contact the CS to determine an exact meeting location.
The FBI determined the best way to intercept the cocaine was to locate Parker on the highway and conduct a traffic stop of his vehicle, which the FBI learned was a 2011 black Honda. The FBI provided the information concerning Parker and his vehicle, including his past use of tail cars, to the PSP Interdiction Unit in Harrisburg.
The PSP set up a patrol area on a section of the Pennsylvania Turnpike on the afternoon of December 6, 2012, with a plan to conduct a traffic stop of Parker's vehicle. The FBI provided the PSP with data indicating the location of the cellular telephone associated with Parker. The first PSP trooper who spotted Parker's Honda vehicle noticed that a van appeared to be following Parker. This trooper observed the Honda and the van traveling in tandem for approximately 40 miles, meaning that when the Honda made a lane change, the van did so as well. The trooper reported this information over a protected communication line to the other troopers involved in the operation.
Trooper Anthony Todaro eventually observed the Honda vehicle driven by Parker being followed too closely by a Ford Econoline van. Trooper Todaro conducted a traffic stop of the Honda, and the van continued westbound on the Turnpike. This information was relayed to Trooper Fidler.
Trooper Fidler drove westbound to conduct a traffic stop of the van for following the Honda too closely, but instead he discovered the van, with its emergency lights activated, stopped along the side of the highway. Trooper Fidler pulled up behind the van, and at that point defendant exited the vehicle. Trooper Fidler directed defendant back into his van, and he complied. The trooper approached the van and asked defendant why he was parked on the side of the road, and defendant responded that smoke was coming from his engine. Trooper Fidler looked at defendant's engine, but did not observe any smoke or other problems. The trooper asked defendant if he needed a tow truck, but defendant declined. Trooper Fidler then asked defendant for his license and registration. While defendant made those items available, Trooper Fidler observed cell phones on the center console of the van, and smelled a strong odor of air fresheners, which he testified are commonly used to cover the scent of narcotics.
In response to Trooper Fidler's question about his travel plans, defendant responded that he was traveling to Lancaster, Pennsylvania. However, at that point, defendant already had passed all Lancaster exits, but he claimed that he had become distracted while talking to his wife on the phone. Trooper Fidler then informed defendant of the traffic violation of following the other vehicle too closely, but defendant claimed he did not recall committing any such violation.
Trooper Fidler returned to his vehicle to run a check of defendant's license and learned that defendant had several prior narcotics convictions in Pennsylvania and New York. As Trooper Fidler was checking defendant's license, defendant again exited the van, approached the trooper's vehicle and asked where he was on the Turnpike. Trooper Fidler directed defendant back to his van.
Trooper Fidler returned to defendant's van, returned his license, gave him a verbal warning for following another vehicle too closely and told him he was free to leave. Trooper Fidler took a few steps back from the van and then asked defendant if he could ask him some additional questions, and defendant agreed.
Trooper Fidler explained to defendant the purpose of interdiction on the highway, which is that troopers look for criminals and contraband. Trooper Fidler then asked defendant if he had any marijuana, heroin or large sums of money, which he denied. When Trooper Fidler asked defendant if he had cocaine, defendant hesitated, looked away and said no. According to Trooper Fidler, defendant's demeanor and response to the inquiry about cocaine raised his suspicion because he had not reacted that way regarding any of the other narcotics.
Trooper Fidler asked defendant if he had any prior arrests. Defendant responded that he had been arrested for some minor drug violations and domestic matters. Trooper Fidler again asked if defendant would like a tow truck, but defendant declined. In response to Trooper Fidler's question about whether defendant still planned to travel to Lancaster, defendant said that he was ...