United States District Court, Middle District of Pennsylvania
Christopher C. Conner, Chief Judge
Presently before the court is defendant Fareed Ray’s (“Ray”) motion to suppress evidence. (Doc. 211). For the following reasons, the court will deny the motion.
I. Findings of Fact
On the morning of February 2, 2012, Pennsylvania State Police Trooper Justin Gardner (“Trooper Gardner”) arrested Michael Bobb (“Bobb”) in Perry County, Pennsylvania after a traffic stop. (Doc. 227 at 4). During the traffic stop, troopers had performed a consent search of the vehicle and located two firearms and drug paraphernalia. (Id. at 4, 17). Bobb also had an outstanding warrant for a parole violation. (Id. at 5).
After Bobb was arraigned, Troopers Jay Mearkle (“Trooper Mearkle”) and Scott Fidler (“Trooper Fidler”) interviewed him at the Perry County Courthouse. (Id. at 5, 16, 46). Bobb explained that he had intended to travel to Harrisburg to trade stolen firearms for a quantity of drugs with an individual named “Diego.” (Id. at 5, 46). Bobb explained that he had engaged in such transactions with “Diego” for the past few months. (Id. at 46). Bobb also indicated that he would be willing to arrange a transaction with “Diego” for that day. (Id. at 5, 46).
Bobb provided the troopers with a phone number linked to “Diego, ” (717) 303-4033, and then Bobb placed a phone call to that number in the troopers’ presence. (Id. at 6, 23, 48). The troopers did not attempt to record this initial phone call and they were only able to hear Bobb’s half of the conversation. (Id. at 6-7). During the phone conversation, Bobb arranged to purchase two bundles of heroin and two eight balls of cocaine from “Diego” in exchange for a firearm. (Id. at 7).
After the initial phone call, the troopers contacted other law enforcement personnel to determine if anyone knew an individual known as “Diego.” (Id. at 8-9, 46-47). The troopers learned that Ray was known as “Diego, ” but they were uncertain how they obtained this information. (Id. at 8-9, 19). Trooper Mearkle believed U.S. Marshal Duncan identified Ray as “Diego.” (Id. at 8). Trooper Fidler received a picture of Ray on his phone, but cannot recall how it was obtained. (Id. at 47). Trooper Mearkle believed the photograph was obtained through database records, but cannot recall the specific database used. (Id. at 8-9, 20-21). When the troopers showed Ray’s photograph to Bobb, Bobb identified Ray as “Diego.” (Id. at 9, 47).
Trooper Mearkle subsequently contacted Drug Enforcement Administration Special Agent Bill Cook (“Agent Cook”), who advised Trooper Mearkle that the matter may very well be investigated and prosecuted federally, and therefore directed Trooper Mearkle to record any future phone calls between Bobb and “Diego.” (Id. at 10, 37). Trooper Mearkle placed a recording device on Bobb’s telephone, but he mistakenly plugged it into the microphone jack instead of the audio jack. (Id. at 10-11).
At approximately 5:17 p.m., Bobb called “Diego” again from Trooper Mearkle’s vehicle and stated that he would meet “Diego” at a Burger King located at Cameron and Maclay Street in Harrisburg. (Id. at 11-12, 61). Due to Trooper Mearkle’s error, the recording device only recorded Bobb’s side of this conversation. (Id. at 10-11). During this conversation, Bobb also changed the original arrangement from two bundles of heroin and two eight balls of cocaine for a firearm to three bundles of heroin, three eight balls of cocaine, and a different firearm. (Id. at 12). Bobb stated that he wished to trade a .45, similar to a firearm he had provided “Diego” in the past. (Id.)
Trooper Mearkle established a surveillance team, and planned to arrest “Diego” at the conclusion of the planned transaction. (Id. at 12-13). At 5:30 p.m., Bobb contacted the same phone number. He advised “Diego” that he was at the Burger King and that he was going inside to get something to eat. (Id. at 13). Approximately three minutes later, “Diego” called from the same number, advised Bobb that he was five minutes away, and instructed Bobb to come out of the Burger King to meet him. (Id. at 14). These conversations were unrecorded.
Meanwhile, Trooper Fidler was conducting surveillance of the Burger King. (Id. at 51). Trooper Fidler observed a silver Honda pull around to the back parking lot of the Burger King, and Trooper Fidler identified Ray as the rear passenger. (Id.) Trooper Fidler observed the Honda stop in the parking lot momentarily before it pulled out of the Burger King parking lot. (Id. at 51-52, 65). Several troopers followed the Honda, but they lost surveillance of it for a minute or two. (Id. at 69).
At approximately 5:49 p.m., “Diego” called Bobb again from the same number, stated that the location was “too hot, ” and changed the meeting location from the Burger King to 20th and Herr Street. (Id.) Bobb stated that “Diego” told him to stay on the phone until Bobb arrived at the new meeting location. (Id. at 15-16). This conversation also went unrecorded. At this time, Trooper Mearkle exited the vehicle and called Trooper Fidler to advise him of the location change. (Id. at 15). Trooper Fidler and other surveillance team members relocated to 20th and Herr Street. (Id.) When Trooper Mearkle stepped back into the car, Bobb advised him that “Diego” wished to speak with him. (Id.) Trooper Mearkle took the phone from Bobb and ended the call. (Id.)
When Trooper Fidler arrived at the area near 20th and Herr Street, he observed the same silver Honda parked at 20th and York street, which is approximately three blocks away from the intersection of 20th and Herr Street. (Id. at 53, 70-71). Trooper Fidler testified that the vehicle’s location provided a good vantage point of the intersection of 20th and Herr Street. (Id. at 53). After Ray was identified as the passenger in the back seat, Trooper Fidler arrested him for attempt to deliver a controlled substance. (Id. at 54). Trooper Fidler searched Ray incident to arrest, and recovered a small amount of marijuana and cash. (Id. at 54-55). He also recovered Ray’s cell phone from the floorboard where he was sitting. (Id. at 55). Trooper Mearkle called the phone number attached to “Diego, ” (717) 303-4033, and his call was directed to Ray’s cell phone. (Id. at 55). After receiving consent to search the vehicle from the vehicle’s driver, Trooper Fidler recovered a half ...