United States District Court, W.D. Pennsylvania
NORA BARRY FISCHER, District Judge.
Presently before the Court is Defendant Michael Eugene Gorny's Motion to Suppress evidence challenging two search and seizure warrants issued by a local magistrate judge authorizing the search and seizure of evidence from two cell phones found in his possession upon his arrest on July 4, 2012, (Docket No. 41) and the Government's opposition thereto, (Docket No. 44). Gorny's Motion has been fully briefed and the Court accepted documentary evidence and heard oral argument from counsel at a hearing on May 22, 2014. (Docket Nos. 41, 44, 45, 46, 48, 50). Upon consideration of the parties' arguments, the evidence of record and the official transcript of the motion hearing, and for the following reasons, Gorny's Motion  is DENIED.
Gorny is charged at Count One with one count of felon in possession of firearms (i.e., a Glock.40 caliber pistol and a Lorcin, 9mm caliber pistol) in violation of 18 U.S.C. § 922(g)(1), on or about July 4, 2012. (Docket No. 1). The Indictment alleges that Gorny's possession of said firearms was unlawful because of his prior state convictions, including: aggravated assault; carrying a firearm without a license; and possessing firearms in furtherance of an aggravated assault. ( Id. ).
As is noted below, on July 4, 2012, City of Pittsburgh Narcotics Detectives were conducting surveillance near Gorny's home as part of an investigation into his alleged heroin trafficking activities, stemming from his purported sale of heroin to undercover detectives on June 19, 2012. (Def. Ex. B, C). Gorny was arrested by the detectives on that date and the firearms charged in the Indictment were located by the detectives in bushes outside of a residence adjacent to Gorny's home. ( Id. ).
A week after the arrest, on July 11, 2012, Pittsburgh Police sought and obtained search warrants for a black LG phone and a red Samsung phone which were found on Gorny's person when he was arrested on July 4, 2012. (Docket Nos. 41-1 at 2-3; 44-1 at 1-6). Both warrants seek authorization to search the cell phones for the purpose of investigating alleged violations of: 35 P.S. § 780-113(a)(16), possession of controlled substances; 35 P.S. § 780-113(a)(30), possession with intent to deliver controlled substances; 18 Pa.C.S. § 6105, unlawful possession of a firearm; 18 Pa.C.S. § 3925, receiving stolen property; and, 18 Pa.C.S. § 5104, resisting arrest. ( Id. ). The warrants request authorization to search and seize "information stored within the body of the phone to include, but not limited to, the telephone number, direct connect number, carrier IP number, voice mail contents, incoming and outgoing text and picture messages, phonebook contents or contact list, incoming and outgoing call information, as well as any photos or videos." (Docket Nos. 41-1 at 2-3; 44-1 at 1-6). The affidavits in support aver the following:
Your affiants are members of the Pittsburgh Bureau of Police currently assigned as detectives in the Narcotics Unit. Affiant Ladner has been a police officer for the City of Pittsburgh since January of 2005. Affiant Ladner was assigned to the Narcotics Unit in 2009. Affiant Mercurio has been a police officer since April of 1988. Affiant Mercurio has been assigned to the Narcotics Unit since 2005. Other duties included being assigned to a gang and drug suppression detail for five years. Affiant Gorham has been a police officer for the City of Pittsburgh since April of 1979. Affiant Gorham has been assigned to the Narcotics Unit since 1988. Other duties included being assigned as a plain clothes officer for two years. Affiant Novakowski has been a police officer for the City of Pittsburgh since February of 1993. Other duties included being assigned to a gang and drug suppression detail for two years. Affiant Novakowski has been assigned to the Narcotics Unit since 1998. Your affiants have been involved in hundreds of drug arrests with a combined law enforcement experience of over eighty years. Your affiants have been involved in over one hundred undercover purchases of illegal narcotics with your affiants purchasing drugs hand to hand from drug dealers. Your affiants have also been involved in or supervised hundreds of controlled purchases of illegal narcotics. Your affiants have obtained search warrants for illegal narcotics. When serving the search warrants, your affiants have seized illegal narcotics, drug paraphernalia and firearms. Your affiants have worked with numerous confidential informants who have assisted your affiants in narcotics investigations. Your affiants have had the opportunity to interview hundreds of individuals involved in selling and using illegal narcotics. In addition to standard state mandated police training, your affiants have received additional training in narcotics including DEA Narcotics Investigation Course as well as other courses related to narcotics investigations. Your affiants have worked jointly in narcotics investigations with other agencies including the FBI, DEA, State Attorney General's Office, Allegheny County Police Narcotics, U.S. Postal Inspector's Office, Pennsylvania State Police and the Allegheny County District Attorney's Narcotics Enforcement Team.
Through training and experience, your affiants have learned that cell phones are commonly used in the trafficking of illegal narcotics. Your affiants know that it is very common for individuals involved with drug dealing to possess and use cell phones to buy and sell illegal narcotics. Your affiants have encountered and interviewed numerous individuals involved in all aspects of trafficking of illegal narcotics. Your affiants have learned that almost all of these individuals use cell phones as part of their involvement in illegal activity related to drug trafficking, During undercover operations, your affiants have used cell phones to buy illegal narcotics from dealers. Your affiants know that drug buyers and drug dealers alike store the phone numbers of other individuals involved in drug trafficking in their phones. Your affiants know that drug buyers and drug dealers use text messaging to arrange transactions. Your affiants have seen incidents where individuals involved with illegal narcotics have taken cell phone photographs and videos of illegal narcotics. Your affiants know that a cell phone is often a needed tool for individuals involved with buying and selling illegal narcotics.
On Tuesday 06-19-12, affiants Novakowski and Mercurio were working in an undercover capacity in the area of Cherry Court in the City of Pittsburgh. Novakowski and Mercurio came into contact with Michael Eugene Gorny (DOB: 12-06-88, SID 28864787). Gorny sold Novakowski and Mercurio thirteen stamped bags of heroin in exchange for one hundred dollars. Gorny also supplied Novakowski and Mercurio with a phone number (XXX-XXX-XXXX) to contact him for future buys of heroin.
Novakowsi conducted a field test of the sample of heroin purchased from Gorny. The sample tested positive for the presence of heroin. The heroin was sent to the Allegheny County Crime Lab for further analysis. (Laboratory Case # 12LAB05853)
In the days after the undercover meeting, Mercurio and Ladner placed calls and sent text messages to 412-628-0855. The nature of the phone contact was concerning buying heroin. A second transaction did not happen.
Also, in the days after the undercover meeting, your affiants participated in the arrests of numerous individuals involved in selling illegal narcotics. These indivivals (sic) may have been associates of Gorny. Your affiants believe that Gorny may have become aware that Novakowski and Mercurio were undercover officers.
On Wednesday 07-04-12, Ladner and Novakowski arrested Gorny for the delivery of heroin that occurred on Tuesday 06-19-12. Gorny was observed in possession of two stolen handguns, (Lorcin 9mm semiautomatic... and Glock model 22 40 caliber semiautomatic handgun...). Gorny was also in possession of two cell phones. (black and red Samsung Sprint phone and a black LG Verizon phone)
In addition to charging Gorny with the delivery on 06-19-12, your affiants also charged Gorny with possessing the stolen handguns. Gorny is a person not to possess a firearm. A copy of the reports concerning the undercover buy and arrest are attached to this affidavit. (CCR # XXXXXX-XX) These reports number twelve pages.
The two cell phones possessed by Gorny were seized by your affiants. They are currently being held as evidence in the Pittsburgh Police Property Room.
Your affiants are requesting a daytime search warrant for the contents of both cell phones. Your affiants respectfully request a search warrant to gain access into each of the phones listed above. Your affiants wish to search the contents of the phones for evidence related to the delivery of heroin... that occurred on 06-19-12. Your affiants also wish to examine the phones to see if they contain information concerning Gorny's involvement in ...