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United States v. McKay

United States District Court, W.D. Pennsylvania

October 14, 2014

UNITED STATES OF AMERICA
v.
OMALI McKAY

MEMORANDUM OPINION

DAVID STEWART CERCONE, District Judge.

On May 22, 2013, a grand jury returned a seventy-nine count indictment charging Omali McKay ("defendant') with one count of conspiracy to distribute and possess with intent to distribute five kilograms or more of cocaine and 280 grams or more of cocaine base in violation of 21 U.S.C. § 846; one count of possession with intent to distribute 500 grams or more of cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(ii); one count of possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A)(i); one count of conspiracy to commit money laundering in violation of 18 U.S.C. § 1956(h); seventy counts of money laundering in violation of 18 U.S.C. § 1956(a)(1)(B)(i) and 2; and five counts of engaging in monetary transactions in property derived from specified unlawful activity in violation of 18 U.S.C. § 1957(a).

Presently before the court are defendant's first and second motions to suppress evidence. With respect to the first motion to suppress, a suppression hearing was held on September 19, 2013, during which Pennsylvania State Police Trooper Edward Walker testified and counsel were given an opportunity to argue their respective positions. For the reasons set forth below, both motions will be denied.

On August 25, 2012, at approximately 5:44 p.m., Corporals Chris Terrana and Marty Moorehead of the Pennsylvania State Police observed defendant as the front seat passenger of a black Chevrolet Cobalt driven and owned by Janice Chelko. Ronald Wright was the back seat passenger in the vehicle. Believing that defendant was the suspect in a domestic violence incident, Corporals Terrana and Moorehead effectuated a traffic stop of Chelko's vehicle. Once the vehicle was stopped, all three occupants were handcuffed, detained and searched. A quantity of cocaine base, commonly known as crack cocaine, was found on Wright's person. No drugs or contraband were found on defendant's person. According to a police report, Wright asserted that the cocaine base belonged to defendant. Defendant ultimately was charged for the quantity of drugs found on Wright's person.

At the suppression hearing, Trooper Edward J. Walker of the Pennsylvania State Police testified that the traffic stop was initiated pursuant to 18 Pa.C.S.A. § 2711(a)[1] following three separate incidents of defendant's alleged criminal activity. The first incident occurred on July 31, 2012. The Lower Burrell Police Department responded to a McDonald's restaurant in the Lower Burrell area of Westmoreland County. When the police arrived at the location, they were advised that at approximately 12:30 a.m., a black male operating a tan colored Hyundai bearing Pennsylvania license plate number HKM-3413 arrived in the parking lot, emerged from the vehicle, brandished a handgun and demanded to know the whereabouts of store manager Chris Fennel. The vehicle from which the individual emerged was registered to defendant. An interview with Fennell revealed that Fennel believed defendant was upset because he thought Fennel was having a romantic relationship with Noelle Mitchell, defendant's estranged girlfriend.

A second incident involved text messages sent from defendant to Mitchell. On August 24, 2012, Trooper Walker interviewed Mitchell in connection with the ongoing investigation of defendant. Mitchell and defendant were reportedly going through a tumultuous break-up and Mitchell expressed concern about her safety after receiving threats of violence from defendant. Trooper Walker personally observed and downloaded during forensic analysis a series of text messages on Mitchell's cell phone sent from defendant between July 25, 2012 and July 27, 2012. A number of messages were "threatening in nature" and the threats were escalating over time. Several messages included threats by defendant to kill Mitchell's mother, sister and niece.

State Police became involved in a third incident after Mitchell contacted them on the evening of August 24, 2012. Mitchell, her sister, and another male were driving north along State Route 28 in Frazier Township, Pennsylvania at around 11:00 p.m. when defendant's vehicle pulled up next to them. Defendant was seen through the window yelling at Mitchell and brandishing a handgun. Defendant's vehicle dropped behind the vehicle in which Mitchell was a passenger when the three occupants heard what they each described as a gunshot. Mitchell's sister, who was driving, fled at a high rate of speed. Defendant pursued the fleeing vehicle and attempted several times to run it off the road. Mitchell, her sister and the other passenger reported the same narrative of events to police.

In the early morning hours of August 25, 2012, Trooper Walker learned of the previous night's incident and began assembling search warrants for two of defendant's residences. Trooper Walker was very concerned for Mitchell's safety and believed that defendant's speedy arrest was warranted because the incident involved domestic violence.

Trooper Walker intended to file a criminal complaint charging defendant for the August 24 incident using the Allegheny Standardized Arrest Program ("ASAP"), a computerized program for processing criminal charges. He attempted to login to ASAP from two different locations but found that the program was malfunctioning. Unsure of when ASAP would be back up and running, Trooper Walker drove to Westmoreland County to have the two search warrants signed.

On August 25, 2012 at 2:16 p.m., the Honorable Christopher Scherer of the Court of Common Pleas of Westmoreland County signed two search warrants: one for defendant's 1051 Puckety Church Road, Lower Burrell, Pennsylvania residence, and a second for defendant's 2204 Constitution Boulevard, Apartment #201, New Kensington, Pennsylvania residence. The face of the Puckety Church Road warrant provided that the warrant shall be served no later than 2:16 p.m. on August 25, 2012. As is confirmed by the Receipt/Inventory, the search of 1051 Puckety Church Road occurred on August 25, 2012 at 5:50 p.m. Evidence seized from the execution of this search warrant included approximately one kilogram of cocaine, an AK-47 type assault rifle with 3, 000 rounds of ammunition and over $270, 000 in cash.[2]

Trooper Walker then advised all law enforcement participating in the drug investigation of defendant that defendant was to be arrested if he was found. From Trooper Walker's perspective, there was probable cause to make a warrantless arrest of defendant for domestic violence offenses under Section 2711(a). At the time the traffic stop was effectuated on Chelko's vehicle, there was neither a warrant for defendant's arrest nor criminal charges filed against him.

Defendant contends that the traffic stop was unlawful under the Fourth Amendment to the United States Constitution and seeks suppression of the crack cocaine. The Fourth Amendment guarantees:

the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures... and that no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing ...

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