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United States v. Korey

United States District Court, W.D. Pennsylvania

February 20, 2015

UNITED STATES OF AMERICA
v.
JASON T. KOREY, Defendant.

OPINION

JOY FLOWERS CONTI, Chief District Judge.

Pending before the court is a motion to suppress evidence seized during a search of the residence of Jason T. Korey ("Korey" or "defendant") on April 17, 2014, (ECF No. 26), and a motion for discovery with respect to a search and seizure policy of the United States Probation Office ("USPO"), (ECF No. 27). On April 29, 2014, a federal grand jury in the Western District of Pennsylvania returned a one-count indictment charging Korey with possession of a firearm and ammunition by a convicted felon, on or about April 17, 2014, a violation of 18 U.S.C. ยง 922(g)(1). (ECF No. 1.) On May 14, 2014, Korey pleaded not guilty to count one of the indictment. (ECF No. 17.) On October 9, 2014, Korey filed a motion to suppress evidence, (ECF No. 26), and a motion for discovery, (ECF No. 27). On November 6, 2014, the government filed an omnibus response to Korey's motions. (ECF No. 37.)

On November 24, 2014, the court held a hearing with respect to Korey's motion to suppress and motion for discovery.[1] (H.T. 11/24/14 (ECF No. 40).) The court heard testimony from Marcus White ("White"), a probation officer for the USPO, and exhibits were entered into evidence. (Id.) The court ordered the parties to file proposed findings of fact and conclusions of law with respect to Korey's motion to suppress, and supplemental briefing with respect to Korey's discovery request for the USPO's search and seizure policy. (Id. at 19, 75.)

On December 4, 2014, the government filed its supplemental brief with respect to Korey's discovery request. (ECF No. 38.) On December 29, 2014, Korey filed a response to the government's supplemental brief. (ECF No. 44.) On January 22, 2015, the parties filed their proposed findings of fact and conclusions of law. (ECF Nos. 46, 47.)

I. Motion to Suppress

After considering the parties' submissions and the evidence presented at the suppression hearing, the court makes the following findings of fact and conclusions of law with respect to Korey's motion to supress:

A. Findings of Fact

The "2005 case"

1. In 2005, Korey in a separate federal criminal action, i.e., United States v. Korey, Crim. Action No. 04-15 (W.D. Pa. Feb. 4, 2004) (the "2005 case"), was sentenced to a term of imprisonment of 393 months and a term of supervised release of five years. (Crim. Action No. 04-15, ECF No. 85.)

2. On May 31, 2013, the court in the 2005 case determined Korey violated conditions of his supervised release, revoked Korey's term of supervised release, sentenced him to a term of imprisonment of thirteen months, and a term of supervised release of twenty-four months. (Crim. Action No. 04-15, ECF No. 160.) The court imposed upon Korey several conditions of supervised release, including-but not limited to-the following conditions:

- The defendant shall submit his person, property, house, residence, vehicle, papers, business or place of employment, to a search conducted by a United Sates Probation/pretrial Services Officer at a reasonable time and in a reasonable manner based upon reasonable suspicion of contraband or evidence of a violation of a condition of supervision. Failure to submit to a search may be grounds for revocation. The defendant shall inform any other residents that the premises may be subject to searches pursuant to this condition.
- The defendant shall not commit another federal, state, or local crime.
- The defendant shall not possess a firearm, ammunition, destructive device, or any other dangerous weapon.
- The defendant shall not associate with any persons engaged in criminal activity and shall not associate with any person convicted of a felony, unless granted permission to do so by the probation officer.
- The defendant shall not frequent places where controlled substances are illegally sold, used, distributed, or administered.

(Crim. Action No. 04-15, ECF Nos. 131, 160.)

3. White was assigned to supervise Korey while he served his two-year term of supervised release in the 2005 case. (H.T. 11/24/14 (ECF No. 40) at 34.)

Korey's Criminal Summons Issued on January 13, 2014

4. On January 13, 2014, an officer with the Baldwin Police Department pulled Korey over while he was driving his mother's vehicle, a 2002 green Chevy Cavalier, and issued him criminal summons for "fleeing or attempting to elude police officer" and "driving while operating privileges is suspended or revoked." (Gov't Ex. 1 at 5; H.T. 11/24/14 (ECF No. 40) at 35, 39.) The narrative signed by the reporting officer from the Baldwin Borough Police Department read, in part, as follows:

As soon as I pulled out to get behind Korey he greatly accelerated in an attempt to evade me. Korey continued to speed on Churchview Avenue until he reached Greenglen Drive. At Greenglen Korey made a right turn at an unsafe speed without signaling. Korey proceeded down Greenglen accelerating the entire way. As Korey approached the bottom of Greenglen he abruptly pulled his vehicle to the side of the road partially blocking a driveway. He turned the vehicles engine off and exited the vehicle attempting to leave the scene.
I stopped Korey and asked him about his actions. Korey stated to me that he didn't want to get a ticket for a suspended license so he was attempting to lose me to get enough space to get out of the vehicle and run away. Korey had a large fixed blade knife concealed in his waistband that he said he carried for protection.

(Gov't Ex. 1 at 5.)

5. White received notice of Korey's encounter with the Baldwin Borough Police Department from the National Crime Information Center ("NCIC"). White learned from the NCIC that the Baldwin Borough Police Department "ran" Korey's name and date of birth. White conducted a criminal record search and learned the Baldwin Police Department charged Korey with "fleeing or attempting to elude police officer" and "driving while operating privileges is suspended or revoked." (H.T. 11/24/14 (ECF No. 40) at 35.) White obtained a copy of the police report with respect to the January 13, 2014, incident, and learned the police officer who stopped Korey found a large fixed blade knife on Korey's person. (Id. at 36.)

6. Upon learning about Korey's encounter with the Baldwin Police Department on January 13, 2014, White became concerned that Korey violated the following conditions of his supervised release: (1) the defendant shall not commit another federal, state, or local crime; and (2) the defendant shall not possess a firearm, ammunition, destructive device, or any other dangerous weapon. (Id. at 36-37.)

Shooting Involving Mooney's Bar on March 9, 2014

7. On March 9, 2014, officers from the City of Pittsburgh Bureau of Police responded to a call for "shots fired" placed by the owner of Mooney's Bar, who told dispatch that "he ran outside picked up a firearm went back in the bar then it sounded as if someone was trying to kick in the door of the business." (Gov't Ex. 2 at 2; H.T. 11/24/14 (ECF No. 40) at 37.) The owner of Mooney's Bar also told dispatch "that there was a white male wearing a red hoodie across the street that was possibly involved." (Gov't Ex. 2 at 2.)

8. A responding police officer encountered a man named Ryan Murtaugh ("Murtaugh"), who was wearing a red hoodie sweatshirt and blue jeans, standing outside the bar next to a vehicle, i.e., a 2002 green Chevy Cavalier, owned by Korey's mother. (Gov't Ex. 2 at 2; H.T. 11/24/14 (ECF No. 40) at 38.) The police report provides the following information with respect to the responding officer's encounter with Murtaugh:

Murtaugh first stated that he was the passenger of the vehicle, then stated he was driving down Sankey about to make the right onto Brownsville Rd. when he heard one shot coming from the rear of the vehicle. He then turned right onto Brownsville and heard several more shots. He then pulled over across the street from Mooney's. He and his passenger, whom he stated was Jason Korey, then exited the vehicle and ran.

(Gov't Ex. 2 at 2.)

9. An eyewitness provided an account of the shooting to two responding police officers. The police report provides the following information with respect to the eyewitness' account of the shooting:

While Unit 3311 were clearing the scene they were flagged down by [a witness]. [The witness] told [the officers] that she was inside her vehicle directly behind the green Chevy Cavalier. [The witness] stated that the vehicle was stopped almost into the intersection so that they could see down Brownsville Rd. At which point she stated that she saw the front seat passenger and the right rear passenger each stick a firearm out of the window and fired an unknown amount of rounds down the 2600 block of Brownsville Rd. Fearing for her life she left the area.

(Gov't Ex. 2 at 3; H.T. 11/24/14 (ECF No. 40) at 37-39.)

10. White learned about the March 9, 2014, shooting from the "Pittsburgh Intelligence Police Bureau, " which claimed Korey was involved in the incident. White also received the "investigative reports" which provided details about the incident. (H.T. 11/24/14 (ECF No. 40) at 37.)

Murtaugh's Criminal Summons for DUI Issued on March 10, 2014

11. On March 10, 2014-the day after the shooting involving Mooney's bar-an officer with the Baldwin Borough Police Department stopped a 2003 white Cadillac Deville driven by Murtaugh because the officer suspected Murtaugh was driving under the influence ("DUI"). (Gov't Ex. 3; H.T. 11/24/14 (ECF No. 40) at 40.) Korey was a passenger in the 2003 white Cadillac Deville driven by Murtaugh when it was stopped. (Gov't Ex. 3 at 2; H.T. 11/24/14 (ECF No. 40) at 40.) The police officer conducted a search of the vehicle driven by Murtaugh and recovered from the trunk of the car a blue grocery bag containing two hypodermic needles, two empty stamp bags, alcohol prep pads and cotton balls. (Gov't Ex. 3 at 4.)

12. Murtaugh was charged via criminal summons for DUI. (Gov't Ex. 3 at 4.) The police report with respect to the March 10, 2014, incident indicates that following a hospital visit, the issuing police officer "transported [Murtaugh] to Koreys [sic] residence... where he [was] staying." (Id.)

13. White performed a background check on Murtaugh and learned he is "a convicted felon for possession of a firearm." (H.T. 11/24/14 (ECF No. 40) at 40.)

14. Upon learning about the shooting involving Mooney's Bar on March 9, 2014, and Murtaugh being charged with DUI on March 10, 2014, White became concerned that Korey violated the following conditions of his supervised release: (1) the defendant shall not associate with any persons engaged in criminal activity and shall not associate with any person convicted of a felony, unless granted permission to do so by the probation officer; (2) the defendant shall not frequent places where controlled substances are illegally sold, used, distributed, or administered; and (3) the defendant shall not possess a firearm, ammunition, destructive device, or any other dangerous weapon. (Id. at 40-41.)

Missing Items Reported to Police by Murtaugh on March 11, 2014

15. On March 11, 2014-the day after Murtaugh was issued a criminal summons for DUI-Murtaugh contacted the Baldwin Borough Police Department. (Gov't Ex. 3 at 9; H.T. 11/24/14 (ECF No. 40) at 41-43.) Murtaugh told a police officer from the Baldwin Borough Police Department that prior to the DUI incident, he lived with Korey, but after Murtaugh was processed for the DUI, Korey told him not to come to his residence because Korey's mother "did not want him there." (Gov't Ex. 3 at 10.) On March 11, 2014, Murtaugh arranged to retrieve his belongings from Korey's residence. Korey agreed to gather Murtaugh's belongings and have them ready for Murtaugh when he arrived at the residence. Murtaugh reported to the Baldwin Borough Police Department that when he went to retrieve his belongings from Korey's residence, his prescription medication, i.e., "8 sublingual strips of suboxone and 20 gabapentin pills, " and a one hundred-dollar bill, were missing. (Id.)

16. Upon learning about Murtaugh's report to the Baldwin Borough Police Department with respect to the missing prescription medication and money, White became concerned that there were prescription drugs at Korey's residence. (H.T. 11/24/14 (ECF No. 40) at 43.)

White's Initial Request to Search Korey's Residence Made on March 13, 2014

17. On or about March 13, 2014, White requested permission from his supervisor, the chief probation officer, to search Korey's residence for evidence that Korey violated conditions of his supervised release. (H.T. 11/24/14 (ECF No. 40) at 43.) White, in his request, informed his supervisor about Korey's criminal summons issued on January 13, 2014, the circumstances surrounding the shooting involving Mooney's Bar on March 9, 2014, and the circumstances surrounding Murtaugh's criminal summons for DUI on March 10, 2014. (H.T. 11/24/14 (ECF No. 40) at 57-58.)

18. White's request to search Korey's residence for evidence that Korey violated conditions of his supervised release initially was not approved by the chief probation officer. (Id. at 58.)

19. Following White's initial request to search Korey's residence, White continued to receive information about Korey that he believed gave him reasonable suspicion to search Korey's residence for evidence that Korey violated conditions ...


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