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United States v. Butler

United States District Court, W.D. Pennsylvania

February 23, 2015

GARY BUTLER, Defendant

Page 393

For GARY BUTLER, USMS 35210068, Defendant: Lee Markovitz, LEAD ATTORNEY, Pittsburgh, PA.

For USA, Plaintiff: Katherine A. King, LEAD ATTORNEY, United States Attorney's Office, Pittsburgh, PA.

Page 394


Terrence F. McVerry, Senior United States District Judge.

Defendant, Gary Butler, is charged in counts one and three of a three-count indictment with conspiracy to distribute and possess with intent to distribute 100 grams or more of heroin and possession with intent to distribute a quantity of heroin. The charges stem from Butler's arrest on May 7, 2014, outside an apartment building where his co-defendant, Harry Simpson, rented an apartment. Pending before the Court is Butler's MOTION TO SUPPRESS PHYSICAL EVIDENCE (ECF No. 33), in which he seeks to suppress the heroin seized from the rental vehicle he was driving on the day of his arrest. On November 12, 2014, the government filed a response to the motion (ECF No. 52). On November 25, 2014, the Court held a hearing with respect to the motion, after which both the Defendant and the government filed additional briefs (ECF Nos. 60, 61, 66, 68). Accordingly, the motion is ripe for disposition.

I. Findings of Fact

The government called one witness to testify at the suppression hearing: Matthew Maritz, a Robinson Township police officer and member of the Drug Enforcement Administration's (" DEA" ) Interdiction Group Task Force. Officer Maritz has been assigned to the Task Force for approximately four years, and as part of his duties, he works long-term drug investigations and also does drug interdiction work. Butler also briefly testified at the hearing. Based on the testimony and evidence

Page 395

presented at the suppression hearing, the Court makes the following findings of fact.

On May 7, 2014, Officer Maritz was part of a team of Task Force officers involved in executing a search warrant on an apartment located at 1110 Overland Avenue, Duquesne, Pennsylvania (the " apartment building" ). The apartment building is two stories high and contains multiple units. A walkway leads from the sidewalk in front of the apartment building to the front door. Officer Maritz was aware that the target unit inside the apartment building was leased by Simpson and that a large quantity of heroin was suspected to be inside.[1] He also knew that Simpson drove a black Lincoln with Ohio plates.

Officer Maritz and the other Task Force officers arrived at the apartment building at approximately 12:30 p.m. -- before the search warrant had actually been issued by the magistrate judge. Upon arrival, they set up surveillance on the apartment building and the street directly in front of it. Officer Maritz was positioned on the same side of the street as the apartment building, approximately two or three blocks away. He was using binoculars to scan the area, and he was in contact via radio with the other Task Force officers involved in executing the search warrant.

Whenever Officer Maritz arrived, Simpson's black Lincoln was not parked outside the apartment building. Eventually, however, Officer Maritz observed Simpson pull up and park the black Lincoln on the same side of the street as the apartment building. He then exited the vehicle. Around the same time, Officer Maritz observed a silver Nissan Juke, whose driver was later identified as Butler, arrive on the scene and park directly across the street from the apartment building. Officer Maritz had never seen Butler before, and, at the time, Butler was not a subject of the Task Force's investigation. According to a rental agreement later recovered from inside the Nissan, the vehicle was rented from Enterprise Rental Company. The rental agreement listed Monika Banks as the renter, and no other authorized drivers were listed on the agreement.

Shortly after he arrived outside the apartment building, Butler exited the Nissan and walked across the street towards Simpson. Simpson and Butler shook hands and then walked towards the trunk of the black Lincoln, where they were joined by two unidentified men who had been standing outside the apartment building whenever Officer Maritz arrived. Simpson opened the trunk of the black Lincoln, and the four men were seen " passing out" yellow bags.[2] Simpson and Butler then walked towards the apartment building, while the other two men left the area. At the time, Simpson was carrying a yellow bag, and Officer Maritz believed that Butler was holding a yellow bag as well.

Officer Maritz could not see whether Simpson and Butler actually entered the apartment building from his vantage point.

Page 396

He could not see the entrance to the apartment building or the walkway leading to the entrance of the apartment building; [3] his view was limited to the street and sidewalk in front of the building. Furthermore, none of the other Task Force officers on the scene relayed to Officer Maritz that they had seen Simpson and Butler actually enter the apartment building. Nevertheless, Officer Maritz assumed that Simpson and Butler had entered the apartment building.

Approximately five to six minutes later, Simpson and Butler walked back into Officer Maritz's field of vision, away from the apartment building back towards the street. Butler reentered Officer Maritz's field of vision whenever he reached the sidewalk in front of the building, and at this time, he was holding a yellow plastic shopping bag, possibly the same bag he had been seen with earlier. Butler continued across the street to the silver Nissan, opened the passenger side door, and placed the yellow bag in the passenger side of the vehicle. While standing near the Nissan, Butler had a brief conversation with Simpson, who was standing across the street, before getting into the driver's seat of the Nissan. Around the same time, Simpson got behind the wheel of his black Lincoln.

Meanwhile, Officer Martiz was relaying his observations to the other Task Force officers over his radio. Just as Butler started to drive away, F.B.I. Special Agent Alex Shiraj gave a command to take Simpson and Butler down. The decision was made because the officers believed Simpson and Butler were leaving the area and that Butler had heroin in his vehicle. After receiving the command from Special Agent Shiraj, Officer Maritz drove up behind Butler's vehicle with his red and blue emergency lights flashing, while his partner, Officer Stewart, approached from the front of the vehicle with his emergency lights flashing. The officers exited their vehicles with guns drawn and approached Butler's vehicle, announcing that they were police officers. Officer Maritz's gun was pointed at Butler as he approached. The officers ordered Butler to stop the ...

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