United States District Court, W.D. Pennsylvania
Joy Flowers Conti Chief United States District Judge
On February 11, 2015, this court held a final supervised release violation hearing concerning Robert Eric James (“defendant”). (ECF No. 110). At defendant’s request, and following a colloquy before the court on February 9, 2015, defendant proceeded pro se at that hearing, with former court-appointed counsel, W. Penn Hackney, acting as stand-by counsel. (2/9/15 Minute Entry.) The court found that defendant violated the conditions of his supervised release by possessing marijuana with the intent to distribute (a Grade A violation) and by using marijuana (a Grade C violation). (ECF No. 112.) Defendant was sentenced to serve a total of 24 months’ imprisonment as a result of these violations of the conditions of his supervised release. (Id.)
Following imposition of the revocation sentence, defendant filed a motion to dismiss the Grade A supervised release violation. (ECF No. 113-14.) The government responded, and defendant filed a supplement in support of his motion. (ECF Nos. 115, 117.) The court held a hearing on defendant’s motion on April 1, 2015. (ECF No. 119.) For the reasons set forth below, defendant’s motion will be denied.
A. Conduct Forming the Basis for the Alleged Supervised Release Violations
On November 6, 2014, a probation officer petitioned this court for issuance of a warrant for defendant, to be lodged as a detainer at the Allegheny County Jail, without bond. (ECF No. 98 (hereinafter, the “Petition”).) The Petition alleged that defendant violated two conditions of his supervised release: (1) defendant shall not commit another Federal, state or local crime; and (2) defendant shall refrain from any unlawful use of a controlled substance. (ECF No. 98 at 2.)
The second violation was first brought to the court’s attention in September 2014, after defendant tested positive for marijuana in August and September 2014. (ECF No. 96.) The probation officer did not request that the court take any action at that time, and instead indicated that defendant’s frequency of drug testing and supervision would be increased. (Id.) Defendant again tested positive for marijuana in October 2014, and the probation officer listed all three positive drug tests as forming the basis of the second violation in the November 6, 2014 Petition. (ECF No. 98.)
The Petition also charged defendant with violating the terms and conditions of his supervised release by committing another federal, state or local crime. He was arrested following the Pittsburgh Police Department’s execution of a search warrant at defendant’s residence early in the morning on the same day that the Petition was filed. (ECF No. 98.) Defendant lived at this residence with his cousin and her young daughter. Defendant was present at the time of the search, and was transported to a Pittsburgh police station after he admitted to a detective conducting the search that “everything” was his. (ECF No. 120 at 39-41.) In the “nature of noncompliance” portion of the Petition with respect to this violation, the probation officer stated that “Pittsburgh Police will be charg[ing] the defendant with Possession with Intent to Deliver – Heroin, and Possession of Heroin. Additional charges will be forthcoming.” (ECF No. 98.) The probation officer noted that defendant was being held in lockup at the police station at the time, and had not yet been processed by the Allegheny County Jail. (Id.)
The Federal Public Defender’s Office was appointed to represent defendant, and defendant appeared, with counsel, at an initial appearance and preliminary hearing before two magistrate judges of this court in January 2015. (ECF Nos. 101-02, 104.) At the January 21, 2015 preliminary hearing, a document referred to as “Arrest Report” was admitted into evidence as Exhibit 2. (ECF No. 104.) This document details the execution of the search warrant at defendant’s residence on November 6, 2014, and includes a two-page arrest/summons report, a one-page offense/incident report, and a four-page investigative report (hereinafter, collectively, “Police Report”). Defendant acknowledged receipt of this document, through his court-appointed counsel at the time, on January 20, 2015, the day before the preliminary hearing. (ECF No. 103 (Item #3 – “Police Report 14-220966 (7 pp)”)); see also, Ex. B to 4/1/15 hearing. Defendant also acknowledged receipt, through his counsel, of the signed search warrant, with the four-page probable cause affidavit sworn by Pittsburgh Police Detective William Churilla (hereinafter, collectively, “Search Warrant”). (ECF No. 105); see also, Ex. C to 4/1/15 hearing.
The Search Warrant summarized Detective Churilla’s investigation of defendant, including his receipt of information from the United States Attorney’s Office, and the probation officer about defendant’s history of marijuana abuse, positive tests for marijuana use while on supervised release, and past convictions involving the possession of marijuana. The Search Warrant detailed a trash pull conducted by Detective Churilla and Detective Joseph Lewis at defendant’s residence, 1704 Bedford Avenue in Pittsburgh, Pennsylvania, on November 4, 2014, which revealed loose marijuana, marijuana blunts, a heat sealed bag labeled “Cali Gold” containing marijuana residue, baggies, and baggie corners, which were known to the affiant to indicate drug trafficking. The Search Warrant states that, based upon this information and evidence, Detective Churilla believed that evidence would be located in defendant’s residence “that will indicate that he is both using and selling marijuana.” Search Warrant at 4. There is no reference in the Search Warrant to defendant’s suspected use or possession of heroin, although substantial quantities of that drug, and associated heroin trafficking paraphernalia were actually recovered during the search, as set forth below.
The Police Report indicates, on pages one, two, three, and four of the investigative report, that a marijuana blunt and three open heat seal bags with marijuana residue were found in the living room of the residence, along with indicia addressed to defendant, and other individuals. The Search Warrant indicates that the probation officer informed Detective Churilla that defendant lived in the living room of the residence. The Police Report indicates that other items, including heroin, a digital scale, and unused white stamp bags were recovered from other parts of the residence, including the second floor bathroom, an entry-way closet, the master bedroom, and the top of the refrigerator in the kitchen.
B. The Final Supervised Release Violation Hearing
On February 11, 2015, this court held a final supervised release violation hearing. (ECF No. 110). Defendant admitted to using marijuana, the second violation alleged in the Petition. (ECF No. 120 at 3, 93.) The court found this conduct to be a Grade C violation. (Id. at 3, 75.)
Defendant denied that he committed the first violation alleged in the Petition, i.e., committing another crime, based upon his November 6, 2014 arrest following the search of his residence on that same date. (Id. at 3-4.) The government, therefore, was required to offer proof of its allegations with respect to this alleged violation. The court found that there was sufficient evidence to find that defendant possessed marijuana with the intent to distribute, but insufficient evidence to find that defendant possessed heroin with the intent to distribute. (Id. at 69.)
The evidence at the final supervised release violation hearing revealed that a partially-smoked marijuana blunt and a duffle bag containing three heat seal bags containing marijuana residue were found on the floor of the living room. (Id. at 33, 37, 54-55.) Defendant did not dispute that he resided in the living room of the shared residence, and the probation officer testified that his prior home visits during defendant’s period of supervised release confirmed the same. (Id. at 23, 25-26.) Detective Churilla testified that the heat seal bags are known to him to be of the type used in the distribution of marijuana, and that each could have held a pound of the drug, with a total street value of thousands of dollars. (Id. at 30-31, 55-57, 59-61.) Detective Churilla testified that a heat seal bag, with the label “Cali Gold, ” was found during the trash pull that he conducted at defendant’s residence prior to securing the search warrant that was executed on November 6, 2014. (Id.at 28-30.) According to Detective Churilla, the presence of heat seal bags indicates drug trafficking, rather than personal drug use. (Id. at 30-31, 45, 55-57, 59-61.)
Detective Churilla summarized the various other items that were seized during execution of the Search Warrant, including: 30 bundles and 40 loose white stamp bags of heroin from a second floor bathroom; a bag of powder inside a GNC bottle on top of the refrigerator in the kitchen; a partially-smoked marijuana blunt from the master bedroom on the second floor; unused white stamp bags from a closet in the hallway between the kitchen and living room on the first floor; a digital scale from the second floor; cellular telephones from the second floor and the living room; and indicia for defendant, under his alias Corneil Jones, and for his cousin. (Id. at 35-39.)
Detective Churilla testified that defendant was found in the hallway between the kitchen and living room on the first floor of the residence when the officers entered the residence to execute the Search Warrant, and remained in the kitchen area while the police searched the residence, and recovered the various items referenced above. (Id. at 33-34, 37-38.) According to Detective Churilla, after the search was conducted and the evidence was recovered, defendant made a spontaneous utterance that “everything” or “all the sh*t” was his. (Id. at 40; Police Report at 5.) Defendant agreed to return to the police station to make a formal statement to that effect, and was transported to the station by a uniformed officer for that purpose. (ECF No. 120 at 41-42.) When Detective Churilla met with defendant at the police station to execute the paperwork, defendant again orally expressed that the “stuff” was his, but became belligerent and directed profanity at Detective ...