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United States v. Gardenhire

United States District Court, W.D. Pennsylvania

May 24, 2015

UNITED STATES OF AMERICA
v.
LANCE GARDENHIRE, GEMERE BEY, CHRISTOPHER BRADLEY-BEY, HOLMAN BROWN, HAKEEM DUELL LASEAN GARDENHIRE, Defendants.

          MEMORANDUM OPINION

          Nora Barry Fischer, U.S. District Judge

         I. INTRODUCTION

         This multi-defendant heroin trafficking conspiracy case is set for jury selection and trial to commence on April 24, 2017 at 9:30 a.m. Presently before the Court are pretrial motions to suppress evidence filed by Lance Gardenhire, Gemere Bey, and Christopher Bradley-Bey. (Docket Nos. 1829 (Gardenhire); 1986 (Bey); 1877 (Bradley-Bey)). Each of these Defendants moves to suppress evidence seized from their respective properties under search warrants issued on May 19, 2015. (Id.). Lasean Gardenhire has joined her husband's motion to suppress evidence seized under a search warrant of their residence at 405 Zara Street. (Docket No. 2011). Separately, Bradley-Bey moves to suppress the communications intercepted under Title III authorizations and this motion has been joined by several of the remaining defendants, including Lance Gardenhire, Gemere Bey, Holman Brown, Hakeem Duell, and Lasean Gardenhire.[[1]] (Docket Nos. 1879 (Bradley-Bey); 2011 (joinder order)). The Government opposes the suppression motions. (Docket Nos. 1953, 2007). Bradley-Bey has filed a Reply, (Docket No. 2000), and the Government filed a Sur-Reply, (Docket No. 2007). Finally, Gemere Bey filed a motion for a Franks hearing on March 10, 2017, (Docket No. 2066), and the Government filed its response to same on March 24, 2017, (Docket No. 2088). As the motions are fully briefed, [[2]]they are now ripe for disposition. For the following reasons, the suppression motions [1829], [1986], [1877], and [1879] and the motion for a Franks hearing [2066] are DENIED.

         II. RELEVANT BACKGROUND

         This case is the result of a Drug Enforcement Administration (“DEA”) investigation into interstate heroin trafficking by a number of individuals in the Pittsburgh neighborhoods of Beltzhoover, Knoxville, Arlington and Allentown which was allegedly headed by lead defendant Lance Gardenhire and other members of the “Zhoove” gang. (See Docket No. 1953). The investigative methods utilized by law enforcement included, among other things, Title III authorized interceptions; search warrants; visual surveillance; traffic stops and arrests of certain defendants; and controlled purchases of heroin from certain defendants. See United States v. Atkins, Crim. No. 15-87, 2015 WL 4920831, at *1 (W.D. Pa. Aug. 15, 2015). The investigation resulted in the indictment of at least 39 individuals for drug trafficking and related offenses at Criminal Numbers 15-87, 16-18 and 16-19. See generally Crim. Nos. 15-87; 16-18; 16-19. Twenty-five of these individuals have pled guilty to criminal charges and two additional defendants are scheduled to change their pleas in the near future.[[3]] Id. At this time, there are 11 defendants remaining for trial which, as noted, is scheduled to commence with jury selection on April 24, 2017 at 9:30 a.m.

         As the Government recounts:

The investigation of the Gardenhire Organization involved the interception of 12 cell phones used by Cody Duncan, Corey Cheatom, Anthony Cosby, Juan Wysong, and Christopher Brown (and others at times). These 12 cell phones were referred to in the applications as Target Telephones/TT's 1-4 and 6-13 (there was no TT5). Authorization to intercept calls and text messages over the 12 cell phones was received via 9 applications between November 2014 and April 2015. The applications are sealed and docketed at Miscellaneous Numbers 14-523 and 14-523(A)-(H).

(Docket No. 1953 at 33). The materials supporting the applications are extensive, consisting of hundreds of pages of documents. In the corresponding Orders, the presiding judicial officers, the Hon. Arthur J. Schwab and the Hon. Mark R. Hornak, found upon approving each application, among other things, that there was probable cause to believe that the target subjects were involved in felony drug trafficking offenses and money laundering; probable cause that the requested interceptions of wire and electronic communications would intercept communications between those individuals regarding such offenses; and, that it was “adequately demonstrated that normal investigative procedures have been tried and failed to achieve the goal of the investigation, reasonably appear unlikely to succeed if continued or attempted, or are too dangerous to attempt.” (Misc. No. 14-523, Order of 11/5/14 at ¶¶ 2-5). In addition to the wire taps, there was a pole camera situated on Industry Street from October 2014 to around April 2015 and was focused on the residences at 15 and 17 Industry Street, which were two of the Organization's primary “stash houses” for narcotics. (Docket No. 1953 at 83, n.6).

         The information contained within the affidavits also sets forth in detail the multiple arrests, seizures and interdictions by law enforcement that took place during this investigation. In this regard, on August 2, 2014, Rashod Clark was arrested in Luzerne County, Pennsylvania, and a search of the automobile that he was driving westbound on Interstate 80 “revealed approximately 2, 400 bricks of heroin inside a large suitcase.” (Misc. No. 14-523, Affidavit 11/5/14 at 10-11). It is noted that cellular telephones were seized from Clark and that he had communications with a device used by Lance Gardenhire but that he (Gardenhire) changed his number after Clark was arrested. (Id. at 11-12). There were several controlled purchases of heroin from coconspirators during 2014, including controlled purchases from Cody Duncan on October 21, and October 29, 2014. (Id. at 25-30). The materials make clear that Cody Duncan used what became “target telephone 1” or TT#1 when setting up these deals. (Id.).

         To summarize, under the Title III authorizations, the Government intercepted a significant volume of calls and text messages between the target individuals that its agents believe involve discussions of narcotics trafficking and that the Government intends to present at trial of this matter. (See e.g., Misc. Nos. 14-523; 14-523A; 14-523B; 14-523C; 14-523D; 14-523E; 14-523F; 14-523G; and 14-523H). As noted, the initial Order authorized the interception of a telephone number associated with Cody Duncan, TT#1 from November 5, 2014 through December 4, 2014. See Misc. No. 14-523. The subsequent applications involved the following:

• Misc. No. 14-523A - authorized the interception of TT#2 used by Cody Duncan, from November 14, 2014 through December 13, 2014;
• Misc. No. 14-523B - extended the interceptions of TT#2 and authorized the interceptions of TT#3 used by Cody Duncan, and TT#4 used by Corey Cheatom from November 24, 2014 to December 23, 2014;
• Misc. No. 14-523C - extended the interception of TT#4 and authorized the interception of TT#6 used by Anthony Cosby, and TT#7 used by Juan Wysong, from December 16, 2014 to January 14, 2015;
• Misc. No. 14-523D - extended the interception of TT#7 and initiated the interception of TT#8 used by Juan Wysong, from January 9, 2015 to February 7, 2015;
• Misc. No. 523E - extended the interception of TT#7 and initiated the interception of TT#9 used by Juan Wysong and TT#10 used by Chris Brown, from January 29, 2015 to February 28, 2015;
• Misc. No. 14-523F - extended the interception of TT#7 and TT#10 and initiated the interception of TT#11 used by Juan Wysong, from February 14, 2015 to March 15, 2015;
• Misc. No. 14-523G - authorized the interception of TT#12 used by Chris Brown, from March 18, 2015 to April 16, 2015; and,
• Misc. No. 14-523H - authorized the interception of TT#13 used by Anthony Cosby, from April 6, 2015 to May 5, 2015.

(See generally, Misc. No. 14-523H, Affidavit at 4, 41-44). Each application is supported by an affidavit by DEA Task Force Officer and City of Pittsburgh Bureau of Police Narcotics Detective Eric Harpster. (Id.). As is generally the case in these types of investigative materials, the subsequent affidavits build on the earlier ones, providing additional information obtained from the intercepted communications pursuant to the prior applications as support for the requested extension or initiation of intercepts on a new phone. (Id.).

         The grand jury returned a sealed multi-count indictment against numerous defendants on April 28, 2015. (Docket No. 3). While the indictment remained sealed, the investigation into the Lance Gardenhire Drug Trafficking Organization continued. On May 18, 2015, arrest warrants were issued by United States Magistrate Judge Cynthia Reed Eddy against the individuals charged in the Indictment. (Docket No. 6). Thereafter, the Government applied for and Magistrate Judge Eddy issued search and seizure warrants on May 19, 2015 with respect to 10 Pittsburgh area residences;[[4]] 12 vehicles; and thousands of dollars in United States currency which was seized from coconspirators during the course of its investigation. (Govt. Ex. 2, Docket No. 1953-1). Amongst these properties, the warrants authorized the searches of: 405 Zara Street, Lance Gardenhire's residence; 190 and 192 Boggston Avenue, both owned by Gemere Bey; and 57 Climax Street, the residence of Christopher Bradley-Bey.

         The warrants were supported by the lengthy and detailed Affidavit of Special Agent Michael Johns of the DEA. (Id.). At the outset, Special Agent Johns provides information he has learned throughout his experience investigating narcotics cases and the places where those involved in drug trafficking and firearms offenses typically store drugs, drug proceeds and other evidence of same, including on cell phones, and within residences. (Id. at 3-18). He explains the nature and scope of heroin trafficking by the Lance Gardenhire Drug Trafficking Organization, in that its members had distributed thousands of bricks of heroin in Western Pennsylvania during the period of 2014 and 2015 and the investigative methods that had been utilized to obtain such evidence. (Id. at 4-6). Special Agent Johns avers that the members of the organization have been involved in violations of federal narcotics, firearms and money laundering offenses and that on April 28, 2015, a federal grand jury returned an indictment charging a number of individuals with heroin trafficking from January 2014 through April 2015 and related firearms offenses, including, among others, Lance Gardenhire, Chris Bradley-Bey and Gemere Bey. (Id. at 5). He then details the information supporting the search of each of the properties, including: 405 Zara Street, (id. at 22-35); 190 and 192 Boggston Avenue, (id. at 54-67); and 57 Climax Street, (id.).

         The arrest and search and seizure warrants were then simultaneously executed on the morning of May 21, 2015. Relevant here, Lance Gardenhire was arrested at 405 Zara Street. (Docket No. 1953 at 83). According to the inventory return, the search of 405 Zara Street resulted in the seizure of: an Apple iPhone; Samsung/Verizon phone; indicia; and stamp bags of heroin. See Misc. No. 15-mj-463, Docket No. 7. The Government also seized several vehicles that were registered to Lance Gardenhire or his wife, Lasean, including a 2008 Infiniti; 2008 Mercedes Benz; 2005 Mercedes Benz; 2009 Mercedes Benz; and a 2007 Nissan Titan. (Govt. Ex. 2; Docket No. 1953-1 at 56-57).

         A few blocks away, Gemere Bey was arrested at 190 Boggston Avenue. (Docket No. 2005). Gemere Bey made incriminating statements to agents upon his arrest, admitting that he had flushed several bundles of heroin down the toilet upon their forced entry into the residence. (Id. at 6-7). During the search of 190 Boggston, the police seized: a bottle of oxycodone pills; two separate quantities of heroin; two cellular telephones; and a fully loaded FN pistol. (Id. at 7). At Gemere Bey's adjacent property at 192 Boggston, the following evidence was seized:

[A] quantity of heroin; a heat sealer with bags and a box for bags; six boxes of white glassine bags; cutting agents (specifically two bottles of Inositol and one bottle of Vitamin C); heroin packing paraphernalia such as stampers, tape, scissors, rubber bands, baggies, and face masks; a digital scale; a glass mixing bowl and a strainer; indicia for Gemere Bey; and two FN pistol magazines, caliber 5.7x28, with twenty blue-tipped bullets.

         (Docket No. 2005 at 6). The Government proffers that the bullets found in 192 Boggston match the FN firearm that was seized from 190 Boggston and that Gemere Bey owned at the time. (Id.). During his discussion with the officers, Gemere Bey implicated his brother, Christopher, when discussing the seizure of evidence from 192 Boggston. (Id.).

         Christopher Bradley-Bey was arrested at 57 Climax Street, and that property was also searched. (Docket No. 1953 at 45). The evidence seized from Bradley-Bey included an “FN pistol, his cell phone, his Acura car, a relatively small amount of heroin in a baggie, unfilled stamp bags marked with a blue lady bug, small rubber bands, clear plastic baggies, and a large box of loose marijuana.” (Id.). The warrant separately authorized the seizure of his Acura Vehicle. (Id.).

         While this case was pending, both Gemere Bey and Christopher Bradley-Bey filed motions challenging the orders of detention issued in their respective cases. See United States v. Bey, Crim. No. 15-87, 2015 WL 7176340, (W.D. Pa. Nov. 13, 2015); United States v. Bradley-Bey, Crim. No. 15-87, 2015 WL 7176273 (W.D. Pa. Nov. 13, 2015). In the context of that litigation, the Government presented the affidavit of Special Agent Johns referenced herein. Id. The Court, when ruling on those motions, made certain findings relevant to the affidavit, rejected their arguments for release on bail and denied the motions. Id. Gemere Bey later sought reconsideration of the Court's Order, which was also denied, 2016 WL 5121760, and his appeal to the United States Court of Appeals for the Third Circuit was likewise denied. See Appeal No. 16-3804 (3d Cir. Oct. 27, 2016).

         The grand jury issued a Superseding Indictment on February 2, 2016. Among other things, the Superseding Indictment amended the period of the conspiracy to distribute 1 kilogram of heroin charged in violation of 21 U.S.C. § 846 at Count 1, extending it to “from in and around March 2012 to on or about May 21, 2015.” (Docket No. 1020). In addition, the money laundering charge at Count 3 against Lance Gardenhire was amended to add his wife, Lasean, as a defendant, and the charge became money laundering conspiracy, in violation of 18 U.S.C. § 1956(h). (Id.). This is the only charge against Lasean Gardenhire, which includes as a possible penalty a term of incarceration of up to 20 years. (Docket No. 1021).

         Aside from Lasean Gardenhire, all of the remaining Defendants, (i.e., Lance Gardenhire; Gemere Bey; Christopher Bradley-Bey; Christopher Brown; Holman Brown; Corey Cheatom; Anthony Cosby; Hakeem Duell; Khyree Gardenhire; and Kevin Scott), are charged at Count 1 with conspiracy to distribute and possess with intent to distribute 1 kilogram or more of heroin in violation of 21 U.S.C. § 846. (Docket No. 1020). Lance Gardenhire, his son, Khyree and Corey Cheatom are charged at Count 2 with one count of attempt to possess with intent to distribute 1 kilogram or more of heroin in violation of 21 U.S.C. § 846. (Id.). Given the quantity of heroin, the potential penalties for these offenses generally include a mandatory minimum term of 10 years' incarceration and up to life imprisonment. (Docket No. 1021). However, the Government filed a Section 851 Information against both Lance Gardenhire and Cheatom, the result of which would increase the potential penalties to a mandatory term of incarceration of 20 years and up to a life term. (Docket Nos. 2071 (Cheatom); 2072 (Lance Gardenhire)).

         A number of the remaining defendants are charged with possession of a firearm in furtherance of a drug trafficking offense or brandishing a firearm in furtherance of a drug trafficking offense in violation of 18 U.S.C. § 924(c): Lance Gardenhire (Count 7); Gemere Bey (Count 16); Christopher Bradley-Bey (Count 15); Christopher Brown (Count 12); Holman Brown (Count 14); Corey Cheatom (Count 8); Anthony Cosby (Count 10); Hakeem Duell (Count 19); and Kevin Scott (Count 18). (Docket No. 1020). Upon a conviction of these firearm offenses, the penalties will include a term of incarceration of not less than 7 years and up to life, consecutive to any other term of imprisonment. (Docket No. 1021).

         Corey Cheatom (Count 21); Hakeem Duell (Count 23); and Kevin Scott (Count 22), are each charged with one count of felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). (Docket No. 1020). If convicted, they face a term of incarceration of up to 10 years; however, if they have three prior violent felony convictions or serious drug offenses, pursuant to 18 U.S.C. § 924(e), they could be subject to a term of incarceration of not less than 15 years and up to life imprisonment. (Docket No. 1021).

         There are also several charges of possession with intent to distribute and/or distribution of heroin in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C), including: Gemere Bey, (Count 51); Christopher Bradley-Bey (Count 52); Christopher Brown (Count 53); Holman Brown (Count 53); Anthony Cosby (Counts 28-31, 54); Hakeem Duell (Count 47); and, Khyree Gardenhire (Count 49). The possible penalty for these violations is up to 20 years' imprisonment. (Docket No. 1021). Finally, Kevin Scott is charged with possession with intent to distribute and/or distribution of 100 grams or more of heroin in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(i) and is subject to a mandatory minimum penalty of 5 years' incarceration and up to 40 years' incarceration for such offense. (Docket Nos. 1020; 1021).

         III. MOTION TO SUPPRESS TITLE III INTERCEPTS

         The Court first turns to the motion to suppress filed by Bradley-Bey challenging the Title III intercepts. (Docket No. 1879). In his 6-page motion, Bradley-Bey alleges that his telephone conversations were intercepted pursuant to 2 of the 9 wiretap authorizations.[[5]] (Id.). He then makes three primary arguments in support of his suppression motion: (1) that there was not sufficient probable cause to authorize the interceptions; (2) that the “necessity” provisions of Title III were not adhered to as normal investigative procedures were not fully utilized prior to obtaining the authorizations; and, (3) that the intercepted calls were not properly minimized, as required by the statute. (Id.). Although a number of co-defendants have joined this motion, they have not submitted briefs or otherwise further advanced these arguments. In opposition, the Government generally contends that Bradley-Bey's arguments are “undeveloped” or “underdeveloped” and although his position pertains specifically only to the two authorizations under which his telephone calls were intercepted, the Government proceeds to evaluate the sufficiency of each of the 9 separate applications. (Docket No. 1953). For the following reasons, and consistent with this Court's decision in United States v. Ewell, Crim. No. 13-125, 2016 WL 463784, at *11 (W.D. Pa. Feb. 8, 2016), addressing many of these same types of issues, the motion to suppress the Title III intercepts is denied.

         a. Legal Standard

Pursuant to Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2510 et seq., wire, oral, and electronic communications may be intercepted by law enforcement on a showing that there is probable cause that (1) an individual is committing a particular offense; (2) that relevant communications will be obtained through the interception; and (3) that the premises where the interception will be made are being used in connection with the charged offense. 18 U.S.C. § 2518(3). In addition, a wiretap application must contain “a full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous.” Id. § 2518(1)(c). Thus, in order to lawfully grant an application for a wiretap, the issuing judge must find a wiretap to be necessary, which requires that the application explain why “normal investigative techniques would be of no avail.” United States v. Hendricks, 395 F.3d 173, 180 (3d Cir. 2005) (internal quotation marks and citation omitted).

United States v. Garvey, 588 F. App'x 184, 190 (3d Cir. 2014). “When a warrant is later challenged, a deferential standard of review is applied in determining whether the issuing judge had a ‘substantial basis' for issuing the warrant.” United States v. Gilliam, No. 02:12-CR-93, 2015 WL 5178197, at *14 (W.D. Pa. Sept. 4, 2015) (citing United States v. Conley, 4 F.3d 1200, 1205 (3d Cir.1993); Illinois v. Gates, 462 U.S. 213, 237 (1983)). Further, when a motion challenges the four corners of an affidavit and application, an evidentiary hearing is not required.

Id. at *14.

         The Court of Appeals has made clear that “18 U.S.C. § 2518(3)(c) does not require the government to exhaust all other investigative procedures before resorting to electronic surveillance.” United States v. Williams, 124 F.3d 411, 418 (3d Cir. 1997); see also United States v. Rivera, 532 F. App'x 304 (3d Cir. 2013) (quoting same).

“The government need only lay a ‘factual predicate' sufficient to inform the judge why other methods of investigation are not sufficient.” United States v. McGlory, 968 F.2d 309, 345 (3d Cir.) (quoting United States v. Armocida, 515 F.2d 29, 38 (3d Cir.), cert. denied sub nom., Conti v. United States, 423 U.S. 858, 96 S.Ct. 111, 46 L.Ed.2d 84 (1975)); cert. denied sub nom., Hauser v. United States, 506 U.S. 956, 113 S.Ct. 415, 121 L.Ed.2d 339 (1992). Furthermore, in determining whether this requirement has been satisfied, a court “may properly take into account affirmations which are founded in part upon the experience of specially trained agents.” United States v. Ashley, 876 F.2d 1069, 1072 (1st Cir. 1989); see also United States v. Landmesser, 553 F.2d 17, 20 (6th Cir.), cert. denied, 434 U.S. 855, 98 S.Ct. 174, 54 L.Ed.2d 126 (1977). “The government's showing is to be ‘tested in a practical and commonsense fashion.'” McGlory, 968 F.2d at 345 (quoting United States v. Vento, 533 F.2d 838, 849 (3d Cir.1976))

Williams, 124 F.3d at 418.

         The Government is also required to minimize the intercepted communications pursuant to 18 ...


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