United States District Court, W.D. Pennsylvania
Barry Fischer, U.S. District Judge
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.[] (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, []they
are now ripe for disposition. For the following reasons, the
suppression motions , , , and  and
the motion for a Franks hearing  are DENIED.
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.[] 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.
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).
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.).
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
• 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
• 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,
• Misc. No. 14-523H - authorized the interception of
TT#13 used by Anthony Cosby, from April 6, 2015 to May 5,
(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.).
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;[] 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.
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
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).
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.
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.
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
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).
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).
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
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.
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).
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).
MOTION TO SUPPRESS TITLE III INTERCEPTS
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.[] (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.
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.
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
Williams, 124 F.3d at 418.
Government is also required to minimize the intercepted
communications pursuant to 18 ...