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 is a motion to suppress
evidence filed by Defendant Khyree Gardenhire,
(“Khyree”), (Docket No. 1808), and the
Government's opposition thereto, (Docket No.
1953). The Court held a motion hearing on February 23,
2017, and the official transcript of the proceeding has been
filed of record. (Docket Nos. 2014; 2035).
Thereafter, the parties submitted findings of fact and
conclusions of law on March 6, and 7, 2017,
respectively. (Docket Nos. 2052;
2056). After careful consideration of the
parties' arguments in light of the record evidence and
for the following reasons, Khyree's motion to suppress
 is denied.
is charged with three counts in the Superseding Indictment:
one count of conspiracy to distribute and possess with intent
to distribute 1 kilogram or more of heroin, in violation of
21 U.S.C. § 846, for conduct occurring from in
and around March 2012 to on or about May 21, 2015, (Count
one count of attempt to possess with intent to distribute 1
kilogram or more of heroin, in violation of 21 U.S.C.
§ 846, for conduct occurring on or about August 1,
2014 to on or about August 2, 2014, (Count 2); and one count
of possession with intent to distribute and distribution of
heroin, in violation of 21 U.S.C. § 841(a)(1)
and 841(b)(1)(C), for conduct occurring on or about January
15, 2015, (Count 49). (Docket No. 1020). The
potential penalties for counts one and two include a
mandatory term of incarceration of 10 years and up to life
imprisonment and the potential penalties for count 49 include
a term of incarceration of up to 20 years' imprisonment.
(Docket No. 1021).
seeks to suppress the evidence seized from him during a
warrantless encounter with City of Pittsburgh narcotics
detectives on January 15, 2015. (Docket Nos. 1808;
2056). The seized evidence included: over a brick of
heroin recovered from his left pants pocket; five knotted
baggies of crack cocaine recovered from the center console of
the vehicle; $481.00 recovered from his person; a torn baggie
corner recovered from the cup holder of the vehicle; and
Samsung and LG cell phones recovered from his right jacket
pocket. (Govt. Ex. 5; Docket No. 1953-4). Such
evidence forms the basis of the charge at Count 49 of the
Superseding Indictment and also supports the conspiracy
charge at Count 1. (Docket No. 1020). The Government
conceded that a warrantless search and seizure occurred and
presented evidence supporting the reasonableness of same at
the suppression hearing, including the testimony of City of
Pittsburgh Bureau of Police Detective Scott Love and the
police report authored by Detective Mark Goob. (Docket
Nos. 1953-4; 2035). In this Court's opinion, based
on Detective Love's demeanor and appearance at the
hearing, he offered truthful and credible testimony to the
Court, despite efforts to impeach him. See
United States v. Garcia, 521 F.App'x 71, 73 (3d
Cir. 2013) (quoting Anderson v. City of Bessemer,
470 U.S. 564, 574 (1985)) (“‘[w]hen findings are
based on determinations regarding the credibility of
witnesses ... for only the trial judge can be aware of the
variations in demeanor and tone of voice that bear so heavily
on the listener's understanding of and belief in what is
following facts were established by a preponderance of the
evidence. On the evening of January 15, 2015, Detective Love
was on a detail investigating high crime areas which brought
him to the Beltzhoover area. (Docket No. 2035 at 8). He was
driving an unmarked Chevy Impala with two other narcotics
detectives: Detective Goob, who was seated in the front
passenger's seat; and, Detective Thomas Gault, who was in
the rear passenger seat. (Docket No. 2035 at 8, 9, 12). The
three detectives were all dressed in plainclothes, had worked
together jointly on drug cases in the past and each have
considerable law enforcement experience, much of which has
been in the Narcotics Unit. (Id. at 7-8). To this
end, Detective Love has 20 years of law enforcement
experience and Goob has 22 years of law enforcement
experience with 16 of it in the Narcotics Unit. (Id.).
Love stated that he has been involved in
“thousands” of drug cases over his lengthy
career, many of them involving crack cocaine and heroin.
(Id. at 6). He explained in great detail how crack
cocaine is packaged by dealers using sandwich baggies,
cutting off the corners of the baggies, and then packaging
the crack cocaine in the remaining portion of the sandwich
baggie which he described as the “diaper” and is
then tied using the two corners. (Id. at 6-7). He
added that over the course of his career, he has learned that
baggie corners are only used for one thing, “to package
narcotics.” (Id. at 7). Detective Love further
described how 50 stamp bags of heroin are typically packaged
as a brick, which is in a shape similar to a pack of Bubble
Yum gum. (Id. at 21). He told the Court that he had
observed bricks of heroin “thousands” of times
such that they were easily recognizable to him.
Love was driving on E. Warrington Avenue toward Beltzhoover
Avenue near Red's Bar, in what he described as an
“extremely” high crime area where he and his
fellow detectives had made numerous arrests for drug and gun
violations in the past. (Docket No. 2035 at 9). Indeed,
Red's Bar was deemed a nuisance bar, several homicides
had occurred in that area, and numerous drug deals had taken
place in that vicinity as well. (Id. at 9-11). He
testified that they would frequently conduct surveillance of
Red's Bar, watching for drug deals outside of the bar, as
well as individuals coming and going from the bar without any
alcohol. (Id. at 10-11).
a cold January evening, with temperatures below freezing.
(Docket No. 2035 at 14). While it was dark outside, the area
around Red's Bar is well lit with overhead street lights
including lights illuminating a field that is across the
street and a nearby rec center. (Id. at 13, 24, 31).
The vehicle's headlights were also activated.
(Id. at 13).
detectives approached the 300 block of E. Warrington in the
unmarked Impala at a speed of approximately 15-20 miles per
hour, below the posted speed limit of 25 miles per hour,
Detective Goob noticed two individuals sitting in a parked
SUV that were looking down at the center console area of the
vehicle. (Docket No. 2035 at 13). The SUV was across the
street from Red's Bar and positioned facing the
detectives as they approached. (Id.). Detective Goob
conveyed his observation of the two individuals to the other
detectives in the car and Detective Love observed the
individuals as well. (Id. at 13). Detective Love
said that although the SUV sits higher off of the street than
the sedan they were traveling in, he could clearly see the
individuals in the SUV because he sits up high in the car
while driving due to his size as an above average man.
(Id. at 25, 32). The detectives also thought that it
was peculiar that the SUV was not running because it was very
cold at the time. (Id. at 11-14). The headlights and
interior lights were also off at the time. (Id. at
31). Detective Love conceded that the car was legally parked,
there were no apparent traffic violations, and they did not
run the plates of the car. (Id. at 27-28). He
likewise admitted that their observations took place over a
period of only a few seconds and that he had no information
that the individuals had been sitting in the car for a
lengthy period of time or were involved in a crime.
the detectives' observations of two individuals sitting
in an SUV that was not running, despite freezing
temperatures, in a high crime area, the detectives decided to
conduct a mere encounter to investigate and determine what
the individuals in the SUV were doing. (Id. at
11-14, 23). Detective Love then drove past the SUV, turned
his vehicle around and parked behind the SUV, leaving a
sufficient distance between the vehicles such that the SUV
could have pulled away without any problem. (Id. at
15). He did not activate the sirens or emergency lights on
the vehicle. (Id. at 13-14, 31-32).
detectives exited their vehicle and approached the SUV, with
Detective Goob walking toward the driver's side of the
SUV and Detectives Love and Gault following slightly behind
him toward the passenger's side of the SUV. (Id.
at 15). The detectives each had their badges displayed and
were utilizing flashlights which they focused on the interior
of the SUV. (Id. at 15-16). Their guns remained
holstered. (Id. at 15). As he approached, Detective
Love observed a young male (who turned out to be Khyree) in
the driver's seat and an older female, likely in her
60's sitting in the passenger seat. (Id. at 16).
Both of these individuals were unknown to the detectives
prior to this interaction. (Id. at 14, 24, 30). When
Detective Goob arrived near the driver's side window,
Khyree reacted to their presence in an extremely suspicious
way, slamming the center console of the vehicle in a manner
that Detective Love acted out during the hearing.
(Id. at 16, 18-19, 22, 26). Detective Love described
Khyree as acting “panicked.” (Id. at
16). Khyree then reached toward the cupholder in the center
dash area of the SUV and Detective Goob asked him to stop
reaching and keep his hands where they could see them.
(Id. at 16-17). Detective Love explained that he did
not hear exactly what Detective Goob was saying to Khyree at
this point, but was later told that he (Detective Goob) had
asked Khyree to stop reaching. (Id. at 17-18).
Khyree started to comply with the detective's request and
as he moved his hands both Detective Love and Goob
immediately observed a torn knotted baggie corner in the
cupholder. (Id. at 16). Detective Love admitted that
if the car had pulled away while they were approaching, the
occpuants of the SUV were free to leave and, at most, they
may have returned to their vehicle and followed the SUV.
(Id. at 26). He believed that he had probable cause
to arrest Khyree at the point that they observed him slam the
center console and saw the baggie corner in the cupholder.
(Id. at 26).
seeing the baggie corner, the detectives opened the doors on
the driver's and passenger's sides of the SUV and
started talking to the occupants. (Docket No. 2035 at 17).
The passengers then gave conflicting responses to questions
about what they were doing, and neither could identify the
other occupant of the SUV. (Id. at 18-19). In this
regard, Khyree told Detective Goob that he was talking to his
“aunt” while the passenger, Beverly Cheatom, who
is not related to Khyree, provided a false name for him and
according to Detective Love, acted as if she had “no
clue” who he was. (Id. at 19). Detective Goob
asked Khyree whose SUV it was and he said initially that his
girlfriend had ...