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United States v. Gardenhire

United States District Court, W.D. Pennsylvania

March 16, 2017



          Nora Barry Fischer U.S. District Judge


         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 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.[1] (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 [1808] is denied.


         Khyree 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 1);[2] 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).

         Khyree 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 said.'”).

         The 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.[3] (Id.).

         Detective 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. (Id.).

         Detective 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).

         It was 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).

         As the 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. (Id.).

         Given 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).

         The 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).

         After 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 ...

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