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United States v. Couvertier

United States District Court, M.D. Pennsylvania

March 21, 2017



          MALACHY E. MANNION, United States District Judge [1]

         Pending before the court is the motion to suppress evidence, (Doc. 43), filed by defendant Dennis Couvertier through his counsel. The defendant allegedly possessed with intent to distribute cocaine on three dates, possessed a firearm in connection with a drug trafficking crime and was a drug user in possession of a firearm. The defendant seeks to suppress the evidence seized from the search of his residence during the execution of a search warrant on the grounds that the affidavit failed to establish probable cause for the search since it lacked sufficient facts to infer that he was a drug dealer and since no officer acting in good faith could rely on the warrant. The gist of the defendant's argument is that the entirety of the search and seizure of evidence in his residence as well as his subsequent statements during his custodial interrogation were in violation of the Fourth Amendment based on the fruit of the poisonous tree doctrine. Further, the defendant requests a Franks hearing if the court finds that the affidavit established probable cause for the search. For the reasons discussed below, the motion will be DENIED without the need for a Franks hearing.


         Defendant was charged with three counts of distribution of cocaine, in violation of 21 U.S.C. §841(a)(1), regarding incidents on June 3, 2015, June 10, 2015 and June 12, 2015. (Doc. 1). The facts pertaining to each alleged drug sale will be detailed separately.

         A. June 3, 2015

         On June 3, 2015, officers from the Kingston Police Department (“KPD”) and the Luzerne County Drug Task Force (“LCDTF”) met with a confidential informant (“CI”) to arrange a controlled buy of cocaine from a person identified as Mahmoud Elbattah. Several calls between the CI and Elbattah were made and they set up a meeting. Elbattah told the CI that “‘Dennis' known to the CI and Police as being Elbattah's cocaine supplier, ” would be delivering the cocaine to Elbattah and the CI. Prior to the transaction, the CI and the CI's vehicle were searched by the police, and no contraband was found. Detective Ed Palka conducted surveillance at the residence of Elbattah at the American Legion in Swoyersville, Luzerne County, and observed Elbattah enter a white/silver BMW driven by a black male. The black male and Elbattah then traveled to meet with the CI at the designated location in Swoyersville and Elbattah called the CI and told him he was on his way. Officers conducting surveillance at the Swoyersville location were able to observe Elbattah exit the vehicle. Elbattah then met with the CI and the CI provided Elbattah with $240 in U.S. currency. “Elbattah wanted the CI to come to the vehicle to meet ‘Dennis' but the CI refused.” Elbattah then took the $240 and returned to the BMW with the black male inside. A short time later, Elbattah exited the vehicle, walked directly to the CI and placed the cocaine in the CI's vehicle. The CI then left the area. Elbattah left the area on foot and began walking toward his residence. Detective Rich Kotchik followed the black male in the BMW to the area of the Vaughn Street Bar in Luzerne Borough. The black male parked the vehicle behind the bar and exited the vehicle.

         After the transaction, the CI met with investigators. The CI turned over to investigators the suspected cocaine which the CI had purchased from Elbattah as well as the recorders which were provided to him. The suspected cocaine was field tested by Kotchik with positive results for the presence of cocaine. Investigators were later able to identify the black male driving the BMW vehicle as Dennis Couvertier and his driver's license indicated that he lived at Rear 347 Vaughn Street, Luzerne, PA.

         On June 9, 2015, Palka conducted surveillance at Rear 347 Vaughn Street and saw Couvertier enter and exit the residence numerous times.

         B. June 10, 2015

         On June 10, 2015, officers from the KPD and the LCDTF used the same CI to arrange a controlled purchase of cocaine from Elbattah and his drug supplier. Before the drug sale, officers searched the CI and his vehicle and no contraband was discovered. The CI made a series of recorded telephone calls to Elbattah and he arranged to purchase a specific amount of cocaine from Elbattah for money. “The CI inquired with Elbattah about meeting ‘Dennis' and Elbattah agreed.” The CI was then given money by Kotchik as well as audio and video recorders.

         Detective Palka conducted surveillance near Couvertier's Vaughn Street residence in Luzerne Borough and observed Couvertier exit his second floor apartment located at 347 Rear Vaughn Street. Couvertier walked over to his brother's house at 106 Sly Street and remained outside.

         Detective Kotchik then followed the CI to Carpenter Street in Luzerne Borough, where the CI was told by Elbattah on his cell phone to pull over. Elbattah was already parked on Carpenter Street. Kotchik saw the CI meet with Elbattah and hand Elbattah the cash. Elbattah instructed the CI to go to Heffron's Gas Station on Union Street in Luzerne and to wait there for Elbattah to return. Elbattah then returned to his vehicle and traveled directly to 347 Vaughn Street and pulled into the back parking Iot. While he was waiting, “the CI contacted Det[ective] Kotchik and advised him that Elbattah was going to meet Dennis and get the cocaine that the CI wanted.” At this time, another officer saw Couvertier get a phone call on his cell phone. Palka then saw Elbattah walking up the steps to Couvertier's apartment at 347 Rear Vaughn Street and knock on the door of the apartment. Elbattah then turned around and saw Couvertier standing in front of his brother's house on Sly street. Couvertier walked back over to his Vaughn Street residence. Couvertier used a key to open the front door to the apartment and he along with Elbattah and another individual entered the apartment. Approximately five minutes later, Palka saw Elbattah exited the apartment and then Kotchik observed him drive to Heffron's gas station, where Elbattah met with the CI. Elbattah gave the CI the requested amount of cocaine.

         After the transaction, the CI met with Kotchik and turned over the suspected cocaine and recording devices. The suspected cocaine field tested positive for the presence of cocaine.

         B. June 12, 2015

         On June 11, 2015, officers Palka and Kotchik of the KPD/LCDTF executed an application for a search warrant for Couvertier's residence located at the rear second floor apartment, 347 Rear Vaughn Street, Luzerne County, Pennsylvania. (Doc. 47-1). They attached their 3-page affidavit of probable cause to the application. The search warrant application was approved by the Luzerne County District Attorney. State Magisterial District Judge (“Magistrate”) PauI Roberts of Kingston, Luzerne County issued the search warrant on the same date.

         According to the government, (Doc. 47, at 5-6), KPD/LCDTF officers met on June 12, 2015 to prepare for the execution of the search warrant, and to serve arrest warrants on Elbattah and Couvertier. Officers began to conduct surveillance at Couvertier's Vaughn Street residence and as they were about to serve the search warrant, a white male and white female were seen exiting the residence. The two individuals were known by Iocal officers to be drug users. Subsequently, based on Couvertier's statements made after his arrest and during custodial questioning, officers discovered that Couvertier had sold $30 worth of cocaine to the two stated individuals. This drug sale is the basis for the §841(a)(1) charge in Count 3 of the Indictment.

         When officers entered Couvertier's residence, they encountered Couvertier in his bedroom with his back to them. The government then states:

Couvertier reached into a dresser drawer and then laid down on a bed, with his right hand underneath his chest. Investigators ordered Couvertier to get on the ground and to show his hands, but Couvertier refused to comply. After refusing several more commands by the police, Couvertier was eventually secured by investigators. On the bed where Couvertier had been lying, investigators found a loaded .45 caliber handgun. In the open dresser drawer into which Couvertier had reached, investigators found a loaded 9mm handgun, $2916 in cash and forty three rounds of .45 caliber ammunition. A digital scale containing suspected cocaine residue was located on top of the dresser. According to police reports, Dennis Couvertier's brother, Robert Couvertier, was located in the living room. After being handcuffed, Dennis Couvertier stated, “the guns are mine, Robert has nothing to do with this.”

         The BMW vehicle which had been used by Couvertier during the surveillance by officers was parked outside his residence. The keys to this vehicle were found on top of the dresser in Couvertier's bedroom.

         After his arrest, Couvertier was taken to the Kingston Police Department. He was advised of his Miranda rights and waived his rights. He then agreed to be interviewed by the officers. During the custodial interview, Couvertier admitted to possessing the two firearms found in his residence, to selling a bag of cocaine for $30 to the two known drug users who were observed leaving his residence immediately before the search warrant was executed, and to being an illegal controlled substances user. (Id. at 6-7).


         On August 18, 2015, a federal grand jury charged Couvertier with a five-count Indictment for the following charges: three counts of possession with intent to distribute cocaine, in violation of 21 U.S.C. §841(a)(1), (Counts 1-3); one count of possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. §924(c), (Count 4), and; one count of a drug user in possession of a firearm, in violation of 18 U.S.C. §922(g)(3), (Count 5). Couvertier had his initial appearance and arraignment on August 27, 2015 and entered a plea of not guilty to the charges. (Doc. 10). Couvertier was then ordered detained pending his trial. (Doc. 11).

         On October 14, 2016, Couvertier filed a motion to suppress physical evidence and statements, (Doc. 43), with an exhibit and a supporting brief, (Doc. 44). After being granted an extension of time, the government filed a brief in opposition to the motion with the search warrant application and affidavit of probable cause attached as an exhibit on November 21, 2016. (Doc. 47). On January 7, 2017, Couvertier filed a reply brief also after he received an extension of time. (Doc. 50). Couvertier seeks to suppress all of the evidence seized from the search of his residence and his statements made during his custodial interrogation.


         Protection against unreasonable searches and seizures is enshrined in the Fourth Amendment, which states: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const. amend. IV. Accordingly, the Fourth Amendment lays out four requirements of a valid warrant. The warrant must: 1) be based on probable cause; 2) be supported by a sworn affidavit; 3) describe particularly the place of the search; and 4) describe particularly the persons or things to be seized. Groh v. Ramirez, 540 U.S. 551, 557 (2004).

         “The Fourth Amendment requires that a search warrant be supported by probable cause, and ‘[e]vidence seized pursuant to a search warrant that is not so supported may be suppressed.'” U.S. v. ...

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