United States District Court, W.D. Pennsylvania
Barry Fischer, United States District Judge.
matter is before the Court on a Motion to Suppress Evidence
and Amendment to said Motion filed by Defendant Adolph Brown
(“Defendant”), and the Government's
opposition thereto. (Docket Nos. 45, 48, 60, 63). The Court
held a motion hearing on December 19, 2016, the official
transcript of which has been filed of record and considered
by the Court. (Docket Nos. 64, 66). The parties subsequently
filed proposed findings of fact and conclusions of law.
(Docket Nos. 98, 100, 103, 104). After careful consideration
of all of the parties' submissions and the credible
evidence of record, and for the following reasons,
Defendant's Motion to Suppress and Amendment are denied.
seeks to suppress evidence seized following the stop and
search of a vehicle in which he was a passenger. Prior to
that occurrence, John A. Orlando, a Special Agent of the
Federal Bureau of Investigation (“FBI”), filed an
Application for a Warrant Directing the Disclosure of
GPS/E911 Location Data Relating to a Wireless Telephone
utilized by Defendant, a redacted copy of which is attached
as Exhibit 2 to the Government's Omnibus Response to
Defendant's Pretrial Motions (Docket No. 48-2)
(hereinafter, the “Affidavit”). In the Affidavit,
Special Agent Orlando first summarized his ten years of
employment with the FBI, as well as his experience in
investigating drug trafficking crimes. (Aff. ¶¶
1-3). Special Agent Orlando explained that a warrant was
sought pursuant to, inter alia, 18 U.S.C. §
2703(c)(1)(A), directing the disclosure of records and
physical location data generated at any time up to 45 days
from the date of the warrant that will establish the
approximate position of the wireless telephone serviced by
Sprint and assigned telephone number 330-541-6175 as utilized
by Defendant (the “target telephone”).
(Id. ¶ 5.a). Special Agent Orlando averred that
there was probable cause to believe that Defendant was using
the target telephone to commit drug trafficking offenses and
that the requested location-based data would provide evidence
of those offenses. (Id. ¶¶ 6, 7).
discussing probable cause, Special Agent Orlando averred that
he was participating in an investigation by federal, state
and local law enforcement agencies of drug traffickers
operating in the towns of Farrell and Sharon, which are
located in Mercer County in the Western District of
Pennsylvania. (Aff. ¶ 14). Defendant, who had a criminal
history which included arrests and convictions for narcotics
possession and drug trafficking, was believed to be a source
of cocaine supply to an individual who sold drugs in Farrell.
(Id. ¶¶ 12, 13).
August 27, 2014, law enforcement intercepted text messages
and a telephone call between specific targets of the
investigation which indicated that they were about to receive
a supply of cocaine from individuals unknown to law
enforcement at that time. (Aff. ¶¶ 16-18). On that
same date, surveillance units observed a silver Mercedes
sedan located in Farrell at the residence of one of the
targets of the investigation. (Id. ¶ 19). Law
enforcement subsequently conducted a traffic stop of that
vehicle and identified Defendant, who was from Akron, as a
passenger. (Id.). After identifying Defendant and
the female driver of the vehicle, officers permitted them to
leave the area. (Id.).
January 2015, law enforcement obtained an order authorizing
wire and electronic interception of a particular telephone
associated with a target of the investigation. (Aff. ¶
20). On January 28, 2015, the target used that telephone to
call an unknown female and stated that the target was
preparing to travel from Farrell to Akron, a location law
enforcement believed was a potential source of cocaine
supply. (Id. ¶¶ 21, 22). Law enforcement
tracked the target to the Akron area and then back to
Pennsylvania. (Id. ¶ 22). At that point, law
enforcement conducted a traffic stop of the target's
vehicle, obtained consent to search and recovered
approximately five ounces of cocaine from inside the center
arm rest. (Id.). The target then agreed to cooperate
with law enforcement (hereinafter, the “confidential
informant” or “CI”) and informed them that
he acquires his cocaine from Defendant, who lives in the
Akron area. (Id. ¶ 23). The CI explained that
before being intercepted by law enforcement, the CI had
traveled to Akron to meet Defendant and had purchased the
recovered cocaine. (Id.). The CI further indicated
that Defendant travels in a silver Mercedes sedan, and the CI
also provided Defendant's telephone number.
January 29, 2015, the CI contacted agents to advise that he
had just received a telephone call from Defendant. (Aff.
¶ 24). The CI explained that it was typical for
Defendant to call after they conducted a cocaine transaction
to make sure the CI arrived home without being interdicted by
law enforcement. (Id.).
January 30, 2015, the CI made a consensually recorded
telephone call to Defendant during which the CI inquired with
Defendant about purchasing two kilograms of cocaine. (Aff.
¶ 25). Defendant informed the CI that “they”
(the kilograms of cocaine) should be arriving the following
day and instructed the CI to wait for Defendant to call.
(Id.). Accordingly, Agent Orlando averred that
“law enforcement expects that [Defendant] will soon
deliver two kilograms of cocaine to [the CI] in the Western
District of Pennsylvania, and that therefore,
[Defendant's] location will allow law enforcement to
interdict this shipment of narcotics.” (Id.).
on Special Agent Orlando's Affidavit, United States
Magistrate Judge Cynthia Eddy found probable cause to
conclude that federal narcotics trafficking crimes had been
and would continue to be committed in this District by
Defendant and others, and that physical location data for the
target telephone would provide evidence of the commission of
those crimes. (See Docket No. 48-2). Therefore, on
January 31, 2015, Magistrate Judge Eddy issued a warrant
directing the disclosure of GPS/E911 location data (commonly
referred to as “ping”) relating to the target
telephone utilized by Defendant for a period of up to 45
days. (Id.). According to the Government, the
warrant was executed on that date, and agents continued to
collect “ping” data from the target telephone
until Defendant's arrest on March 2, 2015. (See
Docket No. 48 at 5).
days leading up to March 2, 2015, law enforcement used a
confidential informant to place consensually recorded calls
to Defendant during which it was discussed that Defendant
would be travelling from Akron to Farrell to deliver
approximately 27 ounces of cocaine. (See Docket 1-1,
Aff. in Supp. of Crim. Compl. ¶ 5). On March 2, 2015,
agents observed the “ping” data related to the
target telephone indicated that Defendant was starting to
head in the direction of Farrell. (Docket No. 48 at 5). Law
enforcement used physical surveillance to identify the
vehicle in which Defendant was travelling and continued to
follow the vehicle. (Id.). Pennsylvania State Police
eventually conducted a traffic stop in Sharon, Pennsylvania
of a white Lexus sedan driven by Crystal Johnson in which
Defendant was a passenger. (Aff. in Supp. of Crim. Compl.
¶ 6). Ms. Johnson consented to a search of the vehicle,
and the police located approximately 27 ounces of cocaine
hidden behind a baby's car seat in the rear passenger
area. (Id. ¶ 7). When subsequently interviewed
at the State Police barracks, Defendant confessed that the
package contained cocaine and that he was transporting it to
an individual in Farrell, Pennsylvania. (Id. ¶
March 3, 2015, a criminal complaint was filed against
Defendant alleging that he violated provisions of the
Controlled Substances Act by possessing with intent to
distribute cocaine. (Docket No. 1). Subsequently, on August
25, 2015, Defendant was charged in a one-count Indictment
with possession with intent to distribute 500 grams of more
of cocaine on or about March 2, 2015, in violation of 21
U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(ii). (Docket
second CJA appointed counsel, Lee Markovitz, filed the
pending Motion to Suppress Evidence arguing that
Defendant's Fourth Amendment rights were violated and the
evidence should be suppressed because: (1) the warrant was
not supported by probable cause; (2) the application for the
warrant did not comply with 18 U.S.C. § 2518(1)(c); (3)
the application for the warrant was not executed or properly
authorized by an attorney for the Government; (4) the warrant
was issued in the Western District of Pennsylvania, but it
was executed outside of this District; (5) law enforcement
improperly used a “stingray” to track Defendant;
(6) the warrant was excessively broad in timing and scope;
and (7) paragraph 25 of the Affidavit contained a knowing or
reckless omission. (See Docket No. 45, ¶¶
4.A - 4.G).
Attorney Markovitz moved to withdraw as Defendant's
counsel, Robert Carey was appointed to represent him. (Docket
Nos. 53, 54, 55). Attorney Carey filed an Amendment to the
Motion to Suppress, arguing that suppression is warranted for
these additional reasons: (1) Defendant was prejudiced by the
Government's alleged Rule 41 violation; (2) the police
searched the vehicle in which Defendant was a passenger
without probable cause to support a traffic stop or
reasonable suspicion of criminal activity; (3) the Affidavit
did not properly establish the confidential informant's
reliability; and (4) location and GPS/E911 data were not
necessary to achieve the goals of the investigation.
(See Docket No. 60, ¶¶ 10.a - 10.d).
Carey represented Defendant at the motion hearing held on
December 19, 2016. At Defendant's request, Attorney Carey
subsequently moved to withdraw as counsel. (Docket No. 71).
The Court granted the motion and appointed Stephen Begler to
represent Defendant. (Docket Nos. 80, 81). Attorney Begler
filed Defendant's proposed Findings of Fact and
Conclusions of Law and supplemental briefing, to which the
Government responded. (Docket Nos. 98, 100, 103, 104). As the
matter has been fully briefed and argued, it is now ripe for
argues that the traffic stop, vehicle search and his arrest
and confession all were the product of his unlawful tracking
from Ohio to Pennsylvania in violation of his rights under
the Fourth Amendment. In support of this argument, Defendant
claims that the Affidavit and warrant are deficient in
multiple respects, raising eleven arguments for suppression
as set forth in Part II.B., supra, all of which are
opposed by the Government. The Court will address each of
Defendant's arguments, in turn.
The Warrant is Supported by Probable Cause.
first contends that his Fourth Amendment rights were violated
because the warrant issued by Magistrate Judge Eddy was not
supported by probable cause. (Docket No. 45, ¶ 4.A).
Related to this contention, Defendant claims probable cause
was lacking because the Affidavit did not contain any
information to establish that the confidential informant was
reliable. (Docket Nos. 60, ¶ 10.c; 61 at 3). The
Government counters that the warrant was supported by
probable cause, and the confidential informant's
reliability can be inferred from the facts contained in the
Affidavit. (Docket Nos. 48 at 6; 63 at 7-9, 10-12).
United States v. Coca, Crim. No. 14-262, 2016 WL
7013037 (W.D. Pa. Dec. 1, 2016), this Court summarized the
law applicable to review of a magistrate judge's
determination of probable cause as follows:
“A magistrate's ‘determination of probable
cause should be paid great deference by reviewing
courts.' ” Illinois v. Gates, 462 U.S.
213, 236 (1983) (quoting Spinelli v. United States,
393 U.S. 410, 419 (1969)). A trial court exercises
“only a deferential review of the initial probable
cause determination made by the magistrate.” United
States v. Conley, 4 F.3d 1200, 1205 (3d Cir. 1993)
(citing Gates, 462 U.S. at 236) (emphasis in
original). “[T]he duty of a reviewing court is simply
to ensure that the magistrate had a ‘substantial basis
for ... conclud[ing]' that probable cause existed.”
Gates, 462 U.S. at 238 (quoting Jones v. United
States, 362 U.S. 257, 271 (1960)). The deference given
to a magistrate's issuance of a warrant “does not
mean that reviewing courts should simply rubber stamp a
magistrate's conclusions.” United States v.
Miknevich, 638 F.3d 178, 182 (3d Cir. 2011) (internal
quotations omitted). Still, “ ‘the resolution of
doubtful or marginal cases in this area should be largely
determined by the preference to be accorded to warrants.'
” United States v. Jones, 994 F.2d 1051, 1055
(3d Cir. 1993) (internal quotations omitted).
A magistrate's role in issuing a warrant is to
“make a practical, common-sense decision whether, given
all the circumstances set forth in the affidavit before
[her], including the ‘veracity' and ‘basis of
knowledge' of persons supplying hearsay information,
there is a fair probability that contraband or evidence of a
crime will be found in a particular place.”
Gates, 462 U.S. at 238. A warrant is to be upheld on
review “as long as there is a substantial basis for a
fair probability that evidence will be found.”
Conley, 4 F.3d at 1205. In conducting this
assessment, a reviewing court is confined “to the facts
that were before the magistrate judge, i.e., the affidavit,
and [the court may] not consider information from other
portions of the record.” Jones, 994 F.2d at
1055. Stated otherwise, the District Court is restricted to
viewing only the information confined by the “four
corners” of the affidavit before the magistrate.
United States v. Whitner, 219 F.3d 289, 295-96 (3d
Cir. 2000). “The supporting affidavit to a search
warrant is to be read in its entirety and in a common sense,
nontechnical manner.” Miknevich, 638 F.3d at
182. This includes “all the circumstances set forth in
the affidavit before [her], including the
‘veracity' and ‘basis of knowledge' of
persons supplying hearsay information.” Gates,
462 U.S. at 238. Further, “ ‘probable cause is a
fluid concept' that turns on ‘the assessment of
probabilities in particular factual contexts not readily, or
even usefully, reduced to a neat set of legal rules.'
” Miknevich, 638 F.3d at 182 (quoting
United States v. Shields, 458 F.3d 269, 277 (3d Cir.
2006)). Proof beyond a reasonable doubt is not required.
Coca, 2016 WL 7013037, at *4.
of these well-established principles, the warrant issued by
Magistrate Judge Eddy authorizing the tracking of the target
telephone utilized by Defendant is supported by ample
probable cause. As discussed above, the Affidavit provides
details of the investigation that led agents to Defendant,
who was from Akron, including law enforcement's
identification of Defendant on August 27, 2014, as a
passenger in a silver Mercedes that had been in Farrell,
Pennsylvania at the residence of one of the targets of the
investigation. (Aff. ¶¶ 16-19). The Affidavit then
recounts that an individual who transported cocaine from
Akron to Pennsylvania was intercepted by law enforcement and
subsequently began to cooperate. (Id. ¶¶
22-23). The CI indicated that he acquires his cocaine from
Defendant, who lives in the Akron area. (Id. ¶
23). The CI also provided other identifying information,
including that Defendant travelled in a silver Mercedes, as
well as Defendant's telephone number, which was the
target telephone identified in the Affidavit. (Id.).
The CI made a consensually recorded call to Defendant during
which they discussed the CI purchasing two kilograms of
cocaine from Defendant. (Id. ¶ 25). Defendant
then advised that the cocaine should be arriving the
following day and the CI should wait for Defendant to call.
(Id.). All of this information contained in the
“four corners” of the Affidavit constitutes a
substantial basis for Magistrate Judge Eddy to have concluded
that Defendant was using the target telephone in connection
with his drug trafficking activity, thus there was a fair
probability that the location of the target telephone would
provide information relative to that activity. Accordingly,
the warrant authorizing the tracking of the target telephone
was supported by probable cause.
probable cause determination is not negated by the fact that
the Affidavit did not specifically address the CI's
reliability, despite Defendant's contention to ...