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United States v. Brown

United States District Court, W.D. Pennsylvania

August 21, 2017



          Nora Barry Fischer, United States District Judge.

         I. Introduction

         This 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.

         II. Background

         A. Facts

         Defendant 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).

         In 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).

         On 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.).

         In 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. (Id.).

         On 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.).

         On 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.).

         Based 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).

         In the 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. ¶ 8).

         B. Relevant Procedure

         On 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 No. 24).

         Defendant's 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).

         After 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).

         Attorney 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 disposition.

         III. Discussion

         Defendant 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.

         A. The Warrant is Supported by Probable Cause.

         Defendant 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).

         In 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. Id.

Coca, 2016 WL 7013037, at *4.

         In view 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.

         The 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 ...

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