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United States v. Coles

United States District Court, M.D. Pennsylvania

September 8, 2017

UNITED STATES OF AMERICA
v.
KEVIN COLES, Defendant

          MEMORANDUM

          Christopher C. Conner, Chief Judge

         Defendant Kevin Coles moves the court to suppress evidence resulting from his detention and arrest on July 7, 2016, and statements made during an August 11, 2016 interrogation. (Docs. 67, 69). Coles also seeks to suppress all evidence gathered during execution of a search warrant at a residence located in Chambersburg, Pennsylvania. (Doc. 100). The court will grant in part and deny in part Coles' motions.

         I. Factual Background[1]

         Authorities in Franklin County, Pennsylvania, began investigating a drug-related triple homicide in late June of 2016. (See Docs. 105, 117). In furtherance of that investigation, on June 29, 2016, authorities applied for an order authorizing disclosure of mobile communication information for a cell phone believed to belong to defendant Kevin Coles (“Coles”). (See Doc. 117). Pennsylvania State Police Trooper Jeffrey Baney described the ongoing investigation in detail and indicated his belief that Coles' cell phone may obtain information relevant to same. (See id.) On June 30, 2016, Franklin County Court of Common Pleas Judge Angela R. Krom granted the application, expressly finding “that there is probable cause to believe that information relevant to an ongoing criminal investigation . . . will be obtained” from Coles' cell phone. (Doc. 99-1 at 1). The order stated that its authorization “shall be without geographic limitations as long as the results of the disclosure . . . are monitored within the jurisdiction of the court.” (Id. at 5).

         Pennsylvania State Police Trooper Neal Navitsky (“Trooper Navitsky”) monitored Coles' cell phone in accordance with Judge Krom's order. (8/17/17 Hr'g Tr. 42:14-16, 43:11-15). Cell site location information revealed that, on July 7, 2016, Coles was near a Days Inn in Hagerstown, Maryland. (Id. at 44:18-45:5). Trooper Navitsky relayed Coles' location to the Maryland State Police fugitive apprehension team. (7/18/17 Hr'g Tr. 7:1-12; 8/17/17 Hr'g Tr. 44:18-45:5). At the time, Maryland authorities were aware that a bench warrant for Coles' arrest had been issued in New York state on July 30, 2015. (7/18/17 Hr'g Tr. 10:20-12:19; see 7/18/17 Hr'g Gov't Ex. 1). A National Crime Information Center (“NCIC”) printout listed the warrant under the phrase “FULL EXTRADITION, ” but directed authorities to contact the originating agency to confirm both the warrant and the authorization for extradition. (Doc. 79-1; see 7/18/17 Hr'g Tr. 26:2-24). The printout stated that Coles was wanted for second degree arson. (Doc. 79-1; see also 7/18/17 Hr'g Tr. 26:13-17). Detective Jesse Duffy (“Detective Duffy”), a member of the Hagerstown Police Department, testified that dispatch confirmed the warrant with New York state authorities and advised field officers “that full extradition was authorized.” (7/18/17 Hr'g Tr. 5:23-6:1, 11:17-13:5, 20:20-21:12, 26:18-27:2).

         The Maryland State Police fugitive apprehension team coordinated with Hagerstown police to arrest Coles. (See 7/18/17 Hr'g Tr. 7:1-12). The team gathered outside of the Days Inn in Hagerstown and prepared to make contact with Coles in his hotel room. (Id. at 7:1-12, 18:22-19:4). Before officers could execute their plan, they observed Coles exiting the hotel with a large white trash bag which “appeared to be pretty full of items.” (Id. at 7:16-17, 8:1-9). Coles waited underneath the hotel portico for “several minutes” until a silver Chevrolet Equinox pulled up, at which point Coles walked immediately to the vehicle and entered the rear passenger side. (Id. at 8:5-22). When the vehicle began to exit the portico, the apprehension team surrounded it with guns drawn, directed its occupants to keep their hands in the air, and ordered Coles to exit the vehicle. (Id. at 8:14-9:2).

         Officers removed Coles from the vehicle and brought him to the ground, whereupon he was handcuffed and secured. (Id. at 9:22-10:1). A white Motorola cell phone fell to the ground when Coles exited the vehicle. (Id. at 9:3-16). During a search of Coles' person following the arrest, authorities recovered a black Kyocera cell phone. (Id. at 10:2-11). Authorities also observed a ZTE cell phone on the rear passenger seat of the vehicle. (Id. at 10:12-17). Coles was placed into custody, and he has remained in custody since that time. (See 7/18/17 Hr'g Tr. 49:2-8; 8/17/17 Hr'g Tr. 6:6-10).

         Detective Duffy applied to the Circuit Court of Washington County, Maryland, for a search warrant for the Chevrolet Equinox. (7/18/17 Hr'g Tr. 13:6-21). In his affidavit in support of the warrant application, Detective Duffy described the underlying homicide investigation and Coles' association with the victims. (See 7/18/17 Hr'g Gov't Ex. 2 at 6-7). Detective Duffy stated, in pertinent part:

It was learned that Coles had an active bench warrant out of New York State for a probation violation concerning an attempted homicide. On July 7, 2016, Coles was located at the Days Inn Motel in Hagerstown, Maryland. Coles was observed exiting the Days Inn Motel carrying a white bag. Coles was under constant surveillance from the time he exited the motel to the time he entered the aforementioned vehicle. Coles got into a silver in color, 2014 Chevrolet Equinox bearing MD registration 1BT1827 which was subsequently stopped due to the outstanding warrant. Coles was taken into custody at this time for the warrant. There were four other occupants in the car. The vehicle was secured and towed to Hagerstown Police Department (HPD) impound lot.
One of the occupants in the vehicle related she had just met Coles about one week prior and observed Coles in possession of a gun on his person 2-3 times. She further advised that at approximately 0030 hours (07/07/16), they were in the aforementioned vehicle when they were encountered by HPD responding to a call for a suspicious vehicle. Coles provided a false name of Curtis Smith to HPD. As the HPD officer was running the name, Coles fled from the vehicle on foot. A foot pursuit ensued for two blocks; however Coles got away.
Upon taking Coles into custody, a search incident to arrest of his person was conducted with negative results for a weapon. Coles also did not have the white bag on his person. The Days Inn Motel room that Coles had been in was searched with negative results for a weapon.

(Id. at 7). A magisterial district judge approved Detective Duffy's application, and authorities executed the warrant on July 7, 2016. (7/18/17 Hr'g Tr. 13:12-14:5; see also 7/18/17 Hr'g Gov't Ex. 2 at 1-2). Authorities recovered, inter alia, several cell phones, a tablet, a plastic bag containing suspected heroin, and a white trash bag containing clothing. (7/18/17 Hr'g Tr. 14:1-15; see also 7/18/17 Hr'g Gov't Ex. 2 at 10).

         Later that same day, Pennsylvania State Police Trooper Antwjuan Cox (“Trooper Cox”) traveled to the Hagerstown Police Department to interview Coles. (See 7/18/17 Hr'g Tr. 49:2-17). Trooper Cox advised Coles of his Miranda rights. (7/18/17 Hr'g Def. Ex. 102 at 1; see 7/18/17 Hr'g Tr. 56:16-57:8). Coles replied that he would listen to what Trooper Cox had to say before determining if he wanted to have an attorney present. (7/18/17 Hr'g Def. Ex. 102 at 1; see 7/18/17 Hr'g Tr. 56:16-57:8). Trooper Cox indicated that he wished to speak with Coles about the homicide in Franklin County. (7/18/17 Hr'g Tr. 67:22-24). After some preliminary inquiries, Coles stated that he was uncomfortable with Trooper Cox's questions and expressly requested an attorney. (7/18/17 Hr'g Def. Ex. 102 at 1; see 7/18/17 Hr'g Tr. 56:16-57:8). Trooper Cox reported that questioning ceased as soon as Coles requested counsel. (7/18/17 Hr'g Def. Ex. 102 at 1-2; 7/18/17 Hr'g Tr. 57:6-8).

         Trooper Cox and Drug Enforcement Agency Special Agent Keith T. Kierzkowski (“Agent Kierzkowski”) traveled to Franklin County Jail to interview Courtney Smith (“Smith”), a target of a narcotics investigation and associate of Coles, on July 21, 2016. (Doc. 105 at 3). Smith admitted distributing heroin and crack cocaine from her apartment at 142 Lincoln Way West in Chambersburg, Pennsylvania with Coles and others. (Id.) Smith reported to Trooper Cox and Agent Kierzkowski that she believed Coles continued to use the apartment to distribute heroin while she was incarcerated.[2] (Id.) At the end of the interview, Smith executed a Pennsylvania State Police Consent to Search form for her apartment at 142 Lincoln Way West. (See Doc. 112-1; see also Doc. 105 at 3).

         Pennsylvania State Police Troopers Paul M. Decker (“Trooper Decker”) and Richard Kline performed the consent search at 142 Lincoln Way West on July 21, 2016. (Doc. 105 at 4). The officers observed the apartment door to be “hanging open” upon arrival. (Id.) The officers also observed that the hallway carpet had been removed, the hallway walls were freshly painted, and painting supplies were lying in the hallway. (Id.) In the bedroom, officers discovered materials consistent with evidence recovered from the homicide scene. (Id.) Based on this information, Trooper Decker applied for and received a warrant to search the apartment. (See Id. at 1). During execution of the warrant, authorities seized the painting and cleaning supplies as well as suspected drugs. (Id. at 6).

         Coles was brought to the Hagerstown Police Department for additional questioning by Trooper Cox and Agent Kierzkowski on August 11, 2016. (7/18/17 Hr'g Tr. 29:21-30:2). Trooper Cox advised Agent Kierzkowski before the interview that Coles had requested counsel on July 7, 2016. (See 7/18/17 Hr'g Tr. 53:3-12). Trooper Cox met with Coles first to explain Agent Kierzkowski's role; during that meeting, Trooper Cox observed to Coles that “you kinda shut me down” during our last meeting. (See 7/18/17 Hr'g Def. Ex. 106 at 9:34:58-9:35:17). Agent Kierzkowski then joined Trooper Cox and showed Coles a copy of the indictment returned against him in this case. (See 7/18/17 Hr'g Tr. 30:7-8).

         As Trooper Cox began reading Coles his Miranda rights, Coles interrupted and attempted to recite the rights himself. (Id. at 30:12-31:14). Agent Kierzkowski explained to Coles that officers must themselves advise him of his rights, and Coles listened as Trooper Cox again read Coles his rights under Miranda. (Id. at 31:5-14). Coles did not explicitly waive his rights but proceeded to answer more than three hours' worth of questions concerning his involvement in drug trafficking and any knowledge he had with respect to the triple homicide. (See generally 7/18/17 Hr'g Def. Ex. 106). Only at the conclusion of the interview did Coles expressly renew his request for counsel. (See 7/18/17 Hr'g Tr. 32:9-33:1). Agent Kierzkowski then terminated the interview. (Id. at 32:25-33:1).

         II. Procedural History

         A federal grand jury returned a five-count indictment against Coles and codefendant Devin Dickerson on August 3, 2016. (Doc. 1). The indictment charges Coles in four counts, as follows: one count of conspiracy to distribute and possess with intent to distribute at least 100 grams of heroin and 28 grams of cocaine base in violation of 21 U.S.C. § 846 (Count 1); two counts of possession with intent to distribute heroin and cocaine base in violation of 21 U.S.C. § 841(a)(1) (Count 2 and Count 4); and one count of possession of a firearm during and in relation to a drug-trafficking offense in violation of 18 U.S.C. § 924(c)[3] (Count 5). Counts 2, 4, and 5 charge both substantive offenses and aiding and abetting offenses under 18 U.S.C. § 2. (Doc. 1). Count 5 further invokes co-conspirator liability pursuant to Pinkerton v. United States, 328 U.S. 640 (1946). (Doc. 1). Coles pleaded not guilty to all counts. (Doc. 21).

         On June 23, 2017, Coles filed a motion (Doc. 67) to suppress statements made during the July 7, 2016 and August 11, 2016 interviews and a motion (Doc. 69) to suppress all evidence from his allegedly unlawful detention and arrest on July 7, 2016. In reply, the government indicated that it did not intend to introduce statements from the July 7, 2016 interview, (see Doc. 79 at 3), and the court denied that aspect of Coles' motion as moot. (See Doc. 92). Coles later moved to suppress all evidence obtained from the warrant search of Smith's apartment on July 22, 2016. (Doc. 100). The court convened suppression hearings on July 18, 2017 and August 17, 2017. (See Docs. 72, 111). The motions are fully briefed and ripe for disposition.

         III. Discussion

         Coles' motions raise manifold arguments seeking to suppress evidence from his arrest, two subsequent searches, and a custodial interrogation. We begin with Coles' claims concerning the cell phone tracking order from which all subsequent law enforcement action flowed.

         A. Cell Phone Tracking

         Coles contends that the warrantless use of cell site location information (“CSLI”) is an “obvious” violation of the Fourth Amendment. (Doc. 94 at 8; see also 8/17/17 Hr'g Tr. 49:21-50:17, 51:17-52:7). The court disagrees. In fact, the Third Circuit Court of Appeals has previously considered and rejected a Fourth Amendment challenge to the warrantless use of cell site data. In United States v. Stimler, 864 F.3d 253 (3d Cir. 2017), the court reaffirmed that CSLI collection under the federal Stored Communications Act, 18 U.S.C. § 2703(d)-which requires only “reasonable grounds” to believe that relevant and material records will be obtained-does not implicate an individual's reasonable expectation of privacy. Id. at 266-67 (citing In re Application of the United States for an Order Directing a Provider of Elec. Commc'n Serv. to Disclose Records to the Gov't, 620 F.3d 304, 312-13 (3d Cir. 2010)). Accordingly, in the Third Circuit, CSLI collection does not trigger the Fourth Amendment's warrant requirement. Id.

         Coles acknowledges this binding precedent but invites this court to reconsider it. (Doc. 94 at 8). He emphasizes that the Supreme Court recently granted certiorari review of a Sixth Circuit decision which employs a rationale similar to Stimler, thereby signaling that the Supreme Court is poised to overrule Stimler and its analogues. (See 8/17/17 Hr'g Tr. 50:10-17); see also United States v. Carpenter, 819 F.3d 880, 885-90 (6th Cir. 2016), cert. granted, 137 S.Ct. 2211 (2017). We decline Coles' invitation. We are bound to follow the current law of our circuit, which holds that CSLI tracking does not actuate the Fourth Amendment's warrant requirement. See Stimler, 864 F.3d at 266-67 (citing In re Application, 620 F.3d at 312-13).

         Even if the Supreme Court were to adopt a more stringent probable cause requirement for CSLI tracking, the requirement would be satisfied sub judice, The tracking order in question issued under Pennsylvania's Wiretapping and Electronic Surveillance Control Act, 18 Pa. Cons. Stat. § 5701 et seq., not the Stored Communications Act, 18 U.S.C. § 2703(d). (Doc. 99-1 at 1). Before a tracking order may issue under Pennsylvania law, the applicant must demonstrate “probable cause to believe that information relevant to an ongoing criminal investigation will be obtained.” 18 Pa. Cons. Stat. § 5773(a). The state trial court judge who issued the order expressly found that the application satisfied the state's probable cause requirement. (Doc. 99-1 at 1). Hence, even if the Supreme Court adopts a heightened probable cause standard in Carpenter, it will have no impact on our decision, and we will deny Coles' motion to the extent it oppugns the lawfulness of the cell phone tracking order.[4]

         B. July ...


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