United States District Court, M.D. Pennsylvania
Christopher C. Conner, Chief Judge
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.
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).
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).
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).
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).
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).
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.
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. (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).
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).
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).
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).
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) (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).
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.
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.
Cell Phone Tracking
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
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).
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.