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United States v. Ross

United States District Court, M.D. Pennsylvania

June 20, 2018

UNITED STATES OF AMERICA
v.
MAURICE L. ROSS, Defendant

          MEMORANDUM

          YVETTE KANE, DISTRICT JUDGE

         Before the Court is Defendant Maurice L. Ross (“Defendant”)'s motion to suppress evidence under the Fourth and Fifth Amendments to the United States Constitution. (Doc. No. 26.) For the reasons explained below, the Court will deny the motion.

         I.BACKGROUND

         A. Factual Background[1]

         1.Robbery Investigation

         Detective Jason Paul (“Detective Paul”), who is employed by the Harrisburg City Police Department and presently assigned to the city's vice unit, was assigned to investigate three armed robberies that reportedly took place at the Brookwood Market in Harrisburg, Pennsylvania in December of 2016. (Doc. No. 35 at 6: 6-25, 7: 2-4.) The robberies occurred on December 8, December 17, and December 22 of 2016, respectively. (Id. at 7: 10-25.) During the first robbery, “[a]n armed individual came into the store and robbed the store clerk . . . [and] the only thing that was taken was cash.” (Id. at 7: 12-14.) During the second robbery, when the same store clerk was present, the clerk relayed that the same male entered the store with his face covered and displayed a handgun while taking both cash and lottery tickets. (Id. at 7: 18-22.) As to the third robbery, which involved a different clerk, “[a] male came in, face covered, displayed a handgun, and during that robbery, cash and lottery tickets were taken.” (Id. at 7:23-25, 8:1-2.)

         As part of his investigation, Detective Paul received information from the state lottery bureau as to the lottery tickets stolen during the second and third robberies, which ultimately led to Defendant's arrest. (Id. at 8: 24-25, 9: 1-9.) According to Detective Paul, whenever lottery tickets are taken during a robbery, the lottery bureau records the serial numbers of the stolen lottery tickets, “and once somebody tries to cash those tickets, they'll be flagged” such that they cannot be cashed, and the lottery bureau is subsequently notified that an individual attempted to cash the tickets. (Id. at 9: 3-9.) On January 5, 2017, Detective Paul contacted Jim Sawyer (“Sawyer”), an employee of the state lottery bureau, who informed him that “some of the tickets from these robberies had been cashed on December 18th at three different locations, ” one of which was located within Harrisburg, and another that was “right outside the city at the Sheetz on Paxton Street.” (Id. at 9: 10-18.) Upon receiving this information, Detective Paul proceeded to the Sheetz, where employees “were able to pull video of a male coming into the store and cashing the tickets, ” which allows one “to see the male pull in in a minivan, go in, [and] cash the tickets with the clerk.” (Id. at 9: 19-23.) After the male cashed the tickets, he left the Sheetz store in the minivan. (Id. at 10: 1-3.)

         Using video security footage, Detective Paul obtained information as to the minivan's license plate, which read “MS CYNT.” (Id. at 10: 4-5.) After he “ran the tag, ” his search returned a result for a woman named Cynthia Hamilton (“Cynthia Hamilton”), whose residence was listed as 2402 Kensington Street in Harrisburg. (Id. at 10: 4-7.) Detective Paul was then able to locate additional information relating to Cynthia Hamilton, which revealed that “she had two sons, a Darryl Ross and a Maurice Ross” who were listed as residing at the same location and both had figures or profiles of the male suspected of committing the robberies. (Id. at 10: 8-11.) Specifically, Detective Paul remarked that “[t]hey were both large black males.” (Id. at 10:11.) Additionally, Detective Paul stated that he was already somewhat familiar with Defendant in that he “was aware that he had gone to federal prison.” (Id. at 11: 6-7.) Detective Paul then contacted Detective Richard Gibney (“Detective Gibney”), a detective employed by the Harrisburg City Bureau of Police who assists in investigations involving the FBI, who put him in contact with Defendant's federal probation officer, David Herzog (“Herzog”).[2] (Id. at 11: 21-23, 13:1-3.) Detective Paul then contacted Herzog on January 6, 2017 to review surveillance footage pertaining to the robberies and ascertain whether Herzog recognized any individual in the footage, and after that review, Herzog stated that he recognized Defendant. (Id. at 12: 1-4, 14: 22-24.)

         In addition, Detective Paul assembled photo arrays as to Defendant and Darryl Ross (id. at 10: 12-13), and also on January 6, visited the Sheetz where one had attempted to cash stolen lottery tickets and met with Troy Decker (“Decker”), the manager of the Sheetz who previously showed surveillance footage to him (Id. at 13: 14-16). While meeting with Decker, Detective Paul showed him a photo array containing a picture of Defendant, and Decker identified Defendant as the individual who cashed the lottery tickets. (Id. at 13: 16-19.) Upon being shown a separate photo array that included Darryl Ross' picture, Decker was unable to identify anyone in that array. (Id. at 13: 17-21.) Detective Paul subsequently took the photo arrays to the Brookwood Mart, where he met with the two clerks who were present at Brookwood Mart during the robberies. (Id. at 15: 11-14.) One of the clerks was able to identify Defendant “as the person that robbed him on both occasions, ” while the other was unable to identify anyone from either array. (Id. at 15: 15-17.)

         2. Application for and Issuance of Search Warrant

         On January 6, 2017, Detective Paul completed an application for a search warrant (“the warrant”) for the residence located at 2402 Kensington Street (“the residence”), which was signed by a judge of the Dauphin County Court of Common Pleas. (Id. at 16: 16-22.) The warrant named the aforementioned address and Defendant as the place and person to be searched. (Doc. No. 26, Ex. A.) As to specific articles to be searched for and/or seized, the warrant listed the following items: a silver revolver handgun; a gray drawstring backpack; a gray baseball cap with a black rim; a black hooded sweatshirt; a gray hooded sweatshirt; a black mask; the Pennsylvania lottery tickets that were stolen during the robberies; a Pennsylvania driver's license belonging to a store clerk present during one of the robberies; and a Members First debit card belonging to said clerk. (Id.)

         The accompanying affidavit of probable cause (“the affidavit”) set forth the factual details of each of the three robberies. (Id.) Additionally, the affidavit described Detective Paul's investigation into the robberies as follows:

On 01/05/2017 at Approx. 1310 Hrs [Officer] Fustine and I went to the PA lottery building and made contact with Jim Sawyer, Deputy Director of Security. Sawyer provided me with the date, time, and location of cashed lottery tickets that were taken during this robbery. On 12/18/16 at 0940 hrs 7 of the tickets taken in these 2 robberies were cashed at Sheetz store located at 3695 Paxton St. Officer Fustine and I went to this location and were able to view the security footage. We observed the same male from the robberies enter the parking lot in a silver minivan, PA registration MS CYNT, and enter the store. The male entered the store and cashed all of the tickets. The male is then observed exiting the store and departing the store in the same minivan. The registration came back to Cynthia C. Hamilton of 2402 Kensington St. Research was done on this address and we were able to identify her son as Maurice Ross [with a birth date of] 04/23/1982. I made contact with Ross' Federal Parole Agent, Dave [Herzog], and explained to him what had occurred. [Herzog] agreed to meet me at the Sheetz store on 01/07/17 at 0900hrs to view the footage.

(Id. at 2.) Further, the affidavit described the identifications of Defendant made by the Sheetz store clerk who assisted in cashing the subject lottery tickets and one of the store clerks present for two of the robberies, as well as Herzog's identification of Defendant. (Id.) The affidavit also stated that Herzog “confirmed [Defendant's] current address as 2402 Kensington St., ” and that Herzog had “made contact with [Defendant] at this address on 01/03/17 for a [p]arole visit, ” noting that “[a] criminal history check was completed on [Defendant] and it shows 2 prior convictions of [f]irearms [v]iolations.” (Id. at 3.)

         3. Execution of Warrant and Questioning of Defendant

         On January 7, 2017 at approximately 6:00 a.m. the Dauphin County Crisis Response Team (“CRT”) executed the warrant while accompanied by Detective Paul and additional law enforcement officers (Doc. No. 35 at 16: 23-25, 17: 14-22).[3] The following individuals were inside the residence at the time the warrant was executed: Defendant; Darryl Ross; Cynthia Hamilton; Defendant's sister, Carlita Hamilton (“Carlita Hamilton”); and another female individual who “was downstairs with [Defendant]” when the warrant was executed. (Id. at 18: 6-11.) According to Detective Paul, he entered the premises, explained to the above individuals that there was a warrant for the residence, and then “read everybody their Miranda rights.” (Id. at 18: 12-14.) At this time, “everybody was sitting inside, in the living room right inside the door on the couches.” (Id. at 18: 14-16.)

         While informing them of their Miranda rights from memory (id. at 31: 1-2), Detective Paul “made sure that everybody either gave [him] a verbal yes that they understood or would shake their head acknowledging [so as to] make sure everybody does acknowledge that [he] read them their rights and they understand their rights” (id. at 18: 17-21). Detective Paul addressed the residents collectively when stating their Miranda rights, explaining that he “said it to everybody” and ensured everyone acknowledged their Miranda rights “with either a shake of the head or a yes response.” (Id. at 31: 6-8.) According to Detective Paul, he specifically stated the following:

You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be appointed to you free of charge. At any point in time you can stop answering my questions. Do you understand your rights?

(Id. at 31: 13-18.) In response, Defendant verbally stated “yes, ” indicating that he acknowledged his Miranda rights (id. at 31: 19-22), while the other individuals present responded with “[e]ither a yes or a nod of the head” (id. at 31: 23-24).[4] Further, Detective Gibney, who accompanied Detective Paul and the CRT during the execution of the warrant, reported that he heard Detective Paul read Miranda rights to everyone in the residence and ask them to acknowledge that their rights had been read ...


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