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United States v. Orr

United States District Court, M.D. Pennsylvania

August 15, 2019

UNITED STATES OF AMERICA,
v.
BRANDON ORR (2), Defendant

          MEMORANDUM

          Christopher C. Conner, Chief United States District Judge.

         Defendant Brandon Orr (“Orr”) moves the court to suppress evidence and statements resulting from his arrest on September 28, 2017. (Doc. 84). The court will deny Orr's motion.

         I. Findings of Fact[1]

         Detective Russell Schauer (“Detective Schauer”) is employed by the Springettsbury Township Police Department in York County, Pennsylvania, and has served on the York County Drug Task Force since 2008. (Tr. 4:8-5:3). On December 5, 2017, a confidential informant advised Detective Schauer that the informant could purchase ten grams of heroin from Orr.[2] (Id. at 5:11-16; Gov't Ex. 4 at 5). The confidential informant placed an initial, mid-morning phone call to Orr, who indicated he would not be available until around 2:30 p.m. (Tr. 5:20-24, 19:9-19; Gov't Ex. 4 at 5). Using the confidential informant's cell phone, Detective Schauer texted Orr shortly before 2:30 p.m. and set up a meeting at a local ice cream shop. (Tr. 5:25-6:18; Gov't Ex. 4 at 5). Orr agreed to sell ten grams of heroin to Detective Schauer for $700. (Tr. 6:14-20; Gov't Ex. 4 at 5).

         A. Orr's Arrest

         Detective Schauer assembled an arrest team of five other officers who took up surveillance positions around the ice cream shop parking lot. (Tr. 6:21-7:5, 21:14-22:4; Gov't Ex. 1 at 1). Orr arrived in the parking lot driving a black Ford Fusion around 2:25 p.m. (Tr. 7:6-9, 52:2-11; Gov't Ex. 4 at 5). Officer Michelle Hoover (“Officer Hoover”) walked past the driver's side door in plain clothes, positively identified Orr as the driver, and signaled the arrest team to move in. (Tr. 7:9-14; Gov't Ex. 4 at 5). Detective Schauer pulled in front of the Ford Fusion, and Officer Adam Bruckhart (“Officer Bruckhart”) maneuvered his vehicle to block Orr in from behind. (Tr. 52:21-22, 53:8-15, 54:12-14, 80:1-2; see Gov't Ex. 4 at 5). Officer Bruckhart arrested Orr at approximately 2:30 p.m. (Tr. 7:15-16, 31:16-24, 53:5-6; Gov't Ex. 1 at 1; Gov't Ex. 4 at 5). The officers found a cell phone on Orr's person and a bag of heroin on the floor of the Ford Fusion near the driver's seat. (Tr. 7:17-20, 8:1-5; Gov't Ex. 4 at 5). Detective Schauer later confirmed that the recovered cell phone was the same phone that he and the confidential informant had called and text messaged earlier in the day. (Tr. 7:21-25; Gov't Ex. 4 at 5).

         B. Orr's Cooperation

         Detective Schauer placed Orr in the front passenger seat of his police vehicle and provided him with verbal Miranda warnings. (Tr. 8:9-9:5, 20:18-21:7, 22:11-14, 31:25-32:3; Gov't Ex. 4 at 5). Detective Schauer made no promises to Orr in exchange for waiving his Miranda rights or consent to search his home. (Tr. 37:18-23). Orr agreed to answer Detective Schauer's questions but initially denied having anything illegal at his home. (Id. at 9:6-21). Detective Schauer explained that officers had followed Orr from his house and that they would be obtaining a search warrant for the residence. (Id. at 9:21-23, 58:11-23; Gov't Ex. 4 at 5). Orr then admitted that there was a bookbag just inside the front door of the home containing drugs. (Tr. 9:23-24, 10:7-13; Gov't Ex. 4 at 5). Orr explained that he received the drugs from Luis Minier (“Minier”). (Tr. 9:24-10:6; Gov't Ex. 4 at 5). Orr asked Detective Schauer not to charge his girlfriend, Shanique Johnson (“Johnson”), who was at the home and had met with Minier earlier that day to obtain the bookbag.[3](See Tr. 9:24-10:6, 11:12-14; Gov't Ex. 4 at 5).

         Detective Schauer drove Orr to the Drug Task Force office where Orr was asked to sign a consent-to-search form for his residence. (Tr. 10:14-25, 61:20-62:4). Orr had the opportunity to read the consent-to-search form, and Detective Schauer testified that he read Orr the following paragraph before Orr signed it:

I, Brandon Orr have been requested by Detective Schauer of the York County Drug Task Force to give my consent for police to search Place(s), item(s), or vehicle(s) described above for the items described above. I have been told that I do not have to give my consent. I understand that I have the right to refuse this request, and that the police may not be able to conduct this search without a search warrant unless I give my consent. Nonetheless, I voluntarily give my consent to the police to conduct this search.

(Tr. 33:24-34:21; Gov't Ex. 2). The consent-to-search form further stated that no one had threatened or promised anything to Orr in exchange for his consent. (Gov't Ex. 2). Orr claimed that he never read the form and that Detective Schauer never read the above-quoted paragraph out loud to him. (Tr. 78:8-16). As set forth below, the court finds the law enforcement officers (Detective Schauer and Trooper Wolfe) who testified at the suppression hearing to be credible; conversely, the court does not find Orr's statements or claims to be credible.

         Officer Hoover and Detective Schauer witnessed Orr sign the consent-to-search form at approximately 3:10 p.m. (Gov't Ex. 2; Tr. 32:20-33:5, ). Detective Schauer did not recall if the form was signed at the Drug Task Force office or in front of Orr's residence moments before the search. (Tr. 16:22-17:6). After Orr read and signed the consent form, Detective Schauer and Officer Hoover drove Orr to his residence.[4] (Id. at 11:1-5, 33:21-23, 34:19-21, 62:21-24; Gov't Ex. 2; Gov't Ex. 4 at 5). Detective Schauer testified that the purpose of bringing Orr along was twofold: (1) Orr agreed to let officers into the residence, and (2) Orr would encourage Johnson to avoid any conduct that might alert Minier that Orr was cooperating with law enforcement. (Tr. 11:6-24). Immediately upon entering the residence, Orr identified a bookbag on the floor. (Id. at 11:25-12:2; Gov't Ex. 4 at 5). Detective Schauer opened the bookbag and discovered approximately one kilogram of cocaine and a gallon-sized bag of heroin. (Tr. 12:2-5; Gov't Ex. 4 at 5). Orr then asked Johnson to refrain from publicizing that he had been arrested or that the police had been at their home. (Tr. 12:6-20; Gov't Ex. 4 at 5). Detective Schauer and Orr returned to the Drug Task Force office, and Johnson was permitted to remain in the home. (Tr. 12:22-25; Gov't Ex. 4 at 5).

         Law enforcement decided to obtain a search warrant for Minier's residence based on the information provided by Orr including Orr's recent observation of $20, 000 in drug proceeds when visiting Minier's residence. (Tr. 13:7-11, 15:6-9; see Gov't Ex. 1 at 2-3; Gov't Ex. 3 at 2). Around 4 p.m., Detective Schauer contacted Pennsylvania State Police Trooper Shawn Wolfe (“Trooper Wolfe”) regarding the investigation of Minier. (Tr. 40:17-24, 46:15-20). Trooper Wolfe has been a Pennsylvania State trooper since 2003 and was a member of the York County Drug Task Force from 2007 to 2018. (Id. at 41:2-13). He is also detailed to the Federal Bureau of Investigation's Safe Streets Task Force in Harrisburg, Pennsylvania. (Id. at 40:25-41:1).

         Trooper Wolf drove Orr to identify Minier's residence for the search warrant that Detective Schauer was preparing. (Id. at 13:12-17, 42:16-43:7, 43:13-16). When Orr entered Trooper Wolfe's vehicle around 5 p.m., Trooper Wolfe identified himself as law enforcement and provided Orr with verbal Miranda warnings before asking any questions “to make sure that there was no confusion as to why [he] was there as part of [the] investigation.” (Id. at 43:17-44:6, 48:8-16, 48:25-49:6, 49:16-22, 50:15-21). Orr testified that Trooper Wolfe never read him his Miranda rights. (Id. at 65:6-8, 65:18-20). As Trooper Wolfe drove down Orr's street, Orr identified Minier's home by pointing out Minier's Chevy Impala and an inflatable Santa Claus on Minier's lawn. (Id. at 44:18-45:15, 65:9-17). After dropping Orr off at the Drug Task Force office, Trooper Wolfe returned to Minier's residence to conduct surveillance until ...


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