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United States v. Johnson

United States District Court, W.D. Pennsylvania

October 18, 2019

UNITED STATES OF AMERICA,
v.
JAMES W. JOHNSON, Defendant.

          OPINION

          Mark R. Hornak, Chief United States District Judge

         On September 13, 2017, a federal grand jury returned a three-count indictment charging Defendant James Weldon Johnson ("Defendant") with possession with intent to distribute fentanyl, cocaine base, powder cocaine, and methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C); with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1); and with possession and distribution of fentanyl in violation of 21 U.S.C. §§ 841(a)(1) and (841(b)(1)(C).[1] (Indictment, ECF No. 1.)

         Now before the Court are seven (7) pretrial motions filed by Defendant Johnson: (1) Motion to Produce Evidence the Government Intends to Use under Federal Rules of Evidence 404(b) and 609; (2) Motion for Discovery; (3) Motion to Suppress Evidence-Cellular Phones (Federal Search Warrant); (4) Motion to Suppress Evidence-Cellular Phones (State Search Warrant); (5) Motion to Suppress Evidence (Search of Renova Street); (6) Motion to Suppress Evidence Stemming from Arrest; and (7) Motion to Expand Evidentiary Record. (ECF Nos. 36, 37, 39-42, 48.) For the reasons set out in this Opinion, the motions to suppress evidence at ECF Nos. 39-42 are DENIED. The motions at ECF Nos. 36, 37, and 48 will be addressed in the Court's Pretrial Order.

         Chiefly, Defendant seeks to suppress all evidence obtained during searches of (1) his person incident to arrest, (2) a Renova Street (Pittsburgh, PA) residence, and (3) two (2) cell phones. With respect to the searches of the house on Renova Street and the two (2) cell phones, Defendant argues that the affidavits proffered in the warrant applications failed to establish probable cause. With respect to the search of his person, Defendant argues that law enforcement officers lacked probable cause to arrest him. Defendant also seeks a Franks hearing, arguing that the probable cause affidavits in support of the cell phone warrants contained deliberate or recklessly false statements and omissions that were material to a finding of probable cause. The Government filed its response to pretrial motions on February 28, 2019 and the Defendant subsequently filed a motion to expand the evidentiary record on May 3, 2019. (ECF Nos. 46, 48.) Counsel for the Defendant and the Government fully briefed the issues. (ECF Nos. 36, 37, 39-42, 46, 48.) The Court held an evidentiary hearing and oral argument on June 19, 2019, concerning the Defendant's motions. (ECF No. 49.) Thereafter, a transcript was ordered and prepared (ECF No. 53), and the matter became ripe for disposition.

         I. FACTUAL FINDINGS

         Testifying for the Government at the evidentiary hearing was Pittsburgh Bureau of Police Detective Robert Berberich ("Det. Berberich").

         "It is well-settled that at a hearing on a motion to suppress, the credibility of the witnesses and the weight to be given the evidence, together with the inferences, deductions and conclusions to be drawn from the evidence, are all matters to be determined by the trial judge." United States v. Harris, 884 F.Supp.2d 383, 387 (W.D. Pa. 2012) (internal citations and quotations omitted). Based on the Court's consideration of the testimony and demeanor of Det. Berberich at the hearing before the Court on these motions, the Court finds and concludes that he was credible. The Court makes the following factual findings based on that testimony and consideration of the evidence in the record.

         a. Initial Criminal Activity

         Det. Berberich is a plainclothes detective with the Pittsburgh Bureau of Police ("PBP") who was involved in an investigation of suspected drug trafficking activity occurring in the Hazelwood section of Pittsburgh, in a portion known as a "high-crime" area. (Evidentiary Hr'g Tr. ("Tr."), at 23:12, 28:7-11, ECF No. 53.) Det. Berberich and his partner, Officer Tariq Francis, were patrolling the Hazelwood area in an unmarked car on December 30, 2016. (Id. at 29:17-25, 30:1-3.) Det. Berberich observed a vehicle traveling up Renova Street with two occupants inside. (Id. at 30:4-9.) The vehicle stopped short of the subject house on Renova Street ("the Residence") and dropped off the passenger. (Id. at 31:3-5.) The vehicle then did a U-turn and parked outside of the Residence and waited for the passenger to return. (Id. at 31:7-9.) Det. Berberich observed as the passenger, later identified as James Mitchell, walked toward the Residence and was met by the Defendant, who walked down from the Residence's porch. (Id. at 31:17-25.) Det. Berberich had previously seen the Defendant consistently going in and out of the Residence almost daily throughout the summer of 2016 and leading up to the date of arrest. (Id. at 63:20-64:8.) During this period of time, Det. Berberich also saw other members of Defendant's family going in and out of the Residence. (Id. at 64:9-15.) The Residence was owned by the Defendant's mother. (Id. at 69:5-7.)

         Det. Berberich observed what he believed to be, based on his training and experience, a hand-to-hand drug transaction on the sidewalk in front of the Residence involving the Defendant and James Mitchell, which lasted for just a few seconds. (Id. at 32:2-10, 33:21, 34:3.) At the time, Det. Berberich's unmarked car was parked in a nearby alleyway and he used binoculars to view that interaction. (Id. at 32:23-25, 33:3-5.) He was able to clearly see and recognize the Defendant during the transaction. (Id. at 34:25.) Det. Berberich was personally familiar with the Defendant's appearance from a prior traffic stop, which occurred during the summer of 2016, and from reviewing the Defendant's Facebook page. (Id. at 36:2-7, 70:8-18.) Additionally, Det. Berberich was familiar with the Defendant's alleged membership in the Hazelwood Mob Gang from a previous arrest, photos of alleged gang members, and from discussions with other officers and detectives in 2011 and 2012. (Id. at 38:1-5, 41:3-11, 43:1-10.) Det. Berberich never received any information to suggest that Defendant had withdrawn from his association with the Hazelwood Mob. (Id. at 70:19-24.) However, Det. Berberich was not aware of any prior police reports that explicitly refer to Defendant's membership in a gang. (Id. at 45:16-19.)

         After the hand-to-hand transaction, Det. Berberich observed James Mitchell return to the vehicle and then hold up a "plastic baggy" with a bundle of heroin visible inside, before opening the door and getting in. (Id. at 48:5-12, 51:3-5.) Det. Berberich subsequently initiated a traffic stop of the vehicle for a traffic violation and asked James Mitchell and the driver, Justin Devey, about the transaction he had just observed. (Id. at 48:13-15, 49:19-23; Def.'s Mot. to Suppress Evid. Stemming from Arrest, Ex. A, ECF No. 42-1, at 5.) During the stop, Det. Berberich also observed narcotics in plain view on the floor of the car behind the driver's side seat. (Tr. at 50:17-24.) They included narcotics in a bag similar to the one Det. Berberich observed after the hand-to-hand transaction had occurred. (Id. at 51:1-5.) Det. Berberich then showed James Mitchell a photo of Defendant from the Defendant's Facebook profile and asked if Defendant was the one from whom Mitchell had purchased the drugs. (Id. at 55:4-11.) Mitchell replied that he was. (Id. at 55:12.) Det. Berberich detailed these events in his investigative report. (ECF No. 42-1, at 5-7.)

         b. Arrest Warrant and Search Warrant

         Det. Berberich applied for an arrest warrant for the Defendant on December 30, 2016, and then for a search warrant for the Residence on Renova Street on January 1, 2017. (Id. at 24:1-15, 56:19.) The arrest warrant was not issued until January 3, 2019, one day after the Defendant's actual arrest. (Id. at 24:16-17, 56:21.) The details of Det. Berberich's December 30, 2016 investigation were recounted in his applications for the arrest warrant, and for a search warrant of the Residence. (Def.'s Mot. to Suppress Evid. (Search of Renova Street), Ex. A, ECF No. 41-1, at 2-3; ECF No. 42-1, at 5-6.) Additional relevant circumstances attested to in the affidavits include:

1. That police previously received a complaint about the Residence.[2] (ECF No. 41-1, at 2.)
2. When Det. Berberich first drove past the Residence, no one was visible on the porch and the door was closed. (Id.)
3. From the time Det. Berberich drove past the Residence until witnessing what he believed was the hand-to-hand drug transaction, no one else (other than Defendant) entered or exited the Residence. (Id.)

         c. Execution of the Search Warrant and Defendant's Arrest

         On January 2, 2017, Det. Berberich was present when law enforcement executed the search warrant for the Residence. (Tr. at 25:1-3.) When SWAT officers announced over a loud speaker that they had a search warrant, Det. Berberich believed he heard SWAT Operator Mescan call over the police radio that there was a male running from the front door of the Residence, though he did not witness this personally. (Id. at 25:5-9, 58:19-25, 59:3-4, 15-23.) The male, who turned out to be the Defendant, was then detained on the sidewalk. (Id. at 25:11-18.) Det. Berberich then entered the Residence after hearing over the police radio that law enforcement officers observed heroin and stamp bags in the kitchen of the Residence. (Id. at 25:12-21.) At that time, Defendant was placed under arrest based on what was observed in the Residence from which he was seen leaving. (Id. at 26:1-2, 16-17.) The decision to arrest the Defendant was also predicated on the evidence gleaned from the December 30, 2016 investigation. (Id. at 26:19-21 (referring to the evidence in the search warrant affidavit).) Defendant was then searched incident to his arrest, yielding keys to the front door of the Residence in his pocket, and the cell phones that were later searched. (Id. at 26:24-27:4.)

         d. Cell Phone Search Warrants

         On January 18, 2017, Det. Berberich filed a state search warrant application for the two (2) cell phones recovered from the Defendant's person, which was approved by a Pennsylvania Magisterial District Judge. (Def.'s Mot. to Suppress Evid.-Cellular Phones (State Search Warrant), Ex. A, ECF No. 40-1.) In his affidavit, Det. Berberich attested to the following pertinent details:

1. Det. Berberich had training, education, and experience in narcotics investigations. (Id. at 2.)
2. A search warrant for the Residence was executed on January 2, 2017. (Id.)
3. Upon approaching the Residence, SWAT Operator Mescan observed Defendant "run" out of the Residence via the front screen door. (Id.)
4. Defendant was the "main target" and a "known actor/Hazelwood Mob member." (Id.)
5. Defendant was taken into custody and subsequently heroin stamp bags were discovered in the Residence. No. one else was found in the Residence at that time. (Id.)
6. A thorough search of the Residence yielded, among other things, a pistol, extended ammunition magazines, narcotics and associated paraphernalia, cash, a ballistic vest, and various electronics. (Id.)
7. The search of Defendant yielded two (2) cell phones and keys that opened the front door of the Residence. (Id. at 2-3.)
8. Another individual, Whitney Fennell, was observed near the Residence during the search, and was briefly detained, identified, and released. (Id. at 2.)
9. At the time of the search warrant execution, Defendant was the only person "inside the residence" and considered its sole possessor at the time. (Id.)
10. Det. Berberich had previously seen the Defendant coming in and out of the Residence on a daily basis. (Id.)
11. Tanya Johnson is the owner of the Residence and the mother of the Defendant. She was not present at the time of the search. (Id. at 3.)
12. Det. Berberich's training, education, and experience led him to conclude that cell phones are often used in furtherance of street level narcotics transactions and are a crucial tool in the drug trade. (Id.)
13. Det. Berberich concluded that text messages, photos, contact lists, and voicemails in the cell phone of persons suspected of drug crimes were likely to yield evidence of associated criminal conduct. (Id.)

         When this case was adopted for federal prosecution, Bureau of Alcohol, Tobacco, Firearms & Explosives ("ATF") Special Agent James Fidler applied for two (2) federal search warrants encompassing the cell phones seized from Defendant, both of which employ the same key language in the supporting affidavits.[3] (Def.'s Mot. to Suppress Evid.-Cellular Phones (Federal Search Warrant), ECF No. 39, at 2.) The statements in Agent Fidler's affidavits were based primarily on discussions with and information provided by other law enforcement officers and witnesses, his review of documents and records, and his personal knowledge, observations, experience, and training. (Id. at 13; Omnibus Resp. to Pretrial Mots., Ex. E, ECF No. 46-5, at 3; Omnibus Resp. to Pretrial Mots., Ex. F, ECF No. 46-6, at 3.) The federal warrant affidavits included information similar to the state affidavit authored by Det. Berberich. Agent Fidler recounted the execution of the search warrant of the Residence, the contraband discovered, and his awareness that "evidence of drug, firearm, and money laundering crimes can often be found in electronic media." (ECF No. 46-5, at 5-7; ECF No. 46-6, at 4-12.) He also described the December 30, 2016 hand-to-hand drug transaction and subsequent traffic stop, which the state search warrant affidavit did not include. (ECF No. 46-5, at 5; ECF No. 46-6, at 4.) More specifically, and partly at issue in this case, Agent Fidler stated that Defendant was "at the residence" when SWAT arrived and that "he attempted to flee." (ECF No. 46-5, at 4-5; ECF No. 46-6, at 4.) Agent Fidler also stated that PBP observed the Defendant "conduct a hand to hand transaction from the residence." (ECF No. 46-5, at 4; ECF No. 46-6, at 5 (emphasis added).)

         e. State ...


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