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United States v. Boxley

United States District Court, W.D. Pennsylvania

December 13, 2019



          Nora Barry Fischer Senior U.S. District Judge.


         In this case, Defendants Maurice Boxley (“Boxley”) and Erick McCoy (“McCoy”) are each charged with one count of conspiracy to possess with intent to distribute and distribution of heroin and fentanyl, in violation of 21 U.S.C. § 846, from in and around April 2016 to on or about June 12, 2017; and one count of possession with intent to distribute and distribution of heroin and fentanyl, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C), for conduct occurring on or about June 12, 2017. (Docket No. 12). Presently before the Court are motions to suppress evidence filed by the Defendants challenging warrantless seizures of evidence from them on June 12, 2017 and the Government's opposition thereto. (Docket Nos. 128; 131; 183; 192). The Court held a suppression hearing on August 8, 2019, the official transcript of which was filed on September 6, 2019. (Docket Nos. 217; 228). The Government filed its proposed findings of fact and conclusions of law on October 23, 2019, and McCoy and Boxley followed suit on October 31, 2019. (Docket Nos. 244; 245; 246). The parties declined to submit any responses by the Court's deadline of November 14, 2019, at which time the Court took the matter under advisement. (Docket Nos. 218). After careful consideration of all of the parties' filings and the credible evidence of record, and for the following reasons, the Motions to Suppress filed by McCoy [128] and Boxley [131] are denied.


         a. Factual Findings

         At the hearing, the Government presented the testimony of FBI Task Force Officer and Allegheny Port Authority Detective Lee Niebel and City of Pittsburgh Bureau of Police Narcotics and Vice Detective Justin Simoni and introduced two photographs as exhibits. (Docket No. 228; Govt Exs. 1, 2). Defendants did not call any witnesses and instead relied upon cross-examination of the detectives and a police report of the incident which was introduced by McCoy. (Docket No. 228; Def. Ex. A). In this Court's opinion, Detectives Niebel and Simoni both offered credible testimony concerning the events in question, despite efforts to impeach them. See United States v. Garcia, 521 Fed.Appx. 71, 73 (3d Cir. 2013) (quoting Anderson v. City of Bessemer, 470 U.S. 564, 574 (1985)) (“‘[w]hen findings are based on determinations regarding the credibility of witnesses ... for only the trial judge can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener's understanding of and belief in what is said.'”). The detectives also presented as experienced law enforcement officers and narcotics investigators.

         To this end, Detective Niebel graduated from Edinboro and served in the U.S. Army and Reserves, including two tours of duty in Iraq, prior to pursuing law enforcement as a career. (Docket No. 228 at 53-54). He has been a law enforcement officer since 2008 and is currently a Detective with the Port Authority Police, assigned to FBI Pittsburgh's opioid task force, investigating overdoses and distribution of fentanyl and heroin since 2016. (Id. at 8-9). Detective Simoni is a graduate of Indiana University of Pennsylvania and has been a Pittsburgh Police Officer for 14 years. (Id. at 56-57, 73, 87). He has been a detective with the Narcotics and Vice Division for the past 10 years, participating in hundreds of drug investigations throughout that time. (Id. at 57). Both detectives completed the Northeast Counterdrug's Top Gun undercover narcotics investigations course and other relevant trainings for narcotics investigators including interviewing and interrogation techniques. (Id. at 9, 53, 57). Detective Simoni also teaches at the Pittsburgh Police Academy. (Id. at 57).

         As to this matter, Detective Niebel served as co-case agent for the investigation of a heroin/fentanyl distribution ring led by co-defendant Kimn Booth from August of 2016 through the instant prosecution, including a June 12, 2017 operation resulting in the arrests of McCoy and Boxley at the Auto Bath House in the 5700 block of Butler Street in the City of Pittsburgh's Lawrenceville neighborhood. (Docket No. 228 at 9-10, 13, 16). Detective Simoni was not a part of the initial investigation but assisted in the June 12, 2017 operation and was involved in McCoy's arrest and the seizure of narcotics from his person. (Id. at 58-59, 65-66). Detective Niebel conducted the traffic stop of the gold Toyota Avalon Boxley was driving and effectuated his arrest. (Id. at 20, 22, 35)

         Detective Niebel credibly explained how Booth operated his fentanyl/heroin distribution activities as he would set up narcotics sales with customers over the telephone, direct them to a meet location within the Pittsburgh area to make the deal, sometimes call the customer to change the location prior to the established time, and would often send a runner or another associate to effectuate the deal on his behalf. (Docket No. 228 at 9-10). He testified that law enforcement utilized a confidential human source (“CHS”) to set up controlled buys of narcotics from Booth on October 1, 2016; October 25, 2016; November 25, 2016; and February 20, 2017 and that narcotics were successfully purchased from Booth and/or his associates on each of those dates. (Id. at 10-16). Through their investigation, law enforcement observed that Booth and/or his runners utilized three types of vehicles when delivering the narcotics, i.e.: a gold Toyota Avalon, a black Volkswagen Touareg, and a gold Jeep Commander. (Id. at 6, 17). They also learned that Booth was known as “Wheezy” and that one of the runners involved in the transactions was “Dreads”, an individual who was later identified as McCoy. (Id. at 18). Most pertinent here, McCoy delivered narcotics on behalf of Booth on October 25, 2016 to both a CHS working with law enforcement and another group of individuals who were pulled over separately by officers in the same area; the November 25, 2016 controlled buy where narcotics were delivered by co-defendant Antoine Johnson a/k/a “Tweezy” to a CHS and Detective Niebel took place at the Auto Bath House in Lawrenceville; and, during the February 20, 2017 controlled buy, law enforcement took photographs of Booth and McCoy inside the Mongolian Grill on the Southside after they sold narcotics to a CHS in the bathroom and observed them leave the area in the gold Avalon. (See id.; Govt. Exs. 1 and 2). Prior to June 12, 2017, law enforcement did not have any information that Boxley was involved in Booth's heroin/fentanyl distribution activities or was associated with the gold Avalon used in the prior controlled buy. (Docket No. 228 at 28-30, 33-36, 69).

         As noted, law enforcement utilized a CHS to set up another controlled buy of multiple bricks of heroin/fentanyl from Booth on June 12, 2017. (Docket No. 228 at 13). During a phone call, Booth directed the CHS to the Auto Bath House in Lawrenceville on that afternoon. Detective Niebel explained that law enforcement officers from the FBI Task Force and the City of Pittsburgh Narcotics and Vice Division made an operational plan to conduct surveillance in the area, identify the delivery vehicle and conduct a “takedown” by stopping the delivery vehicle and arresting the individuals while they were still in possession of the narcotics rather than conducting a controlled buy from them. (Id. at 13, 16-17). The operational plan was established at a meeting between the officers before arriving on scene and they also communicated during the operation via a group telephone conference, with the officers joining from their separate vehicles. (Id. at 17-19, 66-68). The detectives testified consistently that physical descriptions of Booth and “Dreads” (a/k/a McCoy) as well as the make and model of the vehicles previously used by Booth and his runners, including a gold Toyota Avalon; black Volkswagen Toureg; and, gold Jeep Commander were provided to the involved members of the FBI Task Force and Pittsburgh Police. (Id. at 17-19, 59-60, 86).

         On the afternoon in question, numerous law enforcement officers proceeded to the vicinity of the Auto Bath House on the 5700 block of Butler Street in several different vehicles to surveil the area and execute their operational plan. (Docket No. 228 at 17-19). Detective Niebel and another task force officer were in an unmarked vehicle which was easily identifiable as a police car because it was a blue Ford Taurus equipped with emergency lights. (Id. at 18, 46-47). Detective Simoni was in an undercover vehicle. (Id. at 65). Both detectives testified that as they were driving near a parking lot on 57th Street, they observed a gold Toyota Avalon parked directly adjacent to a red pickup truck. (Id. at 18-19, 37-38, 48, 61-62). They also saw that there were no other vehicles in the parking lot at the time and the passenger in the gold Avalon was communicating with the driver of the truck, although they could not hear their conversation. (Id. at 48, 63). As he drove past this location, Detective Niebel identified “Dreads” as the passenger in the vehicle and proceeded to the traffic light at Butler Street. (Id. at 43-44). While he was driving separately, Detective Simoni observed the driver of the Avalon quickly look over his left shoulder and stare directly at the unmarked police car stopped at the traffic light in a suspicious manner. (Id. at 50-51, 62). All of this information was communicated to the team of officers on the conference call. (Id. at 43-44, 86).

         Detectives Niebel and Simoni testified credibility that although they did not see a hand-to-hand narcotics transaction between the two vehicles and observed them for only a short period of time, based on their experience investigating narcotics cases, they believed that a narcotics transaction had taken place between the occupants due to all of the circumstances. (Id. at 19-20, 63-64, 81-82). However, they candidly admitted that they did not stop the red truck and confirm their suspicions. (Id. at 82-83).

         Shortly thereafter, the gold Avalon exited the parking lot, made a left onto Butler Street and pulled into the Auto Bath House. (Docket No. 228 at 20, 63-64). Two police vehicles were following the Avalon at the time, with Detective Niebel trailing in the second of these police vehicles. (Id. at 20). Speaking on the conference call, Detective Niebel directed the closer officer to pull over the Avalon and lights and sirens were activated. (Id.). As the Avalon slowed down, the passenger, McCoy, opened the door and fled on foot, with the car continuing for approximately 20 yards in the car wash parking lot until stopping completely. (Id. at 21, 35-36). McCoy ran directly into Detective Simoni, who had exited his car after parking nearby, shouting at him “Pittsburgh Police” and “Stop.” (Id. at 65). Detective Simoni took McCoy to the ground; he was then handcuffed and arrested with the assistance of another officer. (Id. at 65-66). A search incident to McCoy's arrest resulted in the seizure of heroin and cash. (Id.). A cell phone McCoy dropped in the parking lot when he ran into Detective Simoni was also recovered. (Def. Ex. A).

         After observing McCoy's flight, Detective Niebel approached the Avalon shouting commands at the driver, Boxley, to show his hands and get out of the vehicle. (Docket No. 228 at 21-22). Since the driver did not respond to these instructions, Detective Niebel opened the driver's side door and observed that Boxley was on a FaceTime call with a person whom he instantly recognized was Kimn Booth. (Id. at 21-22). The iPhone application also listed “Wheezy” as the contact at the top of the screen. (Id. at 22). Detective Niebel forcefully removed Boxley from the vehicle at which time he dropped the cell phone on the ground and Booth remained visible on the screen as the FaceTime call continued. (Id.). Boxley's cell phone was seized but a search incident to his arrest did not result in the seizure of any narcotics or firearms. (Id. at 72). Boxley also made statements to law enforcement after his arrest. (Docket No. 131-2). As is set forth in the FBI 502 Report of FBI Special Agent Leonard Piccinni:

Maurice Boxley … was interviewed at the Auto Bath House, Lawrenceville, PA. After being advised of the identities of the interviewing Agent(s), SA Leonard Piccini Jr./TFO Christopher Mordaunt and the nature of the interview, Boxley provided the following information:
Boxley advised that he works and does not know anything about drugs. Furthermore, agents would be able to locate his work clothes in his car. However, Boxley advised that the vehicle is not registered to him and he borrowed it ...

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