United States District Court, W.D. Pennsylvania
Barry Fischer Senior U.S. District Judge.
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  and Boxley 
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.
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).
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)
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).
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).
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).
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).
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).
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
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 ...