United States v. Conley

859 F. Supp. 853, 1994 U.S. Dist. LEXIS 10656, 1994 WL 406537
District Court, W.D. Pennsylvania·Decided June 30, 1994·No. Crim. No. 91-178·Published·Cited by 2 cases

Opinion

MEMORANDUM OPINION

LEE, District Judge.

INTRODUCTION

Before the Court are numerous motions raising issues relating to the federal searches conducted on December 19, 1989: John Francis “Jack” Conley’s Omnibus Pretrial Motion: Motion to Suppress Physical Evidence [1989 searches] (Document No. 374, in part); Pretrial Motions of John F. “Duffy” [856]*856Conley: Motion to Suppress [12/19/89 searches, including 1989 searches of locations as listed in Document No. 826, at 10-11] (Document No. 877, in part); Sheila Smith’s First Supplemental Motion to Suppress Physical Evidence (930 Saw Mill Run) [1989 search] (Document No. 448, in part); and John Francis “Jack” Conley’s Motion to Suppress Oral Statement (Document No. 450). Also implicated in the federal searches of December 19, 1989 is Defendant John F. “Duffy” Conley’s Motion to Suppress Evidence (Document No. 832), which seeks to suppress evidence that is tainted by his suppressed statement of October 30, 1989. See United States v. Conley, 859 F.Supp. 847, 853 (W.D.Pa.1994) (Document No. 921) (deferring analysis of taint arising from inclusion of the substance of the suppressed statements in the affidavit of probable cause for searches).1

All of the searches and seizures on December 19, 1989 were conducted pursuant to warrants issued on the basis of a single master affidavit.2 As the affiant on the master affidavit was FBI Special Agent John Donnelly (“S.A. Donnelly”), and there are other master affidavits in the record, the December 19, 1989 master affidavit will be referred to as the “Donnelly affidavit.”

John Francis “Jack” Conley (“Jack Conley”) challenges all of the federal searches conducted on December 19, 1989. Although he is conceded to have “standing” to challenge the federal search of the premises of 930 Saw Mill Run Boulevard, the record does not reflect his standing to challenge any other search.3 Without regard to any taint from his suppressed statements, John F. “Duffy” Conley (“Duffy Conley”) has “standing” to challenge the seizure and search of his poker machines because of his ownership interests in the machines and his reasonable expectation of privacy in the internal compartments of the machines.4 Duffy Conley’s “standing” is limited to those locations from which video poker machines of which he has [857]*857claimed ownership for purposes of pretrial motions were seized. See Document No. 826.5

Defendants Duffy Conley, Jack Conley and Sheila Smith have standing to challenge the December 19, 1989 search of the 930 Saw Mill Run premises. Duffy Conley has standing to challenge the search of the 3100 Wind-gap Avenue premises. Further, Duffy Conley has standing to challenge the probable cause upon which his video poker machines were seized and the warrants pursuant to which they were searched. See supra, note 4. Jack Conley, of course, has standing to move to suppress his own statement, which is averred to be involuntary and, in addition, tainted by the alleged illegality of the December 19, 1989 search of the Saw Mill Run premises.

The Court has suppressed Duffy Conley’s October 30, 1989 statement at the Main Hotel. As to Duffy Conley, the Government concedes that all reference to the statement must be stricken from the Donnelly affidavit, upon which all the warrants executed on December 19, 1989 were issued.

Because Duffy Conley has “standing” to challenge every search that is subject to challenge by any Defendant, the Court first will review the Donnelly affidavit, but with all reference to the suppressed statements excised, to determine if such probable cause remains that a neutral magistrate would have issued the subject warrants. Only if the Court concludes that probable cause is lacking in the modified Donnelly affidavit will the Court review the Donnelly affidavit as written to determine if the issuing authority had a substantial basis for concluding that evidence of a crime would be found at each of the locations searched. Finally, whatever the outcome of the preceding two inquiries, the Court will address the motion to suppress Jack Conley’s December 19,1989 statements.

SEARCH AND SEIZURE

The Donnelly Affidavit

On December 19, 1989, United States Magistrate Judge Ila Jeanne Sensenich signed search warrants for fifteen retail business establishments, fourteen vehicles, two trailers and two offices/warehouses on the basis of the facts contained in the Donnelly affidavit. The Donnelly affidavit itself is a one-hundred page document, with an additional twenty-one page expert’s affidavit incorporated by reference.

The following is a brief summary of the information in the Donnelly affidavit. S.A. Donnelly prepared the affidavit on the basis of his personal knowledge, conversations with FBI agents, Pennsylvania State Police officers and City of Pittsburgh Police officers, a review of FBI reports, Pennsylvania State Police reports and City of Pittsburgh Police reports, a review of a taped conversation between City of Pittsburgh Police officer Reyne Kaseuta and William C. Curtin, the expert opinion of William L. Holmes, and a review of the records of an Allegheny County Investigative Grand Jury.

The Government, in its proposed findings of fact has described the affidavit as including more or less thirteen categories of information. The first four categories relate federal statutory and ease law and state statutory and case law with respect to video poker machines and gambling. The fifth category describes the operation of video poker machines as gambling devices and refers the reader to the expert’s affidavit of William L. Holmes. The sixth category of information includes a detailed description of the operation of Duffy’s Vending, a/k/a Three Rivers Coin, as an illegal gambling business. The [858]*858seventh type of information relates the taped conversation between Reyne Kascuta, an undercover City of Pittsburgh Police officer posing as a location owner, and William C. Curtin, the general manager of Duffy’s Vending/Three Rivers Coin, as Curtin gave his “pitch” to the officer. Eighth, the affidavit relates the substance of Duffy Conley’s now-suppressed October 30, 1989 statements. Ninth, the affidavit indicates that Curtin had stated that Duffy Conley drives a Chevrolet sedan equipped with three phones and that his car is his office. Tenth, the affidavit indicates that Duffy Conley, William Curtin and Three Rivers Coin maintain two headquarters: the Windgap premises and the Saw Mill Run premises. Eleventh, the affidavit describes the “establishments” or “stops” (which will be referred to hereafter in this Memorandum Opinion as “locations”) at which Three Rivers Coin maintained video poker machines. Twelfth, the affidavit indicates that from several sources the affiant had confirmed that the video poker machines at the locations named in the affidavit are maintained by Duffy Conley, Curtin and Three Rivers Coin. Thirteenth, the affidavit indicates that investigation within the seven preceding days had revealed that the machines at the listed locations were operational and available to the public. The affidavit also indicates that, on the basis of the expert’s affidavit, the types of machines being employed had been transported in whole or in part in interstate commerce. The affidavit then summarized by location the investigative activities of law enforcement personnel.

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United States v. Conley, 859 F. Supp. 853, 1994 U.S. Dist. LEXIS 10656, 1994 WL 406537 (W.D. Pa. 1994).

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