United States v. Howard

144 F. Supp. 3d 732, 2015 U.S. Dist. LEXIS 148267, 2015 WL 6694106
CourtDistrict Court, W.D. Pennsylvania
DecidedNovember 2, 2015
DocketCriminal No. 2:15-cr-008
StatusPublished

This text of 144 F. Supp. 3d 732 (United States v. Howard) is published on Counsel Stack Legal Research, covering District Court, W.D. Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Howard, 144 F. Supp. 3d 732, 2015 U.S. Dist. LEXIS 148267, 2015 WL 6694106 (W.D. Pa. 2015).

Opinion

OPINION

MARK R. HORNAK, District Judge.

Pending before the Court is the Defendant’s Motion to Suppress Statements and Physical Evidence, ECF No. 19. Having reviewed Mr. Howard’s Motion along with all filings in support and in opposition thereto, ECF Nos. 22; 30; 49; 51; 55, and having held an evidentiary hearing and oral argument on the Motion on June 11, 2015, the Court denies the Motion for the reasons set forth in this Opinion.

I. BACKGROUND

On September 18, 2014, members of the Western Pennsylvania Fugitive Task Force (“Task Force”) arrested Mr. Rodney Howard (“Mr. Howard” or “Defendant”) pursuant to an arrest warrant at 5131 Clairton Boulevard (“the Residence”) located in Baldwin Borough, a suburb of Pittsburgh. While conducting a “protective sweep” of the Residence after arresting Mr. Howard, the Task Force saw in plain view a great deal of heroin and drug paraphernalia. Law enforcement officers then obtained a search warrant for the Residence and upon executing it, found over 4,700 bags of heroin, amounting to approximately 132 grams, as well as drug packaging and manufacturing paraphernalia.

Mr. Howard was indicted on January 20, 2015, and charged with one count of possession with intent to distribute 100 grams or more of heroin in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(l)(B)(i). ECF No. 1.

Mr. Howard moved to suppress physical evidence (the seized drugs and drug paraphernalia) and statements he made at the scene. ECF No. 19. The Court held an evidentiary hearing on the suppression issue on June 11, 2015. Testifying at the evidentiary hearing for the United States were Deputy U.S. Marshal Jeremy Delano, City of Pittsburgh Police Detective Joseph Lewis, Pennsylvania Board of Probation and Parole Agent Jeffrey Long, Supervisory Deputy U.S. Marshal Jon Gallagher, and City of Pittsburgh Police Detective Dale Ford. The Defendant called Richard Dwyer, a former member of the Task Force who participated in maiding the arrest as a witness, and Mr. Howard also testified himself. The Court also received supplemental post-hearing briefs from the parties. ECF Nos. 49; 51; 55.

II. FACTUAL FINDINGS

The Court finds that each of the facts as set forth below was testified to credibly and consistently during the evidentiary hearing, based on the Court’s observations of the demeanor of the witnesses and its consideration of their testimony in the context of the evidentiary record. The Court will identify any factual disputes that become relevant to the analysis, and its resolution of them.

Deputy Marshal Delano is a case agent who began searching for the Defendant on January 22, 2014 based on a state arrest warrant issued for criminal homicide. Hr’g Tr. at 17:4-10. Deputy Marshal Delano had access to a “criminal history rap sheet” as part of his investigation, which listed various offenses associated with the Defendant. Based on that, Deputy Mar[735]*735shal Delano considered Mr. Howard “armed and dangerous.” Id. at 17:20-25, 19:19-21; Gov.’s Ex. 1. Deputy Marshal Delano also knew that the weapon from the homicide for which the arrest warrant issued was an assault rifle which “was never located” and thus “could still be in Rodney Howard’s possession.” Id. at 32:17-33:2. In the months leading up to Mr. Howard’s arrest, Deputy Marshal Delano and the Task Force attempted to apprehend him at several different locations, each time to no avail. Id. at 20:18-21:9.

On September 15, 2014, Deputy Marshal Delano directly received information from a “confidential source” that Mr. Howard was associated with the Residence and that the source had purchased drugs at the Residence. Id. at 21:19-22:15, 23:3-8. Deputy Marshal Delano was not present for the Defendant’s arrest on September 18, 2014, but he passed along that information to others on the Task Force. Id. at 23:23-24:4, 34:24-35:2; 42:14-17. Deputy Marshal Delano personally surveilled the Residence on September 15 and September 16, and also knew and passed along to the rest of the Task Force information that a woman named Cheyanne Arrington was associated with Mr. Howard. Id. at 29:7-12; 29:19-30:11. Deputy Marshal Delano knew that various surveillance units had “observe[d] ... numerous individuals going to the house during the surveillance,” and he personally “observed a person walking around on the second floor of the [Residence.” Id. at 30:23-31:2.

City of Pittsburgh Police Detective Joseph Lewis conducted surveillance on the Residence for the two days leading up to the Defendant’s arrest, though he also was not present at the arrest. Id. at 47:23-48:25, 70:1-3. On September 16, 2014, Detective Lewis observed Ms. Arrington exit the Residence, walk to the back of it, and stop to have an exchange with someone located on the second floor through a window. Id. at 54:6-56:11. Detective Lewis could not identify the person in the window because that person “was concealed behind the window frame,” but saw that person’s hand as an object dropped from the window to Ms. Arrington, who then continued walking. Id. at 55:5-11, 56:2-4. Detective Lewis believed that other of Ms. Arrington’s activity was consistent with drug sales, though that was not his purpose in conducting surveillance. Id. at 61:8-62:16. He observed at least “two individuals” entering and exiting the Residence, including Ms. Arrington, during his surveillance, and testified that the hand he saw in the window appeared to belong to an African American male. Id. at 64:10-19. On September 17, 2014, Detective Lewis observed “an African American male with a ponytail” enter and exit the Residence, and saw that person “stopped at the exact same window” that Ms. Ar-rington did before continuing to the front door. Id. at 66:6-15. He also observed “a male that pulled up in an SUV” enter the Residence. Id. at 67:6-14. The male with the ponytail and the male from the SUV left the Residence together, and the man with the ponytail returned afterward. Id. at 68:9-15, 68:19-23. Detective Lewis reported his observations to others on the Task Force. Id. at 69:22-25. On cross examination, Detective Lewis admitted that he did not include that someone had been “concealed” in his report, nor did he note “the exchange of the unidentified black male with the ponytail and someone in the residence.” Id. at 73: 15-18, 74:18-23.

Probation Agent Jeffrey Long was among the Task Force members who apprehended thh Defendant on September 18, 2014. Agent Long testified that when the Task Force arrived at the Residence and knocked on its front door and announced their presence, he “heard a lot of [736]*736movement” coming from the second floor. Id. at 95:21. While the Task Force “continued to knock/pound on the door,” Agent Long observed Mr. Howard “from the second floor window,” saying that he (Mr. Howard) would come out and that he was “an innocent man.” Id. at 96:4-6. Agent Long recognized the man he observed in the window as the Defendant based on a “photograph that was handed out.” Id. at 96:20-22. Agent Long also knew, prior to entering the Residence, about the Defendant’s criminal history, the nature of the underlying charge, the fact that the involved weapon had not been recovered, and that there had been “a lot of activity in and out of the house.” Id. at 115:8-25.

After Mr.

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Bluebook (online)
144 F. Supp. 3d 732, 2015 U.S. Dist. LEXIS 148267, 2015 WL 6694106, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-howard-pawd-2015.