United States v. Burgess, CRIMINAL ACTION NO. 19-402-01

• Decision Date: 29 November 2019
• Docket Number: CRIMINAL ACTION NO. 19-402-01
• Citation: 425 F.Supp.3d 413
• Parties: UNITED STATES of America v. Khaiyri BURGESS
• Court: U.S. District Court — Eastern District of Pennsylvania

425 F.Supp.3d 413

UNITED STATES of America

v.Khaiyri BURGESS

CRIMINAL ACTION NO. 19-402-01

United States District Court, E.D. Pennsylvania.

Filed November 29, 2019

Sarah T. Damiani, U.S. Attorney's Office EDPA, Philadelphia, PA, for United States of America.

Angela Halim, Elizabeth Toplin, Federal Community Defeder Office for Eastern District of Pennsylvania, Philadelphia, PA, for Khaiyri Burgess.

MEMORANDUM

SURRICK, District Judge.

Presently before the Court is DefendantKhaiyri Burgess's Motion to Suppress Physical Evidence(ECF No. 43).For the following reasons, Defendant's Motion will be denied.

I.BACKGROUND

A.Procedural History

On July 11, 2019, a grand jury returned a two-count Indictment charging DefendantsKhaiyri Burgess and Shaquan Johnson with: (1) interference with commerce by threats or violence, and aiding and abetting, in violation of 18 U.S.C. § 1951(a)("Hobbs Act robbery") and 18 U.S.C. § 2; and (2) brandishing a firearm during and in relation to a crime of violence, and aiding and abetting, in violation of 18 U.S.C. § 924(c)(1)(A)(ii)and18U.S.C. § 2.The Indictment alleged that Defendants, along with a third, unidentified individual, took approximately $1 million in United States currency from an individual through the use of force and violence.(ECF No. 16).On November 21, 2019, the Government filed a Superseding Indictment adding a third count against Burgess, for knowingly possessing a stolen firearm, in violation of 18 U.S.C. § 922(j).(ECF No. 66).

On October 17, 2019, Burgess filed a Motion to Suppress Physical Evidence, asserting that the use by police of a key fob to locate and identify a Jeep was unlawful under the Fourth Amendment, and that all evidence seized during a subsequent search of the Jeep should be suppressed.(ECF No. 43).On November 1, 2019, the Government opposed the motion.(ECF No. 54).An evidentiary hearing was held on November 4, 2019.(ECF Nos. 55 & 56).At the evidentiary hearing, counsel for Burgess expressed the intent to file a supplemental memorandum regarding the Motion to Suppress Physical Evidence.Counsel filed the supplemental memorandum on November 14, 2019.(ECF No. 60).On November 21, 2019, the Government filed a supplemental response to the Motion to Suppress Physical Evidence.(ECF No. 65).

B.Relevant Facts

On August 23, 2018, Philadelphia Police Officers Brian Lepkowski("Lepkowski") and Marc Marchetti("Marchetti") executed an arrest warrant for Burgess.The arrest warrant was related to a stolen Cadillac, which was related to the Hobbs Act robbery.(SeeNovember 4, 2019 Evidentiary Hearing Transcript ("Tr.")at 21-26, 43).Prior to the arrest, Officers Lepkowski and Marchetti went to the residence of Burgess's father to seek the father's assistance in setting up a meeting with Burgess.(Id. at 26-27).With the father's assistance, Burgess met the officers at 57th and Grays Avenue, in Philadelphia, at around 9:30 to 9:40 a.m. on August 23, 2018.(Id. at 26-28).At that time, the officers were in their vehicle on Grays Avenue, facing eastbound.(Id. at 28).When they saw Burgess walking up 57th and turn westbound on Grays Avenue, they exited their vehicle and arrested him.(Id. ).Burgess was compliant and the arrest was uneventful.(Id. ).

Following the arrest, the officers searched Burgess and recovered various items from him, including a key fob for a Jeep.(Id. at 30).Burgess was asked if he had purchased a new vehicle, to which he responded that he had not.(Id. ).Burgess explained that the key fob was for his father's old Jeep and that he must have forgotten to take the key fob off his key ring.(Id. ).The officers were suspicious of Burgess's response because they knew from earlier interactions with Burgess's father that his father drove a Mercedes.(Id. at 31).In addition, Burgess did not have a driver's license, and the alleged crime that gave rise to the arrest warrant was vehicle theft.(Id. ).

After the arrest, the officers transported Burgess and his belongings to South Detectives for processing.(Id. at 31).They discussed the arrest and their suspicions about the key fob with Detective Andrew Gallagher("Gallagher"), who was the lead detective on the case.(Id. at 32).They also informed Detective Gallagher that they were going to return to the area of the arrest to look for the Jeep.(Id. at 32-33).Detective Gallagher approved.(Id. at 113).The officers returned to the scene about an hour after the arrest.(Id. at 33).As they drove up the street, they saw only one Jeep on the block, and they hit the button on the key fob.(Id. at 34).The sole Jeep in the vicinity lit up and made sounds, indicating that it was a match for the fob.(Id. at 33-34).The vehicle was a black Jeep Grand Cherokee, and it was located on the 5700 block of Wheeler Street, Philadelphia, about one block away from the site of the arrest.(Id. at 37, 89, 97).Officer Lepkowski testified that he and Officer Marchetti could have used VIN numbers, registration information, and license plates and checked every Jeep in the vicinity to locate the subject vehicle, but the key fob made locating the vehicle easier.(Id. at 34-35).

When the officers located the Jeep, they looked inside of it, as is customary when locating and identifying a vehicle of interest.(Id. at 35).The windows were not tinted and it was clear and sunny.(Id. at 36).From the window in the passenger-side front door and the windshield, the officers could see a tan-colored handgun underneath the passenger seat.(Id. at 35-37; Government Exhibit 3).They notified Detective Gallagher, who came to the scene and could also see the handgun from the window on the passenger-side front door, as well as through the windshield.(Tr.at 37-38, 97-98).The officers also ran the vehicle tag for the Jeep and determined that the tag was temporary and that the Jeep had not yet been registered to anyone.(Id. at 37-38, 97; Government Exhibit 1).After Detective Gallagher arrived, Officers Lepkowski and Marchetti stayed with the vehicle pending the issuance of a search warrant.(Id. at 38-39).That afternoon, the officers recorded the Jeep and key fob on a property receipt.(Id. at 39, 99-100; Government Exhibit 4).

Meanwhile, Detective Gallagher obtained a search warrant and searched the Jeep.(Tr.at 98-99; Government Exhibit 5).During the search, he recovered the handgun, a 9-millimeter Smith & Wesson with one round in the chamber and 13 in the clip, various items of new clothing with tags, a red gas can, some paperwork with Burgess's name on it, and $13,000 in cash.(SeeTr.at 99; Government Exhibit 5).Pursuant to a separate search warrant for an Instagram account, Detective Gallagher also found an Instagram image showing Burgess standing near a black Jeep that appears to be the subject Jeep Grand Cherokee.(Tr.at 100-01; Government Exhibit 6).

II.DISCUSSION

A.Officers Lepkowski and Marchetti's Use of the Key Fob to Identify and Locate the Jeep Was Not a Search Subject to Fourth Amendment Protections

"There are two ways in which the government's conduct may constitute a ‘search’ implicating the Fourth Amendment.First, a Fourth Amendment search occurs when ‘the person invoking its protection can claim a justifiable, a reasonable, or a legitimate expectation of privacy that has been invaded by government action.’ "

Free Speech Coalition, Inc. v. Attorney General , 677 F.3d 519, 543(3d Cir.2012)(quotingSmith v. Maryland , 442 U.S. 735, 740, 99 S.Ct. 2577, 61 L.Ed.2d 220(1979) ).Second, "a Fourth Amendment search also occurs where the government unlawfully, physically occupies private property for the purpose of obtaining information."Id.(citingUnited States v. Jones , 565 U.S. 400, 404-05, 132 S.Ct. 945, 181 L.Ed.2d 911(2012) ).Counsel for Burgess asserted that she"is not relying on an expectation of privacy argument in [the]motion to suppress."(Tr.at 120).We therefore consider only whether Officers Lepkowski and Marchetti's use of the key fob to identify and locate the Jeep was a "physical occupation"-type search.

In Jones , the Supreme Court held that the government's "installation of a GPS device on a target's vehicle, and its use of that device to monitor the vehicle's movements, constitutes a ‘search.’ "565 U.S. at 404, 132 S.Ct. 945(internal citation omitted).In reaching this conclusion, the Court reasoned that the government "physically occupied private property for the purpose of obtaining information.We have no doubt that such a physical intrusion would have been considered a ‘search’ within the meaning of the Fourth Amendment when it was adopted."Id. at 404-05, 132 S.Ct. 945.The Court specifically declined to apply its holding to cases"involv[ing] the transmission of electronic signals," reasoning that "[s]ituations involving merely the transmission of electronic signals without trespass" would be governed by the "reasonable-expectation-of-privacy test."Seeid. at 411, 132 S.Ct. 945(citingKatz v. United States , 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576(1967) ).

Relying on Jones , the Eighth Circuit held that the use of a key fob's alarm button to locate a vehicle did not constitute a search.SeeUnited States v. Cowan , 674 F.3d 947, 955-56(8th Cir.2012).In Cowan , a detective apprehended a suspect in an apartment and asked the suspect how he got to the apartment.The suspect claimed that he took a bus, but a detective found a set of keys on the suspect.The detective then walked outside with the suspect and pressed the alarm button on the key fob, which set off an alarm for a vehicle parked outside the apartment.Seeid. at 951.Upon consideration of the trespass theory of a search, the court held that "the mere transmission of electric signals alone is not a trespass."Id. at 956(citingJones , 565 U.S. at 407-12, 132 S.Ct. 945 ).Although Burgess does not assert any expectation of privacy here, the Eighth Circuit in Cowan considered and rejected that argument...