United States v. Cole

• Decision Date: 26 November 2019
• Docket Number: 2:17-cr-284
• Citation: 425 F.Supp.3d 468
• Court: U.S. District Court — Western District of Pennsylvania
• Parties: UNITED STATES of America, v. Alexander COLE and Semaj Carter, Defendants.

425 F.Supp.3d 468

UNITED STATES of America,

v.Alexander COLE and Semaj Carter, Defendants.

2:17-cr-284

United States District Court, W.D. Pennsylvania.

Signed November 26, 2019

Katherine A. King, United States Attorney's Office, Pittsburgh, PA, for Plaintiff.

OPINION

Mark R. Hornak, Chief United States District Judge

In June 2017, members of the Monroeville (PA) Police Department began an investigation into possible drug activity at the Northern Pike Apartments in that community. The investigation led to a traffic stop. The traffic stop led to a pat down. The pat down uncovered several bricks of heroin. The heroin discovery led police to obtain a search warrant for a residence at the Northern Pike Apartments. And the execution of that warrant led to the seizure of fentanyl, firearms, and cash. This series of events culminated in the arrest of Defendants Semaj Carter ("Carter") and Alexander Cole ("Cole") by the Monroeville Police. The case was adopted for federal prosecution and the Defendants were indicted in federal court.

Carter and Cole now move to suppress all of the evidence obtained during the traffic stop of their vehicle, all statements made during the traffic stop, and all evidence recovered during the subsequent execution of a search warrant at their apartment. The Court held a suppression hearing and the parties fully briefed the issues. For the reasons that will follow, Carter and Cole's Motion to Suppress is DENIED.

I. BACKGROUND

On October 17, 2017, a federal grand jury returned a four-count indictment against Carter and Cole. (Indictment, ECF No. 1.) The first three (3) counts of the indictment charged Cole with possession with the intent to distribute forty (40) grams or more of fentanyl in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B)(vi) ; possession with intent to distribute a quantity of fentanyl in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C) ; and unlawful possession of a firearm in violation of 18 U.S.C. § 922(g)(1). (ECF No. 1.) The final count of the indictment charged Carter with unlawful possession of a firearm in violation of 18 U.S.C. § 922(g)(1). (ECF No. 1.)

Cole filed a Motion to Suppress Evidence (Mot. to Suppress, ECF No. 71), which Carter joined in full.¹ (Mot. to Join, ECF No. 51.) Both Defendants seek to suppress all evidence and statements obtained during a traffic stop of their vehicle on June 30, 2017, as well as contraband found when police executed a search warrant at the Northern Pike Apartments that same day. (ECF No. 71; Carter Post-Hr'g Br., ECF No. 115, at 1, 6.) Counsel for both Defendants and the Government fully briefed the issues. (ECF Nos. 71, 73.) The Court held evidentiary hearings on January 28, 2019, March 21, 2019, and April 8, 2019. (Trs. Available at ECF Nos. 91, 107, and 110.) Upon request from counsel for both Carter and Cole, the Court granted multiple extensions of time for defense counsel to obtain a hearing transcript and submit supplemental briefing. (ECF No. 100.) All parties submitted post-hearing briefs. (ECF Nos. 115, 118, 128, 132.) With post-hearing briefing now complete, the Court can decide Carter and Cole's Motion.

II. FACTUAL FINDINGS

The trial judge takes on the role of fact finder when deciding a motion to suppress. United States v. Harris , 884 F. Supp. 2d 383, 387 n.2 (W.D. Pa. 2012). Therefore, the trial judge is responsible for assessing the credibility of the testifying witnesses, weighing the evidence, and reaching any "inferences, deductions and conclusions to be drawn from the evidence." Id.

Over the course of three (3) separate days, the Court heard testimony from four (4) witnesses. The United States called Monroeville Patrol Officer Jeremy Frisk ("Officer Frisk"), Monroeville Detective Sergeant William Krut ("Sergeant Krut"), and Monroeville Detective Steven Maritz ("Detective Maritz") to testify. Defendant Cole testified on his own behalf. The Court found all of the testifying witnesses to be credible, and makes the following factual findings based upon the testimony given and the exhibits admitted at the suppression hearing.

A. Officer Frisk's Testimony

On June 12, 2017, Officer Frisk² responded to a 9-1-1 call from Michael (or Mike) Malik—the landlord at the Northern Pike Apartments on Monroeville Road. Officer Frisk knew Mr. Malik from repeated calls involving the Northern Pike Apartments. (Tr. of Proceedings of Jan. 28, 2019, ECF No. 91, at 18:11–15.) Officer Frisk testified that he frequently responded to calls related to landlord-tenant issues at the Northern Pike Apartments. (Id. at 18:16–23.) The reason for Mr. Malik's call on June 12 was that one (1) of the complex's "apartment[s] had two individuals living in it that had not paid rent, and of the two individuals, neither one of them were on the lease agreement." (Id. at 19:17–20.)

According to Officer Frisk, the Northern Pike Apartments consist of several separate buildings each marked by an alphabetical letter. Each building contains multiple apartment units. (Id. at 19:24–20:10, 49:3.) Building E, which included the apartment that Mr. Malik called about, has one (1) common door to enter the building. Inside Building E, each individual apartment is accessible by its own door. (Id. at 34:18–20.) The Monroeville Police Department receives frequent calls to the Northern Pike Apartments for disturbances, narcotics, and overdoses, and Officer Frisk considers it a "high crime area." (Id. at 27:17–28:17.)

When Officer Frisk arrived at the Northern Pike Apartments, he met with Mr. Malik, who identified the apartment unit at issue ("the Apartment") as one located in Building E.³ (Id. at 19:21–23.) Mr. Malik conveyed his frustrations to Officer Frisk, identifying an individual who was not on the Apartment's lease and who was not to be on the property. (Id. at 38:23–39:2.) As he listened to Mr. Malik, Officer Frisk saw a black male wearing a red flat-brimmed hat standing in front of Building E. (Id. at 20:21–24.) The man in the red hat then approached Officer Frisk and Mr. Malik. With Officer Frisk present, Mr. Malik and the man talked about "payment for rent and also the issue of the individual not being on the lease agreement" for the Apartment (Id. at 21:4–22:2.) The man in the red hat, Officer Frisk gathered, lived in the Apartment. Eventually, the man offered to pay the allegedly owed rent and handed Mr. Malik a sum of cash. (Id. at 22:3–16.) Officer Frisk identified the man who paid the rent as Alexander Cole—though he could not remember exactly how he figured out Cole's identity on that day. (Id. at 22:25–23:5.)

After paying Mr. Malik, Cole walked back to the front of Building E.⁴ Officer Frisk returned to his conversation with Mr. Malik, who told Officer Frisk of his concerns that he had observed activities consistent with narcotics use and trafficking. (Id. at 24:2–17.) Mr. Malik stated that several individuals who did not live at the Northern Pike Apartments would come and go "in a fashion that was very quick, not staying long and then leaving" from Building E, "and precisely [the Apartment]." (Id. at 24:20–25:3.) Mr. Malik told Officer Frisk that he suspected two (2) individuals of engaging in drug activity—Defendant Cole and unidentified man. (Id. at 25:13–20.) Mr. Malik also identified a new model, dark-colored Dodge Charger with New Jersey plates as a vehicle associated with the Apartment. (Id. at 29:1–8.)

Officer Frisk told Mr. Malik to call the police if he witnessed any additional activity that he suspected to be drug related. (Id. at 26:3–6.) Following the June 12 dispatch, Mr. Malik contacted Officer Frisk directly on four (4) or five (5) occasions, passing along information about cars and individuals entering Building E and "general activity that [Mr. Malik] believed to be narcotics related." (Id. at 26:17–21.) Mr. Malik told Officer Frisk that his concerns were related to Building E and sent Officer Frisk a text message with a photo of the vehicle he mentioned on June 12. (Id. at 26:23–27:8, 50:25–51:3.) Officer Frisk considered Mr. Malik's information reliable. (Id. at 27:13–16.) Although Mr. Malik installed cameras at the Northern Pike Apartments, Mr. Malik never shared any photos or videos of the complained-of activity with Officer Frisk. (Id. at 51:4–7.)

Based on Mr. Malik's information, Officer Frisk conducted surveillance at the Northern Pike Apartments five (5) to ten (10) times between June 12 and June 29, 2017. (Id. at 29:14–18, 33:3–7.) During this surveillance, Officer Frisk observed vehicles coming and going, with individuals entering Building E for only a short period of time. (Id. at 29:14–30:10.) Based on his training, Officer Frisk found this behavior to be consistent with narcotics trafficking. (Id. at 30:15–17.) Officer Frisk, however, could not see any particular unit inside Building E during his surveillance. (Id. at 30:21–25.) Several times during his surveillance, Officer Frisk observed the dark-colored Dodge Charger come and go from the Northern Pike Apartments parking lot, often parking in front of Building E. (Id. at 31:1–9.) Officer Frisk saw individuals come and go from Building E but was unable to identify the individuals beyond noting that they were black males. (Id. at 31:13–32:8.) Officer Frisk never stopped anyone that he saw come or go from Building E during his surveillance. (Id. at 53:24–54:3.)

Throughout his surveillance, Officer Frisk did not write any reports about what he observed. Believing that the situation warranted further "looking into" by detectives, Officer Frisk passed along the information he gathered to Detective Maritz. (Id. at 32:12–24, 52:8–12.)

B. Sergeant Krut's Testimony

At approximately 11:00 AM on June 30, 2017, Sergeant Krut⁵ and Detective Maritz, wearing plainclothes and riding in separate unmarked vehicles, conducted surveillance at the Northern Pike Apartments. (ECF No. 91, at 62:20–63:8.) Sergeant Krut considered the Northern Pike Apartments to have a "little higher concentration of drug...