United States v. Coles

• Decision Date: 02 August 2021
• Docket Number: CRIMINAL NO. 1:16-CR-212
• Citation: 552 F.Supp.3d 471
• Parties: UNITED STATES of America v. Kevin COLES, Defendant
• Court: U.S. District Court — Middle District of Pennsylvania

552 F.Supp.3d 471

UNITED STATES of America

v.Kevin COLES, Defendant

CRIMINAL NO. 1:16-CR-212

United States District Court, M.D. Pennsylvania.

Signed August 2, 2021

William A. Behe, Assistant US Attorney, U.S. Attorney's Office, Harrisburg, PA, for United States of America.

Thomas A. Thornton, Public Defender, Federal Public Defender, Harrisburg, PA, for Defendant.

MEMORANDUM

Christopher C. Conner, United States District Judge

DefendantKevin Coles moves the court to suppress evidence and statements obtained by law enforcement during the initial stages of their investigation into the triple homicide and other crimes charged in this case.¹We will grant in part and deny in part Coles’ motions.

I.Factual Background and Procedural History

The criminal investigation and charges in this case originate with a triple homicide and robbery on June 25, 2016.The third superseding indictment identifies the homicide victims as Wendy Chaney,²Phillip Jackson, and Brandon Cole.The murders and robbery occurred in a barn on Jackson's farm, located at 11026 Welsh Run Road in Mercersburg, Franklin County, Pennsylvania.The alleged events leading up to the triple homicide and robbery have been detailed in the court's prior opinions in this case and are incorporated herein by reference.

Relevant here, on June 30, 2016, Franklin County Court of Common Pleas JudgeAngela R. Krom granted two applications filed by the District Attorney of Franklin County seeking to collect information from Coles’ cell phone.The first order, issued under 18 PA. CONS. STAT. § 5743, required listed telecommunications providers to disclose records for Coles’ cell phone for the past 90 days including, inter alia , call detail records for incoming and outgoing calls and text messages, internet and data usage, historical cell-site location information ("CSLI"), text message content, and subscriber information for phone numbers interacting with Coles’ phone.(SeeDoc. 821-1at 8-12).The second order, issued under 18 PA. CONS. STAT. § 5773, authorized disclosure of 30 days of historical CSLI and 60 days of real-time CSLI for Coles’ phone.(SeeDoc. 823-2at 6-12).We refer to these orders as the Section 5743order and Section 5773order, respectively.

At some point during their investigation, law enforcement learned that Coles was wanted on an arrest warrant issued by the New York State Division of Parole on July 10, 2015.(SeeDoc. 811-1;7/18/17Tr. 10:20-11:16, 12:3-13, 26:2-27:2).Using real-time CSLI collected under the Section 5773order, the Maryland State Police fugitive apprehension team, in conjunction with local police, tracked Coles to a Days Inn hotel in Hagerstown, Maryland, where he was arrested, searched, and taken into custody on the New York state parole warrant.SeeUnited States v. Coles, 264 F. Supp. 3d 667, 671(M.D. Pa.2017)³;(see alsoDoc. 867at 5;Doc. 875at 3).Officers recovered one cell phone from Coles’ person and another from the rear seat of the vehicle that Coles had entered just before his arrest.SeeColes, 264 F. Supp. 3d at 671.Detective Jesse Duffy of the Hagerstown Police Department then applied for and received a search warrant for the vehicle; the ensuing search produced, among other things, several cell phones, a tablet, a plastic bag containing suspected heroin, and a white trash bag containing clothing.Seeid. at 672;(see alsoDoc. 867at 6).

Coles was transported to the Hagerstown Police Department, where he was met by Pennsylvania State Police("PSP") Corporal Paul Decker and PSP Trooper Antwjuan Cox.SeeColes, 264 F. Supp. 3d at 672;(Doc. 819-2).Trooper Cox read Coles his Miranda rights, and Coles indicated he understood those rights.(SeeDoc. 819-2 at 2:13-3:7).⁴Coles spoke with the PSP officers and initially answered their questions.(Seeid. at 3:8-7:14).Three minutes and 54 seconds into the interview, however, Coles invoked his right to an attorney, stating, "Well, I think I would like to ask for a lawyer at this point in time."(Id.at 7:15-16).Questioning continued for roughly six more minutes—during which Coles repeated his request for counsel and also invoked his right to remain silent—before the officers eventually terminated the interview.(Seeid. at 7:21-14:18).

The instant prosecution commenced with the filing of an indictment against Coles and codefendant Devin Dickerson charging various drug-trafficking offenses in August 2016.The grand jury has since returned three superseding indictments, adding new defendants as well as capital charges along the way.The case is now proceeding on a third superseding indictment, which charges Coles as follows:

• Count One: conspiracy to commit Hobbs Act robbery in violation of 18 U.S.C. § 1951(a)andPinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489(1946);

• Count Two: Hobbs Act robbery, and aiding and abetting same, in violation of 18 U.S.C. § 1951(a)and18U.S.C. § 2;

• Counts Three, Four, and Five: using, brandishing, and discharging a firearm during and in relation to a crime of violence (Hobbs Act robbery and killing a witness) resulting in the deaths of Phillip Jackson, Brandon Cole, and Wendy Chaney, respectively, and aiding and abetting same, in violation of 18 U.S.C. § 924(c) and (j)and18U.S.C. § 2;

• Count Six: conspiracy to use, brandish, and discharge a firearm during and in relation to a crime of violence (Hobbs Act robbery and killing a witness) resulting in the death of Chaney, in violation of 18 U.S.C. § 924(c), (j), and (o);

• Count Seven: conspiracy to commit murder for hire in violation of 18 U.S.C. § 1958andPinkerton;

• Counts Eight, Nine, and Ten: murder of witnesses (Chaney, Jackson, and Cole, respectively), and aiding and abetting same, in violation of 18 U.S.C. § 1512(a)(1)(C)and18U.S.C. § 2;

• Count Eleven: conspiracy to murder witnesses (Chaney, Jackson, and Cole) in violation of 18 U.S.C. § 1512(k);

• Count Fourteen: conspiracy to distribute and possess with intent to distribute at least 100 grams of heroin and at least 28 grams of cocaine base and cocaine hydrochloride in violation of 21 U.S.C. § 846;

• Count Fifteen: possession with intent to distribute heroin, cocaine hydrochloride, and cocaine base, and aiding and abetting same, in violation of 21 U.S.C. § 841(a)(1)and18U.S.C. § 2;

• Count Seventeen: possession with intent to distribute heroin and cocaine base, and aiding and abetting same, in violation of 21 U.S.C. § 841(a)(1)and18U.S.C. § 2;

• Count Eighteen: distribution of heroin resulting in serious bodily injury, and aiding and abetting same, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C)and18U.S.C. § 2; and

• Count Nineteen: possession of firearms in furtherance of a drug-trafficking crime, and aiding and abetting same, in violation of 18 U.S.C. § 924(c)(1),18 U.S.C. § 2, andPinkerton.

(SeeDoc. 499at 8-24, 28-32, 34-36).

After the government filed its notice of election not to pursue the death penalty on June 4, 2020, we established a pretrial and trial schedule, including separate phases of pretrial motions practice.Coles timely filed the four suppression motions addressed herein on March 3, 2021.The motions are fully briefed and ripe for disposition.

II.Discussion

Coles raises multiple arguments in his motions to suppress evidence and statements.We begin with his challenge to authorities’ use of the New York state parole warrant to arrest him on July 7, 2016.⁵

A.Administrative Warrant

The Fourth Amendment protects individuals from unreasonable searches and seizures.SeeU.S. CONST. amend. IV;Horton v. California, 496 U.S. 128, 133, 110 S.Ct. 2301, 110 L.Ed.2d 112(1990).The constitutional default is that an arrest must usually be "effectuated with a warrant based on probable cause."SeeUnited States v. Torres, 961 F.3d 618, 622(3d Cir.2020)(quotingUnited States v. Robertson, 305 F.3d 164, 167(3d Cir.2002) ).So too for searches: a warrant supported by probable cause is typically required.SeePayton v. New York, 445 U.S. 573, 586 & n.25, 100 S.Ct. 1371, 63 L.Ed.2d 639(1980)(citations omitted);see alsoIllinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527(1983).The United States Supreme Court has carved an exception, however, for certain administrative searches: "government investigators conducting searches pursuant to a regulatory scheme need not adhere to the usual warrant or probable-cause requirements as long as their searches meet ‘reasonable legislative or administrative standards.’ "Griffin v. Wisconsin, 483 U.S. 868, 873, 107 S.Ct. 3164, 97 L.Ed.2d 709(1987)(quotingCamara v. Mun. Ct. of City & Cnty. of S.F., 387 U.S. 523, 538, 87 S.Ct. 1727, 18 L.Ed.2d 930(1967) ).

We held, during the first round of suppression motion practice in this case, that the New York state parole warrant provided a valid basis for Coles’ arrest on July 7, 2016, and that the search of his person incident to that arrest was likewise lawful.SeeColes, 264 F. Supp. 3d at 675-76(citingArizona v. Gant, 556 U.S. 332, 335, 129 S.Ct. 1710, 173 L.Ed.2d 485(2009) ).Coles does not challenge that holding directly in his instant motion.Rather, he contends that the warrant was administrative in nature and issued by a government agency on less than probable cause; hence, criminal investigators in Maryland could not use it to arrest him if their "primary purpose" was to ask him about the triple homicide and robberies committed on June 25, 2016.(SeeDoc. 815at 8-9).According to Coles, his arrest violated the Fourth Amendment and all evidence derived therefrom must be suppressed as fruit of the poisonous tree.The government does not dispute that the parole warrant was administrative in nature.(SeeDoc. 875at 19-20).It does dispute Coles’ claim, however, that authorities could not arrest him on the parole warrant if they were separately and primarily interested in him for the triple homicide and robbery.(Seeid. at 20-23).

The foundation for...