United States v. Garner
| Decision Date | 19 January 2023 |
| Docket Number | Criminal 1:19-CR-259 |
| Parties | UNITED STATES OF AMERICA v. WESLEY GARNER, Defendant |
| Court | U.S. District Court — Middle District of Pennsylvania |
Defendant Wesley Garner moves to suppress evidence obtained by law enforcement in August 2019 during two successive searches of an apartment in Harrisburg, Pennsylvania. We will deny Garner's motion.
The government alleges Garner is a member of “Never Forget Loyalty” or “NFL,” a drug-trafficking operation based in Harrisburg, Pennsylvania, that occasionally moonlighted as a rap group. (See Doc 39 ¶ 2(B)-(D)). The Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”), along with several Pennsylvania law enforcement agencies, began investigating NFL in November 2018 after the group was allegedly involved in several shootings around Harrisburg. (See Doc. 297-1, Ex. 1B ¶¶ 4-8).[1] The investigation culminated in Magistrate Judge Martin C. Carlson approving a series of warrants targeting NFL on August 14, 2019. One of these warrants authorized law enforcement to search Apartment B at 22 Thomas Street in Harrisburg for evidence of drug trafficking, illegal possession of firearms, and other items related to NFL's criminal activities. (See Doc. 297-1, Ex. 1A at 2, 5-6). At the time, law enforcement believed Garner was residing in Apartment B with his associate, Anderson Ortiz, an alleged gun and drug dealer who was also targeted by the NFL investigation but does not appear to have been an official member of the group. (See Doc. 297-1, Ex. 1B ¶¶ 5, 7(c)-(d), 8(c)).
At approximately 6:00 a.m. on August 15, 2019, law enforcement officers under leadership of ATF Special Agent Jamie Markovchick executed the warrant for Apartment B at 22 Thomas Street. (See Doc. 297-1, Ex. 2 at 67; 6/1/22 Tr. 43:2244:16). The Dauphin County SWAT team entered Apartment B, which is on the building's second floor, arrested Garner, and secured the premises. (See 6/1/22 Tr. 44:17-45:25). A Harrisburg city police officer stationed himself at the bottom of the common stairwell to prevent anyone from interrupting the search. (See Id. at 48:11-16). Agent Markovchick and his team then entered the unit, made an “entry video” documenting the state of the apartment per agency protocol, and began their search. (See Id. at 45:22-46:23). Agents recovered, inter alia, a firearm, ammunition, drug paraphernalia, a modest quantity of marijuana, two baggies of suspected crack cocaine, and $3,171 in United States currency. (See Id. at 46:24-47:20; Doc. 297-1, Ex. 2 at 67-68). The first baggie was relatively small, weighing only 17 grams. (See Doc. 297-1, Ex. 2 at 68; 6/1/22 Tr. 47:7-9). The second, found in the kitchen, was substantially larger and contained a quantity of suspected crack cocaine approximately the size of a baseball. (See 6/1/22 Tr. 46:24-47:9).
Approximately the same time Agent Markovchick's team entered Apartment B, another group of officers executed a search warrant and arrested Ortiz at 32 Wetzel Street in the nearby borough of Highspire. (See 7/12/22 Tr. 8:15-10:12). Ortiz's then-girlfriend, Alayshia Jackson, was present at the time of his arrest. (See id.) The couple previously had lived together in Apartment B but recently moved to 32 Wetzel Street, which was the residence of Jackson's mother; Garner moved into Apartment B thereafter and paid rent to Jackson, who remained the named lessee. (See Id. at 4:7-5:7, 5:24-6:1, 8:4-6, 9:8-22). Ortiz instructed Jackson to warn Garner about his arrest and the search of 32 Wetzel Street. (See Id. at 9:23-10:7). Jackson drove to 22 Thomas Street to inform Garner in person. (See id. at 10:1-22).
Jackson and a female companion arrived at 22 Thomas Street as the search of Apartment B was underway. (See 6/1/22 Tr. 48:4-8). Unbeknownst to agents conducting the search, the Harrisburg police officer guarding the stairwell had vacated his post, allowing Jackson and her companion to enter the apartment unimpeded and to surprise the officers mid-search. (See Id. at 48:2-22, 53:12-55:9; Doc. 297-1, Ex. 2 at 68). Agent Markovchick and the two women argued briefly: Agent Markovchick ordered the women to leave the apartment; the women demanded to know why agents were there. (See 6/1/22 Tr. 48:23-49:5, 57:1-58:1, 59:12-14). After Agent Markovchick explained he had a warrant authorizing law enforcement to search the premises, he and Jackson shook hands, and Jackson provided her driver's license and a copy of the lease agreement. (See Id. at 49:6-9, 57:22-58:1). Investigators completed the search, made an “after video” of the apartment, and at approximately 9:00 a.m., turned over the premises to Jackson as the leaseholder. (See Id. at 47:23-25, 49:10-11, 50:9-14, 56:6-9; Doc. 297-1, Ex. 2 at 68).
After returning to ATF's Harrisburg field office, Agent Markovchick and Special Agent Bradley Davis of the Pennsylvania Attorney General's Office began processing evidence seized from Apartment B. (See 6/1/22 Tr. 49:24-50:3; 7/12/22 Tr. 37:6-38:10, 38:23-39:2). While vacuum-sealing the suspected controlled substances, they realized the baggie containing the baseball-sized quantity of crack cocaine was missing. (See 6/1/22 Tr. 50:3-7, 63:13-19; 7/12/22 Tr. 23:13-18, 46:14-22). The pair checked the videos taken during the search and concluded the search team left behind the suspected crack cocaine in the kitchen where it was originally found. (See 6/1/22 Tr. 50:14-20; see also Doc. 297-1, Ex. 3A at 122-23).
Agents Markovchick and Davis drove back to 22 Thomas Street at around 11:30 a.m. with two other ATF agents-Special Agents Ryan Anderson and Brenda McDermott-hoping to get Jackson's permission to reenter Apartment B and recover the baggie. (See 6/1/22 Tr. 51:4-11, 56:2-11, 63:20-22, 64:11-15; 7/12/22 Tr. 25:2-4; see also Doc. 297-1, Ex. 3A at 123). By coincidence, the agents reached 22 Thomas Street at roughly the same moment Jackson and her companion were returning to the apartment. (See 6/1/22 Tr. 51:12-17, 63:23-64:10; 7/12/22 Tr. 25:4-12, 40:5-15). The agents approached Jackson outside of the apartment building, with Agents Markovchick and Anderson standing close to Jackson and Agents Davis and McDermott standing a few feet away. (See 6/1/22 Tr. 64:16-21; 7/12/22 Tr. 25:6-17, 40:20-24, 47:14-23). The agents wore street clothes and carried firearms. (See 7/12/22 Tr. 33:15-24).
The agents informed Jackson they had “left something behind by mistake” and asked whether Jackson would allow them back inside to retrieve this “illegal item.” (See 6/1/22 Tr. 60:14-16; 7/12/22 Tr. 41:20-42:15, 48:12-49:24). Agent Anderson clarified the item left behind was, in fact, a bag containing suspected crack cocaine. (See 6/1/22 Tr. 66:18-24; 7/12/22 Tr. 35:12-36:10). He also advised Jackson she could decline consent, but officers would then “hold the residence” and apply for another warrant. (See 6/1/22 Tr. 64:24-65:5). The conversation between the agents and Jackson was casual and nonthreatening: the agents described it as “calm,” “cordial,” and “laid back.” (See 7/12/22 Tr. 28:19-29:2, 41:3-19, 44:23-45:1).
Jackson provided oral consent for the agents to reenter the apartment and collect the baggie. (See 6/1/22 Tr. 51:20-21, 61:5-9, 65:6-11; 7/12/22 Tr. 26:2-5, 34:1935:3, 43:6-10, 50:10-15). She refused, however, to sign a consent form offered by Agent Anderson, for fear of connecting herself to the recovered drugs. (See 6/1/22 Tr. 61:5-9, 65:15-18; 7/12/22 Tr. 28:5-10, 44:4-16; Doc. 297-1, Ex. 3B at 126). Despite the agents' assurances to the contrary, Jackson thought signing the form could “somehow implicate her in what was recovered,” so she was unwilling to reduce her verbal consent to writing. (See 7/12/22 Tr. 44:4-16). Agent Anderson explained:
She said yes. We provided her with a consent form to sign. I remember her putting her hands up like this and saying, and we said, “Will you allow us back in?” She said yes.
(See 6/1/22 Tr. 61:5-9).
Agent Anderson wrote “refused to sign” in the form's signature box. (See 6/1/22 Tr. 65:20-21; Doc. 297-1, Ex. 3B at 126). Jackson then accompanied the agents into the building and up the stairs to Apartment B, where she unlocked the door and allowed them to enter the apartment. (See 6/1/22 Tr. 61:5-11, 68:9-11; 7/12/22 Tr. 26:16-21, 35:1-2, 42:23-24, 43:9-13). Agents Markovchick and McDermott entered the apartment, promptly recovered the baggie of suspected crack cocaine from the kitchen, took a photograph for their records, and left 22 Thomas Street. (See 6/1/22 Tr. 61:11-13, 65:11-14; 7/12/22 Tr. 26:22-27:5).
On the same day Judge Carlson issued the search warrant for Apartment B, a federal grand jury returned an indictment against Garner, Ortiz, and several other members of the NFL drug-trafficking ring. The prosecution of NFL is currently proceeding on a superseding indictment that charges Garner with a bevy of gun-and drug-related crimes. Garner moves to suppress evidence acquired during the two searches of Apartment B on August 15, 2019. We held a hearing on Garner's motion on June 1, 2022, but kept the record open to afford him additional time to locate Jackson, who he considered to be a material witness. We held a second hearing on July 12, 2022. Jackson testified at this hearing, and we thereafter permitted supplemental briefing. The motion is now fully briefed and ripe for disposition.
Garner mounts two constitutional challenges to the evidence gathered during the searches of Apartment B. (See Doc. 297 at 3). We address Garner's challenges seriatim.
The Fourth...
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