United States v. Gilliam

• Decision Date: 07 August 2020
• Docket Number: 3:17-CR-258
• Parties: UNITED STATES OF AMERICA, v. LARRY GILLIAM, Defendant.
• Court: U.S. District Court — Middle District of Pennsylvania

UNITED STATES OF AMERICA, v. LARRY GILLIAM, Defendant.

3:17-CR-258

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

August 7, 2020

(JUDGE MARIANI)

MEMORANDUM OPINION

I. INTRODUCTION

Defendant Larry Gilliam's Motion to Suppress Physical Evidence ("Motion") (Doc. 36) is pending before the Court. In the August 29, 2017, five-count Indictment, Defendant is charged with two counts of distributing heroin and carfentanil, in violation of Title 21, United States Code Section 841(a)(1), one count of possessing with intent to distribute carfentanil and heroin in violation of Title 21, United States Code Section 841(a)(1), one count of possessing a firearm in furtherance of a drug trafficking in violation of Title 18 United States Code, Section 924(c) and one count of being a prohibited person in possession of a firearm, in violation of Title 18, United States Code, Section 922(g). (Doc. 1.)

The charges stem from a controlled purchase by a confidential informant ("CI") from Defendant in Wilkes-Barre, Pennsylvania on July 21, 2017, where the CI arranged for a purchase of 10 grams of a pink substance in exchange for $1,000. (Doc. 40 at 5.) As soon as the controlled buy was concluded, "officers moved in and affected an arrest." (Doc. 37 at 10 (Citing Ex. A at 7, July 22, 2017, Affidavit of Probable Cause (Doc. 37-1 at 7).) Officers subsequently conducted a search of a house at 374 Main Street, Wilkes-Barre, Pennsylvania, to which they gained entry using keys confiscated from Defendant at the time of his arrest. (Doc. 37 at 13 (citing Doc. 37-1 at 8).) Once inside the building, they used another confiscated key to gain entry into a locked room on an upper floor of the house. (Id.) Based on the July 21, 2017, search of 374 North Main Street, a search warrant was applied for and issued on July 22, 2017. (Doc. 37-1.) The search was conducted on July 22, 2017, by the Pennsylvania State Police Clandestine Lab Team and yielded, inter alia, controlled substances, firearms, and cell phones. (Doc. 37-1 at 11-13; Doc. 37-2 at 2-3.)

With the pending Motion, Defendant seeks to suppress all physical evidence seized from 374 North Main Street in Wilkes-Barre, Pennsylvania: officers' initial entry into the building and subsequent entry into a locked interior room took place without a warrant under circumstances which did not give rise to a valid exception to the warrant requirement. (Id. ¶¶ 11-12.) Defendant further maintains that, because the officers were not lawfully in the building, they could not use information about contraband observed therein in an affidavit of probable cause for a search warrant and without the information, the warrant lacked probable cause. (Id. ¶¶ 13-14.) Defendant requested a suppression hearing, including a Franks hearing under Franks v. Delaware, 438 U.S. 154 (1978) (id. at 4), the latter "because the affidavit of probable cause for the search warrant contained materially false statements made knowingly, intentionally, and with reckless disregard for the truth" (id. ¶ 15).

Following extensive briefing (see Docs. 37, 40, 41, 45, 53, 54), the Court scheduled an evidentiary hearing for June 25, 2019. (Doc. 55.) The Court noted that, although the Government had acknowledged that a limited Franks hearing was appropriate, it would hold Defendant's request for a Frank's hearing in abeyance.¹ (Doc. 55 at 1 & n.1.) Both the Government and Defendant filed motions to continue the suppression hearing (Docs. 70, 72), and the hearing ultimately took place on August 13, 2019. (Doc. 90.) Based on conversations with counsel and their representation at the suppression hearing regarding whether a separate Franks hearing was not needed, the August 13^th hearing proceeded on suppression and Franks issues.² (Doc. 90 at 3 (August 26, 2019, Suppression Hearing Transcript (hereinafter "Hr'g Tr.") 3:4-20).)

At the close of the hearing, the Court set a briefing schedule, allowing the parties to file supplemental briefs and reply briefs. (Doc. 90 at 214 (Hr'g Tr. 214:16-21).) On October 7, 2019, the Government filed its Supplemental Brief in Opposition of Suppression (Doc. 96) and Defendant filed Defendant's Post-Hearing Brief in Support of Motion to SuppressPhysical Evidence (Doc. 97). Defendant filed his reply brief on November 4, 2019. (Doc. 102.)

II. BACKGROUND

On June 19, 2017, Detective Edward Palka of the Kingston, Pennsylvania, Police Department, and other officers saw suspicious activity in an area known for drug activity. (Doc. 37 at 7; Doc. 40 at 2.) After very brief surveillance, they observed a black male exit a dark colored BMW with dark tinted windows and New Jersey license plates. (Id.) Eventually, Palka determined that the man, Keenon Brown, had an active warrant for his arrest and took him into custody. (Id.) During a search conducted incident to the arrest, Palka discovered a bag of suspected heroin in the man's back pocket and a bag of a pink powdered substance. (Id.) After learning that Brown was staying at the nearby Budget Inn with a female companion, Palka and Special Agent Ryan Kovach knocked on the door of Room 131 and were allowed entry by the female inside. (Doc. 37 at 8; Doc. 40 at 3.) Upon entering the room, the officers observed drug paraphernalia, and drugs. (Id.) They subsequently transported the female to the Kingston Police Department. (Id.)

Officer Palka testified that he sought rapid testing of the confiscated pink substance because he had received information about the dangers of carfentanil and wanted to know what he was dealing with. (Doc. 90 at 61-63 (Hr'g Tr. 61:5-63:19).) Although he did not receive the official lab report unitl after July 21, 2017, he testified that he learned the pinksubstance contained carfentanil, fentanyl, and heroin in a conversation with the lab on July 20, 2017. (Doc. 90 at 63 (Hr'g Tr. 63:19-21).)

At the police department, both Brown and the female admitted to purchasing drugs from "LB" and Brown stated that "LB" had his four-year-old son with him in the car during the buy earlier that day. (Doc. 37 at 8.) The female said she spends between $700 and $1000 a day on narcotics, and both individuals discussed the vehicles "LB" drives (the BMW, a big black truck, a motorcycle, or a Toyota rental vehicle) and the locations where they meet him (Kingston or the area of Pete's Deli on North Main Street in Wilkes-Barre). (Doc. 37 at 8; Doc. 40 at 3-4.) They also reported that "LB" was going to New York and would return on Friday, July 21, 2017. (Doc. 37 at 8.) The female told officers that "LB" had told her he would sell her the pink substance when he returned on Friday. (Doc. 37 at 9; Doc. 40 at 4.)

The female agreed to participate in a controlled buy (10 grams of a pink substance in exchange for $1000 (Doc. 40 at 5)), on July 21, 2017. (Doc. 37 at 10; Doc. 40 at 5.) Palka testified that he and other officers then did "a lot of research" in setting up the buy. (Doc. 90 at 68 (Hr'g Tr. 68:1).) Through Officer Jeffrey Ference of the Wilkes-Barre Police Department and Luzerne County Drug Task Force, Palka learned that the black truck was linked to Defendant who had reported it vandalized in the area of Butler and North Main Streets in Wilkes Barre. (Doc. 90 at 68 (Hr'g Tr. 68:19-69:18).) The CI was shown a photo of Defendant, and she identified him as the man she knew as "LB." (Doc. 37 at 9-10; Doc. 40 at 4-5; Doc. 90 at 69 (Hr'g Tr. 69:20-23).)

Palka testified that numerous agencies were involved in the operation as well as helicopters, vehicles and people on foot. (Doc. 90 at 70 (Hr'g 70:1-2).) He also testified that he recorded the call between the CI and Defendant during which Defendant "said that he had his kids with him." (Id. at 70 (Hr'g 70:6-7).) The transcript of the recording indicates that the phone call between the CI and Defendant took place at 8:12 p.m. on July 21, 2017. (Doc. 98-1.) In attempting to establish the time and place for the buy, the CI said she could not meet Defendant at Montage and her ride was not available "right now"; Defendant said he was trying to work something out that he could still link up "'cause I got my kids." (Doc. 98-1 at 1.) At first Defendant said it didn't "have to be right now," but then he asked the CI "Are you ready right now?". (Id.) She responded affirmatively, and they originally set Pittston as the meeting place with Defendant wanting to meet

as soon as possible . . . 'cause I gotta—I gotta go—I gotta—I'm about to check the kids to eat, and it's like—You know, so I gotta—I'm about to meet them. I'm about to meet them somewhere, so I gotta pass through there anyway. So you know where, uhm, uh, fuck . . . Walmart? Walmart over there?"

(Doc. 98-1 at 2.) When the CI responded that she could be at Walmart in twenty to thirty minutes, Defendant responded "it's not gonna work" and asked if he could come to her. (Id.) The CI identified Wilkes-Barre as her location and she arranged to meet Defendant at the McDonald's near the River Grill in Wilkes-Barre in ten minutes. (Id. at 2-3.)

Palka testified that, after the phone call, things became quite hectic because they had to set up the surveillance in the area of the buy and come up with a plan for the CI. (Doc. 90 at 72 (Hr'g Tr. 72:5-8).) The buy preparation included that they

had a signal, she was provided with an audio/video recorder, she was provided with a thousand dollars in cash, and she was advised of a trouble signal, if she got into the car and something happened, or if she got out of the car and everything was good and she did have the items, a visual signal to give off, versus if she got out of the car and did not have the drugs, another visual signal to give off and we proceeded to make our way over there.

(Doc. 90 at 72 (Hr'g Tr. 72:11-17).)

The Affidavit of Probable Cause indicates that, after exiting the vehicle, the CI gave officers a visual signal that she had the agreed upon substance. (Doc. 37-1.) Defendant was arrested immediately thereafter. (Doc. 37 ...