United States v. McAliley
| Decision Date | 14 March 2022 |
| Docket Number | Criminal Action 21-216 |
| Court | U.S. District Court — Eastern District of Pennsylvania |
| Parties | UNITED STATES OF AMERICA v. WARREN MCALILEY |
On May 26, 2021, the Grand Jury returned an indictment charging Defendant with: possession of a firearm by a felon, in violation of 18 U.S.C. §§ 922(g)(1), 924(e) (Count 1); possession with intent to distribute 400 grams or more of fentanyl, in violation of 21 U.S.C. § 841(a)(1) (b)(1)(A) (Count 2); carrying and using a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1) (Count 3). On August 3, after a superseding indictment, the Grand Jury charged Defendant with two additional counts: importation and use of mail to transport drug paraphernalia, in violation of 28 U.S.C. § 863(a)(2), (a)(3), and aiding and abetting in violation of 18 U.S.C. § 2 (Count 4); and attempt to manufacture controlled substances, in violation of 21 U.S.C. § 846 (Count 5). On September 29, 2021, after a second superseding indictment, the Grand Jury charged defendant with an additional count: importation of merchandise contrary to law in violation of 18 U.S.C. § 545 (Count 6).
Before this Court is Defendant's motion to suppress and exclude all physical evidence collected after Defendant was detained on September 25, 2020.[1] This memorandum constitutes the Court's findings of fact and conclusions of law with respect to Defendant's motion. For the reasons set forth below, Defendant's motion will be denied.
The Court held a suppression hearing on October 28, 2021. Customs and Border Protection (“CBP”) Officer Michael Hughes, forensic chemist Shelby Stotelmyer, CBP Officer Paul Smith, CBP Officer Michael Cardo, Department of Homeland Security Investigations (“HSI”) Special Agent Michael Johnson, HSI Special Agent Joseph Consavage, Pennsylvania State Trooper James Nolan, Pennsylvania State Trooper Michael Vaccaro, Pennsylvania State Trooper Javier Garcia, and Pennsylvania State Trooper Cody Simcox testified in this case. The Court finds their testimony credible and accepts it as fact.
On September 15, 2020, officers with the CBP at Memphis International Airport intercepted a package being transported by FedEx that originated from Shaanxi Province, China. The shipper was “Xi'an Ze Bang, Biotech, Co., Ltd.” and the package was destined for the following address: “Justin Sellers, 1319 West Jerome Street, Philadelphia, PA.” CBP officers are tasked with determining whether any merchandise shipments are out of the ordinary. For example, CBP officers will look for products labeled as “silicon dioxide.” Silicon dioxide is a sand-type product that one could obtain from the United States, so, according to CPB Officer Hughes, it is a red flag if an international package is labelled with “silicon dioxide.” Additionally, according to CBP Officer Smith, “silicon dioxide” is a commonly used as a false label.
The CBP Officers deemed the package suspicious as it was passing through the Memphis International Airport FedEx Hub because: (1) The shipper had prior shipments seized by CBP for customs violations, (2) the package was labeled as “silicon dioxide, ” and (3) the “silicon dioxide” was being sent to a residential address, rather than a company.[2]
CBP Officer Smith searched the package and found a white powder. CBP officers sent the package to satellite laboratory for chemical testing, where forensic chemist Stotelmyer determined it to be over a kilogram of Xylazine. Xylazine is a potent horse tranquilizer, legally used by veterinarians as an animal sedative. Though Xylazine is not a controlled substance, according to CBP Officer Hughes, forensic chemist Stotelmyer, CBP Officer Smith, and CBP officer Cardo, it is frequently used as a drug adulterant/cutting agent and mixed with narcotics.[3] Tr: 238:5-12, ECF No. 41; see also Tr. 19:14-16 (); Tr. 31:21-25; 32:1-3 (forensic chemist Stotelmyer notes Xylazine is a cutting agent); Tr. 46:14-16 (); Tr. 57:10-11 (). The Food and Drug Administrative (the “FDA”) has approved Xylazine for veterinarian use only. See 21 C.F.R. § 522.2662(c). Forensic chemist Stotelmyer confirmed that Xylazine is only approved for veterinarian use.
The CBP officers reported the package to the Department of Homeland Security Investigations. HSI agents, believing that the intended recipient sought to mix the Xylazine with narcotics, enlisted the help of the Pennsylvania State Police (“PSP”) to enact a “controlled delivery” of the package. HSI agents coordinated with the PSP Eastern Interdiction Unit, a drug task force assigned responsibility for interdicting narcotics and drug paraphernalia imported into the state. Tr. at 132:24- 133:10.
The HSI agents and PSP officers ruled out the possibility that the Xylazine was heading to a facility that specializes in animal medicine or animal-related products. The HSI agents and PSP officers determined that 1319 West Jerome Street is a private residence in Northeast Philadelphia. The HSI agents and PSP officers determined that “Justin Sellers” is a fake name and that individuals with the last name “McAliley” live at the 1319 West Jerome Street residence. Officer Vaccaro testified that drug dealers often use fictitious names and false labels in order to ship, receive, and transport drugs and drug paraphernalia. Tr. 197:11-2l. According to the Government, based on the fictitious name, packaging, and destination of the Xylazine, investigators determined that the substance was likely intended for illegal drug trade. See Tr. 137:23-25; 138:1-16.
On September 25, 2020, HSI agents and PSP officers swapped the Xylazine for a replica substance and effectuated a “controlled delivery” of the package. An undercover postal inspector delivered the package to the front door of 1319 West Jerome Street. A few minutes later, a man believed to be the father of the Defendant brought the package into the home.
Undercover officers observed the residence by parking in front of the house and around the block. Officer Vaccaro parked a few doors down in close to the residence. Approximately 30 minutes later, at 12:10 p.m., Defendant drove to the 1319 West Jerome Street address in a Chevrolet Malibu and retrieved the package.
Undercover officers, including Officer Nolan, Officer Vaccaro, and Special Agent Consavage, then followed Defendant to a residence located at 1349 Kerbaugh Street, Philadelphia, Pennsylvania. Officers surveilled the area. Some time later, in the afternoon, Defendant left the 1349 Kerbaugh Street address and drove to a hair salon to pick up his girlfriend, Sharita Boykin. Undercover officers observed Defendant driving at a high rate of speed and making several abrupt turns, which the officers deemed to be “countersurveillance” tactic.
After Defendant picked up Ms. Boykin, the undercover officers observed Defendant re-enter the 1349 Kerbaugh Street residence. The officers continued to observe the address noting that the neighborhood was a high crime area based on background research as well as observations of individuals in the area under the influence of narcotics.
At approximately 4:00 p.m., officers observed Ms. Boykin leave the 1349 Kerbaugh Street residence and enter the driver's seat of the Chevrolet Malibu. Defendant then left the 1349 Kerbaugh Street residence and entered the passenger seat of the vehicle. However, after several minutes, Defendant exited the vehicle and re-entered the 1349 Kerbaugh Street residence. Ms. Boykin, alone in the car, then slowly drove around the block. Officer Vaccaro testified that Ms. Boykin appeared to slow down and peer into his vehicle. Officer Vaccaaro believed that his position had been detected and requested another officer assume his position.
Ms. Boykin continued to drive the Chevrolet Malibu and eventually parked nearby at a local store. Undercover officers then noticed that Defendant had left the 1349 Kerbaugh Street residence through the back door with a black duffel bag in hand. Defendant then walked through an overgrown back alley and rejoined Ms. Boykin at her vehicle. Defendant re-entered the Chevrolet Malibu and Ms. Boykin drove away from the store. The officers testified that these appeared to be “countersurveillance” measures.
The undercover officers suspected Defendant was transporting controlled substances, or its instrumentalities, in the duffel bag. Following instructions from HSI and PSP, Cody Simcox, a PSP officer, created a “walled off stop”[4] in an attempt to develop independent probable cause to search the Chevrolet Malibu.[5] Officer Simcox pulled the vehicle over after observing Ms. Boykin fail to use a turn signal and fail to completely stop at a stop sign. At approximately 4:41 p.m., Officer Simcox advised Ms. Boykin and Defendant of the reason for the stop, asked both parties to exit the vehicle, and requested identification. During the stop, Defendant identified himself as the owner of the vehicle. Officer Simcox initially told Defendant and Ms. Boykin that if they were otherwise in lawful operation of the vehicle, he would let them off with a warning. Officer Simcox did not intend on letting them go due to the ongoing investigation.
Officer Simcox then spoke with Defendant. Defendant indicated he lived on Jerome Street and claimed he was going to pick up his son from school. Officer Simcox asked Defendant if he had ever been in trouble with the law and Defendant responded that he was arrested approximately 10-15 years ago for a firearm related charge. Officer Simcox then spoke...
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