United States v. McGrath

• Docket Number: CRIMINAL 3:23-cr-84
• Decision Date: 02 November 2023
• Parties: UNITED STATES OF AMERICA, v. JESSIE MCGRATH, Defendant.
• Court: U.S. District Court — Middle District of Pennsylvania

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UNITED STATES OF AMERICA,
v.
JESSIE MCGRATH, Defendant.

CRIMINAL No. 3:23-cr-84

United States District Court, M.D. Pennsylvania

November 2, 2023

MEMORANDUM

Malachy E. Mannion United States District Judge

Before the court are Defendant Jessie McGrath's motion to dismiss for lack of jurisdiction, (Doc. 6), and motion to suppress evidence, (Doc. 8). After fleeing officers who attempted to pull him over for speeding in the Delaware Water Gap National Recreation Area, McGrath was apprehended at his home in Pike County, Pennsylvania. Upon arrest, McGrath admitted that he had been driving without a valid license and submitted to a breath test which indicated alcohol use. The Government has charged Mr. McGrath in five counts: (1) fleeing or attempting to elude a police officer, a Pennsylvania offense charged pursuant to the federal Assimilative Crimes Act, (2 & 3) operating a vehicle under the influence of alcohol, (4) reckless driving, and (5) driving while operating privilege is revoked. (Doc. 1).

McGrath has moved to dismiss Count 1 of the Information, arguing that it fails to state an offense because the court lacks jurisdiction over this

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charge. (Docs. 6, 7). McGrath has also moved to suppress all evidence obtained from the government's “search” of his home and his arrest, arguing that these amounted to an unreasonable search and seizure in violation of the Fourth Amendment to the United States Constitution. (Docs. 8 & 10).

McGrath filed a brief in support of each motion, (Docs. 7 & 10). The government filed briefs in opposition to each motion, (Docs. 15 & 16). McGrath filed reply briefs. (Docs. 19 & 20). The court then ordered supplemental briefing, and the parties accordingly submitted their supplemental briefs. (Docs. 22 & 23).

I. BACKGROUND^[1]

At approximately 11:13p.m. on February 9, 2023, officers Cook and McNair, patrolling the Delaware Water Gap National Recreation Area, observed a vehicle traveling at a high rate of speed. The radar device on the patrol unit registered the vehicle traveling 58 miles per hour in a 35 miles per hour zone.

The patrolling officers activated their emergency lights and siren and began following the car. It did not stop. Instead, after briefly slowing down

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and pulling into the shoulder, the car accelerated. It continued to flee by passing other vehicles, crossing into the opposite lane to do so. The patrol vehicle accelerated to approximately 75 miles per hour but was still outpaced by the fleeing car. The officers lost contact with the car as it continued to accelerate.

The officers elected to halt the high-speed chase for public safety as well as officer safety. They convened with Officers Roessner and Seyfried off the side of the road. Having recorded the car's license plate number, the officers determined the registered owner's address, and because it was nearby, they went there. About 15 minutes passed between the end of the chase and the officers' arrival at McGrath's residence.

The officers found McGrath's car parked outside the house and observed that the hood was still warm. They approached the house after determining there was no one along the property's exterior. Supervising Officer Todd Roessner approached the front door of the home. At 11:34p.m., officers knocked on McGrath's front door.

After the initial knock, the officers approached the windows several feet to the right and left of the front door, using flashlights to look inside. They observed Mr. McGrath inside the house and heard his mother tell him to answer the door. The officers continued knocking, and called out: “Open the

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door, police.” McGrath's mother answered the door at 11:35p.m. Officer Roessner explained that they were looking to speak with the driver of a car that had fled from them. Mrs. McGrath responded, “alright, hold on,” and went back inside.

Officer Roessner again called inside: “Tell him to come out or it's gonna get worse.” Officer Seyfreid observed through the window that McGrath was in a back room and that he closed the room's door. The officers continued knocking and looking in the windows. They could then hear the McGraths “yelling at each other”-her telling him to come out and him saying that he would not.

At approximately 11:38, Officer Roessner called the following: “Police, come on out.” “We're gonna come in if he doesn't come out, it's gonna be worse.” He further instructed Mrs. McGrath, who was still inside, to put the dog away, because “we're gonna come in and get [McGrath].” The officers were visibly armed, and at approximately 11:39 drew their weapons. McGrath again called: “If we have to come in and the dog's not tied up, the dog's gonna get hurt.” “Come on out, we can talk about this.” “You need to come out, we're not going anywhere.” At approximately 11:39, McGrath exited the home. Officers did not enter the home to apprehend him.

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Once McGrath exited his home, he was immediately arrested and advised of his Miranda rights. McGrath then agreed to speak to the officers. He acknowledged fleeing and that he had been drinking that night. Officers performed a sobriety test and observed signs of impairment. A portable breath test was also administered and alerted to the presence of alcohol.

After McGrath was transported back to the police station, a blood alcohol test was performed. McGrath had a blood alcohol content (“BAC”) of .159%. Due to McGrath's prior DUI history, his license had been revoked at the time of this incident.

II. MOTION TO DISMISS

Mr. McGrath moves to dismiss Count 1 of the Information for failure to state an offense and lack of jurisdiction. Pursuant to the Assimilative Crimes Act (“ACA”) (18 U.S.C. §13(a)), the government charges McGrath with a violation of 75 Pa. Cons. Stat. §3733: “Fleeing or attempting to elude police officer.”

The ACA fills gaps in criminal law on federal land by making applicable state-law crimes with no federal counterpart. Lewis v. U.S., 523 U.S. 155 (1998). More specifically, it subjects a defendant's acts or omissions on federal land to state criminal laws that are “not made punishable by any

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enactment of Congress.” 18 U.S.C. §13; Lewis, 523 U.S. at 159. Even where a defendant's act is made punishable by an enactment of Congress, the state law may still be applied so long as the federal law does not preclude it. Lewis v. U.S., 523 U.S. 155, 164. McGrath asserts that his alleged conduct is appropriately punished by 36 C.F.R. §4.2, under which imprisonment is limited to six months, not by the Pennsylvania statute charged in Count 1.

a. Assimilative Crimes Act

The ACA provides:

Whoever [on federal land] .. . is guilty of any act or omission which, although not made punishable by any enactment of Congress, would be punishable if committed or omitted within the jurisdiction of the State .. . in which such place is situated, by the laws thereof in force at the time shall be guilty of a like offense and subject to a like punishment.

18 U.S.C. §13(a).

The Supreme Court has established a two-part inquiry for determining the scope of ACA assimilation. Lewis v. United States, 523 U.S. 155, 164 (1998). First, a court must ask, (1) “Is the defendant's ‘act or omission .. . made punishable by any enactment of Congress.'” Id. at 164 (omission in original). If not, the “ACA presumably would assimilate the statute.” Id. If it is, the court then asks (2) “whether the federal statutes that apply to the ‘act or omission' preclude application of the state law in question.” Id. Federal law may preclude state law where, for example, “its application would interfere

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with the achievement of a federal policy,” where “the state law would effectively rewrite an offense definition that Congress carefully considered,” or where federal law “reveal[s] an intent to occupy so much of a field as would exclude use of the particular state statute.” Id. at 164-65.

b. Criminal offenses at issue

A federal regulation is an “enactment of Congress” for ACA purposes. United States v. Hall, 979 F.2d 320 (3d Cir. 1992). Title 36 C.F.R. §4.2 provides:

(a) Unless specifically addressed by regulations in this chapter, traffic and the use of vehicles within a park area are governed by State law. State law that is now or may later be in effect is adopted and made a part of the regulations in this part.

(b) Violating a provision of State law is prohibited.

Title 75 of the Pennsylvania Consolidated Statutes, §3733(a), penalizes “[a]ny driver of a motor vehicle who willfully fails or refuses to bring his vehicle to a stop, or who otherwise flees or attempts to elude a pursuing police officer.” This offense constitutes a felony if the driver was under the influence of alcohol or a controlled substance, crossed a state line, or “endanger[ed] a law enforcement officer or member of the general public due to the driver engaging in a high-speed chase.” §3733(a.2)(2). The government charges McGrath with a felony offense under this provision.

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c. Analysis

Mr. McGrath contends that Count I should be dismissed because 36 C.F.R. §4.2 “uniformly penalizes all state traffic/vehicle violations that occur in park areas.” (Doc. 7, at 1). Because §4.2 punishes violations of state law concerning “traffic and the use of vehicles,” and §3733 concerns “traffic and the use of vehicles,” McGrath observes, any conduct prohibited by §3733 is also prohibited by §4.2. He further posits that “[r]egulators intended to bring the violation of this type of law within the broad reach and coverage of 36 C.F.R. §4.2” (Doc. 7, at 5).

But the ACA's scope is narrower. Lewis concluded that Congress did not intend the phrase “any enactment” “to carry an absolutely literal meaning.” 532 U.S. at 161.

A literal interpretation of the words ‘any enactment' would leave federal criminal enclave law subject to gaps of the very kind the Act was designed to fill. The Act

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