United States v. Nickas
| Decision Date | 20 July 2022 |
| Docket Number | 3:21-CR-143 |
| Parties | UNITED STATES OF AMERICA v. SUSAN MELISSA NICKAS, Defendant |
| Court | U.S. District Court — Middle District of Pennsylvania |
UNITED STATES OF AMERICA
v.
SUSAN MELISSA NICKAS, Defendant
No. 3:21-CR-143
United States District Court, M.D. Pennsylvania
July 20, 2022
MEMORANDUM
MALACHY E. MANNION, United States District Judge.
Pending before the court is defendant Susan Melissa Nickas' motion to suppress evidence and statements pursuant to Fed.R.Crim.P. 12(b). The recorded statements were made when she was interviewed, prior to her arrest, by three detectives with the Monroe County District Attorney's Office and a trooper with the Pennsylvania State Police, (“PSP”). (Doc. 79). Nickas and her co-defendant Jeremy Edward Johnson, are charged with two counts in an Indictment, to wit: Count 1, Conspiracy to Distribute Controlled Substances, (heroin and fentanyl), Resulting in Death, in violation of 21 U.S.C. §846 and §841; and, Count 2, Distribution of a Controlled Substance Resulting in Death, in violation of Title 21 U.S.C. §841(a)(1). (Doc. 1).[1] The alleged victim regarding the charges against the defendants is Joshua
Kiernan, and his date of death is December 11, 2020. Nickas seeks the court to suppress her incriminating statements alleging that they were obtained unlawfully before she was given her Miranda rights, and she seeks to suppress the evidence detectives obtained without a warrant, including her cellular (“cell”) phone. Nickas contends that all of her statements and all of the evidence seized should be suppressed since detectives violated her 4thand 5th Amendment rights.
For the reasons discussed below, and after consideration of the briefs and the evidence submitted, including the recording of Nickas' interview, Nickas' suppression motion will be DENIED IN ITS ENTIRETY without the need for an evidentiary hearing.
I. FACTUAL AND PROCEDURAL BACKGROUND[2]
As a backdrop, detectives with the Monroe County DA's Office were investigating the death of Joshua Kiernan who died of a fentanyl/heroin
overdose on December 11, 2020. On March 11, 2021, at about 9:45 a.m., three Monroe County detectives, (Lippincott, Vanlouvender and Orlando), and PSP trooper De La Iglesia, (hereinafter collectively referred to as the “detectives”), went to Nickas' residence to interview her after witnesses were interviewed, including Kaleigh Watson, Kiernan's fiance, and after Nickas was identified by the trooper from analyzing a data extraction from Jeremy Johnson's cell phone. (See Doc. 79-5). The detectives wanted to ask Nickas about her relationship with Johnson and to see what she knew about Kiernan's death. The detectives did not have a warrant for either Nickas' arrest or to search her house or her cell phone. Nor did Nickas know in advance that the detectives were coming to her house to speak with her. The detectives then proceeded to conduct a “knock and talk” with Nickas on her front porch at her residence after Nickas agreed to speak with them. One of the detectives had a digital recording device and activated it. Nickas was advised that her discussion with detectives was being recorded on the recording device.
Detectives then began questioning Nickas about her relationship with Johnson and her possible connection to the overdose death of Joshua Kiernan. Nickas was asked if she knew Johnson through her fiance Arron Bensley, who died. Nickas admitted she and Johnson were drug users, and that they had shared heroin in the past. Detectives told Nickas they had text messages from her to Johnson, and had quite a bit of communications between them. Detectives wanted to know from where Johnson was getting
his drugs. One detective told Nickas he was trying to help her out and that she could help herself out. Nickas wanted to know how the investigation involved her. Detectives told her that she was basically implicated and that they wanted her to help them out with her side of her story. Nickas worried aloud that the detectives were trying to trick her into saying something. Nickas' mother was also present at the house near the porch door and detectives wanted to know if Nickas wanted to talk outside of her mom's presence.
Nickas told detectives she would give Johnson rides to New Jersey to get drugs but the connections for the drugs where Johnson's. Detectives asked Nickas about the trips she and Johnson took to New Jersey (Paterson area) and whose GPS they used to get there.
Detectives asked Nickas how long she was making drug runs with Johnson, and she stated that they started after Arron Bensley died. Detectives wanted to know how often Johnson got drugs and how much he would get. Detectives wanted to know the details of Johnson's drug buys, and Nickas indicated that they were “street deals”. Nickas admitted that she and Johnson communicated through texts on her cell phone and not Facebook or social media.
Detectives asked Nickas about the cell phone they could see she had in her pocket and how long she had it. Detectives told Nickas they needed information on her cell phone and that she could consent to give the phone to them or they would take it and get a search warrant for it. Detectives
explained that information on her cell would be evidence for court. Detectives explained a drug deal resulting in death charge under Pennsylvania law and, that this was the basis of their investigation and why they were talking to her. Nickas emphasized that she did not sell any drugs and that she just gave Johnson a ride to pick up drugs. Detectives told Nickas they wanted the location information on her cell phone to see where Johnson was buying his drugs from. Detectives told Nickas they wanted to track down the sources of the drugs Johnson bought. In short, Detectives told Nickas they were investigating Kiernan's death and basically wanted to see where he got his drugs.
Nickas asked detectives if she could “call someone”, but then stated, “It's fine. I don't care.” The trooper responded that Nickas could call whomever she wished, including an attorney. Nickas wanted to know why detectives needed her cell phone and they explained the information they wanted. Lippincott said that at this point “you are on our team.” However, the detectives also told Nickas that they “can't make any promises” about what would happen “down the road” depending upon what they found on her cell phone.
Nickas asked to speak to Detective Chris Shelly (an FBI TFO), who she knew and trusted, but was not present. Lippincott, also an FBI TFO, stated that she knew Shelly and Nickas said she would do what Shelly told her to do. Detectives told Nickas they wanted her to help them out and to go
over her drug relationship with Johnson, and they told Nickas she may have to testify in court.
Nickas was then told that she could go inside and speak with her mother if she wanted to, but she would have to leave her phone with them if she went into the house.
Detectives again explained that they were there to investigate Kiernan's death and the chain as to how he got his drugs and wanted to know Nickas' “link in the chain.”
Detectives then asked Nickas again about her passcode for her cell phone and then began to ask how to get into her phone. Nickas asked detectives what were the implications if she gave Johnson money to buy drugs at times and detectives told her that Johnson was the guy they were looking at, but if evidence implicated her, then there were no promises that she would not be charged. Detectives then explained to Nickas that if she helped them do their job they would put in a good word for her with the prosecutor. Nickas again wanted to talk with Det. Shelly.
Shelly was then contacted by phone and spoke to Nickas and, she told him she did not want to incriminate herself. Shelly told Nickas to trust the detectives and that they were just trying to solve the case and that she was a big part of it.
Detectives again asked Nickas if she would consent to the search of her cell phone and she asked if she said “yes” would she lose any protections. Detectives told her they could get a search warrant for her cell
phone information even without her consent. Finally, one detective essentially stated, I just need a yes or no, do you want me to get a search warrant or will you consent, it's your choice. Nickas then consented to the search of her cell phone.
The trooper then explained the cell phone consent form to Nickas and read the form to her. Nickas signed the consent to search form the trooper gave her which indicated that she was “willingly, knowingly, voluntarily, and without coercion,....” was giving her consent to “to make a full search of my cell phone.” (See Doc. 91-1, Consent to Search Cell Phone Form). Lippincott witnessed Nickas' signature on the consent form. Then detectives told her that they would not forget her cooperation.
After Nickas' interview ended and her cell phone was taken, despite her consent, Lippincott prepared a search warrant application for Nickas' cell phone that was approved by a Monroe County judge later that same day. (Doc. 79-6 & Doc. 91-2). The LG cell phone, after it was mirror imaged, was returned to Nickas on March 12, 2021, by Lippincott. (Doc. 91-3). The search of Nickas' cell phone revealed evidence which contradicted the story provided by Nickas on March 11,2021, including hundreds of text messages allegedly evidencing her drug trafficking activities with Johnson.
On May 25, 2021, detectives arrested Nickas with a warrant that was issued after she was federally indicted with Johnson on May 18, 2021. (Doc. 1). Detectives also seized her cell phone, which was the same phone Nickas gave them on March 11, 2021, incident to her arrest, and later obtained a
federal search warrant for the contents of her phone on May 27, 2021. (Doc. 79-7).
II. LEGAL STANDARDS FOR SUPPRESSION MOTION
A. Fourth Amendment
The Fourth Amendment generally requires police to secure a warrant supported by probable cause before conducting a search, unless a...
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