United States v. Rice

• Decision Date: 02 April 2019
• Docket Number: Crim. No. 17-338
• Parties: UNITED STATES OF AMERICA, v. LAMAR RICE, Defendant.
• Court: U.S. District Court — Western District of Pennsylvania

UNITED STATES OF AMERICA, v. LAMAR RICE, Defendant.

Crim. No. 17-338

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

April 2, 2019

FINDINGS OF FACT AND CONCLUSION OF LAW

CONTI, Senior District Judge

I. INTRODUCTION

Pending before the court is a motion to suppress evidence (ECF No. 43) filed by defendant Lamar Rice ("defendant"). Rice is charged in a criminal indictment with: (1) possession with intent to distribute 100 or more marijuana plants, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(vii); (2) maintaining a drug-involved premises, in violation of 21 U.S.C. § 856(a)(1); and (3) possession of ammunition by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). (ECF No. 16.) The charges in the indictment are based upon evidence that was obtained pursuant to four search warrants issued by a federal magistrate judge to search the following property: (a) 321 Fifth Avenue, McKeesport, Pennsylvania 15132 ("321 Fifth Avenue") (ECF No. 43-1); (b) a 2006 Nissan Frontier driven by defendant ("defendant's vehicle") (ECF No. 43-2);¹ (c) 551 Fourth Street, Pitcairn, Pennsylvania ("defendant's residence") (ECF No. 43-3); and (d) defendant's person (ECF No. 43-4). The applications for the four search warrants were supported by the same affidavit of probable cause authored byLeonard Piccini ("Piccini"), a special agent with the United States Department of Justice ("DOJ") and the Federal Bureau of Investigation ("FBI"). (ECF No. 43-6.)

According to defendant, the affidavit of probable cause does not support the issuance of three of the four search warrants and contains a falsity. Defendant argues that the evidence obtained pursuant to the four warrants should be suppressed under the Fourth Amendment to the United States Constitution. On October 26, 2018, the government filed a response in opposition to the motion to suppress evidence. (ECF No. 45.) The government argues that defendant lacks standing to challenge the search of 321 Fifth Avenue, the search warrants were supported by probable cause, and, in any event, the good faith exception would apply to law enforcement's searches in this case.

On November 29, 2018, the court held a hearing with respect to defendant's motion to suppress. The government presented the testimony of Piccini and entered four exhibits into evidence. (H.T. 11/29/2018 (ECF No. 54) at 12.) For the reasons set forth in these findings of fact and conclusions of law, and, as set forth on the record at the hearing held on November 29, 2018, the motion to suppress will be denied.

II. FINDINGS OF FACT²

A. The McKeesport Building

FOF 1. 321 Fifth Avenue is one of three parcels in a large, three-story building located in McKeesport, Pennsylvania (the "McKeesport Building"). (ECF Nos. 43-7,43-8.) The McKeesport Building has at least four front doors, (H.T. 11/29/2018 (ECF No. 54) at 14), and three separate addresses: (1) 315 Fifth Avenue; (2) 317 Fifth Avenue; and (3) 321 Fifth Avenue, (ECF No. 43-8).

FOF 2. One of the middle doors in the front of the McKeesport Building was labeled "321." (H.T. 11/29/2018 (ECF No. 54) at 32.)

FOF 3. Prior to drafting the affidavit of probable cause, Piccini provided the address of "321 Fifth Avenue" to "an analytical support individual who conducted checks, property-type checks" with respect to that address. (Id. at 30.) The analytical support individual provided Piccini with information about "a possible foreclosure"³ of the McKeesport Building. (Id. at 35.)

FOF 4. Piccini explained that someone could tell "by looking at...[the McKeesport Building] that there were, at one time,...several different parcels." (H.T. 11/29/2018 (ECF No. 54) at 35.)

B. Piccini's Reliance upon Two Confidential Sources

FOF 5. In late October 2017, a confidential source, i.e., "CS 1," provided information about defendant to Piccini. (ECF No. 43-6 ¶¶ 12-16.) CS 1 had prior felony convictions and previously provided law enforcement "verified" information that "directly led to multiple narcotics seizures and two Federal Search Warrants." (Id. ¶ 12.)

FOF 6. In late October 2017, CS 1:

a. informed Piccini that defendant for more than one year had been growing marijuana at 321 Fifth Avenue and defendant currently operated a large-scale marijuana grow operation in the building (ECF No. 43-6 ¶ 13);b. took photographs while inside 321 Fifth Avenue, one photograph of which was attached to the affidavit of probable cause and "depicts a complex marijuana grow operation with a lighting system" and "a significant number of plants in various stages of growth" (id. ¶ 14); and

c. overheard defendant utilizing a cellular telephone to conduct a "marijuana transaction." (id. ¶ 16.)

FOF 7. CS 1 told Piccini that defendant was involved in the distribution of heroin and fentanyl and CS 1 observed inside 321 Fifth Avenue "packaging supplies utilized in the processing of heroin/fentanyl for distribution." (ECF No. 43-6 ¶¶ 13, 15.)

FOF 8. According to CS 1: (a) inside 321 Fifth Avenue were "several more rooms identical" to the room depicted in the photograph attached to the affidavit of probable cause and "other rooms dedicated to the drying and processing of the marijuana plants" (id. ¶ 14); and (b) defendant "would most likely not keep the proceeds garnered from illegal drug sales at the location of...[defendant's] illegal drugs, i.e., [321 Fifth Avenue]" (id. ¶ 17).

FOF 9. CS 1 informed Piccini that defendant drove a 2006 Nissan Frontier. (Id. ¶ 18.) Piccini learned that defendant's vehicle, i.e., a 2006 Nissan Frontier, was registered to Julia T. George at the address of defendant's residence. (Id.)

FOF 10. At some point prior to authoring the affidavit of probable cause, Piccini relied upon a second confidential source, i.e., "CS 2," who was cooperating for monetary gain and was previously convicted of felony drug trafficking. (ECF No. 43-6 ¶ 26.) CS 2 was previously charged with providing false information to law enforcement. (Id.) CS 2 previously provided to law enforcement "reliable and credible information that...led to large scale drug seizures as well as a Federal arrest and conviction." (Id.)

FOF 11. CS 2 told FBI agents that defendant owned 321 Fifth Avenue, (H.T. 11/29/2018 (ECF No. 54) at 29), and was involved in the "distribution of marijuana and heroin for numerous years," (ECF No. 43-6 ¶ 27.)

FOF 12. Piccini in the affidavit of probable cause, however, wrote that CS 2 owned 321 Fifth Avenue. (ECF No. 43-6 ¶ 27.)

FOF 13. Piccini testified at the hearing on the motion to suppress that identifying CS 2 as the owner of 321 Fifth Avenue in the affidavit of probable cause was a typographical error. (H.T. 11/29/2018 (ECF No. 54) at 29.)

FOF 14. At some point after Piccini authored the affidavit of probable cause he learned that "Pesade Gergamandu"⁴ owned the McKeesport Building. (Id. at 40.)

C. Piccini's Surveillance of Defendant

FOF 15. On November 1, 2017, FBI agents conducted surveillance of defendant. (ECF No. 43-6 ¶ 19.)

FOF 16. At approximately 9:12 a.m., defendant's vehicle was parked at his residence. (Id. ¶ 20.)

FOF 17. At approximately 9:20 a.m., defendant exited his residence carrying a black gym bag, he placed the gym bag into his vehicle, and he reentered his residence. (Id. ¶ 21.)

FOF 18. At approximately 12:30 p.m., defendant exited his residence and began to drive his vehicle. (Id. ¶ 22.) FBI agents followed defendant. (Id.)

FOF 19. At approximately 1:12 p.m., defendant exited his vehicle and entered Scott Electric. (ECF No. 43-6 ¶ 23.) Defendant exited Scott Electric carrying what appeared to be a receipt. Defendant departed the area in his vehicle. (Id. ¶ 24.)

FOF 20. At approximately 2:22 p.m., defendant parked his vehicle near his residence and was observed standing across the street from his residence. (ECF No. 43-6 ¶ 25.)

FOF 21. In the evening of November 12, 2017 (the day before Piccini applied for and was issued the four search warrants), Piccini conducted surveillance of defendant. (H.T. 11/29/2018 (ECF No. 54) at 12.)

FOF 22. Piccini first went to defendant's residence. He observed that defendant's vehicle was not parked in the location in which defendant "normally" parked his vehicle. (Id. at 12-13.)

FOF 23. Piccini next traveled to the McKeesport Building. (Id. at 13.) He observed "an individual fitting the description of [defendant]" exit the door of the McKeesport Building labeled "321,"⁵ walk to defendant's vehicle, and enter the vehicle. (Id.)

FOF 24. Piccini in a vehicle followed defendant in his vehicle. Piccini eventually "for a brief minute" lost sight of defendant's vehicle. Piccini traveled to defendant's residence where he observed defendant's vehicle parked. (Id.)

D. Piccini's Application for the Four Search Warrants

FOF 25. On November 13, 2017, law enforcement relying upon one affidavit of probable cause authored by Piccini (ECF No. 46-3) applied for four separate search warrantsto search: (a) 321 Fifth Avenue; (b) defendant's vehicle; (c) defendant's residence; and (d) defendant's person. (ECF Nos. 43-1-43-4.)

FOF 26. On the same day, a federal magistrate judge signed and issued each of the four search warrants. (ECF Nos. 43-1 at 1; 43-2 at 1, 43-3 at 1, 43-4 at 1.)

FOF 27. Piccini in the affidavit of probable cause provided his relevant training and experience. At the time Piccini authored the affidavit of probable cause, he had approximately fourteen years of experience with the FBI and an "extensive breadth of experience and knowledge about illegal drug trafficking in the Western District of Pennsylvania." (ECF No. 43-6 ¶¶ 2-3.)

FOF 28. Piccini was "aware of the ways in which cocaine, crack cocaine, heroin, marijuana and other drugs are distributed" and that drug traffickers "regularly" own and possess on their persons, in their residences, or in their motor vehicles firearms and other dangerous weapons. (Id. ¶¶ 7-8.) Piccini was "familiar with financial investigations involving proceeds from drug trafficker's [sic] illegal...