United States v. Wade

• Decision Date: 09 July 2013
• Docket Number: Criminal No. 10–201.
• Citation: 956 F.Supp.2d 638
• Parties: UNITED STATES of America, v. Thomas Clay WADE, Defendant.
• Court: U.S. District Court — Western District of Pennsylvania

956 F.Supp.2d 638

UNITED STATES of America,

v.Thomas Clay WADE, Defendant.

Criminal No. 10–201.

United States District Court,

W.D. Pennsylvania.

July 9, 2013.

Almon S. Burke, Jr., United States Attorney's Office, Pittsburgh, PA, for United States of America.

MEMORANDUM OPINION AND ORDER

CONTI, District Judge.

Pending before the court are a supplemental motion to suppress evidence (ECF No. 94), a motion for discovery with respect to the telephone number used by the confidential informant (“CI”) in the present case (ECF No. 95), and a renewed motion for a hearing ¹ pursuant to Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), filed by Defendant Thomas Clay Wade (“defendant” or “Wade”) in the above-captioned case. On October 12, 2010, a federal grand jury in the Western District of Pennsylvania returned a two-count indictment charging defendant with possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1) and with possession with intent to distribute crack cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(iii). (ECF No. 1.)

On June 28, 2011, defendant submitted an omnibus pretrial filing. (ECF No. 37.) That filing contained: (a) a motion to suppress the drugs and shotgun which were found in the search of Wade's residence; (b) a motion to suppress several confessions made by Wade; (c) a motion for early disclosure of Jencks materials; (d) a motion for early disclosure of Brady materials; (e) a motion for disclosure and exclusion of any evidence of defendant's prior bad acts; (f) a motion for a court order requiring law enforcement agents to retain all rough notes and writings relating to Wade's case; (g) a motion to reveal the identity of the CI who assisted in Wade's investigation; and (h) a motion for leave to file a supplement to defendant's pretrial motions. ( Id.) Defendant concurrently filed a brief in support of those motions. (ECF No. 38.)

On September 19, 2011, Wade filed a supplemental pretrial motion requesting disclosure of the identity of the CI used to arrange the controlled buy which ultimately resulted in his arrest. (ECF No. 48.) The supplemental motion requested the CI's telephone number as a purported alternative to disclosing his identity. ( Id.) On September 19, 2011, the government filed responses to defendant's pretrial motions. (ECF Nos. 47 & 50.)

On September 20, 2011, the court held a hearing on Wade's pretrial motions. The court denied without prejudice as moot defendant's motion for early disclosure of Jencks material. The court denied without prejudice as moot defendant's motion for early disclosure of Brady material. The court granted in part and denied in part Wade's motion to disclose and exclude uncharged misconduct evidence. The court granted defendant's motion for an order to preserve and retain rough notes and writings. The court denied without prejudice defendant's motion to suppress the drugs and shotgun found during the search of his home, denying defendant's request for a Franks hearing. The court denied without prejudice defendant's motion to reveal the identity of the government's CI. The court granted the motion for leave to supplement and amend his pretrial motions. The court denied defendant's supplemental motion to reveal the CI's identity or telephone number (ECF No. 48). The court took the parties' arguments under advisement with respect to defendant's motion to suppress his confessions and the fruits thereof, which was the only matter not resolved on the record at the hearing. The court continued the hearing to November 22, 2011. On November 4, 2011, Wade filed a supplemental motion for a Franks hearing. (ECF No. 57.)

At the continued hearing held on November 22, 2011, the court heard arguments and testimony regarding (a) the motion to suppress Wade's confessions and the fruits thereof, the only issue remaining from Wade's omnibus pretrial filing (ECF No. 37), and (b) the motion for a Franks hearing. (ECF No. 57.) The court set an additional hearing on the motions, which was ultimately held on January 9, 2012. At the conclusion of the January 9, 2012 hearing, the court ordered the parties to file proposed findings of fact and conclusions of law on the two remaining matters. The parties submitted their proposed findings and conclusions on February 24, 2012. On March 26, 2012, the court issued its memorandum opinion and order, in which it denied defendant's motions to suppress and for a Franks hearing. (ECF No. 75.)

Following appointment of new counsel, defendant filed the present motions on September 20, 2012, renewing his motion to suppress evidence and statements obtained as a result of an allegedly illegal search and seizure, and his motion for discovery.² The court held a fourth evidentiary hearing on January 18, 2013, at which time the court heard testimony with respect to the CI's telephone number and further argument. The court ordered the parties to file proposed findings of fact and conclusions of law with respect to the motion for a Franks hearing, as well as suppression of defendant's oral and written statements.

During the four evidentiary hearings on these motions, the court heard testimony from the following government witnesses: (a) Officer William Churilla (“Churilla”); (b) Officer Kevin Merkel (“Merkel”); (c) Officer David Lincoln (“Lincoln”); and (d) Officer William Kelsch (“Kelsch”), all of whom are employed by the Pittsburgh Police Department. Defendant testified. He called the following defense witnesses: (a) Ronald Getner (“Getner”), a private investigator hired to assist in his defense; (b) Kenneth Bush (“Bush”), an acquaintance of defendant whose cell phone was used to place several telephone calls to Wade on the day of the controlled buy; (c) William Smith (“Smith”), a friend of defendant who called Wade on the telephone on the day of the controlled buy; (d) Shaniqua Johnson (“Johnson”), who was a passenger in Wade's car when it was pulled over by the police; and (e) Douglas Sughrue (“Sughrue”), defendant's former defense attorney.

The parties submitted supplemental proposed findings of fact and conclusions of law on June 13, 2013, in which defendant raises two issues: (a) defendant's oral and written statements following his unlawful detention should be suppressed; and (b) defendant's motion for a Franks hearing should be granted. (ECF No. 123.) Upon consideration of the parties' submissions and the evidence and testimony presented at the evidentiary hearings, the court makes the following findings of fact and conclusions of law:

I. Findings of Fact³A. The Controlled Buy and Search Warrant

1. Information obtained from a CI was used in connection with the arrest of defendant. (Hr'g Tr. Sept. 20, 2011 (“September 2011 Transcript”) (ECF No. 58) at 50.)

On December 24, 2009, Churilla and other Pittsburgh police officers detained the CI for attempting to sell baby powder to police officers. ( Id. at 52.) The CI attempted to pass off the baby powder as an illegal drug. ( Id.) The CI agreed to provide information to police in exchange for their not filing charges against him for his attempted sale of sham drugs. ( Id. at 52–53.) He told police he knew about a person selling drugs in the Lawrenceville neighborhood of Pittsburgh, Pennsylvania. ( Id. at 53.) The CI did not know the real name of the drug dealer in Lawrenceville. ( Id. at 54.) He knew the man by the street name of “Spider.” ( Id.) The investigation led to Wade and his home at 3828 Penn Avenue in Lawrenceville (“Wade's residence” or the “residence”). ( Id.) Police believed that defendant was selling drugs from his residence. ( Id.)

3. On January 27, 2010, at approximately 6:30 p.m., Churilla and Merkel met the CI in anticipation of arranging for the CI to buy crack cocaine from Wade. ( Id. at 57, 90.) They searched the CI to ensure that he did not have any contraband or money. ( Id.) The CI used his cell phone to call Wade. ( Id. at 57–58.) The CI arranged to buy a “fifty piece” of crack cocaine in exchange for fifty dollars. ( Id. at 59.) After the phone call, Merkel left to set up surveillance on Wade's residence. ( Id. at 59–60.) When he arrived at approximately 6:45 p.m., he contacted Churilla to let him know that he was in position, with an unobstructed view of the residence. ( Id. at 59–60, 132.) Before Churilla and the CI left the police station, the CI was searched again. ( Id.) Churilla drove the CI to within walking distance of Wade's residence, and let him out of the car. ( Id. at 60.) He gave the CI fifty dollars as he was leaving the car. ( Id.)

4. Churilla telephoned Merkel to inform him that the CI was on his way to Wade's residence. ( Id. at 60, 132.) The officers remained on the phone with each other. ( Id. at 133.) Churilla watched the CI walk toward the residence until Merkel could see the CI. ( Id. at 60.) Merkel had binoculars, but did not need to use them because he was situated approximately twenty-five feet from the front door of Wade's residence. ( Id. at 132.) The CI did not stop to talk to anyone. ( Id. at 60.) The CI was within the sight of at least one of the officers from the moment he exited Churilla's car to the moment he arrived back to meet Churilla after the drug purchase. ( Id. at 60, 133.)

5. Merkel observed the CI arrive at Wade's residence at approximately 7:00 p.m. ( Id. at 132.) Merkel did not observe any activity in or around Wade's residence during the fifteen-minute interim between his arrival and the CI's arrival. ( Id.) Merkel observed the CI walk to the front door of the residence. ( Id. at 133.) Merkel testified that he “believ[ed]” the CI “made a phone call to let [Wade] know that he was there,” but that he was “not sure what happened or if [Wade] answered or not.” ⁴ ( Id.) The CI walked across the street and sat at a bus stop facing the residence. ( Id. at 133–34.) While the CI was sitting at the bus stop, Merkel could not see whether he made any more...