Opinion
02: 05cr219.
December 21, 2005
MEMORANDUM OPINION AND ORDER OF COURT
Defendant, Thomas Edward Throckmorton, was indicted by a Grand Jury on July 26, 2005, and charged with one count of illegal possession with intent to distribute 100 kilograms or more of a mixture and substance containing a detectable amount of marijuana, in violation of Title 21, United States Code, sections 841(a)(1) and 841(b)(1)(B)(vii).
On September 28, 2005, Defendant, through counsel, filed several pretrial motions, including the instant MOTION TO SUPPRESS ALL ITEMS SEIZED FROM THE SEARCH OF DEFENDANT'S BUSINESS LOCATED AT 1001 MERCHANT STREET AMBRIDGE, PENNSYLVANIA ( Document No. 17-5). Defendant seeks to suppress all of the evidence seized from the Defendant's business because the "Warrant lacked sufficient corroboration of the information provided by Robert Gailey so as to allow Magisterial District Judge Armour to find that a substantial basis for Probable Cause existed to issue the warrant." Mot. at 8. The government, of course, argues that the information in the "affidavit supplied sufficient probable cause to allow a court to properly and legally issue search warrants. . . ." Govt's Resp. at 8.
On November 15, 2005, the Court conducted an evidentiary hearing on Defendant's Motion to Suppress Evidence. The government presented two witnesses on the search of Defendant's business: Trooper Edward J. Walker and Trooper Jeffrey Brautigam, both with the Pennsylvania State police; Defendant presented George David Gailey and Louis W. Gentile. At the hearing, all parties were represented by counsel who presented and argued the issues skillfully and effectively.
The testimony from the suppression hearing has not been transcribed to date. However, the Court is prepared to issue its Opinion based upon the testimony and evidence presented at the suppression hearing, the applicable law, and the Court's notes and recollection.
FINDINGS OF FACT
The details of the initial arrest of Robert Gailey, the driver of the truck and eventual government informant, are fully explained in the accompanying Memorandum Opinion which denies Defendant's Motion to Suppress all items seized from the truck. Therefore, the Court will discuss in this Opinion only those facts which pertain to the application for the search warrant of Defendant's business.
Trooper Edward J. Walker ("Walker") has been employed as a state trooper for 12-1/2 years. For the last 5-1/2 years, he has been assigned to the Bureau of Drug Law Enforcement Western Interdiction Unit as part of the federal Drug Enforcement Agency ("DEA") Task Force, in which he has performed all types of drug interdiction assignments. Walker was the chief case agent assigned to this investigation.
On July 17, 2005, Brian Averi, a group supervisor with the DEA Pittsburgh Interdiction unit, contacted Walker and informed him that during a routine traffic stop in Missouri agents had stopped an individual who was driving a GMC truck. It was later discovered that the truck contained 250 pounds of marijuana. Presently, the truck was on its way to Pittsburgh, being driven by agents from St. Louis DEA.
Robert Gailey ("Gailey"), the driver of the truck, was being transported back to Pittsburgh as a passenger in another agent's car. Gailey had been interviewed by St. Louis DEA agents and had informed them that he was transporting the truck and marijuana to a Thomas Edward Throckmorton ("Throckmorton"), in Pittsburgh. Averi requested that Walker contact the St. Louis DEA agents and coordinate a controlled delivery of the marijuana in Pittsburgh.
Walker contacted DEA Special Agent Kent Weeks ("Weeks") of the St. Louis office. Weeks informed Walker that Gailey had been stopped on Interstate 44, while driving a 1988 GMC truck. The truck was registered to Industrial Construction Enterprise of 1001 Merchant Street, Ambridge, Pa. Weeks told Walker that Gailey had expressed interest in cooperating with the investigation, had identified Throckmorton, and told the agents that this was not his first trip to Arizona for Throckmorton. Walker ran Throckmorton's name through a computer and confirmed that Throckmorton's residential address was 2925 Ridge Road Extension, Baden, PA.
On July 18, 2005, Weeks, along with several other St. Louis DEA agents, arrived with the GMC truck at the Pennsylvania State Police Barracks where Walker met them. At the police barracks, another Pennsylvania state police officer with took photographs of the truck.
From the police barracks, Gailey telephoned Throckmorton at his business, which call was monitored by the state police with Gailey's consent. Gailey informed Throckmorton that he was in Ohio and would be arriving in Pittsburgh shortly. Throckmorton advised Gailey to take the truck to Throckmorton's residence at 2925 Ridge Road Extension, Baden, PA. Based on the monitored telephone call, it appeared to the agents that Throckmorton and Gailey knew each other. Therefore, the agents began to prepare for the controlled delivery, including setting up surveillance at both Throckmorton's residence and business. Five (5) or six (6) troopers/agents were assigned to Throckmorton's office and ten (10) to twelve (12) troopers/agents were assigned to Throckmorton's residence.
Walker testified that from the monitored telephone call, he gleaned that Throckmorton was expecting Gailey to return to Pittsburgh with the GMC truck loaded with the marijuana.
Gailey arrived at Throckmorton's home at approximately 4:20 P.M. on July 18, 2005, but Throckmorton was not there. Gailey informed the agents that Throckmorton was at his office; arrangements were then made for Gailey to leave the truck at the residence and Gailey was instructed to proceed to Throckmorton's office. Gailey was fitted with a body wire and proceeded to Throckmorton's office, via his motorcycle which he had left at Throckmorton's residence. Once at Throckmorton's business, Gailey engaged in conversation with Throckmorton and others for approximately thirty (30) minutes, which conversation was recorded and monitored by DEA agents and state troopers.
Immediately upon leaving Throckmorton's business, Gailey was debriefed by the agents. Gailey informed the agents that Throckmorton would be leaving his office shortly, that he would be going to a local bar/restaurant before going home, and that the marijuana would be unloaded later.
Walker was stationed outside Defendant's business. As Gailey had informed them, Throckmorton soon left his business; proceeded to a bar/restaurant, where he stayed for a short while; and then proceeded to his residence on Ridge Road. At approximately 6:10 P.M., Throckmorton arrived at his residence and was immediately placed under arrest. Throckmorton did not make any statements and was not interested in cooperating. The agents then transported Throckmorton to the police barracks. Once back at the barracks, Walker prepared two applications for search warrants, one for Throckmorton's business and one for Throckmorton's residence.
On cross-examination, Walker testified that the information contained in the Affidavit of Probable Cause was conveyed to him on July 17, 2005, by a Special Agent Weeks, of the St. Louis DEA office. Walker did not independently corroborate any of the information which was conveyed to him.
At approximately 10:16 P.M., on July 18, 2005, Magisterial District Judge Armour signed the search warrant for Throckmorton's business. The truck had been delivered to Throckmorton's residence approximately six (6) hours before the search warrant was issued.
Walker testified that immediately upon the judge's execution of the search warrant for the business, he personally contacted another trooper who was stationed at Throckmorton's business and informed him that the warrant had been signed. The search of Throckmorton's business began at 10:19 P.M., three (3) minutes after the search warrant had been executed by the judge. Trooper Jeff Brautigam executed the warrant of Throckmorton's business; Walker executed the warrant at Throckmorton's residence.
CONCLUSIONS OF LAW
Throckmorton argues that all physical evidence seized during the search of his business should be suppressed because the affidavit which accompanies the warrant did not establish probable cause to search the premises of his business. Throckmorton argues that the information provided by Gailey alone was not sufficiently reliable to establish probable cause, and that the police did not adequately corroborate Gailey's information.
It is well established that before the issuance of a search warrant, the state or magistrate judge must determine that "there is a fair probability that . . . evidence of a crime will be found in a particular place." Illinois v. Gates, 461 U.S. 213, 238 (1983). The issuing judge's determination that probable cause existed is to be accorded great deference. Id., at 236; see also United States v. Conley, 4 F.3d 1200, 1205-06 (3d Cir. 1993). Accordingly, "[a] reviewing court must determine only that the [issuing] judge had a `substantial basis' for concluding that probable cause existed to uphold the warrant." United States v. Whitner, 219 F.3d 289, 296 (3d Cir. 2000). In making this determination, the reviewing court may consider only "the facts that were before the magistrate judge, i.e., the affidavit, and not consider information from other portions of the record." United States v. Jones, 994 F.2d 1051, 1055 (3d Cir. 1993). The warrant's supporting affidavit must be considered as a whole and read in a common sense and nontechnical manner. United States v. Williams, 124 F.3d 411, 420 (3d Cir. 1997).
Throckmorton argues that the affidavit submitted in support of the warrant application did not establish probable cause to issue a warrant for Throckmorton's business because the police officers did not adequately corroborate the information provided by Gailey. In response, the government argues that the police officers sufficiently corroborated the information provided by Gailey.
For example, during a consensually monitored telephone call to Throckmorton, Gailey informed Throckmorton of his location and Throckmorton directed Gailey to drive the truck containing the marijuana to his residence at 2925 Ridge Road Extension, Baden, PA, the same address previously verified by Walker to be Throckmorton's residence.
Upon discovering that Throckmorton was not at his residence, Gailey left the truck at Throckmorton's residence and proceeded to Throckmorton's business. It was there that Gailey's information was further corroborated when Gailey spoke to Throckmorton about the marijuana shipment, all of which was heard by the officers via the body wire that Gailey wore.
The Court finds and rules that the monitored telephone call between Gailey and Throckmorton, as well as the monitored conversation between Gailey and Throckmorton, is sufficient to establish a fair probability that Gailey's allegations with respect to Throckmorton's illegal activities were truthful and that evidence of Throckmorton's drug dealing would be found at his business. The Magisterial District Judge who issued the search warrant, therefore, had a "`substantial basis' for concluding that probable cause existed." Whitner, 219 F.3d at 296.
Accordingly, the Court concludes that, under all the facts set forth in the affidavit and the corroborating conversations, there was probable cause for the issuance of a search warrant of Throckmorton's business.
CONCLUSION
For the reasons discussed hereinabove, the Motion to Suppress All Items Seized from the Search of Defendant's Business Located at 1001 Merchant Street Ambridge, Pennsylvania, will be denied. An appropriate Order follows.ORDER OF COURT
AND NOW, this 21st day of December, 2005, upon consideration of Defendant's Motion to Suppress All Items Seized from the Search of Defendant's Business Located at 1001 Merchant Street Ambridge, Pennsylvania ( Document No. 17-5) and after an evidentiary hearing followed by oral argument of counsel, the Court enters the foregoing Memorandum Opinion.ORDERED, ADJUDGED AND DECREED that
NOW THEREFORE, it is hereby ORDERED, ADJUDGED AND DECREED that Defendant's Motion to Suppress All Items Seized from the Search of Defendant's Business Located at 1001 Merchant Street Ambridge, Pennsylvania, is DENIED.