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United States v. Ackies

United States District Court, D. Maine

July 26, 2017

UNITED STATES OF AMERICA
v.
CAREY ACKIES, Defendant.

          ORDER ON DEFENDANT'S MOTIONS TO SUPPRESS

          George Z. Singal United States District Judge.

         Before the Court are six Motions to Suppress brought by Defendant Carey Ackies (ECF Nos. 107-109, 116-118), which are described more fully below. The Court held an evidentiary hearing on ECF Nos. 108, 116, and 118, and gave the parties the opportunity to present oral argument on the other Motions, on June 29 and 30, 2017. The Court has considered the evidence provided at the hearing, including the testimony of Thomas Pappas, Diette Ridgeway, Schamia Taylor, and the Defendant, as well as the Government's Post-Hearing Memorandum (ECF No. 142) and Defendant's Response (ECF No. 145). For the reasons explained below, the Court DENIES five of Defendant's Motions.[1]

         I. FACTUAL FINDINGS

         The following facts are drawn from the record in this case, including the relevant search warrants and search warrant applications, and the exhibits and testimony presented at the hearing on Defendant's Motions.

         In the fall of 2015, a cooperating defendant (“CD1”) told DEA investigators that he[2] could purchase a substantial amount of heroin and cocaine base from an unidentified dealer known as “Boyd, ” a black male from New York; that CD1 had indeed previously purchased substantial quantities of heroin from Boyd on multiple prior occasions; that Boyd had “runners” who would transport drugs from New York to CD1 in Maine; and that CD1 owed Boyd a substantial amount of money for drugs that Boyd had previously “fronted” to CD1. CD1 has previously provided information and cooperation in unrelated drug trafficking investigations that had led to the seizure of drugs and multiple arrests and convictions.

         In early 2016, investigators received information from a separate cooperating defendant that CD1 was presently involved in the distribution of heroin. On January 14, 2016, investigators met with CD1 for the purpose of obtaining additional information about Boyd and recovered approximately three grams of suspected heroin and more than $17, 000 in cash. CD1 was not arrested in order to further the investigation of Boyd.[3]

         CD1 told investigators that he had traveled to New York shortly before Christmas and met with Boyd at a motel in or around Jamaica, Queens. CD1 provided (347) 331-8138 (“Target Telephone 1, ” or “TT1”) as a contact number for Boyd.[4] DEA Task Force Officer (“TFO”) Thomas Pappas[5] inspected one of CD1's cellular phones and observed text message exchanges between CD1 and TT1, which CD1 explained involved arranging a trip to visit Boyd in New York to set up future drug transactions.[6] When TFO Pappas inquired about Boyd's requests that CD1 call him on “another” or “new” phone, CD1 stated that Boyd is fearful that CD1's phone is being monitored by police and that Boyd frequently asks CD1 to call him from a different phone. Based on TFO Pappas's training, education, and experience, it is not uncommon for drug distributors to have numerous “dirty” or “burner” phones on-hand, and to frequently cycle through phones in an effort to thwart law enforcement.

         In the presence of TFO Pappas, CD1 placed three recorded calls to TT1 on the evening of January 14 and into the early morning of January 15, 2016, and identified the man he spoke with as Boyd. During a brief conversation in the early morning hours, CD1 and Boyd had an exchange using coded language that CD1 later explained dealt with a future drug transaction. CD1 also explained that Boyd was speaking in code because he is cautious about the security of CD1's phone. CD1 permitted TFO Pappas to examine a monthly statement from a credit union, which included several debit charges on CD1's account on December 23, 2015, in New York City and Long Island and thus corroborated that CD1 had visited New York shortly before Christmas.

         On January 15, 2016, TFO Pappas requested, pursuant to 18 U.S.C. § 2703(c)(1)(A) and Federal Rule of Criminal Procedure 41, a warrant authorizing the acquisition of “specific latitude and longitude or other precise location information” for TT1 and directing AT&T, the service provider for TT1, to initiate a signal to determine the location of TT1 at such times and intervals as directed by law enforcement for a period of 30 days. (Gov't Ex. 1.)

         That same day, the Magistrate Judge in the District of Maine issued a search warrant for “property located in the Eastern District of New York and elsewhere, ” namely, the precise location information for TT1. (Gov't Ex. 2.) In the accompanying order, the Magistrate Judge stated, in relevant part:

An application having been made by the United States for an Order pursuant to 18 U.S.C. § 2703(c)(1)(A) and Federal Rule of Criminal Procedure 41, directing AT&T to assist agents of the [DEA] by providing all information, facilities and technical assistance needed to ascertain the physical location of [TT1], including but not limited to data indicating the specific latitude and longitude (or other precise location information) of [TT1], for a period of thirty (30) days;
The Court finds that there is probable cause to believe that the Requested Information will lead to evidence of [crimes].
IT IS HEREBY ORDERED pursuant to 18 U.S.C. § 2703(c)(1)(A) and [Rule 41] that AT&T beginning at any time within ten (10) days of the date of this Order and for a period not to exceed thirty (30) days from the date of this Order, provide to agents of the DEA the Requested Information concerning [TT1], with said authority to extend to any time of the day or night as required, including when [TT1] is outside of the District of Maine; all of said authority being expressly limited to ascertaining the physical location of [TT1] and expressly excluding the contents of any communications conducted by the user(s) of [TT1].

(D. Me. Docket # 2:16-mj-12-JHR, ECF No. 3, Page ID #s 13-14.) The Order noted in a footnote that the requested information “shall, where other information is unavailable, include records reflecting the tower and antenna face (‘cell site') used by [TT1] at the start and end of any call.” (D. Me. Docket # 2:16-mj-12-JHR, ECF No. 3, Page ID # 13.)

         TFO Pappas continued to listen to the calls between CD1 and TT1 with CD1's consent.[7] On January 15, 2016, CD1 received a call from TT1 in which Boyd informed CD1 that he was trying to “pull it together.” Boyd informed CD1 that he had about “fifty” left, and added, “I'm good on the up, it's just the down, I got fifty.” CD1 and Boyd agreed to speak the following day. On January 16, Boyd told CD1 that something would happen “definitely, tomorrow.” Boyd also confirmed that CD1 would be good to go on his end. CD1 and Boyd spoke on January 17, and Boyd informed CD1 that an associate was supposed to connect with Boyd in the morning but the “timing was off.” Boyd also told CD1 that he wasn't sure of the associate's timing in making it past Boston on his way to Maine. Boyd told CD1 that if it didn't happen that night, he should be prepared for early the next morning. (See Gov't Ex. 11 at 4.) Based on the DEA officers' training, education, and experience, drug traffickers commonly use the terms “up” and “down” to refer to cocaine base and heroin, respectively. Based on the communications, it was clear to the DEA officers that Boyd was going to be sending a “runner” to deliver drugs to CD1 in Maine.

         Beginning on January 17, 2016, TFO Pappas began receiving precise location information for TT1 placing it in the area of 107-41154th Street in Jamaica, Queens.[8] However, the last known communication with TT1 was on January 17, and beginning on January 19, the location information for TT1 became imprecise or non-existent, perhaps because the phone had been powered off.

         On January 18, Boyd contacted CD1 from (718) 314-0952 (“Target Telephone 2, ” or TT2”) at approximately 5 a.m. Boyd informed CD1 that “he's getting on the connecting bus at 5:45 a.m.” The call terminated before CD1 could acknowledge this information. Boyd and CD1 then exchanged text messages, with Boyd texting CD1, “Ok but he there for 8 this morn he getting on the Portland bus at 6 o'clock.” (See Gov't Ex. 11 at 4-5.) Meanwhile, DEA agents accompanied by CD1 established surveillance at the Portland Transportation Center. At approximately 8:05 a.m., agents observed a man disembark a bus whom CD1 positively identified as “Mike, ” one of Boyd's runners who had delivered drugs to CD1 on previous occasions. After agents approached Mike and detained him, a trained K-9 alerted positively for the presence of drugs on his person and a search produced 100 grams of cocaine base and 40 grams of heroin. After Mike's arrest, he decided to cooperate and is hereinafter referred to as CD2. CD2 has a lengthy criminal history, has admitted using cocaine base and heroin, and cooperated in the hopes of receiving prosecutorial and judicial consideration at sentencing.[9]

         CD2 admitted he was delivering the drugs to CD1 (he identified CD1 by his first name) and provided an accurate physical description of CD1. Although not initially forthcoming about the source of the drugs, when confronted with known facts regarding the investigation, CD2 admitted that he had been hired to deliver the drugs by a man who he claimed is known or identified as “Boy” in Maine and “Killer” in New York.[10] CD2 described this man as a gang member and reported that he (CD2) was not the only runner in the man's drug operation. CD2 eventually stated that the drug source's first name is “Curry” or “Carey” and that his wife's name is “Mimi.”[11]

         CD2 said he wasn't certain of “Boy's” address, but provided directions to the vicinity of 107-41154th Street in Jamaica, Queens, and a physical description of the apartment building, which is where CD2 claimed to have been provided the drugs he brought on the bus to Maine. Specifically, CD2 described how to get to the intersection three houses away from the apartment building, and accurately described the building exterior. Both the directions and the physical description of the building provided by CD2 were consistent with the location that TFO Pappas had identified based on the location information for TT1. CD2 was eventually shown a photograph of the apartment building and confirmed that Boy resides on the second floor of the middle row of units. CD2 also disclosed that Boy uses a second “stash” house to store drugs, but CD2 did not know where that was located.[12]

         On January 18 shortly after CD2 was taken into custody, Boyd contacted CD1 from TT2. Boyd told CD1 that he had received “down” from his “peoples” but that he had sent it back because the quality was poor. Boyd also told CD1 that he would send up another “250” in a couple of days. (See Gov't Ex. 11 at 6.) Again based on their training and experience, DEA agents understood “down” to be a reference to heroin and that Boyd was informing CD1 that he would be in a position to send him another 250 grams of heroin that week. This conversation occurred before Boyd learned that CD2 had been arrested. In two subsequent calls with Boyd at ¶ 2, CD1 informed Boyd that something had happened to CD2, and Boyd suggested that CD1 would have to travel out of Maine for any future meets.

         At approximately 6:33 p.m. that day, CD1 contacted Boyd at ¶ 2 and discussed CD2's arrest. Boyd told CD1 that he was going to be getting another phone because he had called CD2 from that number. Boyd and CD1 also agreed it was a good thing Boyd had not sent the “400, ” which the agents understood to mean 400 grams of cocaine base and 400 grams of heroin that Boyd and CD1 had previously discussed. Boyd subsequently texted CD1 with CD2's full name and date of birth so that CD1 could post bail.[13] The next day, January 19, CD1 contacted Boyd at ¶ 2 and told him that he was planning to drive to New York on January 20.

         On January 20th, DEA TFO Brian Nappi applied for, and the Magistrate Judge in the District of Maine issued, a warrant for precise location information for TT2 subject to the same conditions as the previous warrant for TT1. Pursuant to the warrant, DEA agents collected precise location information for TT2 beginning on January 20 or 21.[14]

         Meanwhile, TFO Pappas had sent the information from the interview with CD2 in Maine to DEA agents in New York, who established surveillance at the 154th Street apartment (hereinafter, “the apartment”). The agents observed a Nissan high-occupancy passenger van (sometimes referred to as a “bus” in the record) in the vicinity registered to a Latoya Ackies. At some point, the New York agents sent a booking photograph of Carey Ackies to Maine and it was shown to both CDs. CD1 could not confirm Boyd's identity because the picture looked “a lot meaner” than how Boyd looked in person. CD2 positively identified the man he knew as Curry/Carey, Killer, or Boy.

         On January 19, TFO Pappas and other investigators drove to New York City to conduct surveillance in the vicinity of the apartment. The surveillance continued sporadically from the 19th through the 22nd and the investigators observed the Nissan van as well as a Nissan Quest registered to a Tyree or Terry Ackies in the vicinity. During this period, location information placed TT2 at the apartment on multiple occasions and at various times, including in the middle of the night.

         On January 21, TFO Pappas met with a task force officer from the FBI along with a district attorney in New York to begin to draft a search warrant for the apartment. Also that day, CD1 informed Boyd that he was en route to New York and, later, that he had arrived in the city. Throughout the early morning hours of January 22, CD1 received a flurry of phone calls and text messages from TT2, but TFO Pappas directed CD1 not to respond. At some point, TFO Pappas also received information from New York City police that Ackies had previously been stopped and given the apartment address as his residence.

         On January 22, 2016, at approximately 9:00 a.m., while on surveillance in the vicinity of the apartment, TFO Pappas received precise location information placing TT2 at an address nearby. At the time, investigators observed the Nissan van, but not the Quest, in the vicinity of the apartment. After the investigators drove to TT2's location, they spotted the Quest parked on the street in front of a supermarket. Around 10:20 a.m., TFO Pappas observed Ackies exit the supermarket with a grocery cart and begin to load groceries into the Quest. Investigators, who were in plainclothes with insignia identifying them as law enforcement and were armed, then took Ackies into custody and handcuffed him.[15] Ackies did not resist arrest, shout at the officers, or otherwise act belligerently. A search of Ackies's person incident to his arrest produced three cell phones, including what was confirmed at the scene to be TT2, a little over $800, and an identification card, which listed an address other than the 154th Street apartment. Between six and ten law enforcement personnel were involved in the operation, but it is not entirely clear how many were in Ackies's presence at any given time. Ackies had previously been arrested and convicted multiple times for a variety of offenses, including drug-related crimes.

         Ackies agreed to have the officers load his groceries into the Quest and drive it away. He was placed in the vehicle of Special Agent (“SA”) Diette Ridgeway, the group supervisor of the DEA enforcement group based in New York City. SA Ridgeway and TFO Pappas drove Ackies to a pre-determined location 5-7 minutes' drive away from the supermarket.[16] The officers moved quickly because of their desire to neutralize any firearms that may have been in the apartment. During the ride, SA Ridgeway and TFO Pappas introduced themselves and explained the state of the investigation. SA Ridgeway also correctly recited the Miranda warnings to Ackies from memory; she has previously recited them from memory hundreds of times in her 17-year career with the DEA.

         During his interactions with the officers, Ackies was coherent, seemingly not under the influence of drugs or alcohol, and appeared to understand everything that he was told. He acknowledged that he understood his rights, but repeatedly stated that he wanted to cooperate and expressed a willingness to answer questions. At some point, Ackies made incriminating statements and provided answers to the investigators' questions.[17] Specifically, he told the investigators that he resided at the apartment; that he owned two vehicles, the Quest and the van, and that he had paid $33, 000 for the van; that the apartment contained around 100 grams of cocaine base and a firearm; and that his pregnant companion, a two-year-old child, and his nephew, who had an outstanding warrant for his arrest, were all staying at the apartment.[18]

         The questioning continued once SA Ridgeway, TFO Pappas, and Ackies arrived at the secondary location, where the Quest was already being searched.[19] At some point, Ackies was asked if he would consent to a search of the apartment and was told that the officers would seek a search warrant if he did not consent. Ackies said he would consent and signed a DEA consent form. At the time he signed the form, Ackies was in the presence of TFO Pappas and another TFO and was either in the backseat or just outside SA Ridgeway's vehicle. Ackies was either handcuffed in front of his body or his handcuffs were off. Before signing, Ackies had an opportunity to review the written form, which states, “I HAVE NOT BEEN THREATENED, NOR FORCED IN ANY WAY” and “I FREELY CONSENT TO THIS SEARCH.” (Gov't Ex. 16.) The officers also explained the scope of the search-that they would be looking for the firearm and drugs.

         The officers then formulated a plan with the full cooperation of Ackies to lure his nephew out of the apartment. Ackies agreed to call the apartment and say he needed his nephew's help bringing up the groceries. Officers separately drove Ackies and the Quest back to the vicinity of the apartment, and Ackies was provided with one of the cell phones seized from him pursuant to his arrest. Ackies called the apartment and his nephew exited and was peacefully taken into custody.[20]

         Although the exact order of events at this point is not entirely clear, some number of officers went up to the apartment and spoke with Schamia Taylor.[21] At some point, SA Ridgeway and TFO Pappas went up to the apartment, informed Taylor that Ackies had provided consent to search the apartment, and showed her the signed consent form. Taylor then verbally consented to a search. Several officers were inside the apartment and assisted with bagging evidence, but TFO Pappas was the sole officer responsible for conducting the search and taking pictures. TFO Pappas located a loaded firearm, a small amount of heroin, a digital scale, a money counter, numerous cell phones, and unused baggies, which appeared to him to be the type used in heroin distribution.[22]

         II. DISCUSSION

         The Court considers Defendant's Motions in the most logical order for addressing the legal and factual issues he raises.

         A. Motion to Suppress Evidence Obtained Pursuant to a Search Warrant Issued Without Probable Cause (ECF No. 109)

         Defendant moves for suppression of all evidence derived from the January 15, 2016, search warrant for precise location information from TT1.[23] “[E]xamin[ing] the affidavit in a practical, common-sense fashion and accord[ing] considerable deference to reasonable inferences the [Magistrate Judge issuing the warrant] may have drawn from the attested facts, ” United States v. Barnard, 299 F.3d 90, 93 (1st Cir. 2002) (quotation marks omitted), and considering the “totality of the circumstances, ” United States v. Pérez-Díaz, 848 F.3d 33, 40 (1st Cir. 2017) (quotation marks omitted), the Court concludes that the TT1 warrant was supported by probable cause. See United States v. Feliz, 182 F.3d 82, 86 (1st Cir. 1999) (“In order to establish probable cause, the facts presented to the magistrate need only warrant a man of reasonable caution to believe that evidence of a crime will be found.”) (quotation marks omitted).

         Although the bulk of the information supporting probable cause came from an informant, CD1, who had at times misled the Government, the Court concludes that the Magistrate Judge could have determined that CD1's information connecting TT1 to drug trafficking activity was reliable. Specifically, CD1 provided credible information based on his own involvement with drug trafficking activities and his history of providing information to law enforcement that led to arrests and convictions; his information was based on his first-hand knowledge; his information was corroborated by TFO Pappas's independent investigation of CD1's activities as well as the interception of the communications between CD1 and the user of TT1; and, finally, TFO Pappas had reasonably assessed, based on his training and experience, that the communications between CD1 and the user of TT1 concerned drug trafficking. See United States v. White, 804 F.3d 132, 137 (1st Cir. 2015) (“The First Circuit has identified a non-exhaustive list of factors to examine in deciding on an informant's reliability: (1) the probable veracity and basis of knowledge of the informant; (2) whether an informant's statements reflect first-hand knowledge; (3) whether some or all of the informant's factual statements were corroborated wherever reasonable and practicable; and (4) whether a law enforcement officer assessed, from his professional standpoint, experience, and expertise, the probable significance of the informant's information.”) (quotation marks omitted).

         Defendant contends in particular that “[t]he text messages and phone calls referenced by TFO Pappas in the affidavit do not mention the sale of drugs in any way” (ECF No. 109, Page ID # 267), but the Magistrate Judge could have credited TFO Pappas's reasonable conclusion based on his training and experience in the field of drug enforcement that the communications used coded language to discuss drug trafficking activities. See United States v. Dunston, 851 F.3d 91, 96 (1st Cir. 2017) (recognizing, in the context of providing testimony at trial, that experienced DEA agents are qualified to “translate” coded language in drug-related communications). Given the coded and vague nature of the communications, it is also not surprising that they did not exactly corroborate the details of the drug transactions described by CD1 to TFO Pappas.

         Finally, even if there was no probable cause to support the TT1 warrant, the Court determines that the Leon good-faith exception would apply and that, therefore, suppression would not be appropriate. See United States v. Leon, 468 U.S. 897, 920-21 (1984) (holding that suppression is not appropriate where an objectively reasonable law enforcement officer relied in good faith on a defective warrant).

         The Court therefore DENIES this Motion (ECF No. 109).

         B. Motion to Suppress Evidence Obtained as a Result of the Issuance of Two Precise Location Information Search Warrants (ECF No. 107)

         Defendant moves to suppress all evidence derived from the precise location information warrants for TT1 and TT2 because he contends that the Magistrate Judge was not authorized to issue these warrants. The Court understands Defendant to be making two separate arguments leading to the same result. First, Defendant argues that the Magistrate Judge was not authorized to issue the warrants because the Government's acquisition of the precise location information (or, “PLI”)[24] amounted to the use of a “tracking device” within the meaning of 18 U.S.C. § 3117. Second, Defendant argues that, separate from consideration of the tracking device issue, the Magistrate ...


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