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United States v. Conley

United States District Court, D. Connecticut

September 20, 2018

UNITED STATES OF AMERICA,
v.
DEVELL CONLEY, Defendant.

          RULING RE: MOTION TO SUPPRESS (DOC. NO. 49) AND SUPPLEMENTAL MOTION TO SUPPRESS (DOC. NO. 76)

          Janet C. Hall United States District Judge

         I. INTRODUCTION

         Pending before the court is defendant Devell Conley's Motion to Suppress (Doc. No. 49) and Supplemental Motion to Suppress (Doc. No. 76). Conley argues that the Government violated his Fourth Amendment rights by (1) unlawfully stopping his vehicle on May 18, 2017; (2) unlawfully arresting him without probable cause; (3) conducting an unlawful search by calling a cell phone that was within the vehicle; (4) unlawfully seizing three cell phones from the vehicle; (5) searching the cell phones pursuant to an invalid warrant; (6) unlawfully entering and searching his residence without a warrant; and (7) searching his residence pursuant to an invalid warrant. See Motion to Suppress (“Mot. to Suppress”) (Doc. No. 49); Supplemental Motion to Suppress (“Suppl. Mot. to Suppress”) (Doc. No. 76). On July 30, 2018, the court conducted an evidentiary hearing on both Motions.

         For the reasons stated below, Conley's Motion to Suppress is DENIED, and his Supplemental Motion to Suppress is DENIED.

         II. BACKGROUND

         A. Hearing Testimony/Findings

         The court held an evidentiary hearing on the Motion to Suppress on July 30, 2018. See Minute Entry (Doc. No. 86). At the hearing, the Government presented testimony from Detective Jeffrey Valiette of the East Haven Police Department, Officer Edrick Agosto of the New Haven Police Department, Task Force Officer Allyn Wright of the New Haven Police Department and the Drug Enforcement Administration (“DEA”), and Special Agent Dana Mofenson of the DEA. Conley did not present any witnesses. The Government and the defendant each also introduced a number of exhibits. See Proposed Exhibit List by USA (Doc. No. 83); Defendant's Proposed Exhibit List (Doc. No. 85); Defendant's Supplemental Exhibit List (Doc. No. 87). In his Motions, Conley attacks the credibility of two of the Government's witnesses, Officer Wright and Detective Valiette. The court summarizes the relevant testimony below.

         Officer Wright testified at the hearing that, when he arrived at the scene where Conley's vehicle was stopped, Conley was already outside the vehicle. Tr. (Doc. No. 88) at 115. Conley introduced Officer Wright's grand jury testimony on September 20, 2017, at which Officer Wright did not include this detail. Tr. at 115-17; Defense Ex. 2 at 45-48. Officer Wright's grand jury testimony does not contradict his testimony at the hearing before this court, however; it merely omits a detail to which he testified here.

         Additionally, Officer Wright testified at the hearing that Conley interacted with the driver of a green Subaru through the driver's side window. Tr. at 118. Conley introduced Officer Wright's grand jury testimony that he saw Conley approach the Subaru from the passenger side. See Tr. at 118-19; Defense Ex. 2 at 45. Officer Wright testified that the two statements were reconcilable, because he saw Conley approach the Subaru from the passenger side of his field of view, continue around to the driver's side, and then conduct the transaction from the driver's side. Tr. at 118-19 Taken in context with the rest of Officer Wright's testimony and his presentation on the stand, the court concludes that neither of these statements undermines the credibility of Officer Wright's testimony.

         Officer Valiette testified at the hearing before this court that he interviewed an individual (“Frequent Caller 1”), who stated that he or she knew the person who used the phone number at issue in Valiette's investigation. See Tr. at 32. Valiette testified that Frequent Caller 1 stated that he or she knew the person by the name of D.L., and that he or she knew D.L. to be a black male, 35 years old, operating a white Infiniti SUV. Tr. at 32-33. Valiette stated that Frequent Caller 1 said that he or she had met D.L. an hour before the interview and purchased heroin from D.L. Tr. at 32-33. Frequent Caller 1 added that he or she normally met D.L. at the intersection of Elliot Street and Sylvan Avenue. Tr. at 32.

         Officer Valiette testified that he interviewed another individual (“Frequent Caller 2”), who stated that he or she met with a black male, known to them as D.L., who held the phone with the number at issue in the investigation. Tr. at 33. Detective Valiette added that Frequent Caller 2 stated he or she had recently purchased heroin from D.L. with the stamp “Griselda Blanco” on it. Tr. at 33.

         Conley argues that Detective Valiette's statements were inconsistent with his report. Specifically, Conley contends that the report contains no “meaningful description” of the black male described. See Suppl. Mem. in Supp. of Def.'s Mot. to Suppress (“Suppl. Mem. in Supp.”) (Doc. No. 76-1) at 12-13. Conley adds that the report makes no note of a meeting between Frequent Caller 1 and D.L. that day. Id. Finally, Conley argues that Detective Valiette's report contains “even less information” as to Frequent Caller 2, and that the report was less detailed than Detective Valiette's testimony. See id. at 13.

         While there are inconsistencies between Detective Valiette's report and his testimony before this court, the discrepancies are minor. The report states that Frequent Caller 1 described the user of the phone number at issue as a drug dealer, and as “a black male in his mid to early thirties, ” known to Frequent Caller 1 as D.L., who operates a white Infinity SUV to conduct his transactions at the intersection of Sylvan Avenue and Elliot Street. See id. at 12-13.

         The report states that Frequent Caller 2 identified the user of the phone number at issue as a black male who went by the name D.L. Id. at 13. The report states that Frequent Caller 2 met D.L. on Elliot Street in New Haven, and that Frequent Caller 2 had recently purchased heroin stamped “Griselda Blanca” from D.L. See id. at 13. The report does not mention an earlier meeting between Frequent Caller 1 and D.L. However, the remaining information in the report largely tracks Detective Valiette's testimony at the hearing. After comparing Detective Valiette's testimony at the hearing with his written report, the court finds that these minor inconsistencies did not undermine Detective Valiette's credibility.

         Ultimately, the court finds the Government's four witnesses to be credible, and credits their testimony. While Conley noted minor inconsistencies in testimony, he did not succeed in impeaching any of the four witnesses such that the court would discredit their testimony. The court finds no reason to discredit the witnesses based on their testimony and demeanor in court.

         B. Findings of Fact

         The court finds the following facts. On May 5, 2017, Detective Valiette responded to a scene where a suspected overdose victim, Christina Pace, was found deceased at the top of a stairway with a syringe in one hand. On a table nearby, Detective Valiette found, inter alia, three unused heroin bags stamped “Griselda Blanco, ” which tested positive for fentanyl, a number of used heroin bags, and a cell phone. See Gov't Exs. 1-6.

         Detective Valiette seized the cell phone and searched it for evidence to identify the individual who sold the heroin to Ms. Pace. Detective Valiette observed a number of text messages over several days to the same phone number (203-390-9948). He believed the messages were arrangements for drug transactions. See Gov't Exs. 8-21. The text messages included (1) references to requests for “two whole” or “one whole, ” which Detective Valiette understood, based on his experience, to refer to bundles of heroin; (2) quantities of 140 and 130, which Detective Valiette understood, based on his experience, to reflect the market price for two bundles of heroin; and (3) Elliot Street, which Detective Valiette understood in context to refer to the location of the transaction. See Gov't Exs. 8-21.

         Detective Valiette then sought assistance from the DEA to access the toll records for the phone number, 203-390-9948 (hereinafter “Targeted Phone”). The DEA used a program to generate a call frequency list from the toll records, identifying phone numbers that frequently called the Targeted Phone. See Gov't Ex. 22. Detective Valiette ran the numbers on the call frequency list through Facebook in an effort to determine the identities of the operators of any of the phones that frequently called the Targeted Phone. On May 17, 2017, Detective Valiette learned the identities of two of the frequent callers on the list and interviewed those individuals.

         Frequent Caller 1 stated that he or she had been in contact with the owner of the Targeted Phone for the purpose of purchasing heroin from that individual. See Gov't Ex. 23 ¶ 21; see also Defense Ex. 5. Frequent Caller 1 described the operator of the Targeted Phone ass “a black male, approximately 35 years old, who used the name D.L.” Id. Frequent Caller 1 stated that he or she believed D.L. resided on Sylvan Avenue, near the intersection of Elliot Street, and he drove a white Infiniti SUV. See Id. Frequent Caller 1 then went with police to the intersection of Sylvan Avenue and Elliot Street and identified the location where D.L. frequently parked his white Infiniti SUV. See id. The second individual, Frequent Caller 2, stated that he or she frequently purchased heroin from the operator of the Targeted Phone. See id. ¶ 22; Defense Ex. 6. Frequent Caller 2 described the operator of the Targeted Phone as a black male who used the name D.L. See id. Neither Frequent Caller 1 nor Frequent Caller 2 had worked with the police as an informant in the past.

         Based on the information received from Frequent Caller 1 and Frequent Caller 2, Detective Valiette set up surveillance at the location of Elliot Street and Sylvan Avenue on May 17, 2017. The surveillance team consisted of Detective Valiette and one other officer in one surveillance vehicle. Detective Valiette observed a black male enter a white Infiniti SUV near the intersection and drive away. While following the white Infiniti SUV, Detective Valiette observed this vehicle stop at a traffic light in a non-turning lane, then cut off another vehicle to make a right turn. Detective Valiette testified that he believed someone from the area who knew where they were going would not normally make a maneuver like that. The surveillance vehicle then followed the white Infiniti SUV onto the highway and the officers observed the SUV cross four lanes of traffic from the leftmost lane to make an exit. Detective Valiette testified that, based on his experience, he believed that the maneuver was an attempt to elude law enforcement. Detective Valiette terminated surveillance because he believed more than one vehicle would be needed to conduct surveillance.

         On May 18, 2017, at 6:30 AM, officers from the New Haven Police Department and the DEA, including Officer Wright and Special Agent Mofenson, joined Detective Valiette to conduct surveillance at the same location on Elliot Street and Sylvan Avenue. They observed the SUV parked on Elliot Street facing Sylvan Avenue. A green Subaru pulled up at the corner in front of the SUV. Officer Wright observed a black male, later identified as Conley but unknown to the officers at the time, approach the green Subaru. Without engaging in conversation with the driver of the Subaru, Conley approached the driver's side window, reached his hand in, and then retreated from the vehicle. The green Subaru then pulled away. Officer Wright testified that the transaction took less than 25 seconds and that he believed the transaction was consistent with a hand-to-hand drug transaction.

         Conley then entered the white Infiniti SUV, drove up Elliot Street, and took a right on Sylvan Avenue. A number of the surveillance vehicles, including Officer Wright's vehicle, followed the SUV. Officer Wright observed the SUV make several square turns, looping around the block several times. Officer Wright testified that, based on his experience, the maneuvers were consistent with measures to evade law enforcement.

         The officers in the surveillance team issued a request to conduct a motor vehicle stop on the white Infiniti SUV. In two separate marked patrol cars, Officer Agosto, Officer in Training Louis Rivera, and Detective Fred Salmeron of the New Haven Police Department responded to the request and stopped the SUV. The officers were not aware of the reason for the stop or the identity of the driver. Detective Salmeron approached the vehicle from the driver's side and spoke with Conley. Officer Agosto approached from the passenger side and observed Conley lean over and reach his right arm toward the glove compartment. He testified that, when Conley saw him, Conley returned to a seated position before again sliding over as if reaching for something.

         After observing these motions, Officer Agosto walked to the driver's side of the vehicle, and either he or Detective Salmeron asked Conley to step out of the vehicle. Conley exited the vehicle without resisting. The officers did not use force to get him out of the vehicle. Officer Agosto testified that he would have remembered if he or Detective Salmeron had used force because he would have had to file a report documenting the use of force and had not had to do so in this case. The officers patted Conley down for weapons and found none. Officer Agosto, Detective Salmeron, and Officer in Training Rivera then escorted Conley to the rear of the vehicle away from the glove compartment. At the rear of the vehicle, they waited for the other units to arrive. The officers did not tell Conley that he was under arrest at the time, nor did they use handcuffs or draw their weapons. In addition to Officer Agosto's testimony, Detective Valiette, Officer Wright, and Special Agent Mofenson all testified that, when they arrived on the scene, they observed that Conley was not in handcuffs and that no officers had their weapons drawn.

         Special Agent Mofenson and Officer Wright arrived at the scene of the stopped vehicle approximately 30 seconds after Conley was escorted to the rear of the vehicle. Officer Wright observed through the driver's side window that three cell phones were located inside the door pocket on the driver's side. He informed Special Agent Mofenson, who then dialed the telephone number of the Targeted Phone. The officers then heard a phone ringing inside the vehicle. Officer Wright seized the three cell phones: the phone that was ringing, an Alcatel phone (“Cell Phone 1”); an Apple iPhone (“Cell Phone 2); and a Kyocera cell phone (“Cell Phone 3”). Cell Phone 1 and Cell Phone 3 were both Android “smart phones.” Gov't Post Hr'g Mem. (Doc. No. 89) at 2.

         Special Agent Mofenson then directed that Conley be placed under arrest. Conley was placed in handcuffs and transported to the New Haven Police Department. Since his arrest, Conley has been incarcerated at Wyatt Detention Facility, which does not permit its inmates to possess cell phones. Special Agent Mofenson testified that he would have been the person to process a request for return of the cell phones, if any had been made, but that he did not receive any requests, from Conley or anyone else.

         Following Conley's arrest, Special Agent Mofenson and Detective Valiette returned to the DEA office to process evidence and paperwork. Special Agent Mofenson authored an affidavit for a criminal complaint. See Gov't Ex. 23. Detective Valiette made a second call to the Targeted Phone and observed Cell Phone 1 ringing with his own phone number visible on the screen.

         Special Agent Mofenson testified that, between May and June 2017, he continued to work on the case by processing paperwork and evidence, writing reports, and interviewing witnesses. He interviewed two other witnesses, including Robert Stawarz, the owner of the white Infiniti SUV. He also was the case agent on 12 to 15 other overdose cases and was dealing with personal medical issues that had required three surgeries that year. He testified that he missed a total of 6-8 weeks of work because of the surgeries, and that the resulting backlog and his diminished health made his workload more challenging to complete.

         On June 12, 2017, Special Agent Mofenson submitted three search warrant applications for Cell Phones 1, 2, and 3; Magistrate Judge Margolis signed the warrants. See Mot. to Suppress, Ex. C (“June Warrants”), at 56-90. A Task Force Officer (“TFO”), Michael Chaves, extracted the data from Cell Phone 3 on or about June 22, 2017, pursuant to the June Warrants. See Govt.'s Post Hr'g Mem. at 2. TFO Chaves provided the extracted data from Cell Phone 3 to Special Agent Mofenson, who conducted a search of the data. Id. at 2. TFO Chaves determined that the process to extract data from Cell Phone 1 might result in destruction of the cell phone, so he did not extract data pursuant to the June Warrants. Id. at 3.

         On August 17, 2017, “believing that the June 12, 2017 warrants . . . may have expired” and after the Government conferred with defense counsel, Special Agent Mofenson submitted a new application for a search warrant as to Cell Phone 1; Magistrate Judge Margolis signed the warrant. Id. at 3-4; see id. Ex. 2 (“August Warrant”). TFO Chaves extracted data from Cell Phone 1, pursuant to the August Warrant, on or about August 21, 2017. Gov't.'s Post Hr'g Mem. at 4. TFO Chaves provided the extracted data from Cell Phone 1 to Special Agent Mofenson, who conducted a search of the data. Id. at 4. The contents of Cell Phone 2, the Apple iPhone, were not “dumped” because the technology to do so did not exist at the time. As of the date of the hearing, the search warrant had not yet been executed on Cell Phone 2. Evidence obtained from Cell Phones 1 and 3 included text messages that the Government believes refer to drug transactions, contact information and names, and records of telephone calls.

         III. DISCUSSION

         Conley argues that the Government violated his Fourth Amendment rights with respect to the stop of his vehicle, his arrest, the seizure and search of each of the three cell phones, and two searches of his apartment. He seeks to suppress all of the evidence obtained from the vehicle stop, the cell phones, and the residence.

         The Government represented at the evidentiary hearing that it does not intend to use the evidence seized from Conley's residence at trial. Therefore, to the extent that the Motion to Suppress addresses the searches of Conley's residence, based on the Government's representation, ...


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