United States v. Cook

UNITED STATES OF AMERICA v. MARK COOK, Defendant

3:CR-16-312

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF PENNSYLVANIA

April 19, 2021

(JUDGE MANNION)¹

MEMORANDUM

Presently before the Court are three Motions to Suppress Evidence (Docs. 120, 127 & 167), filed by Defendant Mark Cook through his former counsel, Attorney Bill Ruzzo. Cook's Request for a Franks Hearing, (Doc. 119), was granted. The pending motions have been fully briefed, and bifurcated suppression hearings were held on January 8, 2020 and March 11, 2021. As such, the motions are now ripe for disposition.

I. PROCEDURAL HISTORY

On October 25, 2016, a grand jury returned a multi-count Indictment against Defendant Cook in connection with his alleged involvement in drug trafficking and interstate prostitution. The indictment charged Defendant Cook with six criminalcounts, including one count of conspiracy to commit sex trafficking by force and coercion, three counts of sex trafficking by force and coercion, possession with intent to distribute heroin, and attempted witness tampering. (Doc. 1). On December 20, 2016, Defendant Cook was charged in a Superseding Indictment that added one count of sex trafficking by force and coercion, one count of attempted sex trafficking by force and coercion, one count of conspiracy to distribute cocaine, one count of wire fraud, and altered the time frame for the attempted witness tampering charge. (Doc. 42). On October 31, 2017, a Second Superseding Indictment charged Defendant Cook with an additional count of sex trafficking by force and coercion. (Doc. 97). It also changed the time period for the possession with intent to distribute charge and specified that at least five victims were involved in the conspiracy to commit sex trafficking charge. (Doc. 101).

On July 24, 2018, Defendant Cook was subsequently charged in a Third Superseding Indictment. (Doc. 179). The Third Superseding Indictment added three new victims to the conspiracy count, one new overt act, three new sex trafficking counts, a new charge of transporting an individual in interstate commerce for purposes of prostitution, a new charge of persuading an individual to travel in interstate commerce to engage in prostitution, and two new drug counts. (Id.).

More recently, on May 14, 2019, a Fourth Superseding Indictment was charged against Defendant Cook that further extended the time frame for the conspiracy count. (Doc. 233).

On February 2, 2018, Defendant Cook filed a motion for a Franks hearing, along with a brief in support thereof, with respect to the FBI's search of his residence on October 14, 2016. (Docs. 119, 119-1). The Government then filed a brief in opposition on February 13, 2018. (Doc. 121). Next, on February 6, 2018, Defendant Cook filed a motion to suppress evidence seized from his person and rental vehicle by Taylor, Pennsylvania, police on March 28, 2015. (Docs. 120, 120-1). The Government filed a brief in opposition on February 20, 2018, to which Defendant Cook filed a reply on April 13, 2018. (Docs. 122, 142).

Defendant Cook filed a second motion to suppress, as well as a supporting brief, on March 16, 2018 in relation to the evidence seized from the search of his cellphone. (Docs. 127, 128). Defendant Cook filed a supporting supplemental attachment on March 19, 2018, and the Government filed a brief in opposition on April 9, 2018. (Docs. 129, 135). Defendant Cook subsequently filed a reply brief on May 18, 2018. (Doc. 157). Then, on July 6, 2018, Defendant Cook filed an additional motion to suppress evidence and a Franks hearing request with respect to the search of his cellphone. (Doc. 167). The Government filed a brief inopposition on August 17, 2018 and Defendant Cook filed a reply on September 19, 2018. (Docs. 187, 193).

On January 8, 2020, the Honorable James M. Munley held a suppression hearing on the defendant's motions that arose from the March 28, 2015 traffic stop. (Doc. 273). Upon the passing of Judge Munley, the undersigned subsequently held on March 11, 2021, the second half of the bifurcated proceeding, the Franks hearing, regarding the search warrant of Cook's residence, (Doc. 355), bringing this case to its present procedural posture.²

The trial in this case has been scheduled to being on June 14, 2021. (Doc. 334).

II. FINDINGS OF FACT³

During the suppression hearing held on January 8, 2020, the Court heard testimony from the following witnesses called by the Government: Officer BrianHolland, of the Taylor, Pennsylvania, Police Department ("Officer Holland"); and Detective Sheryl Turner, of the Lackawanna County District Attorney's Office ("Detective Turner"). At the March 11, 2021 Franks hearing, three witnesses testified, namely, Heather Keith, Kathleen Healey, and FBI Agent McMillen. Two exhibits were admitted at the second hearing, namely, defendant Exhibit #1, McMillen's Affidavit, and defendant Exhibit #2, copies of FaceBook instant messages between Cook and Healey. The Court, having found these witnesses to be credible, makes the following factual findings based on their testimony, the evidence admitted at the suppression hearings, and the parties' briefs and supporting exhibits.

Officer Holland testified that on March 28, 2015, he was assigned to the Taylor Police Department's 10 P.M. to 6 A.M. shift as a patrol officer. (Doc. 273, at 5). During his shift, Officer Holland was in uniform and operated a marked patrol cruiser. (Id.) At approximately 3:00 A.M., Officer Holland observed a vehicle travelling without its tail lamps illuminated, in violation of Section 4302 of the Pennsylvania Motor Vehicle Code. (Id. at 6, 8). Officer Holland then initiated a traffic stop of the vehicle at the intersection of South Keyser Avenue and Union Street, which was a high-risk road. (Id. at 5, 10).

Officer Holland observed two people inside of the vehicle and notified the operator, identified as Defendant Cook, of the reason for the stop. (Id. at 5-6, 8).Officer Holland then asked for Defendant Cook's license and registration and learned that he was operating a rental vehicle. (Id. at 8-9). Officer Holland further discovered that Defendant Cook had come from a nearby strip club known as the Diamond Club. (Id. at 9). Due to numerous drug arrests that occurred there, regular contact with gang members that frequented the establishment, and intelligence gathered by Pennsylvania State Police regarding the club, Officer Holland considered the Diamond Club to be a high-crime location. (Id. at 9-10).

As Officer Holland interacted with Defendant Cook, he used his flashlight to look inside of the rental vehicle. (Id. at 9). According to Officer Holland, he was searching the interior for weapons as a safety precaution. (Id.) Officer Holland then observed a bag of suspected marijuana on the floor of the vehicle, located directly behind the driver's seat. (Id. at 10-11). Based on this observation, Officer Holland requested backup law enforcement assistance. (Id.)

After Officer Zuby arrived at the scene, Officer Holland requested that Defendant Cook step out of the vehicle. (Id. at 11). Officer Holland testified that he made this request in order to recover the bag of marijuana that he had seen and to make sure that Defendant Cook was not carrying any weapons. (Id. at 12). Defendant Cook did not immediately comply with Officer Holland's request; when he did exit the vehicle, however, Officer Holland noticed Defendant Cook reach in the area of his waistband. (Id.) Based on this behavior, Officer Holland drew hisgun, secured Defendant Cook in handcuffs, and showed him the suspected bag of marijuana that he observed. (Id., at 12, 38).

Officer Holland subsequently conducted an initial search of Defendant Cook's person and discovered a L.G. cellphone with a red case and approximately $2,500 in United States currency. (Id. at 12-13). Officer Holland also requested to search Defendant Cook's vehicle, to which Cook consented. (Id. at 14). Officer Holland and Officer Zuby then proceeded to search the passenger compartment of the vehicle, followed by the trunk. In the trunk of the car, the officers located approximately $900.00 in counterfeit currency and three additional cellphones. (Id.) Upon discovering these phones, Officer Holland asked if they belonged to Defendant Cook. (Id. at 15). In reference to the red phone that Officer Holland had initially seized from his person, Defendant Cook confirmed that just that one device was his personal cellphone. (Id.)

Although Officer Holland asked Defendant Cook for consent to search the red cellphone, Defendant Cook did not provide it. (Id. at 16, 28-29). While attempting the place the red cellphone in airplane mode, Officer Holland inadvertently took several photos with the device, including a screenshot of its locked homepage. (Id. at 16-18, 29-30). After the traffic stop was completed, Officer Holland contacted Detective Turner about conducting a forensic analysis of Defendant Cook's cellphone. (Id. at 20). Officer Holland was unable toimmediately apply for a search warrant of the cellphone, however, Detective Turner informed him that the available extraction software, known as Cellebrite, was incapable of penetrating the device's security features without the actual passcode. (Id. at 20, 56-57).

During the January 8, 2020 suppression hearing, Detective Turner also provided expert witness testimony regarding the search and data extraction of Defendant Cook's cellphone. (Id. at 55). Detective Turner stated that Defendant Cook's cellphone was equipped with a knock lock, which was similar to a pattern code. (Id. at 56). When Officer Holland initially contacted her regarding the cellphone on or around March 30, 2015, Turner could not perform a lock bypass extraction with the Cellebrite software she possessed at the time. (Id.) She explained that other law enforcement agencies in the area were also unable to bypass the cellphone's lock feature, as they all had access to the same software as Detective...