Filed: Jun. 15, 2011
Latest Update: Feb. 22, 2020
Summary: NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 10-1254 _ UNITED STATES OF AMERICA v. JOSEPH E. YOKSHAN, Appellant _ On Appeal from United States District Court for the Eastern District of Pennsylvania (D.C. No. 2-09-cr-00314-001) District Judge: Honorable Eduardo C. Robreno _ Submitted Pursuant to Third Circuit LAR 34.1(a) May 26, 2011 Before: FUENTES, FISHER and NYGAARD, Circuit Judges. (Filed: June 15, 2011) _ OPINION OF THE COURT _ FISHER, Circuit Judge. Joseph Yo
Summary: NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 10-1254 _ UNITED STATES OF AMERICA v. JOSEPH E. YOKSHAN, Appellant _ On Appeal from United States District Court for the Eastern District of Pennsylvania (D.C. No. 2-09-cr-00314-001) District Judge: Honorable Eduardo C. Robreno _ Submitted Pursuant to Third Circuit LAR 34.1(a) May 26, 2011 Before: FUENTES, FISHER and NYGAARD, Circuit Judges. (Filed: June 15, 2011) _ OPINION OF THE COURT _ FISHER, Circuit Judge. Joseph Yok..
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 10-1254
____________
UNITED STATES OF AMERICA
v.
JOSEPH E. YOKSHAN,
Appellant
____________
On Appeal from United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 2-09-cr-00314-001)
District Judge: Honorable Eduardo C. Robreno
____________
Submitted Pursuant to Third Circuit LAR 34.1(a)
May 26, 2011
Before: FUENTES, FISHER and NYGAARD, Circuit Judges.
(Filed: June 15, 2011)
____________
OPINION OF THE COURT
____________
FISHER, Circuit Judge.
Joseph Yokshan pled guilty to and was convicted of one count of possession with
intent to distribute a controlled substance, in violation of 21 U.S.C. § 841(a)(1). As a
condition of his guilty plea, he retained the right to challenge the District Court’s
suppression rulings. On appeal he challenges these rulings. For the reasons stated below,
we will affirm.
I.
We write exclusively for the parties, who are familiar with the factual context and
legal history of this case. Therefore, we will set forth only those facts necessary to our
analysis.
As early as 2004, the Bensalem Township Police Department Special
Investigations Unit (“SIU”) received information from various sources that Yokshan was
engaged in the distribution of oxycodone, specifically Percocet and Oxycontin pills.
Informants told SIU officers that they had purchased drugs numerous times from
Yokshan’s residence in Bensalem, that he sold drugs to both individuals and other
dealers, and that he drove a gold Nissan with Pennsylvania Drug Abuse Resistance
Education (“D.A.R.E.”) license plates.
In December 2007, members of the SIU conducted a controlled buy of oxycodone
from an individual known to the SIU (“Person 1”). During questioning, Person 1
informed the SIU of the following: that Yokshan sold large quantities of oxycodone; that
he had purchased oxycodone from Yokshan on numerous occasions in the previous six
months; and that Yokshan drove to New York to purchase pills in bulk. Person 1 also
2
identified other individuals who bought drugs from Yokshan, and stated that Yokshan
drove a tan Nissan Altima with D.A.R.E. license plates.1
Later that month, at the request of the SIU, and while under surveillance, Person 1
participated in a controlled buy at Yokshan’s residence (“Controlled Buy”), in which he
purchased four oxycodone pills from Yokshan. SIU officers searched Person 1 and his
vehicle prior to the Controlled Buy to confirm that he had no drugs. Officers observed
Yokshan exit his home and enter Person 1’s car. Following a short drive, Person 1 and
Yokshan returned. Afterwards, the officers searched Person 1 and recovered four pills.
In June 2008, members of SIU arrested another individual (“Person 2”). He stated
the following: that he purchased oxycodone in bulk from Yokshan 60 to 70 times in the
previous year; that he had seen Yokshan with as many as 1,000 pills at a time; and that
Yokshan sold drugs both in bulk and for individual use. Person 2 also stated that
Yokshan drove a champagne-colored Nissan to New York City to buy his drug supply.
On August 11, 2008, another confidential informant told the SIU that he had
attempted to buy oxycodone from Yokshan earlier that day, but that Yokshan needed to
acquire more. At this point, the SIU sought assistance from the Drug Enforcement
Administration (“DEA”).
1
SIU officers subsequently verified through surveillance and records from the
Bureau of Motor Vehicles that Yokshan owned and drove a gold Nissan Altima bearing
Pennsylvania D.A.R.E. license plates.
3
On August 18, 2008, Special Agent Jeffrey Lauriha of the DEA applied for a
warrant authorizing the installation and use of a global positioning system tracking device
(a “GPS”) to monitor Yokshan’s car. The supporting affidavit was based on information
supplied by the SIU. A United States Magistrate granted the warrant, which was to
expire after 45 days. The GPS was installed on August 21, 2008. On September 30,
2008, Special Agent Lauriha requested and received a 45-day extension of the warrant.
On November 11, 2008, the GPS signaled to law enforcement agents that
Yokshan’s vehicle was traveling northbound on the New Jersey Turnpike toward New
York City. After an approximately two-hour drive from Philadelphia to New York City,
the vehicle stopped in New York for ten minutes, and then proceeded back towards
Philadelphia, stopping only briefly at a rest-stop on the New Jersey Turnpike.
Based on the new GPS information, SIU officers pulled Yokshan’s vehicle over
after he exited the Pennsylvania Turnpike. After he was pulled over, Yokshan became
extremely agitated; his hands shook, he dropped his wallet when asked for identification,
and he stuttered when responding to questions. SIU officers detained Yokshan on
suspicion of a felony and took him to the Bensalem Police headquarters. There, he
admitted to possessing oxycodone with the intent to sell it. SIU officers then applied for
and obtained a search warrant for Yokshan’s vehicle. This led to the discovery of 2,000
oxycodone pills.
4
A grand jury indicted Yokshan. He filed two motions to suppress evidence related
to the use of the GPS and that arose from his traffic stop and detainment. The District
Court denied both motions. Yokshan subsequently entered a guilty plea with the
condition that he maintained his right to appeal the District Court’s decisions denying
suppression.
II.
The District Court had subject matter jurisdiction over this matter under 18 U.S.C.
§ 3231. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742. Yokshan
appeals the District Court’s order denying suppression and seeks a new trial. He offers
three bases. First, he asserts that the District Court erred by not suppressing evidence
obtained by the GPS because the warrants permitting its installation and continued use
were based on stale information. Second, he claims the District Court erred by not
suppressing the GPS evidence because the affidavits in support of the warrants contained
material assertions and omissions made with reckless disregard for the truth. To support
this claim, Yokshan points to six allegedly erroneous assertions or omissions in the
affidavits. Third, Yokshan asserts that the District Court erred by not suppressing
evidence arising from the Terry stop of Yokshan’s car because the SIU officers did not
have reasonable suspicion. We address each argument in turn.
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A.
First, Yokshan asserts the District Court erred by denying his suppression motions
because the initial warrant for the GPS relied on stale information, and thus lacked
probable cause. We are unpersuaded.
We review the District Court’s denial of a motion to suppress for clear error as to
the underlying factual findings and exercise plenary review of the District Court’s
application of the law to those facts. United States v. Perez, 280 F.3d 318, 336 (3d Cir.
2002). We exercise a deferential review when we review a magistrate’s initial probable
cause determination. United States v. Ritter,
416 F.3d 256, 261 (3d Cir. 2005).
Staleness is a contextual inquiry and not simply a matter of measuring the age of
information contained in an affidavit. United States v. Harvey, 2 F.3d 1318, 1322 (3d
Cir. 1993). The appropriateness of the delay in obtaining or seeking a warrant is assessed
within the context of the evidence available and the nature of the criminal activity
involved.
Id. “[T]he mere passage of time does not render information in an affidavit
stale where . . . the facts suggest that the activity is of a protracted and continuous
nature.” United States v. Yusuf,
461 F.3d 374, 391 (3d Cir. 2006) (internal citations
omitted). Narcotics investigations are often necessarily protracted in nature and, as such,
rely on older information. See United States v. Tehfe,
722 F.2d 1114, 1119 (3d Cir. 1983)
(“We further observed that protracted and continuous activity is inherent in a large scale
narcotics operation.” (internal citations omitted)); see, e.g., Ritter,
416 F.3d 256, 263
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(affirming finding of probable cause despite seven month delay between visual
confirmation of drug-related activity and issuing of warrant).
Here, the District Court did not rely on stale evidence in denying Yokshan’s
motion to suppress the GPS evidence. The evidence was corroborated by other aspects of
the investigation, and the fact that it was an investigation into a continuing drug
operation, contribute to showing that the evidence was not stale.
B.
Second, Yokshan argues that the District Court erred by failing to suppress the
GPS evidence because the affidavits in support of probable cause contained several
material omissions or assertions which were made with “reckless disregard for the truth.”
Wilson v. Russo, 212 F.3d 781, 783 (3d Cir. 2000) (citing Franks v. Delaware,
438 U.S.
154, 155 (1978)). “[A] district court’s resolution of the question whether a particular
false statement in a warrant affidavit was made with reckless disregard for the truth is
subject to reversal only upon a finding of clear error.” United States v. Brown,
631 F.3d
638, 642 (3d Cir. 2011). Yokshan failed to meet his burden.
Franks established a two-part test. First, a criminal defendant must make a
“substantial preliminary showing” to overcome the presumption that the affidavit
supporting the search warrant is valid. Yusuf 461 F.3d at 383. Only if this initial
showing is made is a defendant entitled to a Franks hearing.
Id. To make the initial
showing, a defendant must allege with specificity what was false in the affidavit, must
7
provide proof, must allege that the affiant had a culpable state of mind, and must allege
that the remaining information from the affidavit is insufficient to support a finding of
probable cause. Franks, 438 U.S. at 171-72. Yokshan failed to make this threshold
showing for two reasons. First, he failed to offer sufficient evidence alleging culpable
conduct. Second, even had the District Court inserted or excised the specific statements
that Yokshan requested, the affidavit would still have contained sufficient content to
support a finding of probable cause.
The District Court did not err by denying Yokshan’s motion to suppress evidence
obtained from the GPS as there was sufficient probable cause to support the warrant.
C.
Third, Yokshan argues that the District Court erred by not suppressing evidence
arising from the Terry stop because the SIU officers did not have reasonable suspicion to
justify the stop. We disagree.
Pursuant to Terry v. Ohio, 392 U.S. 1, 30 (1968), an officer “may, consistent with
the Fourth Amendment, conduct a brief, investigatory stop when the officer has a
reasonable, articulable suspicion that criminal activity is afoot.” Illinois v. Wardlow,
528
U.S. 119, 123 (2000). We exercise de novo review over the District Court’s finding of
reasonable suspicion for a Terry stop, but review the underlying findings of fact for clear
error. United States v. Robertson,
305 F.3d 164, 167-68 (3d Cir. 2002). To determine
whether reasonable suspicion exists, we must consider the “totality of the circumstances-
8
the whole picture.” United States v. Sokolow, 490 U.S. 1, 8 (1989) (internal quotation
marks and citations omitted).
Here, police independently corroborated statements from informants, successfully
executed a Controlled Buy, and had GPS information. The GPS showed a four-hour
round trip between Pennsylvania and New York for a ten-minute stop in New York.
This, coupled with statements from multiple informants that Yokshan frequently
traveled to New York to purchase narcotics, provided sufficient basis to perform a Terry
stop. The District Court did not err by denying Yokshan’s motion to suppress.
III.
For the foregoing reasons, we will affirm the judgment of the District Court.
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