MEMORANDUM
Defendant Kevin Coles moves the court to suppress evidence resulting from his detention and arrest on July 7, 2016, and statements made during an August 11, 2016 interrogation. (Docs, 67, 69). Coles also seeks to suppress all evidence gathered during execution of a search warrant at a residence located in Chambersburg, Pennsylvania. (Doc. 100). The court will grant in part and deny in part Coles’ motions.
I. Factual Background
Authorities in Franklin County, Pennsylvania, began investigating a drug-related triple homicide in late June of 2016.
Pennsylvania State Police Trooper Neal Navitsky (“Trooper Navitsky”) monitored Coles’ cell phone in accordance with Judge Krom’s order. (8/17/17 Hr’g Tr. 42:14-16, 43:11-16). Cell site location information revealed that, on July 7, 2016, Coles was near a Days Inn in Hagerstown, Maryland. (Id. at 44:18-45:5). Trooper Navitsky relayed Coles’ location to the Maryland State police fugitive apprehension team. (7/18/17 Hr’g Tr. 7:1-12; 8/17/17 Hr’g Tr. 44:18-45:5). At the time, Maryland authorities were aware that a bench warrant for Coles’ arrest had been issued in New York state on July 30, 2015. (7/18/17 Hr’g Tr. 10:20-12:19; see 7/18/17 Hr’g Gov’t Ex. 1). A National Crime Information Center (“NCIC”) printout listed the warrant under the phrase “FULL EXTRADITION,” but directed authorities to contact the originating agency to confirm both the warrant and the authorization for extradition. (Doc. 79-1; see 7/18/17 Hr’g Tr. 26:2-24). The printout stated that Coles was wanted for second degree arson. (Doc. 79-i; see also 7/18/17, Hr’g Tr. 26:13-17). Detective Jesse Duffy (“Detective Duffy”), a member of the Hagerstown Police Department, testified that dispatch confirmed the warrant with New York state authorities and advised field officers “that full extradition was authorized.” (7/18/17 Hr’g Tr. 5:23-6:1, 11:17-13:5, 20:20-21:12, 26:18-27:2).
The Maryland State Police fugitive apprehension team coordinated with Hagers-town police to arrest Coles. (See 7/18/17 Hr’g Tr. 7:1-12). The team gathered outside of the Days Inn in Hagerstown and prepared to make contact with Coles in his hotel room. (Id. at 7:1-12,18:22-19:4). Before officers could execute their'plan, they observed Coles exiting the hotel with a large white trash bag which “appeared to be pretty full of items.” (Id. at 7:16-17, 8:1-9). Coles waited undernéath the hotel portico for “several minutes” until a silver Chevrolet Equinox pulled up, at which point Coles walked immediately to the vehicle and entered the rear passenger side. (Id. at 8:5-22). When the vehicle began to exit the portico, the apprehension team surrounded, it with guns drawn, directed its occupants to keep their hands in the air, and ordered Coles to exit the vehicle. (Id. at 8:14-9:2).
Officers removed Coles from the vehicle and brought him to the ground, whereupon he was handcuffed and secured. (Id. at 9:22-10:1). A white Motorola cell phone fell to the ground when Coles exited the vehicle. (Id. at 9:3-16). During a search of Coles’ person following the arrest, authorities recovered a black Kyocera cell phone. (Id. at 10:2-11). Authorities also observed a ZTE cell phone on the rear passenger seat of the vehicle. (Id. at 10:12-17). Coles was placed into custody, and he has remained in custody since that time. (See 7/18/17 Hr’g ⅛ 49:2-8; 8/17/17 Hr’g Tr. 6:6-10).
It was learned that Coles had an active bench warrant out of New York State for a probation violation concerning an attempted homicide. On July 7, 2016, Coles was located at the Days Inn Motel in Hagerstown, Maryland. Coles was observed exiting the Days Inn Motel carrying a white bag. Coles was under constant surveillance from the time he .exited the motel to the time he entered the aforementioned vehicle. Coles got into a silver in color, 2014 Chevrolet Equinox bearing MD registration 1BT1827 which was subsequently stopped due to the outstanding warrant. Coles was taken into custody at this time for the warrant. There were four other occupants in the car. The vehicle was secured and towed to Hagerstown Police Department (HPD) impound lot. One of the occupants in the vehicle related she had just met Coles about one week prior and observed Coles in possession of a gun on his person 2-3 times. She further advised that at approximately 0030 hours (07/07/16), they were in the aforementioned vehicle when they were encountered by HPD responding to a call for a suspicious vehicle. Coles provided a false name of Curtis Smith to HPD. As the HPD officer was running the name, Coles fled from the vehicle on foot. A foot pursuit ensued for two blocks; however Coles got away.
Upon taking Coles into custody, a search incident to arrest of his person was conducted with negative results for a weapon. Coles also did not have the white bag on his person. The Days Inn Motel room that Coles had been in was searched with negative results for a weapon.
(Id. at 7). A magisterial district judge approved Detective Duffy’s application, and authorities executed the warrant on July 7, 2016. (7/18/17 Hr’g Tr. 13:12-14:5; see also 7/18/17 Hr’g Gov’t Ex. 2 at 1-2). Authorities recovered, inter alia, several cell phones, a tablet, a plastic bag containing suspected heroin, and a white trash bag containing clothing. (7/18/17 Hr’g Tr. 14:1-15; see also 7/18/17 Hr’g Gov’t Ex. 2 at 10).
Later that same day, Pennsylvania State Police Trooper Antwjuan Cox (“Trooper Cox”) traveled to the Hagerstown Police Department to interview Coles. (See 7/18/17 Hr’g Tr. 49:2-17). Trooper Cox advised Coles of his Miranda rights. (7/18/17 Hr’g Def. Ex. 102 at 1; see 7/18/17 Hr’g Tr. 56:16-57:8). Coles replied that he would listen to what Trooper Cox had to say before determining if he wanted to have an attorney present. (7/18/17 Hr’g Def. Ex. 102 at 1; see 7/18/17 Hr’g Tr. 56:16-57:8). Trooper Cox indicated that he wished to speak with Coles about the homicide in Franklin County. (7/18/17 Hr’g Tr. 67:22-24). After some preliminary inquiries, Coles stated that he was uncomfortable with Trooper Cox’s questions and expressly requested an attorney. (7/18/17 Hr’g Def. Ex. 102 at 1; see 7/18/17 Hr’g Tr. 56:16-57:8). Trooper Cox reported that questioning ceased as soon as Coles requested counsel. (7/18/17 Hr’g Def. Ex. 102 at 1-2; 7/18/17 Hr’g Tr. 57:6-8).
Trooper Cox and Drug Enforcement Agency Special Agent Keith T. Kierzkow-ski (“Agent Kierzkowski”) traveled to Franklin County Jail to interview Courtney Smith (“Smith”), a target of a narcotics investigation and associate of Coles, on
Pennsylvania State Police Troopers Paul M. Decker (“Trooper Decker”) and Richard Kline performed the cohsent search at 142 Lincoln Way West on July 21, 2016. (Doc. 105 at 4). The officers observed the apartment door to be “hanging open” upon arrival. (Id.) The officers also observed that the hallway carpet had been removed, the hallway walls were freshly painted, and painting supplies were lying in the hallway. (Id.) In the bedroom, officers discovered materials consistent with evidence recovered from the homicide scene. (Id.) Based on this information, Trooper Decker applied for and received a warrant to search the apartment. (See id. at 1). During execution of the warrant, authorities seized the painting and cleaning supplies as well as suspected drugs. (Id. at 6).
Coles was brought to the Hagerstown Police Department for additional questioning by Trooper Cox and. Agent Kierzkow-ski on August 11, 2016. (7/18/17 Hr’g Tr. 29:21-30:2). Trooper Cox advised Agent Kierzkowski before the interview that Coles had requested counsel on July 7, 2016. (See 7/18/17 Hr’g Tr. 53:3-12). Trooper Cox met with Coles first to explain Agent Kierzkowski’s role; during that meeting, Trooper Cox observed to Coles that “you kinda shut me down” during our last meeting. (See 7/18/17 Hr’g Def. Ex. 106 at 9:34:58-9:35:17). Agent Ki-erzkowski then joined Trooper Cox and showed Coles a copy of the indictment returned against him in this case. (See 7/18/17 Hr’g Tr. 30:7-8).
As Trooper Cox began reading Coles his Miranda rights, Coles interrupted and attempted to recite the rights himself. (Id. at 30:12-31:14). Agent Kierzkowski explained to Coles that officers must themselves advise him of his rights, and Coles listened as Trooper Cox again read Coles his rights under Miranda. (Id. at 31:5-14). Coles did not explicitly waive his rights but proceeded to answer more than three hours’ worth of questions concerning his involvement in drug trafficking and any knowledge he had with respect to the triple homicide. (See generally 7/18/17 Hr’g Def. Ex. 106). Only at the conclusion of the interview did Coles expressly renew his request for counsel. (See 7/18/17 Hr’g Tr. 32:9-33:1). Agent Kierzkowski then terminated the interview. (Id. at 32:25-33:1).
II. Procedural History
A federal grand jury returned a five-count indictment against Coles and code-fendant Devin Dickerson on August 3, 2016. (Doc. 1). The indictment charges Coles in four counts, as follows: one count óf conspiracy to distribute and. possess with intent to distribute at least 100 grams of heroin and 28 grams of cocaine base in violation of 21 U.S.C. § 846 (Count 1); two counts of possession with intent to distribute heroin and cocaine base in violation of 21 U.S.C. § 841(a)(1) (Count 2 and Count 4); and one count of possession of a fire
On June 23, 2017, Coles filed a motion (Doc. 67) to suppress statements made during the July 7, 2016 and August 11, 2016 interviews and a motion (Doc, 69) to suppress all evidence from his allegedly unlawful, detention and arrest on July 7, 2016. In reply, the government indicated that it.did not intend to introduce statements from the July 7, 2016 interview, (see Doc. 79 at 3), and the court denied that aspect of Coles’ motion as moot. (See Doc. 92). Coles later moved to suppress all evidence obtained from the warrant search of Smith’s apartment on July 22, 2016. (Doc. 100). The court convened suppression hearings on July 18, 2017 and August 17, 2017. (See Docs. 72, 111). The motions are fully briefed and ripe for disposition.
III. Discussion
Coles’ motions raise manifold arguments seeking to suppress evidence from his arrest, two subsequent searches, and a custodial interrogation. We begin with Coies’ claims concerning the cell phone tracking order from which all subsequent law enforcement action flowed.
A. Cell Phone Tracking
Coles contends that the warrant-less use of cell site location information (“CSLI”) is an “obvious” violation of the Fourth Amendment. (Doc. 94 at 8; see also 8/17/17 Hr’g Tr. 49:21-50:17, 51:17-52:7). .The court disagrees* .In fact, the Third Circuit Court of Appeals has previously considered and rejected a Fourth Amendment challenge to the warrantless use of cell site data. In United States v. Stimler,
Coles acknowledges this binding precedent but invites this court to reconsider it. (Doc. 94 at 8). He emphasizes that the Supreme Court recently granted certiorari review of a Sixth Circuit decision which employs a "'rationale similar to Stimler, thereby signaling that the Supreme Court is poised to overrule Stimler and its analogues. (See 8/17/17 Hr’g Tr. 50:10-17); see also United States v. Carpenter,
Even if the Supreme Court were to adopt a more stringent probable cause requirement for CSLI tracking, the require
B. July 7,2016 Arrest
Coles challenges several aspects of his July 7, 2016 arrest and the subsequent search. He asserts that officers did not have probable cause to arrest him; that they did not have reason to seek a warrant to search the vehicle Coles was traveling in; and that the affidavit of probable cause for the vehicle search warrant contained a materially false statement. We address these issues in turn.
1. Arrest Warrant for Coles
Coles contends that the government did not have probable cause to arrest him on July 7, 2016. (Doc. 70 at 2-3; Doc. 94 at 1-3). He asseverates that the NCIC printout submitted by the government does not establish that the New York state bench warrant was extraditable, and that no officer present at the scene on July 7, 2016 had a copy of the New York warrant in their possession. (Doc. 70 at 2-4; Doc. 94 at 1-3). He further asserts that, 'absent a valid arrest, the subsequent search of his person and the vehicle are unconstitutional. (See' Doc. 70 at 2-4; Doc. 94 at 1-3).
The record developed during the suppression hearings flatly contradicts Coles’ contentions. There is no dispute that a valid warrant for Coles’ arrest was issued in New York state on July 30, 2016. (See 7/18/17 Hr’g Gov’t Ex. 1). Coles conceded as much during the second suppression hearing. (See 8/17/17 Hr’g Tr. 24:4-12). That exchange proceeded as follows:
Q: And your reason for using a false name when talking to the person who is renting the apartment to her?
A: Because at that point in time I was a fugitive from New York. So I covered my name.
Q: So you’re confirming for us by your answer that when you were arrested on July 7, 2016, you. were a fugitive from the state of New York because there was an active warrant for you, correct?
A: I believe that’s correct.
(⅛)
Coles remonstrates that the officers failed to confirm that the warrant was extraditable. (Doc. 94 at 1-2). The NCIC printout concerning the New York state warrant includes the phrase “FULL EXTRADITION” at the top of the page. (Doc. 79-1). Detective Duffy testified that dispatch confirmed the warrant with' New York authorities arid “that full extradition
Coles also contends that his seizure was not supported by “particularized” probable cause because authorities had no reason to believe that the individual who entered the vehicle was in fact Coles. (See Doc. 94 at 2-3). He suggests that officers “pounced” on the vehicle based solely “on suspicion or a hunch, rather than factual evidence that he was in the car.” (Id.) Per contra, Detective Duffy testified that the apprehension team knew Coles was at the hotel on the day in question based on location monitoring of his cell phone, and that they knew Coles was the person exiting the hotel based on a photograph provided to the officers. (7/18/17 Hr’g Tr. 7:18-20, 16:20-23). The record refutes Coles’ claim that the arresting officers did not have particularized probable cause.
We find that the New York state bench warrant provided a valid basis for Coles’ arrest on July 7, 2016. We also find that, because authorities arrested Coles pursuant to a valid bench warrant, the search of his person incident to arrest was likewise lawful. See Arizona v. Gant,
2. Search Warrant for Vehicle
Coles challenges the subsequent search of the Chevrolet Equinox on two grounds: he asserts first that police did not have “cause” to search the vehicle, and second that the application for the search warrant included a false statement knowingly made under Franks v. Delaware,
A criminal defendant may challenge the truthfulness of factual statements appearing in an affidavit of probable cause through what is commonly referred to as a Franks proceeding. Franks,
There is no question sub judice' that the affidavit of probable cause supporting the search warrant application contains an incorrect statement of fact. Detective Duffy stated therein that the active bench warrant out of New York was issued for a probation violation “concerning an attempted homicide.” (7/18/17 Hr’g Gov’t Ex.
Coles has not shown that Detective Duffy made the incorrect statement “knowingly or with reckless disregard for the truth.” Yusuf,
Even if Detective Duffy had acted with knowing or reckless disregard for the truth, the erroneous statement concerning the bench warrant was not material to the finding of probable cause. We measure materiality by excising the incorrect or inaccurate statement to determine whether the corrected affidavit would support a probable cause finding. Id. at 789 (citing Sherwood v. Mulvihill,
Moreover, the balance of the affidavit provides support for a probable cause finding 'independent of the bench warrant issue. The affidavit describes the circumstances of Coles arrest, including that he was observed placing a large white' bag into the vehicle prior to apprehension and that the bag was not found on his person during a search incident to arrest. (7/18/17 Hr’g Gov’t Ex. 2 at 7). The affidavit also relays a report from one of the vehicle’s occupants that she had been a passenger in the same vehicle earlier that morning; that the vehicle was stopped by police as a “Auspicious vehicle”; that she knew Coles to carry a' firearm; and that Coles fled from the vehicle. (Id.) The issuing magistrate judge would have had a “substantial basis” to find probable cause based on the amended affidavit irrespective' of the underlying bench warrant. See United States v. Stearn,
C. July 22, 2016 Search
Coles moves the court to suppress all evidence gathered as a result of the search warrant executed at 142 Lincoln Way West in Chambersburg, Pennsylvania, on July 22, 2016. (Doc. 100). In addition to answering the merits of Coles’ motion, the government rejoins that Coles lacks standing to challenge a search of the 142 Lincoln Way West residence. (Doc. 112 at 3-9). ■
1. Legitimate Expectation of Privacy
Fourth Amendment analysis traditionally begins with examining whether the defendant possessed a reasonable expectation of privacy in • the object or place being searched. See Kyllo v. United
Overnight guests “legitimately” in 'a third-party’s apartment may have a reasonable expectation of privacy therein. Perez,
Coles testified that, prior to. Smith’s incarceration in June of 2016, he visited her apartment at 142 Lincoln Way West but never stayed the night., (8/17/17 Hr’g Tr. 22:10-23:6). He further testified that, after Smith was arrested, he stayed at the apartment several times while he was removing carpet and repainting the walls. (⅛ at 15:9-21, 32:15-33:15). Coles could not recall the number of nights he spent in the apartment, nor could he estimate when his stays occurred. (See id. at 11:24-13:23, 32:15-33:15). Coles also could not recall whether the electricity was working on the nights that he did stay there. (See id. at 25:15-27:1). According to Coles, he received the key to Smith’s ápartment from her boyfriend. (See id. at 29:20-23). An account provided by Smith and memorialized in the search warrant application suggests that Smith was not aware initially that Coles was staying in her apartment but did not object when she found out. (See Doc.105 at 3).
We conclude that Coles did not have a reasonable expectation of privacy in Smith’s apartment. .The record contains no evidence suggesting that Coles used the apartment as a temporary residence. He visited the apartment for the sole purpose of completing his remodeling “project.” (8/17/17 Hr’g Tr. 15:9-21, 32:25-33:5). Coles never stayed in the apartment intentionally, but only, when he would “fall asleep” because he did not want to travel back to Maryland. (Id. at 32:25-33:5). He brought an.overnight bag on some occasions, but kept no clothing in the apartment, .nor any toiletries or other overnight
Moreover, it is entirely unclear whether Coles actually had Smith’s permission to stay in the apartment. Specifically, the court does not find Coles’ description of his permissive use of the apartment to be credible. Indeed, Coles’ credibility is deeply compromised by his selective recollection of certain events and a convenient failure to recall others, and his inconsistent and, at times, prevaricative, testimony is all that supports a finding that he was “legitimately” on the premises. See Perez,
2. Probable Cause
Assuming arguendo that Coles did have a reasonable expectation of privacy in the Lincoln Way West'apartment, we find no deficiency in the magistrate judge’s finding of probable cause. Coles contends that the affidavit failed to establish a “causal nexus” between thé place searched and the evidence- sought and concealed from the magistrate judge that Smith was incarcerated and motivated to lie at the time of her interview with law enforcement. (See Doc. 101 at 3—5). Coles further contends that the information provided by Smith was so dated as to be unreliable. (Id.) Neither argument has merit.
Under the Fourth Amendment, a search warrant must be, issued on the basis of probable cause. U.S. CONST, amend. IV. To establish probable cause, a warrant application must show that there is a “fair probability that contraband. or evidence of a crime will be found in a particular place.” Illinois v. Gates,
The probable cause assessment does not require direct evidence linking a place to be searched to a crime.
Aged information inherently offers less value to this assessment. United States v. Williams,
Staleness is less significant when the criminal activity is protracted and ongoing, such as in a drug trafficking conspiracy. See United States v. Urban,
The warrant affidavit, dated July 22, 2016, begins by describing a triple homicide investigation initiated on June 25, 2016. (See Doc. 105 at 2). The affiant, Trooper Decker, reports that Coles was associated with two of the victims. (See id.) Trooper Decker then details his interview with Smith. (See id.) He begins by identifying the fact that Smith is under investigation for trafficking narcotics and was incarcerated in June of 2016. (Id at 3). Smith informed Trooper Decker that she, Coles, and others distributed heroin and crack cocaine from her 142 Lincoln Way West apartment. (Id.) She also reported that, since the time of her arrest, she believed that Coles continued to use the premises to distribute heroin. (See id.) With Smith’s consent, law enforcement conducted a search of her apartment. (Id.) Trooper Decker states that, during the consent search, officers discovered certain items consistent with those found at the homicide scene. (Id.)
The warrant affidavit amply supports the magistrate judge’s determination, viz.: that probable cause existed to believe that drugs and drug paraphernalia—at minimum—would be discovered at 142 Lincoln Way West. As a preliminary matter, Coles’ assertion that law enforcement concealed the fact of Smith’s incarceration is belied by the affidavit itself. (See id.) The affidavit explicitly notes that Smith was incarcerated in June of 2016 and is the target of a narcotics investigation. (See id.) Smith’s status as a suspect and detainee was known to the magistrate judge. It was within the informed discretion of the magistrate judge to credit Smith’s report.
D. August 11,2016 Interview
Coles lastly contends that authorities failed to scrupulously honor his preexisting request for counsel during the August 11, 2016 interview. (See Doc. 68 at 5-6; Doc. 94 at 5). We first identify the facts that are not in dispute. The government does not dispute that Coles was in Miranda custody and was subject to interrogation on July 7, 2016 and again on August 11, 2016. (See Doc. 85 at 2; Doc. 99 at 11-12). It is also undisputed that Coles invoked his right to counsel during the July 7, 2016 interview and that officers conducting the August 11, 2016 interview were aware of that fact. (See Doc. 99 at 2, 11; see also 7/18/17 Hr’g Tr. at 36:21-37:14, 50:3-5, 52:25-53:12, 59:12-20). The government concedes that, after the July 7, 2016 interview, Coles remained in pretrial confinement “on the drug Gharge with the NY warrant lodged as a detainer” until the second interview on August 11, 2016. (Doc. 99 at 2-3). On August 11, 2016, Coles was transported to the Hagerstown Police Department, was read his Miranda rights, and then proceeded to answer police questions for more than three hours. (See 7/18/17 Hr’g Tr. 29:21-30:2, 30:12-31:14; see also 7/18/17 Hr’g Def. Ex. 106). Coles asserts that Trooper Cox and Agent Kierz-kowski violated the Fifth Amendment by resuming interrogation on August 11, 2016 after Coles invoked his Miranda rights during the earlier interview.
Statements made by a suspect during custodial interrogation are admissible only if police apprised the suspect of his or her rights under Miranda v. Arizona,
The Court delimited the scope of the Edwards presumption in Maryland v. Shatzer,
We begin with the facts of Shatzer. In August of 2003, a detective attempted to interview Shatzer concerning allegations of sexual abuse. Shatzer,
The Supreme Court granted certiorari. The Court promulgated two new Miranda rules in the course of rejecting Shatzer’s argument/ The Court resolved first, that a 14-day break in Miranda custody will suffice to release the Edwards presumption, id. at 109-10,
Their detention, moreover, is relatively disconnected from their prior unwillingness to cooperate in an investigation. The former interrogator has no power to increase the duration of incarceration, which was determined at sentencing. And even where the possibility of parole exists, the former interrogator has no apparent power to decrease the time served. This is in stark contrast to the circumstances faced by the defendants in Edwards, Roberson, and Minnick [v. Mississippi,498 U.S. 146 ,111 S.Ct. 486 ,112 L.Ed.2d 489 (1990) ], whose continued detention as suspects rested with those controlling their interrogation, and who confronted the uncertainties of what final charges they would face, whether they would be convicted, and what sentence they would receive.
Id. at 113-14,
This language evinces the Court’s view that sentenced prisoners are distinct from pretrial detainees for purposes of Edwards’ presumption of involuntariness; indeed, the Court seemed to signal as much by defining the paradigmatic Edwards case as one in a pretrial posture:
That is a case in which -the suspect has been arrested for a particular crime and is held in uninterrupted pretrial custody while that crime is being actively investigated. After'the initial interrogation, and up to and including the- second one, he remains cut off from his normal life and companions, “thrust into” and isolated in an “unfamiliar,” “police-dominated atmosphere,” where his captors “appear to control his fate.”
Id. at 106,
We conclude that Coles did not experience a break in Miranda custody when he was returned to pretrial detention for 35 days between interrogations. Detainees like Coles remain vulnerable—and increas-: ingly so—to the coercive pressures of continued confinement. Coles’ fate rested, at
The August 11, 2016 interrogation concerned the same subject matter, and involved the same trooper, as the July 7, 2016 interview during which Coles invoked his right to counsel. The only difference is that, at the time of the second interview, Coles had been subject for 36 days to the “mounting coercive pressure of prolonged police custody.” Shatzer,
IV. Conclusion
The court will grant in part and deny in part Coles’ motions (Docs. 67, 69, 100) to suppress as more specifically stated here-inabove. An appropriate order shall issue.
ORDER
' AND NOW, this 8th day of September, 2017, upon consideration of the motions (Docs. 67, 69, 100) to suppress evidence filed by defendant Kevin Coles (“Coles”), and for the reasons stated in the accompanying memorandum,. it is hereby ORDERED that:
1. Coles’ motion (Doc. 67) to suppress statements is GRANTED to the extent that Coles’ statements during the August 11, 2016 custodial interrogation shall be inadmissible at trial.
2. Coles’ motion (Doc. 69) to suppress evidence resulting from his detention and arrest on July 7, 2016 is DENIED.
3. Coles’ motion (Doc. 100) to suppress all evidence gathered as a result of the warrant search of 142 Lincoln Way West, Chambersburg, Pennsylvania, on July 22, 2016 is DENIED.
Notes
, The above factual narrative derives from testimonial and documentary evidence adduced during tw° suppression hearings in this matter, together with several exhibits attached to the parties’ extensive briefing. The court reporter has provided the court with transcripts of both suppression hearings. Citations thereto are abbreviated as "7/18/17 Hr’g Tr.” and "8/17/17 Hr’g Tr.,” respectively. Exhibits admitted during the first suppression hearing are cited as “7/18/17 Hr’g Gov’t Ex.” and "7/18/17 Hr’g Def. Ex.,” respectively.
. Coles confirmed during the second suppression hearing that he spent the night at Smith’s apartment on an unknown number of occasions following her arrest. (See 8/17/17 Hr’g Tr.' 11:24-13:23, 32:15-33:15). Coles'claimed to have completed some "projects,” including painting and removing carpet, while at the apartment. (Id. at 15:9-21, 32:15-33:15).
. The indictment cites to 21 U.S.C. § 924(c) as the statutory provision undergirding Count 5. The correct statutory provision is .18 U.S.C. § 924(c).
. We note that Coles has also implied in various court filings and proceedings that authorities exceeded the scope of the tracking order. (Doc. 110; 8/17/17 Hr'g Tr. 43:19-46:5). During the second suppression hearing, defense counsel articulated that Coles disputes not whether officers complied with the four corners of the order, but only the constitutionality of the order in the first instance. (8/17/17 Hr’g Tr. 51:17-52:7).
. For example, Coles failed to recall how or when he met Smith despite claiming that she was a close friend "dear to my heart,” (8/17/17 Hr’g Tr. 5:18-25, 7:21-8:10); provided conflicting descriptions of the apartment layout, (id at 9:3- 10:24); struggled to recall the number of entrances to the apartment, (id. at 9:6-13, 11:19-23); asserted that he did not have clothing in the apartment but subsequently that he could not recall whether he had clothing in the apartment, (id. at 16:22-24, 17:9—18); failed to recall what he might have told Smith about why he visited the apartment, (id, at 23:7-15); and failed to recall the circumstances under which he allegedly obtained Smith’s permission to use the apartment, (id. at 30:24-31:3).
. We reject Coles’ broader suggestion that the mere fact of incarceration ipso facto discredits a witness. Taken to its logical conclusion, Coles’ argument would have the court reject the testimony of all incarcerated persons— Coles included—as per se incredible.
. Coles emphasizes that the apartment door was ajar when authorities arrived for the initial consent search on July 21, 2016. (See 8/17/17 Hr'g Tr. 54:19- 24). This information was not withheld from the magistrate judge: the affidavit of probable cause explains that officers, upon arrival for the consent search, "observed the door to the apartment to be hanging open.” (Doc. 105 at 4). The magistrate judge properly weighed this fact with the balance of the affidavit and determined that it did not defeat a probable cause finding. To the extent Coles believes this fact impacts the reliability of the evidence obtained, his argument goes to the weight but not to the admissibility of the evidence.
. See, e.g., United States v. McIntosh, No. 1:13-CR-18,
. We acknowledge that, at the time of the second interview, a federal grand jury had already returned the instant indictment charging Coles with conspiracy, drug offenses, and firearms offenses. (See Doc. 1). The court’s review of the entire August 11, 2016 interrogation video reveals that the officers’ questions principally concerned the ongoing homicide investigation. Whether charges will be filed in that case remains an open question.
. Coles asserts, assuming arguendo that Edwards does not apply, that the purported waiver of his Miranda rights on August 11, 2016 was not clear and unequivocal. (Doc. 94 at 5). In view of the above conclusion, we need not address this argument.