State court overturns Montco man’s heroin trafficking conviction
NORRISTOWN >> A state court overturned the conviction and four-decade prison term for an East Norriton man accused of transporting heroin in retrofitted car batteries, finding authorities unlawfully tracked his cellphone in “real time” without a search warrant.
In a 22-page opinion filed on Wednesday, the Pennsylvania Superior Court vacated the 40-to80-year prison sentence for David Pacheco and reversed a Montgomery County judge’s pretrial ruling that denied Pacheco’s request to suppress the “real-time” cellphone tracking evidence from trial.
“Based on the record before us, we conclude that the real-time (cell site location information) evidence seized from Pacheco’s cellphone was the product of a constitutionally defective warrantless search…,” a three-judge panel of the state Superior Court wrote in the opinion. “Accordingly, the trial court erred in denying Pacheco’s motion to suppress the real-time (cell site location information) evidence obtained by law enforcement.”
The state court judges concluded an individual “maintains a legitimate expectation of privacy in the record of his physical movements” as captured through cell site location information.
“Accordingly, prosecutors need to obtain a warrant supported by probable cause before obtaining this information,” the judges wrote.
The state court remanded the case back to county court for further proceedings.
Defense lawyer John I. McMahon Jr. was pleased about the decision.
“We are very gratified and pleased that the Superior Court rendered this decision correctly. We will be filing a prompt petition for Mr. Pacheco to be released on bail, given these circumstances,” McMahon said on Wednesday.
County prosecutors could appeal the decision to the state Supreme Court.
“We are reviewing the decision and we will most likely appeal it,” said Kate Delano, communications director for the district attorney’s office.
In the appeal, McMahon and co-defense lawyer Brooks T. Thompson argued the use of such “real-time” cellphone technology constitutes a search under the U.S. Constitution, necessitating a warrant supported by probable cause.
“Specifically, we maintained that the police and the detectives needed a search warrant in order to obtain real-time tracking information of our client’s cellphone, which in essence enabled law enforcement to track his whereabouts on a continual, real-time 24-hour basis,” McMahon said. “So, all of the evidence that came after that was the fruit of the poisonous tree.”
During a four-day trial in August 2017, a jury convicted Pacheco, who operated a successful towing business, D&J Towing in the 100 block of West Marshall Street in Norristown, of charges of possession with intent to deliver heroin, dealing in proceeds of unlawful activities and criminal use of communication facilities.
With the charges, prosecutors alleged Pacheco, formerly of the 200 block of West Johnson Highway, transported 27 kilos of heroin, nearly 60 pounds, which had a street value of about $9 million, in retrofitted car batteries from Atlanta to New York City, via Montgomery County. Authorities estimated the 27 kilos could have been divided into 891,000 doses of heroin.
The jury acquitted Pacheco of a single charge of corrupt organizations and McMahon interpreted that as a signal the jury found no evidence that Pacheco benefitted financially from his activities as a “drug mule.”
During the trial, Pacheco did not dispute that he transported heroin but he claimed he did so under duress by a Mexican drug cartel, the New Generation Cartel Jalisco, which threatened his relatives. Pacheco testified he believed the cartel would kill his brothers in Mexico if he didn’t cooperate.
In December 2017, county Judge Garrett D. Page sentenced Pacheco to a 40-to-80-year prison term, to be followed by 10 years’ probation, in connection with nine drug deliveries that he completed between April 2015 and January 2016. For the then 46-year-old Pacheco, the sentence essentially was a life sentence.
McMahon previously argued that Pacheco’s sentence was “outrageously harsh” and unreasonable. McMahon argued Page abused his discretion by erroneously imposing a sentence that is fit for a “drug kingpin” when Pacheco “can best be described as only a drug mule or drug courier.”
Authorities, who dubbed the nine month investigation “Operation EverStart,” documented at least nine trips that Pacheco made between April 2015 and January 2016 to service wholesale heroin buyers in New York.
Prosecutors alleged the investigation revealed that each time Pacheco drove to Atlanta he received kilos of heroin in retrofitted, working car batteries, which he then drove to Montgomery County and then to the Bronx, N.Y. Once Pacheco was paid for the heroin in New York he would return to Atlanta with the cash for a supplier there.
Pacheco was arrested Jan. 10, 2016, at the King of Prussia toll plaza of the Pennsylvania Turnpike in his Ford F-250 pickup truck with three kilos of uncut heroin, which was enough to divide into 100,000 individual street doses that had a total street value of about $1 million, prosecutors argued.
A member of the county’s Violent Crime Unit testified the investigation included information from confidential sources, electronic and physical surveillance, including courtordered wiretaps on Pacheco’s four cellphones, as well as an analysis of call detail records. During the trial, jurors listened to the wiretapped phone conversations between Pacheco and other conspirators.