                                                                    NOT PRECEDENTIAL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




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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.

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       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.




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       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.




                                             5
                                              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


                                               6
(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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