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HomeMy WebLinkAbout99-0215-16,0223-26 criminalCOMMONWEALTH Vo LEVAR DAMOND SMITH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : 99-0226 CRMINAL : CHARGE: UNLAWFUL POSSESSION : SMALL AMOUNT MARIJUANA : AFFIANT: TPR. CHAD SYDNOR : : 99-0215 CRIMINAL : CHARGE: 1) CRIMINAL CONSPIRACY : (2 COUNTS) : 2) UNLAWFUL DELIVERY, : POSSESSION, MANUFACTURE : WITH INTENT TO DELIVER : SCHEDULED II CONTROLLED : SUBSTANCE : AFFIANT: TPR. KEITH LEYDIG COMMONWEALTH Vo JAMES ELBERT MOSS : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA :99-0224 CRIMINAL : CHARGE: 1) UNLAWFUL DELIVERY, : POSSESSION, MANUFACTURE : WITH INTENT TO DELIVER : SCHEDULED II CONTROLLED : SUBSTANCE : 2) CRIMINAL CONSPIRACY : (2 COUNTS) : AFFIANT: TPR. KEITH LEYDIG : :99-0223 CRIMINAL : CHARGE: 1) UNLAWFUL POSSESSION : SMALL AMOUNT MARIJUANA : 2) TAMPERING WITH A : FABRICATING PHYSICAL : EVIDENCE : AFFIANT: TPR. CHAD SYDNOR COMMONWEALTH Vo WILLIAM JOHN HOOTEN : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : 99-0216 CRIMINAL : CHARGE: 1) CRIMINAL CONSPIRACY : (2 COUNTS) : 2) UNLAWFUL DELIVERY, : POSSESSION, MANUFACTURE : WITH INTENT TO DELIVER : SCHEDULED II CONTROLLED : SUBSTANCE : AFFIANT: TPR. KEITH LEYDIG : : 99-0225 CRIMINAL : CHARGE: 1) UNLAWFUL POSSESSION : SMALL AMOUNT MARIJUANA : 2) DRIVERS REQUIRED TO BE : LICENSED : AFFIANT: TPR. CHAD SYDNOR IN RE' MOTIONS FOR SUPPRESSION OF EVIDENCE AND HABEAS CORPUS BEFORE HESS, J. ORDER AND NOW, this t'o day of June, 1999, following hearing and the submission of briefs, the omnibus pretrial motions of the defendants in the nature of motions for suppression of evidence and habeas corpus are DENIED. BY THE COURT, n A. Hess, J. · David J. Freed, Esquire Senior Assistant District Attorney Samuel W. Milkes, Esquire Attorney for Defendant Smith William C. Costopoulos, Esquire Attomey for Defendant Moss Michael A. Scherer, Esquire Attorney for Defendant Hooten COMMONWEALTH Vo LEVAR DAMOND SMITH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : 99-0226 CRMINAL : CHARGE: UNLAWFUL POSSESSION : SMALL AMOUNT MARIJUANA : AFFIANT: TPR. CHAD SYDNOR : : 99-0215 CRIMINAL : CHARGE: 1) CRIMINAL CONSPIRACY : (2 COUNTS) : 2) UNLAWFUL DELIVERY, : POSSESSION, MANUFACTURE : WITH INTENT TO DELIVER : SCHEDULED II CONTROLLED : SUBSTANCE : AFFIANT: TPR. KEITH LEYDIG COMMONWEALTH Vo JAMES ELBERT MOSS : 1N THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA :99-0224 CRIMINAL : CHARGE: 1) UNLAWFUL DELIVERY, : POSSESSION, MANUFACTURE : WITH INTENT TO DELIVER : SCHEDULED II CONTROLLED : SUBSTANCE : 2) CRIMINAL CONSPIRACY : (2 COUNTS) : AFFIANT: TPR. KEITH LEYDIG : :99-0223 CRIMINAL : CHARGE: 1) UNLAWFUL POSSESSION : SMALL AMOUNT MARIJUANA : 2) TAMPERING WITH A : FABRICATING PHYSICAL : EVIDENCE : AFFIANT: TPR. CHAD SYDNOR COMMONWEALTH Vo WILLIAM JOHN HOOTEN IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 99-0216 CRIMINAL CHARGE: 1) CRIMINAL CONSPIRACY (2 COUNTS) 2) UNLAWFUL DELIVERY, POSSESSION, MANUFACTURE WITH INTENT TO DELIVER SCHEDULED II CONTROLLED SUBSTANCE AFFIANT: TPR. KEITH LEYDIG 99-0225 CRIMINAL CHARGE: 1) UNLAWFUL POSSESSION SMALL AMOUNT MARIJUANA 2) DRIVERS REQUIRED TO BE LICENSED AFFIANT: TPR. CHAD SYDNOR IN RE: MOTIONS FOR SUPPRESSION OF EVIDENCE AND HABEAS CORPUS BEFORE HESS, J. OPINION AND ORDER These cases are before us on motions for suppression of evidence and habeas corpus brought by the defendants. On January 14, 1999 at approximately 1'00 a.m. Troopers Sydnor and Braid of the Pennsylvania State Police encountered a disabled vehicle (hereinafter "Camaro") in the median area between northbound and southbound lanes of Interstate 81. The troopers noted that a man, later identified as defendant Hooten, was behind the wheel of the Camaro. Two other men, later identified as defendants Smith and Moss were standing near the Camaro. A 1992 Nissan Maxima with North Carolina registration plates was parked in the area on the other side of Route 81, facing south. The troopers stopped their vehicle, got out, and approached the three defendants. The 'troopers offered assistance. Defendant Moss stated that the Camaro was not his, did not know the other two men and that he had only stopped to help. Defendant Smith said nothing and defendant Hooten indicated that the Camaro was his and all three men were travelling together and that he had been driving when the Camaro ran off the road. Defendant Hooten requested the troopers to call a tow truck. Troopers Sydnor and Braid proceeded back to their police vehicle, called a tow truck and stayed in their vehicle to await the tow truck's arrival and to verify the registration of the Camaro. As the troopers waited for the tow truck and information verification, the troopers saw the three defendants walk across Route 81 and enter the Nissan. The defendants did not say anything to the troopers before doing so, and in fact did not even acknowledge their presence. The Camaro was left with the passenger door open, driver's side window down (later found to be broken out) and the keys in the ignition. The three defendants entered the Nissan owned by defendant Moss and drove south on Route 81. Based on the weather, time of day, the lack of information about the Camaro, the condition the Camaro was left in, the request for the tow truck and the fact that the defendants left without a word, the troopers then pursued and stopped the Moss vehicle. The Nissan, operated by defendant Moss, pulled over to the side of Route 81. The troopers again got out of their vehicle and approached the Nissan with Trooper Sydnor on the driver's side and Trooper Braid on the passenger side. Defendant Moss exited the vehicle and approached Trooper Sydnor. Trooper Sydnor asked defendant Moss what was going on and defendant Moss replied that he was taking the other two men down to the next exit and reiterated that he did not know the two men in his vehicle. As Trooper Sydnor spoke with defendant Moss, Trooper Braid spoke with defendant Hooten. Defendant Hooten now stated that the Camaro was not his, that it belonged to someone else who had been driving when the car ran off of the road and who had gone to a gas station for help and never retumed. Defendant Hooten stated that all three defendants had been travelling together from the Scranton area. The troopers conferred and realized Moss's and Hooten's stories were inconsistent and further that defendant Hooten's story had changed. Based on all of the occurrences up to that point, as well as the number of defendants and suspicious behavior, the troopers called for backup from the Carlisle Borough Police Department. Officer Dale of the Carlisle Borough Police Department arrived in response to the call. Officer Dale had his police dog or "K-9" in his vehicle. Trooper Sydnor approached defendant Moss and asked Moss for permission to have the K-9 go around the Nissan. At the time, the K-9 was in Officer Dale's vehicle, parked some distance away from the Moss vehicle. Trooper Sydnor did not touch, threaten, raise his voice or otherwise attempt to coerce or intimidate Moss, nor did he display a weapon. Moss was not arrested or threatened with arrest. Moss consented to have the K-9 inspect his vehicle. The three defendants moved behind and away from the Nissan and the dog was walked around the Moss vehicle. The K-9 alerted in the area of the driver's side front door. When this action was repeated, the K-9 alerted in the same spot. Following the alert on the vehicle, Trooper Sydnor asked for and received permission to search the interior of Moss's vehicle. Trooper Sydnor found a plastic baggie containing suspected marijuana between the driver's seat and the driver's side door. None of the defendants indicated who owned the drugs. All three of the defendants were arrested and taken to the State Police Barracks. At the Barracks, the troopers obtained identifying information from all three defendants. Trooper Braid made contact with the owner of the Camaro and received permission to search the vehicle. A search of the Camaro revealed a plastic baggie of suspected marijuana, packaged identically to the marijuana found in Moss's vehicle. At the State Police Barracks, defendant Moss took the suspected marijuana seized from his vehicle off of Trooper Sydnor's desk and attempted to eat it. All three defendants were arraigned and committed to the Cumberland County Prison. Trooper Leydig prepared a search warrant application and accompanying probable cause affidavit which was approved by District Justice Gayle Elder and executed the search warrant on Moss's vehicle. The search uncovered a substantial amount of suspected crack cocaine located in the air cleaner housing under the hood near the front driver's side door. Trooper Leydig testified at the April 12, 1999 hearing to his opinion that the drugs were packaged for resale. Miranda wamings were given to each defendant and each acknowledged the warning. Defendant Smith stated that he and Hooten were driving from New York City to Hagerstown. Defendant Hooten told the trooper that he, Smith and a third individual had been "joy riding" from Hagerstown with Smith driving. Defendant Hooten was again informed of Miranda rights, which he acknowledged again and then stated he had been coming from New York City with Smith and that he did not know Moss and had never seen him before. Defendant Hooten stated he offered Moss $100 to drive him and Smith to Hagerstown. Defendants first challenge the validity of the stop of Moss's vehicle and Pennsylvania law is clear with respect to the standard for cause to stop a vehicle. As noted, the court in Commonwealth v. Valenzuela, 408 Pa. Super. 399, 408, 597 A.2d 93, 98 (1991). ... an officer may make an investigatory stop where he observes unusual conduct which leads him reasonably to conclude that criminal activity may be afoot. Such an investigatory stop of an automobile must be based on objective facts creating a reasonable suspicion that the motorist is presently involved in criminal activity. Commonwealth v. Fassett, 496 Pa. 529, 437 A.2d 1166 (1981); ..Commonwealth v. Monaghan, 295 Pa. Super. 450, 441 A.2d 1381 (1982). The officer must be able to point to specific and articulable facts which taken together with rational inferences from those facts reasonably warrant the intrusion. Id. As further noted in Commonwealth v. Woodard, 307 Pa. Super. 293, 299, 453 A.2d 358, 361 (1982): The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause, to simply shrug his shoulders and allow a crime to occur or a criminal to escape. Police may briefly stop an individual to determine his identity or obtain more information. Id_._:., citing Adams v. Wiliams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972); Commonwealth v. Seip, 285 Pa. Super. 551,428 A.2d 183 (1981). In the present case, the troopers happened upon a disabled vehicle in the median of Interstate 81. There were three men at the scene, one in the Camaro and two outside. The man in the Camaro informed the troopers that all three men were travelling together and requested a tow truck be called. In the interim, another of the men indicated that he did not know the other two, but had only stopped to help. Following the request for the tow, without a word to the troopers, the three men walked together across the Interstate, got into the Nissan, and left. The defendants left the Camaro with the keys inside, the passenger door open and the driver's side window broken out. The troopers pursued and stopped the Nissan. Trooper Sydnor testified that they did so for a number of reasons, including that the Camaro could have been stolen, they wanted to know what was going on and that they had not received the proper information for a non-reportable accident. Both troopers testified that their actions were based on suspicions aroused by the odd behavior of all of the defendants as well as all of the attendant conditions. We are satisfied that the officers acted reasonably. The defendants assert that they were illegally detained following the stop of the Moss vehicle. A police officer may briefly detain a citizen, with probable cause, for investigative purposes. Terry_ v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Commonwealth v. Arch, 439 Pa. Super. 606, 612, 654 A.2d 1141, 1143 (1995). The detention must be supported with reasonable suspicion as outlined above as to a permissible stop. Arch at 612, 654 A.2d at 1144; Commonwealth v. Lewis, 535 Pa. 501, 508, 636 A.2d 619, 623 (1994). Following the stop, events unfolded as follows. The troopers approached the vehicle, one trooper on each side. Trooper Sydnor encountered defendant Moss who had jumped out of the driver's seat of the vehicle and stated that he was driving the other two men to the next exit and reiterated that he did not know them. Trooper Braid encountered defendant Hooten on the passenger side of the vehicle. Defendant Hooten told Trooper Braid a different story than he had told earlier, stating that the Camaro was not his, he had not been driving, and that the three men had been travelling together from the Scranton area. The troopers then conferred and determined that not only were Hooten and Moss telling different stories, but also that Hooten had changed his story from the time of the initial encounter. Based on the circumstances to that point, the troopers called for backup. When backup arrived, Moss consented to have the police dog inspect the vehicle. During the brief period of investigative detention, the record reflects that no threats were made, no voices were raised, no weapons were displayed, no one was arrested and no one was touched. We are satisfied that the facts and rational inferences from them lead to the conclusion that the detention of the defendants was proper. The defendants next advance the argument that the consent to the searches was not voluntary, first because they were unlawfully detained. As the Superior Court stated in Commonwealth v. Hoak, 700 A.2d 1263, 1267, (Pa. Super. 1997), "Absent some coercive conduct by police, a request for cooperation or consent to search does not automatically convert an undeniably permissible encounter into an illegal seizure any more than a giving of Miranda wamings transforms a non-custodial setting into a custodial one." See, e.g., Commonwealth v. Morgan, 416 Pa. Super. 145, 150 n. 2, 610 A.2d 1013, 1015 n. 2 (1992), alloc, denied, 533 Pa. 618, 619 A.2d 700 (1993). Second, the defendants contend that their consent was not voluntary. It is well settled that one of the specifically established exceptions to the requirement of a ...warrant...is a search that is conducted pursuant to consent. [I]f a person voluntarily consents to a search, evidence found as a result of that search is admissible against him. The consent, however, must be given freely, specifically, unequivocally, and voluntarily. The question [of] whether [the] consent to a search was in fact voluntary or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of all the circumstances. Commonwealth v. Hoak, 700 A.2d 1263, 1271, (citing Commonwealth v. Washington, 438 Pa. Super. 131,136-137, 651 A.2d 1127, 1130 (1994), alloc, denied, 541 Pa. 638, 663 A.2d 690 (1995)). In the present case, there is no evidence on the record to indicate that the consent to search the Moss vehicle was anything but knowing, intelligent and voluntary. Defendant Moss is the owner of the 1992 Nissan. Defendant Moss was not threatened or menaced by the police. When the consent was given to search, defendant Moss was not under arrest and no one touched him. The K-9 at the scene was not near defendant Moss at the time consent was given. The facts show that defendant Moss knowingly consented without duress, threat or coercion. The defendants next argue that there was insufficient probable cause to support issuance of the search warrant for defendant Moss's vehicle. We find this argument to be without merit as well. The standard for determining whether probable cause exists for the issuance of a warrant is one of the totality of circumstances. Commonwealth v. Jones, 542 Pa. 418, 424, 668 A.2d 114, 116, (1995). Moreover, the information within the four comers of the probable cause affidavit must be viewed in a common sense, non- technical manner while giving deference to the issuing magistrate. Id_._~. at 424, 668 A.2d at 117. In addition, the reviewing court must ensure that the issuing authority had a substantial basis on which to conclude that probable cause existed. !.d. In the present case, the affidavit of probable cause contains information relaying personal observations by the police of the suspicious acts of the defendants, the defendants' mismatched stories, the finding of marijuana, the expertise and actions of the K-9, Moss's criminal history check, and the opinion of the affiant based upon his training and experience. This court is satisfied that the facts outlined within the probable cause affidavit were sufficient for the issuance of the search warrant. Finally, defendants Hooten and Smith have filed petitions for habeas corpus relief, contending that the Commonwealth has not presented prima facie evidence of their involvement in the possession with intent to deliver cocaine or a conspiracy. In a habeas corpus matter, the Commonwealth must show sufficient probable cause that the defendant committed the offense and the evidence should be such that if presented at trial, the judge would allow the case to go to a jury. Commonwealth v. Saunders, 456 Pa. Super. 741,746, 691 A.2d 946, 948 (1997) appeal denied, 530 Pa. 703,705 A.2d 1307 (1997). At the habeas corpus stage, proof beyond a reasonable doubt is not required. Id. The Pennsylvania Supreme Court held in Commonwealth v. Macolino that constructive possession could be found in one defendant when both husband and wife had equal access to an area where the contraband was found. Commonwealth v. Macolino, 503 Pa. 201, 469 A.2d 132 (1983). In analyzing when the theory of constructive possession should be applied to a defendant, the court in Macolino stated, "Certainly one of the elements which had to be proven by the Commonwealth was knowing or intentional possession of the cocaine. 35 P.S. {}780-113 (a) (16). Possession can be proven by showing actual possession, i.e., a controlled substance found on the appellee's person, or by showing that the appellee constructively possessed the drug. Since the cocaine was found in the appellee's bedroom, and not on his person, the Commonwealth had the burden of proving that he had constructive possession of the drug. Constructive possession has been defined as the ability to exercise a conscious dominion over the illegal substance' the power to control the contraband and the intent to exercise that control." Id. at 206, 469 A.2d at 134, citing Commonwealth v. Chenet, 473 Pa. 181,184, 373 A.2d 1107, 1108 (1977); Commonwealth v. Fortune, 456 Pa. 365,368, 318 A.2d 327, 328 (1974); Commonwealth v. Sterling, 241 Pa. Super. 411, 415, 361 A.2d 799, 804 (1976). An intent to maintain a conscious dominion may be inferred from the totality of the circumstances. Commonwealth v. Fortune, .supra, 456 Pa. at 369, 318 A.2d at 329; Commonwealth v. DeCampli, 243 Pa. Super. 69, 75, 364 A.2d 454, 56 (1976); Commonwealth v. Cash, 240 Pa. Super. 123, 128, 367 A.2d 726, 729 (1976). Further, circumstantial evidence may be used to establish a defendant's possession of drugs or contraband. Commonwealth v. Bentley, 276 Pa. Super. 41, 46, 419 A.2d 85, 87 (1980). In this case, the facts on the record show that the defendants were together at the scene of a car accident. The defendants sought help together and they effectively fled together. When the defendants were stopped, they told different stories, some stating that they were all together and some that they were not. Identical bags of marijuana were found in each car. A significant amount of crack cocaine, packaged for resale was found in Moss's vehicle. Trooper Leydig, a trained drug investigator, indicated that it is normal for drug dealers to travel together and to haVe drop bags of marijuana. Taken together, the facts support a prima £acie case. 10 ORDER AND NOW, this /O'"day of June, 1999, following hearing and the submission of briefs, the omnibus pretrial motions of the defendants in the nature of motions for suppression of evidence and habeas corpus are DENIED. David J. Freed, Esquire Senior Assistant District Attorney BY THE COURT, K~~ in A. Hess, J. Samuel W. Milkes, Esquire Attorney for Defendant Smith William C. Costopoulos, Esquire Attorney for Defendant Moss Michael A. Scherer, Esquire Attorney for Defendant Hooten :rlm 11