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HomeMy WebLinkAbout98-2049 CriminalCOMMONWEALTH SANTOSTORRES IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 98-2049 CRIMINAL TERM IN RE: DEFENDANT'S OMNIBUS PRETRIAL MOTION BEFORE OLER, J. OPINION OF COURT OLER, J., July 11, 2000. In this criminal case, Defendant was charged under the Vehicle Code with two counts of altered, forged or counterfeit documents and plates, and under the Crimes Code ~vith one count of theft by deception, four counts of tampering with records or identification, and four counts of tampering with public records or information. These charges were filed following an interview with Defendant at his residence and the acquisition of other evidence by state police at that location. Defendant filed an omnibus pretrial motion in the form of a motion to suppress. A hearing on the motion was held on March 1, 1999, and April 8, 1999. The issues pursued at the hearing by Defendant were (1) whether the facts recited in an affidavit supporting an application for a search warrant constituted probable cause for a search, (2) whether Defendant consented to the search, and (3) whether, if he did consent to the search, his consent was valid.~ Based upon the evidence presented at the hearing, Defendant's Motion to Suppress was denied.2 Following a bench trial before the Honorable Kevin A. Hess, he was found guilty of the Vehicle Code offense (altered, forged or counterfeit documents and plates) and acquitted of the Crimes Code offenses? On N.T. 4-5, Suppression Hearing, March 1, 1999, and April 8, 1999 (hereinafter Order of Court, April 26, 1999. Order of Court, December 28, 1999. February 15, 2000, a sentence of intermediate punishment with supervision was imposed.4 On a post-sentence motion, Defendant has challenged, inter alia, the correctness of this court's ruling on his motion to suppress.5 In a brief in support of this position, Defendant has premised his request for post-sentence relief upon two grounds: (1) that a valid consent was not given for a search of the area where the improper certificates were seized and (2) that the seizure of the items could not be justified under the plain view doctrine, because their improper nature was not immediately apparent and the law enforcement officer was not lawfully at the location where the certificates were viewed.6 This opinion is written in support of the denial of Defendant's Motion to Suppress. STATEMENT OF FACTS On July 22, 1998, Pennsylvania State Trooper Jerry L. Oberdorf applied to a district justice for a search warrant for premises in Cumberland County occupied by Defendant Santos A. Torres and his companion, Ronda Weller.? The property to be searched included "[a]ny and all vehicles on the premises? The objects of the search were described as "[p]aperwork and/or documents 4 Order of Court, February 15, 2000. 5 Defendant's Post-Sentence Motions for Arrest of Judgment or New Trial, filed February 24, 2000. The 120-day period for consideration of this motion by the court was extended by thirty days pursuant to Pennsylvania Rule of Criminal Procedure 1410 B(3)(b). Order of Court, June 6, 2000. 6 Defendant's Brief in Support of Post-Trial Motions, at 6-8. County Rule of Procedure 210-7 (issues raised but not abandoned). 7 Exhibit 1, Suppression Hearing, March 1, 1999. aid. See Cumberland briefed deemed 2 relating to a 1992 Red, Nissan Pathfinder, stolen, public vin- JN8HD17Y1LW218348, secure vin-JNSHD17Y1NWOZ7399. Any & all Paperwork and/or documents relating to vehicle sales, transactions, or transfers. Any and all yin plates or related materials not legally attached to vehicles.''9 Violations of law suspected were said to be receiving a stolen vehicle under the Crimes Code, dealing in vehicles with removed or falsified numbers under the Vehicle Code, and selling used cars without a license under the Board of Vehicles Act.~° The probable cause affidavit submitted in support of the application for a search warrant read as follows: On 08/28/96 a red, 1992 Nissan Pathfinder, vin- JN8HD17Y1NW027399, was stolen in Philadelphia PA. On 05/05/97 the vehicle was pulled over on the PA Turnpike, M.P. 201.2, west bound, bearing a public vin on the dash of JNSHD17Y1LW218348 (this vin was not reported as stolen). The vehicle was towed from the Turnpike on 05/09/97 by H.W. Baker and Sons, Willow Hill, PA, due to the operator not having a valid license and failure of the owner to remove same. On 08/13/97 Santos A. TORRES, employed as a PA State Trooper, fraudulently submitted a Police Request for Removal of Abandoned Vehicle form, indicating the location of the vehicle as PA Turnpike, M.P. 201.2 W.B., from which it was removed 3 months earlier. The vehicle was towed to Gary's Salvage Yard, 19 Creekview Rd., Newville, PA, who is a salvor, but not a Pennsylvania Turnpike Commission approved service provider. A certificate of salvage was obtained for the vehicle and it was then purchased by TORRES and titled in his live-in girl friend's name, Ronda WELLER. It was later discovered by Penndot that the yin of JN8HD17Y1LW218348, was registered to 2 different people, meaning that the original yin had been "cloned" onto another vehicle. A check of the registrant in Bryn Mawr, PA revealed he legally possesses a 1990 Nissan Pathfinder with the original vin plate. 9/d. ~°/d' 3 Upon discovering the vehicle titled to Ronda WELLER was at a transmission shop in Chambersburg, PA, a check of the yin plate was conducted at that location. At that time the public yin on the dash was determined to be a false yin plate. A check of the hidden yin on the vehicle revealed it was the 1992 Nissan Pathfinder that was stolen out of Philadelphia on 08/28/96. During the investigation it was discovered that TORRES "deals" with Gary's Salvage Yard in that he purchases numerous vehicles a year from him and resells them. It was also discovered that TORRES has 14 vehicles titled in his name and 5 titled in WELLER's name. It was learned that TORRES sells as many as 20 vehicles a year. Department of State regulations require a person selling more than 4 vehicles a year to obtain a salesmen's license and a used car dealer license. A check was conducted with the Department of State indicating that TORRES is not properly licensed to sell ne~v or used vehicles. It is believed that the aforementioned items to be searched for and seized would be in the residence at 203 W. Main St., South Newton Twp., Cumberland Co., due to the fact that TORRES does not have a licensed place of business in which to keep records or vehicle parts.~ The search warrant was issued by the district justice,n and Trooper Oberdorf, accompanied by Corporal Gregory Johnson of the Pennsylvania State Police, proceeded to Defendant's premises on Thursday, July 23, 1998, at about 9:00 a.m.~3 As of this point in time, Defendant had himself been a Pennsylvania State Trooper for approximately thirteen years.TM Without initially relying upon the authority of the warrant, Trooper Oberdorf identified himself and Corporal 11 ~.o ~2 N.T. 9. ~3 N.T. 10, 33. 14 N.T. 25. 4 Gregory Johnson to Defendant,t5 who admitted the law enforcement officers and spoke with them at a kitchen table? Trooper Oberdorf informed Defendant that he was conducting a criminal investigation into the stolen Nissan Pathfinder with a counterfeit or fraudulent VIN plate which was in Defendant's possession and into the sale of vehicles by Defendant,t7 that Defendant was not under arrest and had not been charged with any offense,is and that the information which the investigators gathered would be forwarded to the Cumberland County District Attorney's office for review,t9 However, Trooper Oberdorf expressly distinguished the criminal investigation which he was conducting from a merely administrative one.2° Trooper Oberdorfproduced a list of seventy-six written questions which he proposed to ask Defendant, some of which focused upon the Nissan Pathfinder and others of which dealt with sales of vehicles.2~ Defendant reviewed the questions, and agreed to answer them.22 After responding to the questions, Defendant reviewed a written version of the responses and executed a form attesting to their accuracy, described by Trooper Oberdorf as follows: The very last page would be a Pennsylvania State Police statement form in which the following questions are asked: Is the information contained in this four-page statement true and correct to the best of your knowledge and belief?. He actually hand wrote these answers himself after the interview. His ~5 N.T. 10, 77. 16 N.T. 14, 63. ~7 N.T. 10-12, 42, 44. ~8 N.T. 11-12. ~9 N.T. 12. 20 N.T. 11, 13. In this regard, the court found Trooper Oberdorf's testimony credible. Defendant testified that, to his recollection, he ~vas not told that the investigation was criminal as opposed to administrative, and that he was not told that he was not under arrest. N.T. 77. 2~ N.T. 13; Commonwealth's Exhibit 2, Suppression Hearing, March 1, 1999. 22 N.T. 14. 5 answer was yes. Was the statement given of your own free xvill and accord without any promises or threats? He wrote down yes. Do you understand ~vhat we were talking about in the statement? He wrote down yes. Are there any corrections in the statement that you wish to make? He wrote doxvn no. He signed it at 0934 hours.23 Trooper Oberdorf then said that Corporal Johnson would like to interview Ms. Weller and that he (Trooper Oberdorf) would like to go outside to look at the various vehicles which Defendant had in the yard.24 Defendant consented to this proposal25 and accompanied Trooper Oberdorf outside.26 Eleven vehicles were situated on the premises.27 Almost immediately, Trooper Oberdorf noticed, without comment, that a Mercury Tracer in the yard displayed a counterfeit Pennsylvania inspection sticker? As Corporal Johnson continued to interview Ms. Weller inside the house,29 Defendant proceeded to assist the trooper in his investigation of the vehicles by answering questions, producing paperwork from some of the vehicles, and directing the trooper to locations in other vehicles from which the paperwork was retrieved.3° At one point Defendant indicated his preference that a certain item not be retained by the trooper, and the trooper surrendered it to him.31 During the course of this review of the vehicles, Trooper Oberdorf observed, again apparently without immediate comment, a second counterfeit inspection sticker, affixed to a 1978 Ford truck? 23 N.T. 14-15. 24 N.T. 16, 34, 51. 25 N.T. 17, 24, 94. 26 N.T. 17. 27 N.T. 82. 28 N.T. 18. 29 N.T. 52. 30 N.T. 18-19. 31 N.T. 24-25. This item was an insurance card for one of the vehicles. Id. 32 N.T. 20, 100. After Defendant and the trooper returned to the house, Defendant became offended at what he perceived to be an arrogant attitude on the part of the trooper, and he elected not to produce further documents requested? The trooper thereupon produced the search warrant which he had obtained and seized certain documents within the house which Defendant had chosen to withhold? However, none of the charges eventually filed related to those documents? Prior to departing the premises, Trooper Oberdorf asked Defendant about the seemingly counterfeit inspection stickers which he had observed and about certain sales tax discrepancies? With respect to the stickers, Defendant related that he had purchased them on the street in Philadelphia for $35.00 apiece37 and conceded that he knew they had not been issued for the vehicles in question? He disclaimed any knowledge, however, that they were counterfeit or stolen? At the conclusion of the evidentiary phase of the suppression hearing in this matter, counsel presented their respective arguments on the merits of Defendant's motion,no With respect to Defendant's consent to the acquisition of evidence by Trooper Oberdorf, Defendant's counsel contended that no consent was in fact given by Defendant and that, if consent was given, it was not knowing, intelligent and voluntary.4~ More specifically, it was Defendant's position that the trooper's testimony that Defendant had agreed to the trooper's inspection of the vehicles on the premises was not accurate, and that, if Defendant did agree to such conduct, his consent was vitiated by the failure of the trooper to make clear that his presence 33 N.T. 73-74. 34 N.T. 21-22, 73-74. 35 N.T. 40. 36 Id. 37 N.T. 100-01. 38 N.T. 100. 39 Id. 4o N.T. 112-25. 4~ N.T. 118. was in furtherance of a criminal investigation as opposed to a merely administrative procedure.42 The Commonwealth's response to this argument was that the issues were matters of credibility, and that the testimony presented by the Commonwealth had been credible.43 Statement of law. In a hearing on a suppression motion, the Commonwealth has the burden "of going forward with the evidence and of establishing that the challenged evidence was not obtained in violation of the defendant's rights." Pa. R. Crim. P. 323(h). The standard of proof is preponderance of the evidence. Commonwealth v. Stoops, 723 A.2d 184, 186 (Pa. Super. 1998), a]vlveal denied, 560 Pa. 744, 747 A.2d 368 (1999) (qztoting Commonwealth v. Czdp, 378 Pa. Super. 213,219, 548 A.2d 578, 581 (Pa. Super. 1988)). [A]s factfinder, it is ~vithin [al suppression court's ... province to pass on the credibility of witnesses and the weight to be accorded their testimony. The factfinder is free to believe all, some, or none of the evidence presented. Commonwealth v. Lawley, 741 A.2d 205, 208 (Pa. Super. 1999) (citing Commonwealth v. Benton, 440 Pa. Super. 441,655 A.2d 1030, 1032 (Pa. Super. 1995)) (citations omitted). The validity of one's consent to activity of a law enforcement officer is to be determined on the basis of the "totality of the circumstances surrounding the consent." Glover v. Commonwealth of Pennsylvania, Norristown State Hospital, 90 Pa. Commw. 58, 62, 494 A.2d 39, 41 (Pa. Commw. 1985) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 93 S. Ct. 2041, 36 L. Ed.2d 854 (1973)). Among the circumstances to be considered in such a determination "are whether the accused 42 N.T. 115-18. 43 N.T. 120-25. has assisted in the [activity], and the education, intelligence and experience of the person giving consent." Commonwealth v. Markman, 320 Pa. Super. 304, 313,467 A.2d 336, 341 (Pa, Super. 1983) (citing Commonwealth v. Dressner, 232 Pa. Super. 154, 336 A.2d 414 (Pa. Super. 1975)). Of obvious significance in terms of experience is one's occupation as a law enforcement officer. See Glover, 90 Pa. Commw. at 62,494 A.2d at 41. Finally, under the plain view doctrine a police officer may seize an item without a warrant under certain circumstances. The doctrine has been described by the Pennsylvania Supreme Court as follows: If a police officer views an object from a lawful vantage point, and the incriminating nature of the object is immediately apparent to the officer, a warrantless seizure of the object is justified. There can be no reasonable expectation of privacy in an object that is in plain view. To judge whether the incriminating nature of an object was immediately apparent to the police officer, [one] must consider the totality of the circumstances. Commonwealth v. Petroll, 558 Pa. 565, 576, 738 A.2d 993, 999 (1999) (citing Commonwealth v. Ellis, 541 Pa. 285, 297, 662 A.2d 1043, 1049 (1995)) (citation omitted). Application of law to facts. In the present case, in its capacity as factfinder, the court found the testimony presented by the Commonwealth credible on the issues of whether Defendant had been advised that the nature of the investigation was criminal, ~vhether he agreed to an inspection of the vehicles on his premises by Trooper Oberdorf, and whether he assisted the trooper in the inspection of his vehicles. Given the totality of the circumstances, including Defendant's profession of voluntariness in connection with his responses to the initial presentation of questions, his presumptive familiarity with his rights by virtue of his 13-year tenure as a Pennsylvania State trooper, and his exercise of his right not to cooperate during the process, the court was of the view that Defendant had been shown to have consented to the trooper's activity with respect to the vehicles and that his consent had been shown to have been knowing, intelligent and voluntary. It follows that the court was also of the view that the trooper's presence in the yard was lawful when he observed the counterfeit inspection stickers in plain view. In addition, a fair reading of the trooper's testimony at the suppression hearing does not support an inference that the counterfeit nature of the stickers ~vas somehow latent and unascertainable upon observation. Thus, even if it were determined that the retrieval of documents from Defendant's vehicles exceeded the scope of Defendant's valid consent, the evidence as to his possession of altered, forged or counterfeit inspection certificates would be admissible under the plain view doctrine. For the foregoing reasons, the court was unable to agree with the position 44 advanced by Defendant as set forth above in support of the motion to suppress. /Wesley ~., - j.[~ Mary-Jo Mullen, Esq. Senior Assistant District Attorney For the Commonwealth William T. Tully, Esq. For the Defendant 44 In view of this analysis of Defendant's position, it is not necessary to discuss whether the police activity would also have been justified on the basis of the search warrant which had been obtained, but not immediately announced. In this regard, however, it may be noted that not every procedural defect in the execution of a search warrant will result in the exclusion of evidence seized. See Commonwealth v. Mason, 507 Pa. 396, 401,490 A.2d 421,423 (1984). 10