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HomeMy WebLinkAboutCP-21-CR-2602-2006COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CHARGES: (1) POSSESSION WITH INTENT TO DELIVER A SCHED 11 CONTROLLED SUB (COCAINE) (2) FALSE IDENTIF TO LAW ENFORCEMENT AUTHORITIES (3) DRIV UND SUSPENSION (SUM) JOEL MARRERO OTN: L307850-4 : CP -21 -CR -2602-2006 IN RE: OPINION PURSUANT TO PA. R.A.P. 1925 OLER, J., March 10, 2008. In this criminal case, Defendant was charged with possession with intent to deliver cocaine, false identification to law enforcement authorities, and driving under suspension, as a result of an incident occurring on August 23, 2006.1 He filed an omnibus pretrial motion in the form of a motion to suppress evidence that had been seized from a vehicle he had been driving at the time.2 Following a hearing held by the writer of this opinion, the motion to suppress was denied.3 Defendant was subsequently found guilty of the charges in a trial presided over by the Honorable Edward E. Guido .4 From the judgment of sentence,5 Defendant has filed an appeal to the Pennsylvania Superior Court.6 Among the issues being pursued on appeal, as expressed in Defendant's statement of matters complained of on appeal, is the following: The Court erred in denying Appellant's Motion to Suppress the search of the vehicle and evidence obtained as a result of the search.' 'See Information, filed November 16, 2006. 2 Defendant's Omnibus Pretrial Motion, filed December 21, 2006. s Order of Court, April 3, 2007. 4 See Order of Court, November 6, 2007. s Order of Court, December 18, 2007. 6 Defendant's Notice of Appeal, filed January 14, 2008. Defendant's Concise Statement of Matters Complained of on Appeal, para. 1, filed Feb. 4, 2008. This opinion in support of the court's ruling on Defendant's suppression motion is written pursuant to Pennsylvania Rule of Appellate Procedure 1925(a). STATEMENT OF FACTS On Wednesday, August 23, 2006, at 1:18 a.m., Patrol Officer Daniel Parson of the Carlisle Borough Police Department was driving east on North Street in the borough when he encountered a vehicle blocking the intersection of North Street and West Street, with its bumper overhanging a sidewalk.$ Defendant, the driver and sole occupant, claimed that another vehicle had caused him to swerve off 9 course. Defendant identified himself as "Joes" Marrero, was shaking and sweating, and appeared to be very nervous. 10 He claimed to live in the 200 block of West North Street, said he was from Harrisburg, claimed to be a part owner of the vehicle, found an insurance card revealing that the owners of the vehicle were Angela Cabrera and Michael Swartz, and claimed that he sometimes forgot how to spell his first name." His speech varied between being loud and mumbling. 12 Defendant was placed in handcuffs. 13 Almost immediately thereafter, he advised the officer that there was an outstanding warrant for his arrest from New York State on a larceny charge. 14 In Defendant's possession Officer Parson found a key -card 15 to a local motel room. 16 The officer succeeded in finding a telephone number for one of the owners of the vehicle, Angela Cabrera—who was herself on parole in Cumberland 'N.T. 5-7, Hearing on Defendant's Omnibus Pretrial Motion, April 2, 2007 (hereinafter N.T. �. 9 N.T. 7. 10 N.T. 8. " N.T. 7-8. 12 N.T. 9. 13 N.T. 8. 14 N.T. 8, 10. 15 N.T. 37. 16 N.T. 19, 25. 2 County 17 through the police data bank known as Metro.18 However, no one answered when he called the number. 19 Officer Parson telephoned Detective Jeffrey Kurtz of the Carlisle Police Department and explained the circumstances of his detention of Defendant, whose real name was Joel Marrero20 and who, as it developed, had a serious criminal record in New York State, including robbery and drug offenses .21 Detective Kurtz recognized Defendant as being a drug dealer 22 whose street name was "Dollar"23 and whose residence on East Louther Street in the borough had recently been under police surveillance for drug activity. 24 Detective Kurtz was also aware that some of the persons under investigation in connection with this drug activity were now believed to be staying at the aforesaid motel .25 Having detained the only occupant of the vehicle blocking the intersection, Officer Parson had the car towed to the Carlisle Borough Police Station.26 He did not search the vehicle, nor was it placed in an impound lot.27 It was discovered that the motel room in question had been rented in the name of Angela Cabrera.28 Ms. Cabrera's parole officer was notified of the 17 N.T. 21. 18 N.T. 12-13. 19 N.T. 12. 20 N.T. 14. 21 Defendant's Ex. 1, Hearing on Defendant's Omnibus Pretrial Motion, April 2, 2007 (hereinafter Commonwealth's/Defendant's Ex. �. 22 N.T. 17. 23 N.T. 15. 24 N.T. 16-17. 2s N.T. 20. 26 N.T. 8. 27 N.T. 61. 2s N.T. 37. 3 situation.29 Then Detective Kurtz, with others including the parole officer ,30 proceeded to the aforesaid motel,31 arriving at about 3:00 a. M.32 The parole officer found Ms. Cabrera in the bathroom of the motel room in question "high, ,33 with a crack pipe and cocaine in her immediate vicinity 34 and cocaine in her purse .35 She was detained by the parole officer.36 At this time, Ms. Cabrera was on county parole for unlawful possession of a Schedule 11 controlled substance, unlawful possession of drug paraphernalia, and hindering apprehension .37 Her record of criminal convictions dated back to 1993, and included driving under the influence and numerous retail thefts .38 One of the written conditions of parole to which Ms. Cabrera had agreed was the following: You agree to a search of your present or future residence or lodging, your person, and/or your vehicle, with or without warrant, by any member of [the Cumberland County probation] department as deemed necessary for the enforcement of your probation/parole/intermediate punishment conditions.39 The conditions of her parole included her compliance with the laws of the Commonwealth of Pennsylvania, her being and remaining on good behavior, and her refraining from possession or use of illegal drugs .40 29 N.T. 20. so N.T. 39. 31 N.T. 20. sz N.T. 25. " N.T. 40, 43. 34 N.T. 41. " N.T. 41. 36 N.T. 21. 37 N.T. 51. " Commonwealth's Ex. 2. 39 Commonwealth's Ex. 1, para. 7. 40 Commonwealth Ex. 1, paras. 1, 3-4 11 The parole officer's experience with drug cases, as well as with Ms. Cabrera, was described in her testimony as follows: A On any given time, I can carry up to a hundred cases at a time. Being here nine years, it's quite a lot. Q Based on your experience with that, when you find an individual in possession of drugs in a house, do you have an opinion—do you have any experience about whether they would also have it in their car? A Yes. Q Can you tell us about that? What has your experience been with that? A Usually if there's drugs in their house, there's usually drugs in their car. They're using their vehicle to make deliveries. They may have, you know, paraphernalia in their vehicle, money, anything dealing with—scales. Usually if it's in the house, it's in the vehicle, it's on their persons. Especially being that that was not her home, she had it on her person, she, you know, practically lived out of her car there too.41 Believing it necessary for the enforcement of the conditions of Ms. Cabrera's parole,42 and that exigent circumstances existed,43 the parole officer located Ms. Cabrera's vehicle and searched it.44 In so doing, she was exercising her own judgment in her capacity as a parole officer, and was not acting at the request of the police .45 With respect to exigent circumstances, the parole officer testified on cross-examination as follows: Q Did you believe you had exigent circumstances to search the vehicle? A Yes. Q What were the exigent circumstances? A I did not know where that vehicle was. The last I knew that vehicle was still in the street. At any point in time somebody could have came to that vehicle. I'm not going to allow them to turn a vehicle over to—back over to her grandmother without going through it first to make 41 N.T. 44. 42 See N.T. 38, 43, 63. 43 See N.T. 37, 50, 60-61 44 N.T. 45. 4s N.T. 46. E sure that there isn't anything else in there, which that vehicle could have been turned over to her grandmother. Q Now, you understand that the vehicle was in impound. Before you searched it— A It wasn't in impound. It wasn't in the impound lot. It was at the police station. Q Okay. A They could have—they towed it. I found out later that they towed it to get it out of the middle of the street back to the police station. At that point in time I don't know what their policy is as to whether they release the vehicle, call somebody to come pick it up or whether—what they do with it at that point in time. 46 The result of the search of Ms. Cabrera's vehicle was described by the parole officer as follows: I went ahead and searched the vehicle. In the vehicle there was a pair of sweatpants. I started in the back seat. I just picked up the first thing. There was a pair of sweatpants there. I just kind of felt them. There was something in the pockets, so I pulled the one pocket out, and there was a large bag of what looked like crack cocaine and cocaine in a bag. In the other pocket there was a large wad of money, along with an I.D. card, in that pocket. I went ahead and pulled that out and laid that on the hood of the car. The I.D. belonged to Joel Marrero. I proceeded to search the rest of the vehicle. I found a couple cell phones, some cash laying around, a few cameras .47 Based upon the evidence recited above, the court denied Defendant's motion to suppress.48 DISCUSSION Statement of law. First, the consent of a prisoner to accept a dimunition of rights with regard to searches in return for parole is usually given legal effect. As the Superior Court has noted, "[the prisoner] consented to such searches when he agreed to the conditions of his parole release. While [he] may not have liked his choices, he nonetheless had a choice; he chose to be released. Although his choice 46 N.T. 60-61. 47 N.T. 45. 48 Order of Court, April 3, 2007. 0 may have been unpleasant, we are not persuaded that it was involuntary ...." Commonwealth v. Appleby, 2004 PA Super 322, ¶9, 856 A.2d 191, 195. Second, such searches do not require probable cause. The Superior Court has summarized the law in this area as follows: The conduct of warrantless searches of property by county parole officers is governed by 61 P.S. section 331.27b(d)(2), which states: "A property search may be conducted by any officer if there is reasonable suspicion to believe that the real or other property in the possession of or under the control of the offender contains contraband or other evidence of violations of the conditions of supervision." In determining the existence of reasonable suspicion, county parole officers may take into account the following factors: (1) the observation of the officers; (2) information provided by others; (3) the activities of the offender; (4) information provided by the offender; (5) the experience of the officers with the offender; (6) the experience of officers in similar circumstances; (7) the prior criminal and supervisory history of the offender; (8) the need to verify compliance with the conditions of supervisions. Id. at 331.27b(d)(6)(1-viii). A violation of section 331.27b does not constitute an independent ground for suppression of evidence in a criminal proceeding. Id. at 331.27b(c). Commonwealth v. Appleby, 2004 PA Super 322, ¶10, 856 A.2d 191, 196. Although the statute contemplates prior approval by the officer's supervisor for a property search, such prior approval is not envisioned where exigent circumstances exist. Act of August 6, 1941, P.L. 861, §27.2(d)(3), as amended, 61 P.S. §331.27b(d)(3). In this regard, the statute provides that "exigent circumstances always exist with respect to a vehicle. " Id. §27.2(g), as amended, 61 P.S. §331.27b(g) (emphasis added). Finally, in assessing the legality of a county parole officer's conduct with respect to a search of the parolee's property, it must be borne in mind that "county parole officers are in a supervisory relationship with their offenders. The purpose of this supervision is to assist the offenders in their rehabilitation and reassimilation into the community and to protect the public." Id. §27.2(a), as amended, 61 P.S. §331.27b(a). Application of law to facts. Several factors in the present case led the court to conclude that the search of Ms. Cabrera's vehicle by her parole officer was not 7 illegal. First, Ms. Cabrera had expressly authorized such a search as a condition of her parole. Second, the circumstances leading up to the search—including the condition in which the driver of the vehicle was found, the drug history of the parolee, the current inebriated state of the parolee, the discovery of cocaine in her possession, her occupancy of a transient room, and her known use of the vehicle for domestic purposes—as well as the experience of the officer with drug offenders, amply supported a reasonable suspicion that contraband would be found in the vehicle. Third, exigent circumstances were present for the search in that a movable vehicle was involved, the vehicle had not been impounded, and a co- owner of the vehicle was not in custody. Finally, the conduct of the parole officer was consistent with (a) the assistance of the parolee with her rehabilitation and (b) the protection of the public. For the foregoing reasons, the court denied Defendant's motion to suppress based upon an alleged impropriety in the search of Ms. Cabrera's vehicle by her parole officer. Christylee Peck, Esq. Senior Assistant District Attorney Stacy B. Wolf, Esq. Attorney for Defendant '3 BY THE COURT, J. Wesley Oler, Jr., J.