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HomeMy WebLinkAbout97-1441 CriminalCOMMONWEALTH : : : : NO. 97-1441 CRIMINAL TERM : v. : CI-U~GES: ( 1 ) : .- : (2) : : : : : : PAUL A. I..d~EY : OTN: F003572-2 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA UNLAWFUL POSSESSION SMALL AMOUNT MARIJUANA UNLAWFUL DELIVERY, MANUFACTURE, POSSESSION WITH INTENT TO DELIVER A SCHEDULE II CONTROLLED SUBSTANCE IN RE: DEFENDANT'S OMNIBUS PRETRIAL MOTIQN BEFORE OLER, ~. ORDER OF COURT AND NOW, this ~ day of March, 1998, upon careful consideration of Defendant's Omnibus Pretrial Motion and the briefs submitted in this matter, following a hearing and for the reasons stated in the accompanying opinion, Defendant's motion is granted in part and denied in part. Defendant's motion to suppress .physical evidence obtained pursuant to the execution of a search warrant for 128 West Penn Street, Carlisle, Cumberland County, Pennsylvania, is denied. Defendant's motion to suppress statements made at the time of a polygraph examination on July 21, 1997, is granted. Michael S. Schwoyer, Esquire Chief Deputy District Attorney William Braught, Esquire Assistant Public Defender :rlm COMMONWEALTH : ; ; : NO. 97-1441 CRIMINAL TERM : v. : CI-~RGES: ( 1 ) : : : (2) : : : : : : PAUL A. I.d~EY : OTN: F003572-2 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA UNLAWFUL POSSESSION SMALL AMOUNT MARIJUANA UNLAWFUL DELIVERY, MANUFACTURE, POSSESSION WITH INTENT TO DELIVER A SCHEDULE II CONTROLLED SUBSTANCE IN RE: DEFENDANT'S OMNIBUS PRETRIAL MOTION BEFORE OLER. J, OPINION and ORDER OF COURT Oler, J., March 6, 1998. Presently before the court is Defendant Paul A. Laney's omnibus pretrial motion. Defendant seeks the suppression of physical evidence seized during the execution of a search warrant on July 18, 1997 and the suppression of statements made by him at the time of a polygraph examination on July 21, 1997. A hearing was held on the motion on October 30, October 31, and December 12, 1997. STATEMENT OF FACTS On July 12, 1997, shots were fired at, and one shot struck, a gentlemen named Charles Messinger as he sat in a car near a building demolition site in the Borough of Carlisle, Cumberland County, Pennsylvania. The Defendant, Paul A. Laney, was observed at the scene of the shooting shortly thereafter by several police officers. 97-1441 CRIMINAL On July 18, 1997, Carlisle Borough Detective David Smith applied for a search warrant with respect to Defendant's residence at 128 West Penn Street, Carlisle, Cumberland County, Pennsylvania, and his person. The "items to be searched for and seized" were identified on the application as follows: .22 caliber handgun; .22 caliber ammunition; the person of Paul Arthur Laney, Black/Male, dob: 8/30/77, approximately 5'11", 185 pounds.~ The "premises and/or persons to be searched" were described as follows: The residence, backyard, curtilage and any out buildings erected thereon at 128 West Penn Street, Borough of Carlisle, Cumberland County, Pennsylvania, a two-story attached row home, yellow siding, white and green front door, a black wrought iron railing around the front porch area, with a black mailbox attached to the structure on the left side front; the person of Paul Arthur Laney, black/male, dob: 8/30/77, approximately 5' 11" tall, weighing approximately 185 pounds.2 The affidavit of probable cause in support of the application for the search warrant stated as follows: Since May of 1997, the Carlisle Police Department, Cumberland County Drug Task Force and the Cumberland County District Attorney,s Office have been patrolling the Memorial Park neighborhood, Borough of Carlisle, in response to escalating incidents of violence in this area. Your affiant believes the patrols have created a visible increased police presence in that neighborhood. On Saturday, July 12, 1997, at approximately 2357 hours in the 100 block of North Pitt Street, Borough of Carlisle, Cumberland County, Pennsylvania, Fire Police Officer Messinger, was in the company of Special Police Officer Commonwealth's Exhibit 1. Commonwealth's Exhibit 1. 97-1441 CRIMINAL Zeigler who was assigned to keep the general public away from a demolition zone in that area. While sitting in Zeigler's vehicle, a dark grey Chevrolet which is identical to an unmarked police car used by Carlisle Borough Police Officers to do undercover narcotics work, Messinger was shot in the right temple with a .f2 caliber handgun. Evidence of four other rounds striking the passenger side of the vehicle was obtained by crime scene officers. Your affiant believes based upon trajectory of the bullets and witness statements that the shots were fired from behind a brick wall next to where the Zeigler vehicle was parked. On July 18, 1997, your affiant learned from Chief Deputy District Attorney Michael S. Schwoyer, that at 0800 hours, this date, a meeting was held between District Attorney M. L. Ebert, Jr., Chief Deputy District Attorney, Michael S. Schwoyer, and [a certain named attorney]. The meeting w a s held at the request of [the attorney]. At that meeting, [the attorney] relayed that he recently received information he believed to be highly credible pertaining to a shooting which occurred in the Borough of Carlisle, Cumberland County, Pennsylvania. [The attorney] further stated that he had a reliable client who could provide the location of the weapon used in that shooting and that he could also provide the name of the shooter. [The attorney] further advised that his client believed that the increased police presence in that neighbor- hood was the reason for the shooting and the shooter intended intended to send a message to police. At the conclusion of the meeting, [the attorney] left the District Attorney's Office. Within minutes, [the attorney] returned and told Chief Deputy District Attorney Schwoyer that the weapon used in the shooting was at the residence of Paul LANEY. At approximately 2:30 p.m., Chief Deputy District Attorney Michael S. Schwoyer received a voice-mail message from William [the attorney] advising that the weapon was at 128 West Penn Street in the Borough of Carlisle, that the house had a green and white door with light tan siding, and that 128 was located between 126 and 134 West Penn Street. Your affiant learned from Detective David R. Fones that Paul LANEY resides at 128 West Penn Street, Borough of Carlisle. This address was also verified through the District Attorney's Office and Cumberland County Probation Officer Michael Piper (Paul LANEY's Probation Officer) as Paul LANEY's last known address. 3 97-1441 CRIMINAL While police from across the county were investigating this shooting and processing the crime scene, Paul LANEY, a black male, dob: 8/30/77, 128 West Penn Street, Borough of Carlisle, Cumberland County, Pennsylvania, confronted the police officers on the scene. This information was provided to your affiant by several Carlisle police officers, among them Chief Stephen Margeson, Lieutenant Barry Walters, Detective David Fones, and Patrolman Michael Clepper. It was related to your affiant that during this confrontation LANEY made many derogatory and insulting statements directed at the police. Patrolman Michael Clepper advised your affiant that LANEY made comments along the lines of "The mother fucker deserved to get shot for being in this neighborhood--he shouldn't have been in our neighborhood.,, Clepper further advised that LANEY challenged Detective Fones to chase him, stating that, "I'll run you 'til you get tired and then I'll kick your ass." Detective David R. Fones advised your affiant that LANEY stated to him, while Fones was alone behind the wall from where it is believed the shots were fired, "If I was you, I wouldn't be driving around down here at night 'cause your gonna get shot--I'm not saying I'm gonna do it, but you know...,, On July 13, 1997, at approximately 1730 hours, Corporal Brent Griest spoke to [a certain named woman] who then resided at 56 West North Street, Borough of Carlisle, which is adjacent to the alley which accesses the wall from behind which the shots were fired. [This woman] stated she was in the rear yard of her residence and when the shots were fired. She also stated she heard four shots and then saw Paul LANEY running south on the alley that runs towards West Locust Avenue, behind the wall. She did advise Corporal Griest that she was unsure if LANEY came from West North Street or from behind the brick wall. On July 13, 1997, at approximately 2158 hours, an unknown black female left voice mail for Detective David R. Fones at the Carlisle Police Department. The female stated, "The person that did the shooting yesterday was Paul LANEY, I hope you do catch him and get him off the street." On July 18, 1997, at approximately 1530 hours, your affiant was contacted by Trooper Scott Miller of the Pennsylvania State Police and advised that a female had information pertaining the shooting which she received from her brother. Your affiant contacted this female at approximately 1545 hours this date and she advised that she gave her brother a ride the night of the shooting and he asked her if she heard about the shooting. She advised her 4 97-1441 CRIMINAL brother that she had not. She stated her brother then told her that he was in the Memorial Park neighborhood just prior to the shooting, and he observed Paul LANEY with a handgun. Shortly thereafter he heard shots and saw Paul LANEY running from the direction of where the shots were fired. He further advised her that he saw Paul LANEY a little later that night and he had changed shirts. Your affiant believes the individuals who provided information because each provided corroborating information without knowing the existence of the others. Your affiant checked with the Cumberland County District Attorney's Office to get information pertaining to LANEY's criminal history. Your affiant learned from District Attorney records that on April 2, 1996, Paul LANEY was sentenced for two counts of Simple Assault and that on February 11, 1997, Paul LANEY was sentenced for two counts of Unlawful Delivery of Crack Cocaine. These convictions stemmed from drug traf- ficking in the Memorial Park area of Carlisle. Your affiant believes that his criminal history is consistent with one who may feel threatened by an increased police presence.3 The search warrant was executed on July 18, 1997 by a five- member group of police from the Carlisle Borough Special Response Team. The group consisted of Corporal Griest, Patrolman Clepper, Patrolman Hogarth, Patrolman Dzezinski and Patrolman Kell. These members of the Special Response Team, on July 18, 1997, went to 128 West Penn Street, Carlisle, Cumberland County, Pennsylvania at approximately 8:15 p.m. Officer Larry W. Kell knocked on the door, announced that he was a police officer and that he had a search warrant, and waited approximately 10 seconds. Receiving no response after this initial procedure, Officer Kell again knocked on the door and announced that he was a police Commonwealth's Exhibit 1. 5 97-1441 CRIMINAL officer and that he had a warrant. Approximately 15 seconds later, the door was opened from the inside by an occupant of the building, who did not present himself for view.4 At this point, Officer Michael Clepper entered the doorway, announced that he was a police officer and proceeded with others to secure the building. The residence was secured without damage to property or injury to either an occupant or a police officer. The officers seized one handgun, two hundred seven dollars in cash, two dollars and fifty-five cents in coins, a baggie of suspected crack cocaine, a baggie of suspected marijuana and one packet of green ziplock bags during the search,s Defendant was taken into custody on drug charges during the execution of the warrant and transported to the Carlisle Police Station by Sergeant Michael J. Guido, who had been instructed by superiors not to interrogate the Defendant. During the course of a conversation initiated by the Defendant, Sergeant Guido asked Defendant if he would consent to a polygraph examination concerning the shooting incident of July 12, 1997. Defendant indicated that he would be willing to do so. Due to the presumed effect of the evening's excitement upon Defendant, a decision was made by the examiner consulted to delay the polygraph until Monday, July 21, 4 This was Defendant's father, who was apparently seated on the floor near the door. Other residents of the house included Defendant's mother and a young child. Commonwealth's Exhibit 1. 97-1441 CRIMINAL 1997. On the evening of Friday, July 18, 1997, the Defendant was arraigned before District Justice Paula Correal. District Justice Correal appointed the Cumberland County Public Defender's office to represent the Defendant on the drug charges stemming from the search. The Defendant was thus represented by counsel on the drug charges as of July 18, 1997.~ He had not been arrested in connection with the shooting at this point. On Monday, July 21, 1997, the Defendant submitted to a polygraph examination. He had been incarcerated since his arrest the previous Friday. The Defendant was informed that the examination was to concern the shooting incident of July 12, 1997. Prior to the beginning of the examination, Defendant was asked to sign a Miranda waiver form by the examiner, who was Cumberland County Detective Michael Matthew Brennan. The form had nine questions, each of which was answered in writing by the Defendant. The answers on the form indicated that the Defendant knew or acknowledged the following: that he was suspected of attempted homicide; that he could remain silent and answer no questions; that any statement he made could be used against him; that he had the right to have an attorney present; that if he could not afford an attorney one would be provided at no cost; that he could refuse to ~ The Public Defender was at the same time appointed to represent Defendant on a disorderly conduct charge arising out of his behavior on the night of the shooting. 7 97-1441 CRIMINAL answer any question or stop the questioning at any time; that he was willing to take a polygraph without the presence of an attorney; that no one had promised him anything or threatened him; and that he has been treated "fair" since the arrest.? The form bore a legend above the signature line stating: I HAVE READ THE ABOVE AND IT HAS BEEN READ TO ME AND THE ANSWERS WHICH I GAVE TO THE QUESTIONS ARE TRUE AND CORRECT; AND I FULLY UNDERSTAND THEM. I MADE THE FOLLOWING STATEMENT VOLUNTARILY, WITHOUT FORCE AND OF MY OWN FREE WILL.8 The form was signed by the Defendant. Detective Brennan began the examination with background questions intended to determine if the Defendant was suitable for a polygraph examination. One of the background questions concerned whether the Defendant was under the influence of any drugs. This question was important because the effect of any drugs on the body could cause inaccurate results. The Defendant responded to the question with a denial that he was under the influence of any drugs. Because Detective Brennan was aware that crack cocaine had been seized from the Defendant's residence, he followed up the question concerning drug use with an inquiry into whether the drugs found in the bedroom were the Defendant's. Defendant responded that the drugs were his. Detective Brennan then asked if the Commonwealth's Exhibit 7. Commonwealth's Exhibit 7. 8 97-1441 CRIMINAL Defendant used the drugs. Defendant indicated that he sold the drugs, but did not use them. In response to a question concerning the money found in his ropm, Defendant indicated that it was obtained through the sale of drugs. Defendant did not have counsel present during this questioning. Defendant's brief in support of his omnibus pretrial motion to suppress indicates that three arguments are being pursued: that the affidavit of probable cause was insufficient to support the issuance of a search warrant; that the execution of the search warrant was violative of Pennsylvania Rule of Criminal Procedure 2007 (knock and announce rule); and that the questioning of the Defendant concerning the drug charges during the polygraph examination violated Defendant's constitutional right to counsel. Defendant's Challenge to the Issuance of the Search Warrant General principles. The Fourth Amendment to the United States Constitution provides that "no warrant shall issue, but upon probable cause ... and particularly describing the place to be searched and the persons or things to be seized.''9 Similarly, the Pennsylvania Constitution states that "no warrant to search a place or to seize any person or things shall issue without describing them as nearly as may be, nor without probable cause.,,~° U.S. CONST. amend. IV. PA. CONST. art. 1, ~8. 9 97-1441 CRIMINAL "The standard for evaluating whether probable cause exists for the issuance of a search warrant is the 'totality of circumstances' test as set forth in Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983), and adopted by [the Pennsylvania Supreme] Court in Commonwealth v. Gray, 509 Pa. 476, 484, 503 A.2d 921, 925 (1985). A magistrate is to make a 'practical, common- sense decision whether, given all the circumstances set forth in the affidavit before him, including the "veracity" and "basis of knowledge" of persons supplying the hearsay determination, there is a fair probability that contraband or evidence of a crime will be found in a particular place.'" Commonwealth v. Jones, 542 Pa. 418, 424, 668 A.2d 114, 116-17 (1995), quoting Con~]~onwealth v. Gray, 509 Pa. 476, 484, 503 A.2d 921, 925 (1985). Probable cause is based on a finding of the probability of, not on a prima facie showing of, criminal activity, and a reviewing court is to give deference to an issuing authority's finding of probable cause.~ Further, "[t]he propriety of the grant of a search warrant to an affiant must be judged solely upon the information before the district justice- at the time of its issuance.''~2 "The magistrate's decision must be based on the four ~ Commonwealth v. Baker, 532 Pa. 121, 126, 615 A.2d 23, 25 (1992) . ~2 Commonwealth v. Wilkinson, 436 Pa. Super. 233, 238, 647 A.2d 583, 586 (1994). 10 97-1441 CRIMINAL corners of the affidavit in support of the issuance of the warrant ,! 13 Probable cause for warrant at issue. In the present case, the predicate for the search warrant at issue included six primary factors: the information provided to police by a named attorney; the information provided to police by a named resident; the information provided to police by an anonymous caller; the information provided to police that Defendant was seen running from the scene of the crime with a handgun; the comments made by the Defendant on the night of the shooting; and Defendant's motive for the shooting. As a suppression court is to give deference to the issuing authority's finding of probable cause where possible, and as we believe the facts recited in the probable cause affidavit in the present case, when considered in their totality, supported a reasonable belief that evidence of a crime would be found in the requested search, this court is unable to agree with Defendant that the issuance of the warrant was not supported by probable cause. Execution of the Search W~rra~t Pennsylvania Rule of Criminal Procedure 2007 provides that: (a) A law enforcement officer executing a search warrant shall, before entry, give, or make reasonable effort to give, notice of his identity, authority and purpose to any occupant of the premises specified in the warrant, unless exigent circumstances require his Id. 11 97-1441 CRIMINAL immediate forcible entry. (b) Such officer shall await a response for a reasonable period of time after his announcement of identity, authority and purpose, unless exigent circumstances require his immediate forcible entry. (c) If the officer is not admitted after such reasonable period, he may forcibly enter the premises and may use as much physical force to effect entry therein as is necessary to execute the search. At a suppression hearing, the Commonwealth bears the burden of establishing, by a preponderance of the evidence, that the search or seizure of the evidence satisfies the mandates of Rule 2007. See Commonwealth v. Davis, 407 Pa~ Super. 415, 427, 595 A.2d 1216, 1222 (1991). See also Commonwealth v. Parsons, 391 Pa. Super. 273, 570 A.2d 1328 (1990). "In evaluating a claim that Rule 2007 has been violated, the first step is to consider whether the law enforcement officers provided notice to the occupants of the premises to be searched." Commonwealth v. Davis, 407 Pa. Super. 415, 427, 595 A.2d 1216, 1223 (1991). The Davis Court went on to state that the passage of time is one of the factors to be weighed, along with whether the entry occurred peaceably and without injury to person or damage to property. See id. A violation of the rule "does not ipso facto necessitate a finding that the evidence seized must be suppressed." Id. (Emphasis in original.). Where "the manner and method of entry by the police 12 97-1441 CRIMINAL was made without injury to persons or Property, ... the purpose of Rule 2007 in preventing violence to persons and damage to property [is] fulfilled." Id. Here, the police knocked more than once while announcing their identity, authority and purpose. Only after an occupant of the house, in response to such conduct, opened the door, did police enter the house. While entering, the officers again announced themselves. No injury to person or damage to property occurred during the execution of the search warrant. The evidence presented at the hearing by the Commonwealth was, in the Court's opinion, sufficient to establish that the procedures utilized in executing the search warrant were consistent with the letter and spirit of Rule'2007. Police Ouestioning Concerning the Drug Offenses During the Polygraph Examination after the Defendant's Sixth Amendment Riaht to Counsel Had Attached Under the Sixth and Fourteenth Amendments to the United States Constitution, a defendant has a right to counsel upon being formally charged with a particular crime. See Commonwealth v. Santiago, 528 Pa. 516, 521, 599 A.2d 200, 202 (1991) (reviewing the United States Supreme Court's discussion of the distinctions between the Fifth and Sixth Amendment rights to counsel in McNeil v. Wisconsin, U.S. ., 111 S. Ct. 2204, 115 L. Ed. 2d 158 13 97-1441 CRIMINAL [1991[]. The Santiago court went on to relate that the McNeil court stated that "the Sixth Amendment right to counsel was 'offense-specific, whereas the Fifth Amendment right was 'non- offense-specific.,,, Commonwealth v. Santiago, 528 Pa. 516, 522, 599 A.2d 200, 202 (1991). Accordingly, when the Sixth Amendment right to counsel attaches to one offense, it does not bar police from interrogating an individual concerning another crime. See id. See also In re Pack, 420 Pa. Super. 347, 355, 616 A.2d 1006, 1010 (1992) (stating that "[o]nce charges are initiated against a suspect, however, his Sixth Amendment right to counsel attaches and he may not be interrogated regarding the offenses for which he is charged. However, the defendant may be interrogated regarding unrelated offenses, unless he has invoked his Fifth Amendment right to counsel [in relation to the unrelated matter]"). Here, the Defendant agreed to undergo a polygraph examination regarding the shooting incident of July 12, 1997. The Defendant's belief that the polygraph was to concern only the shooting incident is clear from the waiver which he executed on the day of the polygraph. In response to the first question, which inquired as to whether the Defendant was aware of the charges he was accused of, Defendant crossed out "accused" and substituted the word "suspected." The crime Defendant believed he was "suspected" of committing was "attempted murder." Nor can it be said that Defendant initiated or invited 14 97-1441 CRIMINAL questions about the drug charges. During the initial questioning by Sergeant Guido, Defendant agreed to undergo a polygraph concerning the shooting incident/attempted murder. Moments before the beginning of the polygraph examination, Defendant made it clear on his waiver form that he expected to be questioned concerning the shooting incident/attempted murder. As Defendant's Sixth Amendment right to counsel attached as of the preliminary arraignment before District Justice Correal, and as this right was not waived by Defendant's submission to take a polygraph examination concerning another incident, the questioning of the Defendant concerning the drug charges would appear, at least on the surface, to have been in violation of the Defendant's right to counsel under the Sixth and Fourteenth Amendments to the United States Constitution. The Commonwealth, however, suggests that the questions did not constitute interrogation on the drug charges but rather comprised a survey of background information designed to ensure the reliability of the polygraph examination. In this regard, the polygraph examiner testified that he routinely asked examinees whether they had used controlled substances within 24 hours preceding the examination. In the present case, the polygraph examination was conducted on a Monday and the Defendant had been imprisoned since the previous Friday. Under these circumstances, the court is unable to find that the Commonwealth has met its burden of showing that 15 97-1441 CRIMINAL ~uestions as to ownership of drugs found in Defendant's residence the previous Friday, ownership and sources of money found at that time, and the purpose for which the drugs were possessed were sufficiently related to the integrity of the polygraph examination as to be fairly excluded from operation of the general rule against interrogation of an uncounselled person about a crime as to which the right to counsel has attached and counsel has been appointed, where counsel is not present and no effective waiver can be found. For these reasons, the following order will be entered: ORDER OF COURT AND NOW, this 6th day of March, 1998, upon careful consideration of Defendant,s Omnibus Pretrial Motion, the briefs submitted in this matter, and the hearings held on this matter, Defendant's motion is granted in part and denied in part. Defendant's motion to suppress physical evidence obtained pursuant to the execution of a search warrant for 128 West Penn Street is denied. Defendant's motion to suppress statements made to police during the polygraph examination on July 21, 1997 is granted. BY THE COURT, /S/ J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. 16