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HomeMy WebLinkAbout01-2085 CriminalCOMMONWEALTH V. ESCO WILSON IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2001-2085 CRIMINAL IN RE: MOTION TO SUPPRESS EVIDENCE BEFORE GUIDO, J. OPINION AND ORDER OF COURT On September 16, 2001, at about 9:20 a.m. Trooper Brian Overcash was on patrol along the Pennsylvania Turnpike in Cumberland County. Using hand-held radar, he clocked the defendant's vehicle traveling 78 miles per hour in a posted 65 miles per hour speed zone. This resulted in the traffic stop which gave rise to these charges and the instant motion to suppress evidence. The vehicle was occupied by the defendant driver and two female passengers. The defendant produced his license, vehicle registration and a rental agreement. The trooper took the documents to his patrol car in order to check them and to prepare a citation. ~ The vehicle was registered in New Jersey and the rental agreement was with an agency located in Trenton. All of the documents were in order, except for the rental agreement which indicated that the car was to have been returned on August 17, 2001.2 The defendant did not get out of his car to this point. It should be noted that the agreement clearly indicated the following additional information: · Defendant took possession of the vehicle on August 7, 2001. · He used a credit card to secure the payment of charges. · It listed charges for daily, weekly, and monthly rentals. · The "amount due" block was left blank. · The phone number of the rental agency. NO. 2001-2085 CRIMINAL TERM The trooper ran a computer check to see if the vehicle had been reported stolen. not. It had Trooper Overcash returned to the defendant's vehicle to give him the citation. At this point he directed the defendant to get out of the car and to proceed to the area between the rear of his vehicle and the front of the trooper's patrol car. This particular procedure was used so that the trooper could question the defendant about matters unrelated to the citation.3 After giving the defendant a copy of the citation and returning his documents, the trooper told him that he was free to leave. However, he immediately began to question him.4 The first question the trooper asked dealt with the return date on the rental agreement. The defendant explained that he normally rents the vehicle for a month at a time. The trooper then inquired as to his line of work and his destination. The defendant responded that he sold master compact discs to music stores and was heading to Pittsburgh. He offered to show the trooper the discs. However, Trooper Overcash did not immediately respond to the offer. Instead, he went to the side of defendant's car to speak with the passengers. The women indicated that they were on their way to Virginia. The trooper described what happened next: I then walked back to Mr. Wilson, and I asked him basically what was going on. He was a little nervous. He asked me what I meant. I said, The following exchange took place between the court and the trooper: Q. Why did you get him out of the car to issue the citation? Is that your normal procedure? A. Well, I wanted to ask Mr. Wilson about the rental agreement, and, additionally, I was going to ask him where he was traveling to. Notes of Testimony, p. 32. 4 The trooper explained: I issued the traffic citation to Mr. Wilson outside the vehicle. Upon issuing the citation, I advised him he was free to leave. He took a few steps towards his vehicle, and then I asked him a question about the rental agreement being expired, and he responded. Notes of Testimony, p. 10. NO. 2001-2085 CRIMINAL TERM well, they said they're going to Virginia. You told me you were going to Pittsburgh. He responded that he didn't tell them where he was taking them; however, nothing unusual was going on. I found that a little suspicious that he wouldn't tell them that he was, in fact, going to Pittsburgh and they assumed that they were going to Virginia. He again told me that he wanted me to - - to show me his disks, to show that that was, in fact, what he was doing. At that point, I had requested another patrol vehicle to assist me at the location. THE COURT: Excuse me. You stopped, went to your car and requested - - THE WITNESS: Yes, I walked back to the vehicle and requested another patrol. 5 After he requested back up, the trooper accepted the defendant's offer to examine his compact discs. As defendant was retrieving the discs from the trunk of his vehicle, the trooper noticed two (2) bags. He determined that one belonged to the passengers. He asked them if there was anything illegal in it. They said no. He obtained permission to search it and found clothing. The trooper then explained how he found the cocaine: There was a bag to the left of the red bag, green in color. Mr. Wilson related that that bag was his and that it also contained clothing. I then asked him ifI could examine the contents of that bag. He responded, go ahead. I unzipped the bag. Immediately upon putting my hand in it, I detected a large brick, which turned out to be cocaine that I removed from the bag. I looked over at Mr. Wilson. At that point, he had turned around and actually put his hands behind his back 6 prior to me even asking him to do so. The defendant was taken into custody and eventually made statements implicating himself and exonerating his passengers. The defendant has filed a motion to suppress the cocaine as well as the statements made subsequent to his arrest. For the reasons hereinafter set forth, we feel that the Supreme Court's recent decision in Commonwealth v. Freeman 563 Pa. 82 757 A.2d 903, Notes of Testimony, pp. 11 - 12. NO. 2001-2085 CRIMINAL TERM (2000) requires us to grant the motion· The instant case is factually indistinguishable from Freeman. The relevant facts in Freeman were summarized by the Supreme Court as follows: (A) Pennsylvania State Police trooper was observing westbound traffic on Interstate 80 in Monroe County when he noticed two vehicles traveling fairly close together, switching lanes and jockeying for position in "cat and mouse" fashion. The trooper proceeded to stop one of the vehicles, which was driven by Appellant Diana Freeman ("Freeman"), while another officer stopped the second vehicle .... When the trooper asked Freeman if she was lost or having a problem with the other driver, she explained that she had entered the wrong lane.., she also denied traveling with the other vehicle. The trooper requested Freeman's driver's license and registration cared and then returned to his patrol car, which was parked behind Freeman's vehicle, to conduct a radio check on the documents. There he learned from the other trooper that the occupants of the other vehicle contradicted Freeman by stating that the two vehicles were traveling together and further explained that they were following Freeman' s car because it was having some type of engine problem. Returning to Freeman's car, the trooper gave Freeman a written warning. ·. returned her license and registration card, and informed her that she was free to leave. The trooper then went back to his patrol car, and Freeman' s vehicle remained parked in its then-present location. While the trooper who had stopped the occupants of the other car continued to question them, the trooper who had stopped Freeman returned to her vehicle and again asked whether Freeman was traveling with the second car. When she replied that she was not, the trooper informed her that the occupants of the second car had said otherwise and asked her to get out of the vehicle. Freeman did so, walking to the rear of the car. At this point, the trooper asked Freeman for consent to search her vehicle, which Freeman granted. 757 A.2d at 904, 905. The Freeman Court went on to articulate the analysis to be employed in these types of cases. As the Court noted: In the companion case of Commonwealth v. Strickler, Pa. __, 757 A.2d 884 (2000), we set forth the requirements for a valid consensual search incident to a traffic stop, indicating that the central Fourth Amendment inquiries in consent cases entail assessment of the constitutional validity of the citizen-police encounter giving rise to the 6 Notes of Testimony, p. 14. NO. 2001-2085 CRIMINAL TERM consent, and, ultimately, the voluntariness of consent. Where the encounter is a valid one, voluntariness becomes the sole focus; where, however, an illegal seizure precedes the consent search, the Commonwealth must also establish a break in the causal connection between the illegality and the evidence thereby obtained. See id. at __, 757 A.2d at 888. The determination whether a seizure has been effected in the first instance is made upon an examination of the totality of the circumstances to determine whether a reasonable person would feel free to leave .... In general, a full examination must be undertaken of all coercive aspects of the police/citizen interaction. See id. at ___, 757 A2d at 889. 757 A.2d at 906-907 (emphasis added). The police-citizen encounter in Freeman, as in the instant case, began with a lawful traffic stop. Likewise, in each case the trooper "articulated a clear endpoint to the lawful detention". 757 A.2d at 907. The Freeman court, however, found that a second seizure had occurred. As the Court noted: The transition to and character of the subsequent interaction, however, supports the conclusion that Freeman was subject to a second seizure. Since the trooper had accomplished the purpose of the stop, as he expressly indicated, Freeman would have been entirely within her rights to drive away at that point. Nevertheless, the trooper's subsequent actions were inconsistent with his statement to Freeman that she was free to leave, as he: returned to Freeman's vehicle; questioned her about the second vehicle; pointed out the inconsistent statements from the vehicle's occupants when she denied traveling with that vehicle; and, ultimately and most significantly, asked her to step out of the vehicle prior to the request for consent .... Moreover, given everything that had come before, although these events occurred after express conferral of advice that Freeman was free to depart, they would have suggested to a reasonable person that such advice was no longer operative. 757 A.2d at 907 - 908. Applying the above analysis to the instant case, we must conclude that the defendant was also subject to a seizure at the time his consent to search was given. While he was told that he was free to leave, the trooper's actions belied his words. He immediately began to question the defendant regarding the rental agreement, his NO. 2001-2085 CRIMINAL TERM employment and his destination. The trooper was obviously in control of the scene as he proceeded to question the passengers. After interviewing the passengers, he confronted the defendant with the inconsistencies in their stories and he called for back-up. Under these circumstances, no reasonable person would have felt free to leave. Having concluded that defendant was subject to a seizure at the time the consent to search was given, we must now determine whether the seizure was lawful. "To constitute a valid investigative detention, the seizure must be justified by an articulable, reasonable suspicion that (defendant) may have been engaged in criminal activity independent of that supporting (the) initial lawful detention." Commonwealth v. Freeman, 757 A.2d at 908. In the present case, the only facts of record indicating that the trooper possessed a reasonable suspicion of criminal activity were the inconsistent destinations given by the defendant and his passengers. In analyzing similar circumstances in the Freeman case, the Supreme Court stated: Moreover, even if Freeman's answer to the trooper's question, contradicting as it did the information given by the occupants of the other car, could arguably be viewed as evasive behavior.., such behavior was unaccompanied by any other indication of criminal activity .... The noted inconsistency may give rise to "an 'inchoate and unparticularized suspicion or "hunch" ' of criminal activity," l/Vardlow, 528 U.S. at ,120 S.Ct. at 676 (quoting Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 1883, 20 L.Ed.2d 889 (1968)), but not to a reasonable suspicion of the same. 757 A.2d at 908 (emphasis added). In view of the above, we must, therefore, conclude that the defendant had been seized without the requisite reasonable suspicion of criminal activity necessary for a valid investigative detention. NO. 2001-2085 CRIMINAL TERM Having determined that the defendant was subject to an unlawful detention, we must finally examine whether his consent to search was the product of that unlawful detention. Again, we look to Freeman for guidance. (T)he detention that preceded Freeman's consent to search was unlawful, and Freeman's consent, even if voluntarily given, will not justify the otherwise illegal search unless the Commonwealth can demonstrate that Freeman's consent was an "independent act of free will" and not "the product of the illegal detention."... In this regard, we deem three factors relevant to this inquiry: the temporal proximity of the detention and the consent, any intervening circumstances, and, particularly, the purpose and flagrancy of the officer's unlawful conduct. Here, although we do not view the trooper's actions as flagrant, the record does not establish the necessary break in the sequence of events that would isolate Freeman's consent from the prior coercive interaction. To the contrary, the evidence supports the conclusion that the trooper's initiation of a second seizure and receipt of Freeman's consent were integrally connected. As Freeman's consent was invalid, the fruits of its conferral must be suppressed. 757 A.2d at 909 (citations omitted). The above analysis is equally applicable to the case at bar. Therefore, we have no alternative but to suppress all evidence obtained as a result of the invalid consent to search, including the cocaine, and the post arrest statements obtained from the defendant. ORDER OF COURT AND NOW, this day of JUNE, 2002, the defendant's Motion to Suppress is GRANTED. The Commonwealth is precluded from introducing any evidence obtained as a result of the consent to search given by the defendant, including the cocaine and all post-arrest statements obtained from the defendant. NO. 2001-2085 CRIMINAL TERM By the Court, /s/Edward E. Guido Edward E. Guido, J. Edmund Zigmund, Esquire For the Commonwealth Andrew F. Schneider, Esquire For the Defendant