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HomeMy WebLinkAboutCP-21-CR-200-2004COMMONWEALTH : IN THE COURT OF COMMON PLEAS : OF CUMBERLAND COUNTY, :PENNSYLVANIA : CP-21-CR-200-2004 :CHARGE(S): (1) UNLAWFUL DELIVERY OR MANUFACTURE OR POSSESSION WITH INTENT TO DELIVER A SCHEDULE II CONTROLLED SUBSTANCE-2cts (2) UNLAWFUL POSSESSION OF DRUG PARAPHERNALIA : CP-21-CR-198-2004 :CHARGE(S): (1) FORGERY (2) FALSE SWEARING (3) UNLAWFUL FALISFICATION TO AUTHORITIES (4) DRIVING WHILE SUSPENDED TERRI A. SWARTZ : AFFIANT: OFFICER T. WISER IN RE: OMNIBUS PRE-TRIAL MOTION TO SUPRESS Before HOFFER, P.J. H offer, P. J.: This matter is before the Court on Defendant's Omnibus Pre-trial Motion to suppress in which she argues that evidence was obtained during a search made with an insufficient warrant, which was partly based on an illegal search by her probation officers. She also argues that police did not have probable cause to justify a traffic stop because the information relied on was not updated at the time of the stop. A suppression hearing was held on June 28 and 30, 2004. For reasons set forth in this opinion, the Motion is DENIED. STATEMENT OF FACTS Between November 1,2002 and December 19, 2003, Defendant Swartz was on probation in Cumberland County after she pled guilty to a DUI charge. Her signed probation agreement acknowledged that officers could conduct warrantless searches of her person and property. ( See Conditions of Probation.) In the fall of 2003, Officer Wiser received information from a confidential informant that the Defendant was driving on a suspended license. (N.T. 18.)4 Officer Wiser checked the Defendant's driving status on November 17, 2003, and determined that her operating privileges were in fact suspended until 2004. (N.T. 4-5.) He also obtained her photograph on J-Net. (N.T. 6.) On December 19, 2003, Officer Wiser observed the Defendant driving a vehicle on a public highway. (Id.) Based on his belief that she was driving with a suspended license, he initiated a traffic stop. (Id.) When asked for her license and registration, the Defendant answered that she did not have her license with her, and gave her name as "Lynn Becker." (N.T. 7.) Although she provided Ms. Becker's birth date and address, she had no identification. (N.T. 8.) Although he believed that the driver was "Terri Swartz," Officer Wiser checked Ms. Becker's information from his patrol car. (Id.) He noted that the Defendant had a different eye color and height than that of Ms. Becker. (Id.) Upon returning to the Defendant's vehicle, he observed her on a cell phone writing numbers on a tablet. (Id.) She then provided him with Ms. Becker's ~ Suppression Hearing Transcript, June 28 and 30, 2004 2 social security and license number. (Id.) At that point, he informed her that he knew that she was "Terri Swartz," and arrested her for giving him false identification. (N.T. 9.) The Defendant then finally admitted her identity and that she knew her license was suspended. (N.T. 10.) At the booking center, her probation officer, Brian Pomian, identified her as his parolee and filed a detainer based on her arrest. (N.T. 58.) Officer Wiser advised him that he had heard through confidential informants that she was involved in drug dealing. (N.T. 61.) Officer Pomian reviewed the Defendant's file and determined that she had violated the terms of her parole by moving without informing him. (N.T. 62.) While briefing his supervisors about the Defendant's arrest, another probation officer, Phil Baughman, informed them that parolees under his supervision had told him that the Defendant was selling drugs. (Id.) The supervisors then authorized a search of the Defendant's residence in order to ascertain if she had violated her parole. (N.T. 63.) When the Defendant was unable to turn over a key to her apartment, Officer Baughman asked Officer Wiser if he knew the landlord and if it would be possible to secure a key from him. (N.T. 73.) Officer Wiser was able to get a key from the landlord. (Id.) At that point, Officers Pomian and Baughman, accompanied by Officer Wiser to increase their number and help them safely secure the premises, went to the Defendant's apartment. (N.T. 65.) During the protective sweep, Officer Wiser noticed some contraband in plain view. (N.T. 41 .) Officers Pomian and Baughman then proceeded to search for probation violations. (N.T. 68.) They found several items which were consistent with drugs and drug paraphernalia, and then advised Officer Wiser of their findings. (Id.) Officer Wiser then obtained a search warrant based in part on the findings of the probation officers. (N.T. 39; Affadavit of Probable Cause.) DISCUSSION The Defendant argues that Officer Pomian and Baughman were acting as agents of the police when they conducted the warrantless search. Therefore, the evidence obtained there may not be included a search warrant, and consequently the warrant fails on its four corners. Although the Defendant was correct in asserting that a parolee/probationer retains the same constitutional protection against unreasonable searches that the average citizen enjoys, she failed to recognize that a parolee must still abide by the conditions of parole, one of which may be consent to a reasonable search. As such, the court has consistently held that a parole/probation officer may search a parolee/probationer's residence if: 1) reasonable suspicion exists to suspect a violation of parole; 2) the search is reasonably related to the officer's duty. See e.g. 61 Pa.C.S.A. § 331.27(a) (2004); Commonwealth v. Williams, 692 A.2d 1031, 1036 (Pa. 1997). In Commonwealth v. Altadonna, 817 A.2d 1145 (Pa. Super. Ct. 2003), the court found that parole officers did not become "stalking horses" or agents of the police when a BNI agent (Bureau of Narcotics Investigation) was contacted 4 to accompany the parole officers for back-up on a parole violation investigation. Id. at 1147. In that case, the parole officers received information from another parolee that the defendant was dealing drugs. Id. at 1147. In accordance with policy, the parole supervisor was advised and asked a BNI agent to accompany the parole officers. Id~ A controlled "buy" was set up, and the defendant's vehicle was searched by the parole officers after the "buyer" attempted to run. Id. Although the defendant argued that the parole officers impermissibly went beyond the scope of their duty by having a BNI agent present, the court found that the purpose of the search was to determine if the defendant violated his parole, not to investigate crime. Id. at 1151. Therefore, the parole officers had the requisite reasonable suspicion based on an informant's tip, and were not agents of the BNI because their actions were consistent with office policy at the time of the search. Id. at 1150. In the instant case, the Defendant had consented to reasonable warrantless searches and her probation officers had reasonable suspicion that she was violating her probation by possessing drugs. Similar to the parole officers in Altadonna, they received information from the police and another parolee that the Defendant was dealing drugs. In addition, they acted consistently with office policy by advising their supervisors of new developments and by seeking back-up from Officer Wiser. Based on the new arrest, the informants' tips, and her prior history with drugs, a search for more parole violations was authorized. (N.T. 63.) Although Officer Wiser did accompany them, he did not participate in the probation search, but merely assisted them in safely securing the premises. (N.T. 68.) Furthermore, there is no evidence that the police asked the probation office to conduct a search. Because Officers Pomian and Baughman acted solely in their capacity as probation officers, the information found during the search was properly used in the search warrant. The Defendant also argues that the traffic stop made by Officer Wiser was invalid because it was based on "stale" information that the Defendant was driving with a suspended license. She relies on dicta from Commonwealth v. Stevenson, 832 A.2d 1123 (Pa. Super. Ct. 2003), for her assertion. However, this argument is without merit because Stevenson is distinguished from the case at bar. Officer Wiser had checked the Defendant's driving record one month earlier which revealed a suspended license until 2004, while the officer in Stevenson based the stop on a single encounter three years prior and did not reveal how he knew the defendant's license was suspended. Id~ at 1130. The driving record, along with the photo of the Defendant, gave Officer Wiser "articulable and reasonable grounds" to suspect that the driver was "Terri Swartz" and that she was driving illegally. COMMONWEALTH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CP-21-CR-200-2004 CP-21-CR-198-2004 TERRI A. SWARTZ ORDER OF COURT AND NOW, this day of _, 2004, upon consideration of the Defendant's Omnibus Motion to suppress, briefs submitted by both parties, and after a hearing was held on the issues, it is hereby ORDERED that said Motion is DENIED By the Court, Jonathan Birbeck, Esquire District Attorney's Office One Courthouse Square Carlisle, PA 17013 Chief Deputy District Attorney George E. Hoffer, P.J. Karl. E. Rominger, Esquire 155 S. Hanover Street Carlisle, PA 17013 (717)241-6070 Attorney for Defendant 7