Loading...
HomeMy WebLinkAboutCP-21-CR-732-2008 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : vs. : CP-21-CR-0732-2008 : : RUDOLPH M. NICHOLSON : IN RE: OPINION PURSUANT TO RULE 1925 The defendant was convicted by a jury of unlawful possession of a Schedule II controlled substance in the form of cocaine, unlawful possession of a Schedule II controlled substance in the form of oxycodone, and unlawful possession of drug paraphernalia before the Honorable Judge Oler. He has filed an appeal to the Superior Court, wherein he complains of two errors: First, that the court erred in denying his pretrial suppression motion, and; second, that the Commonwealth violated his right to a speedy trial under Pa.R.Crim.P. 600. Judge Oler has written an opinion addressing the defendant’s Rule 600 claim. We now address the suppression issue. On February 7, 2007, the Reading sub-office of the Pennsylvania Board of Probation and Parole issued an arrest warrant for the defendant for leaving the Reading area without authorization and failing to report his whereabouts. (N.T. 10/28/08 23:1-5). In early April 2007, Parole Agent Robert Roland received information from the Reading sub-office that the defendant could be in the nine-county area to which Agent Roland is assigned. (N.T. 10/28 21:13-18). Based upon this information, Agent Roland compiled information on the defendant, including leads, photographs, and other information, and he assembled a small team of agents to execute the arrest warrant. (N.T. 10/28 21:21-22:6). During the warrant sweep that took place on April 10, 2007, Agent Roland received information from another fugitive apprehended by parole CP-21-CR-0732-2008 agents that the defendant was staying in a hotel in Cumberland County, in the Carlisle area. (N.T. 10/28 22: 2-3, 23:13-16, 47:11-20). After checking two hotels with no success, the fugitive task force team proceeded to the Howard Johnson hotel located at 1245 Harrisburg Pike, Carlisle. (N.T. 10/28 23:18-19). Once there, Agent Roland and Detective Jeffrey Kurtz of the Carlisle Police Department spoke with the manager, who located the defendant in a Rolodex of hotel guests and confirmed his identity after seeing a photograph. (N.T. 10/28 23:20-24:1). Outside, the defendant was spotted walking with another individual from the hotel to a vehicle. (N.T. 10/28 24:3-6). Officers blocked the vehicle from exiting and detained the defendant. (N.T. 10/28 24:7-10). The defendant was patted down, and about $390 were recovered off of his person. (N.T. 10/28 33:5-7). While the defendant was detained, Agent Roland verified the validity of the warrant and informed the Reading sub-office that the defendant was in custody. (N.T. 10/28 24:19-25:1). Detective Kurtz proceeded to the door to room 262, knocked, and attempted to initiate a narcotics purchase. (N.T. 10/28 50:12-15). The attempt was unsuccessful, and he then identified himself as a police officer, which caused a great deal of commotion inside the room. (N.T. 10/28 51:13-22). The door was opened, and Detective Kurtz then entered the room to conduct a safety sweep in order to insure that only one person was inside. (N.T. 10/28 52:9-16). The person inside, Ms. Varner, was holding the room until the defendant returned. (N.T. 10/28 51:2-4). Following his phone call to verify the validity of the arrest warrant, Agent Roland returned to the defendant, informed him that the warrant had been verified, and then proceeded to room 262, which was checked out in the defendant’s name. (N.T. 10/28 26:4-7). During the suppression hearing, he indicated that searches of parolees’ residences were done as a matter of 2 CP-21-CR-0732-2008 course under these circumstances, in order to recover and safeguard their property. (N.T. 10/28 45:5-25). Outside was Detective Kurtz, who informed Agent Roland about the fact that Ms. Varner was holding the room for the defendant and that she had a crack pipe on her person. (N.T. 10/28 34:21-35:16, 51:2-4). Agent Roland entered the room and immediately saw small plastic bags and a razor blade sitting on the desk inside the door. (N.T. 10/28 24:8-12). After spotting these items together, he performed a “quick search” of the rest of the room and located some of the defendant’s mail, clothing, and other belongings, along with an electronic scale. (N.T. 10/28 24:13-18). After locating the scale, Agent Roland suspected that contraband was present in the room, and he located a safe inside the bathroom. (N.T. 10/28 24:19-24). The bathroom door was open. (N.T. 10/28 24:25-25:3). Agent Roland asked the defendant for the combination to the safe, to which the defendant replied that the safe was broken and the hotel manager’s assistance would be necessary to open it. (N.T. 10/28 27:12-23). Instead of walking to the manager’s office and seeking his help, Agent Roland decided to use the defendant’s birth date, May 31, as the combination to the safe. (N.T. 10/28 27:24-28:4). Upon entering “0531,” the safe door opened, revealing what Agent Roland suspected were narcotics. (N.T. 10/28 28:2-10). In this appeal, the defendant has challenged the court’s denial of his motion to suppress evidence seized from his hotel room on April 10, 2007. It is axiomatic that parole agents need only demonstrate reasonable suspicion in order to search a parolee’s person or property. 61 P.S. § 331.27a(d)(1), (d)(2) (replaced by 61 Pa.C.S.A. § 6153 as of October 13, 2009); see also, Commonwealth v. Curry, 900 A.2d 390, 394 (Pa.Super. 2006) (“Because the very assumption of 3 CP-21-CR-0732-2008 the institution of parole is that the parolee is more likely than the ordinary citizen to violate the law, the agents need not have probable cause to search a parolee or his property; instead, reasonable suspicion is sufficient to authorize a search. Essentially, parolees agree to endure warrantless searches based only on reasonable suspicion in exchange for their early release from prison.”) (internal citations and quotation marks omitted). Thus, in the case of the search of a parolee’s person or property, “A search will be deemed reasonable if the totality of the evidence demonstrates: (1) that the parole officer had a reasonable suspicion that the parolee had committed a parole violation, and (2) that the search was reasonably related to the parole officer's duty.” Commonwealth v. Williams, 547 Pa. 577, 588, 692 A.2d 1031, 1036 (1997). Turning to the facts of this case, the evidence presented by the Commonwealth satisfied both prongs of the Williams inquiry. Agent Roland was at the Howard Johnson Hotel for the very purpose of finding the defendant, a parole absconder who was not living at an approved residence. This was based on a tip from an informant that the defendant was residing at a hotel in the immediate area. The defendant’s residing at an unapproved residence is a violation of the terms and conditions of his parole, which on its own suffices in justifying the search of room 262, his unapproved residence for the purpose of securing additional evidence of his residing there. It should also be noted that room 262 fits squarely within the definition of property which Parole Board agents are authorized to search, being property “in the possession of or under the control of the offender.” Former 61 P.S. § 331.27a(d)(2); see also, Commonwealth v. Edwards, 874 A.2d 1192, 1199-1200 (Pa.Super. 2005) (Gantman, dissenting). In addition, the recovery of a large sum of money from the defendant’s person and the seizure of a crack pipe from a woman leaving the defendant’s hotel room were suggestive to Agent Roland that the defendant might 4 CP-21-CR-0732-2008 have drugs and/or drug paraphernalia inside the room. See former 61 P.S. § 331.27a(d)(6)(v), (d)(6)(vi) (listing agents’ parolee-specific and general experience as factors to consider in determining whether reasonable suspicion justifying a search exists). Once inside, Agent Roland saw plastic bags, razor blades, and an electronic scale laying on a table in plain view. This sighting alerted him to the distinct possibility that drugs and/or weapons were hidden somewhere in the room. In short, spotting drug paraphernalia in plain view gave Agent Roland a basis, that far exceeded reasonable suspicion, to justify his warrantless opening of the safe inside the bathroom. Further, attempting to open the safe has a direct, rational relationship to the object of his search, drugs and/or weapons, as these valuable items would likely not be left out in the open. On that basis, we denied the defendant’s suppression motion. August 12, 2010 _______________________________ Kevin A. Hess, P.J. Matthew P. Smith, Esquire Chief Deputy District Attorney Taylor P. Andrews, Esquire Chief Public Defender :rlm 5