HomeMy WebLinkAboutCP-21-CR-0001881-2010COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CHARGES: (1) UNLAWFL. POSS. WITH INTENT
V. TO DELIVER SCHED. I CONT. SUB.
(2) UNLAWFL. POSS. OF SCHED. I
CONT. SUB.
(3) UNLAWFL. POSS. OF DRUG PARAPH.
DARRELL BLAKE
OTN: L559989-3 : CP -21 -CR -1881-2010
IN RE: DEFENDANT'S OMNIBUS PRETRIAL MOTION
OLER, J., March 8, 2011.
In this criminal case which began with a traffic stop of a car being driven by
Defendant and owned by a passenger, Defendant was ultimately charged with unlawful
possession with intent to deliver a Schedule I Controlled Substance (heroin), simple
possession of a Schedule I Controlled Substance (heroin), and unlawful possession of
drug paraphernalia.' For disposition at this time is an omnibus pretrial motion filed by
Defendant in the form of a motion to suppress.2
Defendant's motion seeks to suppress physical evidence contained in two small
plastic bags in the vehicle on the grounds that
A. The Defendant and the owner were unlawfully detained by the police
authorities at the time the consent was extracted for the search.
B. Consent to search the vehicle was coerced from the owner of the vehicle by
threats of further delays.
C. Bags used by the Defendant were searched without the Defendant's consent
and without probable cause or exigent circumstances to excuse the securing of a search
warrant .3
The motion seeks to suppress statements made by Defendant on the basis of the
following assertions:
' Information, filed September 8, 2010.
2 Defendant's Omnibus Pre -Trial Motion To Suppress, filed October 6, 2010.
3 Defendant's Omnibus Pre -Trial Motion To Suppress, ¶¶(A) — (C), filed October 6, 2010.
9. While the Defendant was unlawfully detained, he was questioned by the police
authorities.
10. The Defendant made statements without making a knowing and intelligent
waiver of his constitutional rights to remain silent and to be represented by an attorney.
11. Five hours after the stop, the State Police purported to obtain a Miranda
waiver from the Defendant, but it was invalid as tainted by the unlawful detention and by
the unlawfully seized physical evidence.4
A hearing was held on Defendant's omnibus pretrial motion on January 4, 2011.
For the reasons stated in this opinion, the motion to suppress will be granted.
STATEMENT OF FACTS
On Wednesday, May 19, 2010, at 12:54 a.m., a Pennsylvania State Trooper who
was conducting a "criminal interdiction detail„5 on the Pennsylvania Turnpike in West
Pennsboro Township, Cumberland County, Pennsylvania, observed a Mercury Monterey
"SUV” with an un -illuminated rear license plate traveling west, proceeded to follow the
vehicle and clocked its speed at 72 miles per hour in a 65 mile -per -hour zone, and pulled
it over at the site of a state police facility.6 The expressed basis for the stop was the
equipment violation and excess speed .7
Defendant, a New York resident, was the driver of the vehicle, and its owner was
a male passenger who resided in western Pennsylvania.8 Both had valid driver's licenses.9
Defendant had five prior drug arrests in New York, including two felony possessions
with intent to deliver. 10 The owner of the vehicle had a criminal history in six states, with
4 Defendant's Omnibus Pre -Trial Motion To Suppress, ¶¶9 — 11, filed October 6, 2010
s Notes of Testimony, 8, Suppression Hearing, January 4, 2011 (hereinafter N.T. __). According to the
trooper, a "criminal interdiction detail" was "comprised of observing any violation of the Vehicle Code,
whether it is speeding, not using a turn signal or an equipment violation. Any violation that is observed.
The idea is to make a lot of traffic stops and in search of criminal activity." N.T. 36.
6 N.T. 8-9.
N.T. 37.
s N.T. 12. Initially, the trooper had not been aware of the presence of a second occupant of the vehicle,
who seemed to "pop[] up" in the front passenger's seat when he approached. N.T. 10. This discovery of
the passenger did not in itself, however, suggest to the trooper "any criminal activity besides the traffic
violations." N.T. 38.
9 N.T. 13.
10 N.T. 14-15
2
three prior drug arrests." As the trooper had discovered on a traffic stop of the vehicle on
the turnpike several weeks prior to this one, the owner was also wanted in Georgia, but
not to the extent that Georgia was willing to subject him to extradition. 12
At this point, the trooper had become suspicious that other criminal activity was
afoot, was concerned for his own safety, and called for backup. He described his mental
process as follows:
Q So now that you knew that they had prior drug histories, did you call for
any type of backup?
A Yes.
Q Why did you do that?
A I called Corporal [Manuel] Deleon to back me up because I was dealing
with two people in a vehicle traveling on the Pennsylvania Turnpike at approximately
1:00 in the morning that are both well familiar with the criminal justice system, as I
earlier testified, with several prior drug arrests.
Knowing—based upon my training and experience and prior knowledge, it is
common for people to traverse the Pennsylvania Turnpike during late hours at night to
remain undetected. I also had a concern for my officer safety based upon I'm along and
there are two of them and one driver, or one person, Blake, is from the State of New
York, and they are going westbound on the Turnpike toward [the owner's] residence in
western Pennsylvania.
I know from the area of where [Defendant] was from that it is a known origin for
narcotics, and obviously western Pennsylvania, such as Pittsburgh, are destination cities
for narcotics to be driven back to from such states as New York. 13
Corporal Deleon arrived on the scene about 25 minutes after the commencement
of Defendant's detention. 14 The continuation of the detention of Defendant and the
passenger was described by the trooper as follows:
Q And what did you explain to [Corporal Deleon]?
A I explained to Corporal Deleon upon his arrival that I was dealing with
two males, one was from New York, one was from outside of Pittsburgh, and they both
had extensive criminal histories, to include drug offenses.
Q So did you decide to interview these two individuals?
A Yes.
11 N.T. 14.
12 N.T. 13. Defendant was not present on that occasion. See N.T. 11.
13 N.T. 15.
14 N.T. 16.
3
Q Did you do it together or separately?
A We did it separately."
Defendant was removed from the vehicle by the trooper with a view to giving him
a written warning for the violations observed, but "also just to speak with him about their
travel." 16 During this phase of the detention, he was patted downs? and subjected to
detailed questioning as to the purpose of his trip, circumstances of its arrangement, time
of departure, schedule for return, etc." The owner of the vehicle was simultaneously
questioned by the corporal while remaining in the passenger's seat. 19
Defendant's responses to the questions being put to him were recounted by the
trooper as follows:
A ... As I was writing him a written warning for the violations, I asked
him where they were coming from. He stated that they were coming from New York, and
that they were headed back to [the owner's] residence in Uniontown, Pennsylvania,
which is outside of Pittsburgh.
I asked him when, in fact, they left New York, and he said that they left
at about 7:30, 8:00 p.m. the night before. I asked when did [the owner] contact him. He
said that he was going to come pick him up, because he earlier stated that they were
cousins. He stated that he contacted him on Sunday, and that he was in New York for
several days visiting family. I asked him—
Q Wait. Who was in New York for several days visiting family? The
Defendant or [the owner]?
A That [the owner] was in New York for several days visiting family.
Q Okay.
A I then asked him where they were traveling to. He told me that they were
traveling to Uniontown. I asked him the purpose of it. He told me that the purpose was—
it was his birthday, and that he wanted to get out of the city for a couple days and relax
and just have a barbeque. I asked him when they were going to return—when he was
going to return to New York. Now, this was Wednesday morning. He told me that they
were—he was going to return to New York on Friday.
Q How did he say that he got in touch with his cousin in New York?
" N.T. 16-17.
16 N.T. 17.
17 N.T. 18-19.
" See e.g., N.T. 17-20.
19 N.T. 21.
0
A He said that his cousin called him at his residence in New York.20
Q And at any point in time when you were talking to him did he mention
anything about being lost or being on the right direction or where they were going?
A Yes.
Q What did he say about that?
A He stated that [the owner] was driving earlier, and that [the owner] asked
him to drive because he was tired. So when he drove, at some point he got lost. He wasn't
sure how he got lost, but he got lost.
Q But, in fact, if they were going to Uniontown they wouldn't have been
lost going on the Turnpike, correct?
A Correct.21
Defendant displayed no signs of belligerence or agitation. 22 His birthday did
coincide with the trip, as he had represented .2' However, following the issuance of a
written warning regarding the speeding and equipment violations and return of
Defendant's paperwork at 1:45 a.m.,24 his detention, and that of the owner, continued.25
The trooper and corporal met and compared the information which they had
received respectively in response to questioning of Defendant and the owner .26 The
trooper ultimately concluded that the stories were "contradictory. ,27 He described the
contradictions in a colloquy with the court as follows:
Q You mentioned discrepancies.... What discrepancies were there in what
you were told by these two individuals?
A Well, I only interviewed [Defendant] outside the vehicle as far as where
he was traveling to and where he was coming from, questions about that, his destination.
What he told me conflicted with what [the owner] told Corporal Deleon.
Q Okay. Conflicted in what sense?
20 N.T. 17-18.
21 N.T. 20.
22 See generally N.T. 9-11.
2s N.T. 20-23, 65.
24 N.T. 22-25, 45.
2s N.T.22-25, 48.
26 N.T. 19.
27 N.T. 21.
5
A It conflicted as far as the purpose of what—of why [Defendant] was
traveling from New York to Uniontown, Pennsylvania. The purposes for his travel was
two different purposes from what he should have told us.
Q Okay. What was the—what did [Defendant] say?
A [Defendant] told myself that he was traveling from New York to
Uniontown. He was going to stay from Wednesday until Friday for the purpose of—it
was his birthday, and just to get out of the city and to barbeque for a few days.
Q Okay. And the other person said what, as you were told?
A That he picked up [Defendant] to take him out to Uniontown where he
has some rental properties, and he was handy and he was going to do that kind of work,
odds and ends, and help out with the rental properties.
Q Okay. Any other discrepancies that you were told about?
A There were some discrepancies as far as when [the owner] went to New
York. [Defendant] told me that he was in New York for a few days visiting family. [The
owner] told Corporal Deleon that he traveled to New York that day.
Q Okay. Did you happen to check as to whether it was [Defendant's]
birthday weekend?
A Yes. I think, in fact, the day of the incident it was his birthday.28
After comparing the individuals' responses to the questions, and believing that
their contradictory character was suggestive of "drug trafficking, "29 the trooper continued
the detention,30 authorizing Defendant to get back into the vehicle.31 The trooper then had
the owner exit the vehicle ,32 and proceeded to speak with him in an area behind it.33 What
transpired next was described by the trooper on direct examination as follows:
Q Okay. So what happened with [the owner]?
A I got him out. I explained to him, to the rear of the vehicle, that I gave
your cousin two breaks. I did not give him tickets for speeding and/or the license plate
light violation. I explained that they were now free to go, and to be careful driving, and I
gave him his information back and I told him that he was free to go. He then walked back
to his vehicle. Just prior to stepping into the vehicle, I mentioned his name. He turned
around and walked back to me. I asked him if I could can [sic] ask him a couple more
questions.
2s N.T. 64-65.
29 See N.T. 21-22, 64-65.
so See N.T. 24-25, 46-48.
31 N.T. 47.
12 N.T. 23.
" See N.T. 21-24.
Q So he was actually getting back into the vehicle at that point?
A Yes.
Q Had the door been opened?
A The best I can recall—I can't recall. I know he was making a motion to
get back into the vehicle as I told him he was free to go.
Q So you can't remember if he was opening the door or actually getting in,
but he was making a motion to get in?
A Correct.
him?
Q Okay. As he was doing that, do you recall specifically what you said to
A Yes.
Q What did you say?
A I asked him if I could ask him a few more questions.
Q Okay.
A And he said yes.
Q Okay. So what did he do?
A I then reminded him that I gave him all of his information back and his
cousin's information back and that they were free to go. However, I wanted to ask them a
couple more questions.
Q Did he say that was okay?
A Yes.34
The trooper told the owner that "something his cousin told me was different than
what [the owner] told the corporal. ,35 The trooper then asked the owner if he had
anything illegal in the vehicle .36 The owner responded that there was nothing illegal in
the vehicle.37 The trooper testified further:
A ... I explained to him that as the owner of the vehicle I was asking him,
since he's telling me there is nothing illegal in the vehicle, if I could search the vehicle.
He told me no, and I could not search the vehicle.38
The refusal of the owner to consent to the search strengthened the trooper's
suspicion as to the presence of contraband, such as narcotics, in the SUV:
34 N.T. 23-25.
" N.T. 25.
36 N.T. 25.
37 N.T. 25.
" N.T. 25.
7
... Being that he denied the consent to search the vehicle, I had reasonable
suspicion to believe that there could have been something in the vehicle, like narcotics.
So I wanted to call a K-9 out to do a walk-around.39
The trooper advised the that there would be a further delay as follows:
Q And so what did you do next?
A I explained to him that because of the inconsistent statements and the
reasonable suspicion I had, that I would call for a K-9 unit to come out and do a walk
around of the vehicle and have the dog sniff the exterior of the vehicle for the odor of
narcotics.4o
Having unsuccessfully solicited the owner's consent to search the vehicle, at 2:16
a.m. the trooper called for a K-9 officer to come to the scene .41 Defendant was ordered
out of the vehicle pending the K-9 unit's arrival .42 A K-9 officer in the person of a second
Pennsylvania State Police corporal came to the scene with his dog at 2:42 a.m. and the
animal was led around the SUV several minutes later .43 The canine "alerted to the
exterior of the vehicle for the odor of narcotics,"44 as a result of which
it was explained to [the owner] that the vehicle and them will be detained pending an
approval of a search warrant and pending the search of the vehicle, and if nothing is
found then they would be released.41
The owner was advised that the warrant process would take approximately four
hours .46 At this point, the owner gave in and signed a Waiver of Rights and Consent To
Search form.47
The search yielded a travel bag allegedly belonging to Defendant which, in turn,
contained a DVD case, which, in turn, contained two small plastic bags which, in turn,
39 N.T. 54-55; See N.T. 25.
40
N.T. 25.
41 N.T. 26.
42 N.T. 26.
43 N.T. 26-27.
44 N.T. 27.
4s N.T. 27.
46 N.T. 28.
47 N.T. 28-29; Commonwealth's Exhibit 1, admitted at Suppression Hearing, January 4, 2011.
8
contained powder suspected to be heroin .48 Defendant was questioned as to the
ownership of the travel bag in which the suspected heroin was found .49 He initially
denied that it was his, then said that he had borrowed it, and finally admitted that some
items in the bag were his.50 However, he denied any knowledge of the suspected
controlled substance.51 At 3:00 a.m. Defendant was formally arrested.52
At 6:00 a.m., Defendant was administered Miranda warnings.53 Thereafter, he
gave a statement apparently similar to the one he had given orally at the scene of the stop
prior to his formal arrest. 54
As charged at Count 1 of the Information (felony possession with intent to deliver
heroin), Defendant faces penalties in the form of 30 years in a state correctional
institution and a $500,000 fine.ss
DISCUSSION
Statement of law. On a defendant's suppression motion, "[t]he Commonwealth
shall have the burden of going forward with the evidence and of establishing that the
challenged evidence was not obtained in violation of the defendant's rights." Pa. R. Crim.
P. 581(H). The standard of proof is a preponderance of the evidence. Commonwealth ex
rel. Butler v. Rundle, 429 Pa. 141, 239 A.2d 426 (1968).
With respect to traffic stops, the well-settled rule is that a lawful traffic stop may
not be prolonged beyond the period necessary for completion of its purpose, in the
absence of circumstances that would warrant detention for an investigation based on a
48 N.T. 29-30.
49 N.T. 30-31.
so N.T. 31.
51 N.T. 31.
Sz N.T. 32.
" N.T. 62.
14 N.T. 33-34.
" Information, filed September 8, 2010.
0
reasonable belief that additional criminal activity is afoot. See Commonwealth v. Dales,
2003 PA Super 118, 820 A.2d 807.
Interaction with police which rises to the level of a detention, implicating
constitutional protections respecting a seizure of one's person, occurs when a reasonable
person in the subject's position would not believe that he or she is free to leave.
Commonwealth v. Jackson, 428 Pa. Superior Ct. 246, 255, 630 A.2d 1231, 1236 (1993).
(CERCONE, J., dissenting), citing Michigan v. Chesternut, 486 U.S. 567, 572, 108 S.Ct.
975, 1979, 100 L.Ed. 2d 565, 572 (1988).
The lawful detention inherent in "[a] permissible traffic stop may evolve into an
unlawful detention when the authorized purpose of the stop is completed and the
Defendant is not released." Commonwealth v. Leius, 43 Cumb. 459, 468 (1994). Consents
to searches obtained during a period of unlawful detention are generally deemed invalid.
See e.g., Commonwealth v. Acosta, 815 A.2d 1078 (Pa. Super. 2003); Commonwealth v.
Jackson, supra; Commonwealth v. Parker, 422 Pa. Superior Ct. 393, 619 A.2d 735
(1993); Commonwealth v. Lopez, 415 Pa. Superior Ct. 252, 609 A.2d 177 (1992).56 In this
regard, the burden is on the Commonwealth to prove, by a preponderance of the
evidence, 57 that the period of detention when the consent was obtained was lawful.
Commonwealth v. Acosta, supra; Pa. R.Crim.P. 581(I).58
As with the case of a waiver of one's right to refuse a search, a waiver of one's
right to remain silent in the course of an illegally prolonged detention is presumptively
tainted by the illegality and therefore invalid. See Florida v. Royer, 460 U.S. 491, 103 S.
Ct. 1319 (1983); see also Wong Sun v. United States, 371 U.S. 471, 484, 83 S. Ct. 407,
416 (1963).
The reasonable suspicion of criminal activity afoot necessary to support a seizure
in the form of an investigative detention must be more than a "mere hunch."
Commonwealth v. Paterson, 405 Pa. Super. 17, 591 A.2d 1075 (1991). Stated otherwise,
it must rise above the level of a "policeman's intuition." Commonwealth v. Lopez, 415
Pa. Super. 252, 262, 609 A.2d 177, 182 (1992).
Where a defendant is charged with a possessory interest crime, as a general rule he
or she has standing to raise the issue of the illegality of the seizure of the item in
56 For a consent to search obtained during a period of unlawful detention to be deemed valid, the
Commonwealth must "demonstrate that [the] consent was an `independent act of free will' and not `the
product of the illegal detention."' Commonwealth v. Freeman, 563 Pa. 82, 92, 757 A.2d 903, 909 (2000)
(citations omitted).
57 Commonwealth v. DeWitt, 530 Pa. 299, 608 A.2d 1030 (1992).
58 Commonwealth v. Gillespie, 54 Cumb. 214, 221 (2005).
10
question. See Commonwealth v. Powell, 2010 PA Super 51, ¶11, 994 A.2d 1096, 1104
("Generally, under Pennsylvania Law, a defendant charged with a possessory offense has
automatic standing to challenge a search"); Commonwealth v. Perea, 2002 PA Super 21,
791 A.2d 427, appeal denied, 568 Pa. 736, 798 A.2d 1288 (2002). A person has a
reasonable expectation of privacy with respect to the contents of luggage he or she has
placed, and is transporting, in a vehicle. See Commonwealth v. Viall, 2005 PA Super.
435, 890 A.2d 419, citing United States v. Padron, 657 F. Supp. 840, 847 (D. De. 1987).
Finally, the refusal to waive a constitutional right can not of itself be regarded as a
factor tending to support the loss of the right under the circumstances. See United States
v. Fuentes, 105 F.3d 487 (9th Cir. 1997). To hold otherwise would render the
constitutional rights of citizens illusory—as if they were, in Justice Jackson's felicitous
turn of phrase, "munificent bequest[s] in a pauper's will." Edwards v. People of State of
California, 314 U.S. 160, 186, 62 S. Ct. 164, 171 (194 1) (JACKSON, J., concurring).
Application of law to facts. In the present case, in the court's view, the detention of
Defendant and the vehicle's owner extended beyond the time when the purpose of the
traffic stop had reasonably concluded and prior to the development of evidence that
would justify an investigative detention on the basis of a reasonable belief that additional
criminal activity was afoot. In this regard, the fact that Defendant and the owner had
criminal records and were traveling on the Pennsylvania Turnpike between midnight and
1:00 a.m. from New York to western Pennsylvania constituted, at most, a basis for a
police officer's hunch that they were transporting a controlled substance.59 It did not, in
the court's view, represent the quantum of evidence necessary for a reasonable belief that
they were in possession of contraband at that time, which would permit a seizure of their
persons for purposes of an investigative detention and interrogation.
The minimal variations obtained from them as to the circumstances of their trip, in
addition to being a product of the prolongation, added little to the case supporting
59 Commonwealth v. Novitzke, 11 Pa. D. & C.5th 201, 2010 WL 1988448 (C.C.P. Lawrence Co.).
11
detention '60 and the court is unable to agree, on policy grounds, with the trooper's
assertion that, "[b]eing that he denied the consent to search the vehicle, I had reasonable
suspicion to believe that there could have been something in the vehicle, like narcotics,"61
after which the detention was prolonged further and a K-9 unit summoned.
In brief, the court is unable to find that the Commonwealth in this case has met its
burden of proving that the physical evidence in question and statements from Defendant
were not the product of, and irreparably tainted by, an unlawfully prolonged detention.62
Accordingly, the following order will be entered:
ORDER OF COURT
AND NOW, this 8th day of March, 2011, upon consideration of Defendant's
Omnibus Pre -Trial Motion To Suppress, following a hearing held on January 4, 2011,
and for the reasons stated in the accompanying opinion, the motion is granted and the
alleged contraband and inculpatory statements obtained from Defendant in the course of
the impermissible period of detention as described in the opinion are suppressed.
BY THE COURT,
s/ J. Wesley Oler, Jr.
J. Wesley Oler, Jr., J.
Jaime M. Keating, Esq.
First Assistant District Attorney
John M. Shugars, Esq.
Senior Assistant Public Defender
60 See Commonwealth v. Freeman, 563 Pa. 82, 92, 757 A.2d 903, 908 (2000).
61 N.T. 54-55.
62 In view of this basis for the court's ruling, it is unnecessary to consider other arguments of Defendant in
support of suppression.
12
COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CHARGES: (1) UNLAWFL. POSS. WITH INTENT
V. TO DELIVER SCHED. I CONT. SUB.
(2) UNLAWFL. POSS. OF SCHED. I
CONT. SUB.
(3) UNLAWFL. POSS. OF DRUG PARAPH.
DARRELL BLAKE
OTN: L559989-3 : CP -21 -CR -1881-2010
ORDER OF COURT
AND NOW, this 81h day of March, 2011, upon consideration of Defendant's
Omnibus Pre -Trial Motion To Suppress, following a hearing held on January 4, 2011,
and for the reasons stated in the accompanying opinion, the motion is granted and the
alleged contraband and inculpatory statements obtained from Defendant in the course of
the impermissible period of detention as described in the opinion are suppressed.
BY THE COURT,
J. Wesley Oler, Jr., J.
Jaime M. Keating, Esq.
First Assistant District Attorney
John M. Shugars, Esq.
Senior Assistant Public Defender