HomeMy WebLinkAboutCP-21-CR-0002606-2010COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CHARGES: (1) PERSONS NOT TO POSSESS/USE/
CONTROL FIREARM
(2) UNLAWFUL POSSESSION WITH
V. INTENT TO DELIVER SCHED. I
CONTROLLED SUBSTANCE
(3) RECEIVING STOLEN PROPERTY
(4) UNLAWFUL POSSESSION OF
SCHED. I CONTROLLED
SUBSTANCE
(5) UNLAWFUL POSSESSION OF
DRUG PARAPHERNALIA
TUQUAN HARRIS
OTN: L577832-3 : CP -21 -CR -2606-2010
IN RE: DEFENDANT'S SUPPRESSION MOTION
BEFORE OLER, J.
OPINION and ORDER OF COURT
Oler, J., May 20, 2011.
In this criminal case, Defendant has been charged with several drug act and
Crimes Code offenses: persons not to possess firearms, possession with intent to deliver a
Schedule I Controlled Substance (marijuana), receiving stolen property (a firearm),
simple possession of a Schedule I Controlled Substance (marijuana), and possession of
drug paraphernalia.' For disposition at this time is Defendant's motion to suppress
evidence .2
A hearing was held on the motion on March 2, 2011. For the reasons stated in this
opinion, the motion will be granted in part and denied in part.
' Criminal Complaint, filed August 14, 2010.
2 Defendant's Motion To Suppress Evidence, filed January 21, 2011.
STATEMENT OF FACTS
At the suppression hearing, the Commonwealth presented the testimony of the
affiant, North Middleton Township Police Detective Timothy David Lively,3 and one
exhibit, a copy of an application for a search warrant for Defendant's residence, the
search warrant, and an inventory of items seized in the search pursuant to the warrant .4
The testimony of Detective Lively, whom the court found entirely credible, may be
summarized as follows:
On Friday, August 13, 2010, Detective Lively was advised by another officer in
his department that a tenant in a certain apartment building located in the Township had
relayed a complaint regarding marijuana.7 The three-story block building$ in question
was located at 1402-A Bradley Drive9 and contained between six and eight individual
apartments,10 one of which was occupied by Defendant."
The detective then personally met with the informant, who advised him that she
had lived in the building for some time, 12 that a man, whom she described generally, 13
had recently moved into Apartment 112 in the building,14 and that subsequently there had
s N.T. 5-37, Suppression Hearing, March 2, 2011 (hereinafter N.T. —).
4 Commonwealth's Exhibit 1, Suppression Hearing, March 2, 2011 (hereinafter "Commonwealth's
Exhibit F).
'N.T. 6-7.
6 N.T. 6.
N.T. 6, 7.
'N.T. 23.
9 N.T. 9.
10 N.T. 23.
" N.T. 7.
12 N.T. 9.
13 N.T. 8, 10.
14 N.T. 7-9.
2
been "marijuana smoke all over." 15 She further advised that she had just observed the
man come out of his apartment, spray something to cover up the odor, and go back into
his apartment. 16 Acting upon this information, 17 Detective Lively, who was experienced
in drug investigations and familiar with the smell of raw and burnt marijuana,18
proceeded into the apartment building and immediately perceived the odor of burnt
marijuana. 19 The following transpired, according to the detective:
A [S]he told me [he] lived at 112, and it was the first door that I came to.
So I knocked on that door. I heard music playing inside, and I knocked again and the
Defendant opened the door, and again, I could smell a strong odor of marijuana—I mean
it was strong. It just seemed to be stronger when the Defendant was standing there.
Q Now when the Defendant opened the door, did he match the description
you were given?
A Yes.
Q Okay. And what happened when he opened the door?
A When he opened the door his music was playing, and I could smell the
marijuana, and I introduced myself and I told him that I was here to investigate the odor
of marijuana coming from his apartment.
Q What happened next?
A He said that he had smoked a little earlier and at that point I detained him
and called for an officer to assist me....20
With Defendant standing handcuffed in the doorway of the apartment, 21 and prior
to the arrival of backup,22 Detective Lively engaged Defendant in conversation.
Specifically, he asked Defendant "if he was a drug dealer" and "if there was anything
else" in the apartment ,23 questions to which Defendant responded negatively.24 However,
" N.T. 9.
16 N.T. 9.
17 N.T. 10.
" N.T. 5-6.
19 N.T. 10-11.
20 N.T. 10-11.
21 N.T. 24.
22 N.T. 15.
2s N.T. 11.
24 N.T. 11.
3
when the detective advised Defendant that he had "enough evidence to apply for a search
warrant for [his] apartment" and asked if Defendant was "sure there's nothing that [he
was] going to find," Defendant nodded toward two trash bags25 in the dining room26
about 12 feet inside the apartment' on the floor .28
Detective Lively entered the apartment9 and searched one of the bags without
result, at which point Defendant verbally told him to look in the other bag.30 Upon further
inspection, the detective found two, one -pound plastic bags of suspected marijuana,31
which he left in place.32
When backup arrived, in the person of a Middlesex Township police corporal who
happened to live in the apartment complex,33 and with Defendant still in custody,34
Detective Lively performed a "protective sweep" of the residence ,35 the purpose of which
did not include discovery of evidence .36 In the course of this activity, the detective
observed an open duffle bag in a bedroom closet with bags of suspected marijuana and a
gun '37
as well as a container with currency.38 A pat -down of Defendant's person resulted
in a seizure of a small amount of marijuana from his pocket .39
2s N.T. 12, 15.
26 N.T. 11.
27 N.T. 15.
28 N.T. 15-16. A fair reading of the detective's testimony indicates that his initial recollection that he had
asked for and received Defendant's consent to search the bags was corrected after a review of his report.
Compare N.T. 12, 15 with N.T. 19-20. 25-26, 33, 36.
29 N.T. 13. Detective Lively initially detained Defendant in the doorway, not yet inside the Defendant's
residence.
30 N.T. 20.
31 N.T. 11.
32 N.T. 16.
" See N.T. 11.
34 N.T. 30.
" N.T. 16, 30.
36 N.T. 17.
37 N.T. 17. Detective Lively described how the protective sweep resulted in his discovering evidence of
suspected drug activity:
4
Detective Lively then applied for a warrant to search Defendant's apartment .40 The
affidavit of probable cause in support of the application for a search warrant read as
follows:
Your AFFIANT is a detective with the Cumberland County Drug Task Force,
Cumberland County, Pennsylvania. Your AFFIANT has been a police officer for over
tweleve [sic] years and assigned as a detective for over seven years. Your AFFIANT has
completed over 1,200 criminal investigations. Your AFFIANT has investigated a variety
of crimes including, but not limited to POSSESSION WITH INTENT TO DELIVER A
CONTROLLED SUBSTANCE.
On Friday, August 13th 2010, at about 2112 hours, your AFFIANT walked into the
apartment building listed as 1402 A Bradley Drive, North Middleton Township,
Cumberland County. Upon entering the building your AFFIANT detected a very strong
odor of burning marijuana. Your AFFIANT knocked on the door at apartment number
112, the first apartment on the first floor and met with Tuquan HARRIS, date of birth,
7/17/1982. Upon opening the door I could smell the burning odor of marijuana. I asked
HARRIS if he was smoking marijuana. HARRIS said he smoked some earlier. I placed
handcuffs on HARRIS [and] waited for assistance. HARRIS said he just moved into the
apartment today and is renting from Mr. Bradley. Cpl. Jim PATTERSON of the
Middlesex Township Police arrived and I patted HARRIS down for weapons. When I
patted HARRIS down for weapons I felt what seemed like a small haggle of Marijuana in
HARRIS's right front pocket of HARRIS's shorts. When I pulled out the haggle I found
that it was a vegetable substance packaged consistantly [sic] with marijuana packaging
and possessing a green marijuana odor. HARRIS also had two cellular telephones and a
few $20 bills.
Your AFFIANT advised HARRIS that he was under arrest and your AFFIANT advised
HARRIS of his rights regarding questioning while in police custody. Your AFFIANT
advised HARRIS that I would be applying for a search warrant and doing a full search of
his residence. Upon that statement HARRIS said he had more and it was in clothing bags
along the east wall of the front room. I looked in and found what appeared to be 2 pounds
of marijuana sealed in one pound plastic bags. I advised HARRIS that I was going to
check if anyone else was in the residence. I checked the one and only bedroom and
found, in plain view, a black bag containing packaged baggies of marijuana and a black
firearm. Next to this bag I saw in plain view a plastic container full of U.S. currency.
[The Witness]: I went inside [the bedroom]... and as I looked around there was a closet, and the closet doors were
closed. I opened the closer door to look for a person. No one was in there. As I looked down there
was a black bag. It was open. It was in plain view.
Q: What do you mean plain view?
[The Witness]: ... [A]s I opened [the closet] and looked down the bag - - there was a black ... gym bag ... on the
ground, and I could see ... the top of a gun, the back part with the handle part of the gun, and also
bags of marijuana right with it.
N.T. 17-18.
" N.T. 17-18.
s9 N.T. 32-33.
40
N.T. 18; see also N.T. 11, 16-18.
5
While speaking with Cpl. PATTERSON, HARRIS advised PATTERSON that the Lexis
sedan parked out front of the residence is his. Your AFFIANT located a green colored
LEXUS ES300 parked in the parking area for A112. The registration plate on the vehicle
was HFY6341. According to PennDOT records, the vehicle is leased to Credit
Connection of Carlisle and Bernard ROBINSON of Mt. Holly Springs.
Based on you [sic] AFFIANT's training and experience in accessing PennDOT records
nearly every day for the past tweleve [sic], your AFFIANT knows that PennDOT keeps
vehicle ownership and registration data and provides that data to law enforcement
officials. Your AFFIANT has found that the information PennDOT provides is accurate
more often than not.
Based on your AFFIANT's training and experience in the enforcement of drug dealers
for the past tweleve [sic] years, including my current position as a detective with the
Cumberland County Drug Task Force, your AFFIANT knows that drug dealers cannon
[sic] rely on the government to protect their proceeds of unlawful activity or their
product, therefore drug dealers more likely than not possess weapons, firearms and
ammunition for the purpose of protecting their proceeds and products.
Based on your AFFIANT's training and experience, your AFFIANT knows that drug
dealers more often than not sell their drugs for U.S. currency, rather than other means of
payment such as credit cards and money orders, as U.S. currency [is] less likely to be
tracked and recorded by financial institutions.
Based on your AFFIANT's training and experience, your AFFIANT knows that drug
dealers use cellular phones for the purpose of conducting their business. The cellular
phone provides the drug dealer with immediate access to their supplier(s) and their
customers. Based on your AFFIANT's training and experience in using and searching
cellular phones your AFFIANT knows that cellular phones keep records of calls made
and received, media such as video, pictures and audio recordings, contact information
and notes.
Based on your AFFIANT's training and experience, your AFFIANT knows that drug
dealers more often than not keep records of their sales and records of their purchased
[sic] for the purpose of knowing how much money they owe the people they buy their
drugs from and how much people who buy drugs from them owe them.
Based on your AFFIANT's training and experience in serving over 50 search warrants,
your AFFIANT knows that law enforcement officials take photographs of the areas
searched and the items seized for the purpose of providing the most accurate depiction of
the area searched and the items seized to the court.
Based on the fact that HARRIS just moved into the apartment today and the marijuana
your AFFIANT saw is located in clothing bags from HARRIS moving, it is more likely
than not that the Lexus was used for the purpose of transporting the drugs. According the
[sic] the drug forfeiture laws of Pennsylvania any vehicle used for the purpose of
transporting or for use in violating the Controlled Substance, Drug, Device and Cosmetic
Act is subject to forfeiture.
At this time HARRIS is in his residence with a police officer and is under arrest. Your
AFFIANT is requesting a night time search warrant because if law enforcement officials
abandon the evidence at this time it is more likely than not that HARRIS or some [sic]
HARRIS could contact would come to collect and destroy the evidence before police
would return in the morning. Therefore, your AFFIANT is requesting a NIGHT TIME
SEARCH WARRANT .41
Items seized in the search pursuant to the search warrant included those observed in
Defendant's residence by Detective Lively prior to his application for the warrant .42
Defendant's challenge to the Commonwealth's evidence is premised upon (a) the
lack of a sufficient basis for the detective's initiation of an interaction with Defendant,
and (b) the impropriety of the detective's intrusion into Defendant's residence without
consent, a search warrant, or lawful grounds for a protective sweep. 43
DISCUSSION
Statement of Law
Burden and standard of proof. On a motion to suppress, "[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 degree of proof required is a preponderance of the evidence.
Commonwealth v. Stoops, 723 A.2d 184, 186 (Pa. Super. Ct. 1998).
Interactions with law enforcement authorities. Interactions between citizens and
law enforcement authorities, and the circumstances necessary to validate them from the
standpoint of police, have been described as follows:
Interactions between citizens and police have been placed into three categories.
The least intrusive of these is the "'mere encounter' (or request for information) which
need not be supported by any level of suspicion, but carries no official compulsion to stop
or to respond." Commonwealth v. Ellis, 541 Pa. 285, 293-94, 662 A.2d 1043, 1047
(1995).
The second level, sometimes called an investigative detention, "must be
supported by a reasonable suspicion; it subjects a suspect to a stop and a period of
detention, but does not involve such coercive conditions as to constitute the functional
equivalent of an arrest." Id. at 294, 662 A.2d at 1047. Reasonable suspicion in this
context is dependent upon the existence of "specific and articulable facts which, if taken
together with rational inferences from those facts, reasonably warrant a belief that
criminal activity is afoot." Commonwealth v. Myers, 728 A.2d 960, 962 (Pa. Super.
41 Commonwealth's Exhibit 1, Suppression Hearing, March 2, 2011 (affidavit of probable cause).
42 Commonwealth's Exhibit 1, Suppression Hearing, March 2, 2011 (receipt/inventory of seized
property).
43 N.T. 4-5; Defendant's Motion To Suppress Evidence, filed January 21, 2011.
7
1999). Reasonable suspicion requires more than a "mere hunch" or "policeman's
intuition."
The third level of interaction consists of an "arrest or `custodial detention'
[which] must be supported by probable cause." Commonwealth v. Ellis, supra at 294, 662
A.2d at 1047 (footnote omitted).44
Search and seizure. Among the Bill of Rights in the federal constitution is the
following provision:
The right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures shall not be violated, and no Warrants shall
issue, but upon probable cause, supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons or things to be seized .41
Similarly, Article 1, Section 8, of the Pennsylvania Constitution provides that
"[t]he people shall be secure in their persons, houses, papers and possessions from
unreasonable searches and seizures, and no warrant to search any place or to seize any
person or things shall issue without describing them as nearly as may be, nor without
probable cause, supported by oath or affirmation subscribed to by the affiant. ,46
Thus, it has been said that "[a] warrantless search or seizure is presumptively
unreasonable under the Fourth Amendment and Article 1, § 8, subject to a few
specifically established, well -delineated exceptions." Commonwealth v. Dean, 2008 PA
Super 3, ¶5, 940 A.2d 514, 519. The effect of, and rationale for, this protection as it
relates to a search of a person's home has been expressed as follows:
The point of the Fourth Amendment ... is not that it denies law enforcement the
support of the usual inferences which reasonable men draw from evidence. Its protection
consists in requiring that those inferences be drawn by a neutral and detached magistrate
instead of being judged by the officer engaged in the often competitive enterprise of
ferreting out crime.... Crime, even in the privacy of one's own quarters, is, of course, of
grave concern to society, and the law allows such crime to be reached on proper showing.
The right of officers to thrust themselves into a home is also a grave concern, not only to
the individual but to a society which chooses to dwell in reasonable security and freedom
from surveillance. When the right of privacy must reasonably yield to the right of search
is, as a rule, to be decided by a judicial officer, not by a policeman or Government
enforcement agent.
Johnson v. United States, 333 U.S. 10, 13-14, 68 S. Ct. 367, 369, 92 L.Ed. 436 (1948).
44 Commonwealth v. Skinner, 49 Cumb. 86, 88 (1999) (footnotes omitted).
41 U.S. CONST. amend. IV.
46 PA CONST. art I, §8.
3
One of the recognized exceptions to the requirement of a search warrant is, of
course, consent to the search on the part of the residence's occupant. Commonwealth v.
Edwards, 1999 PA Super. 183, ¶6, 735 A.2d 723, 725. However, to be effective, consent
in this context "must be unequivocal, specific, and voluntary." Id.
The smell of burnt marijuana emanating from an apartment is sufficient to support
the issuance of a search warrant for the premises. In this regard, the United States
Supreme Court has stated the following:
If the presence of odors is testified to before a magistrate and he finds the affiant
qualified to know the odor, and it is one sufficiently distinctive to identify a forbidden
substance, this Court has never held such a basis insufficient to justify issuance of a
search warrant. Indeed it might very well be found to be evidence of most persuasive
character.
Johnson v. United States, 333 U.S. 10, 13, 68 S.Ct. 367, 369, 92 L.Ed. 436 (1948).
Finally, where an affidavit of probable cause in support of an application for a
search warrant contains legally as well as illegally obtained information, the validity of
the resultant search warrant depends upon whether sufficient probable cause for its
issuance exists in the absence of the unlawfully obtained information. Stated otherwise,
"[i]n deciding whether a warrant issued in part upon information obtained through
exploitation of illegal police conduct is valid, [a court] must consider whether, absent the
information obtained through the illegal activity, probable cause existed to issue the
warrant." Commonwealth v. Shaw, 476 Pa. 543, 555, 383 A.2d 496, 502 (1978).
Protective sweeps. "A `protective sweep' is a quick and limited search of
premises, incident to an arrest and conducted to protect the safety of police officers or
others. It is narrowly confined to a cursory visual inspection of those places in which a
person might be hiding." Maryland v. Buie, 494 U.S. 325, 327, 110 S.Ct. 1093, 1094, 108
L.Ed.2d 276 (1990). Pursuant to the protective sweep doctrine, "without a showing of
even reasonable suspicion, police officers may make cursory visual inspections of spaces
immediately adjacent to the arrest scene, which could conceal an assailant," and may
conduct "a search for attackers further away from the place of arrest, provided that the
0
officer ... can articulate specific facts to justify a reasonable fear for the safety of himself
and others." Commonwealth v. Taylor, 565 Pa. 140, 150, 771 A.2d 1261, 1267 (2001).
Application of Law to Facts
With respect to Defendant's contention that the interaction with Defendant
initiated by Detective Lively by knocking on Defendant's door represented more than a
mere encounter, the court is unable to agree with Defendant that it was premised upon
something less than a reasonable suspicion that criminal activity was afoot. Factors
tending to support this conclusion include the neighbor's report of Defendant's apparent
drug activity and corroboration of that report in the form of the smell of marijuana at the
door of Defendant's apartment.
With respect to Defendant's contention that the initial warrantless intrusion into
Defendant's apartment by the detective in response to Defendant's nod toward trash bags
when asked if the apartment contained marijuana, the court is in agreement with
Defendant's position that the entry and subsequent search of the bags was constitutionally
infirm. Accordingly, Defendant's alleged advice to the detective to look in the second bag
will be suppressed as a product of that infirmity.
Finally, even if it assumed arguendo that the detective's protective sweep of the
apartment also exceeded permissible constitutional bounds, the information contained in
the probable cause affidavit in support of the application for a search warrant, exclusive
of that relating to either the initial search or the protective sweep, in the form, inter alia,
of the smell of burnt marijuana emanating from Defendant's apartment was, in the court's
view, sufficient to justify issuance of the warrant. Accordingly, the physical evidence
seized in the search of Defendant's apartment pursuant to the search warrant will not be
suppressed.
For the foregoing reasons, the following order will be entered:
ORDER OF COURT
AND NOW, this 20th day of May, 2011, upon consideration of Defendant's
Motion To Suppress Evidence, following a hearing held on March 2, 2011, and for the
10
reasons stated in the accompanying opinion, the motion is granted to the extent that
Defendant's alleged advice to the affiant to look in a second trash bag located in
Defendant's apartment is suppressed and otherwise denied.
Jaime M. Keating, Esq.
First Assistant District Attorney
Royce L. Morris, Esq.
GOLDBERG KATZMAN, P.C.
320 Market Street
P.O. Box 1268
Harrisburg, PA 17108-1268
Attorney for Defendant
11
BY THE COURT,
s/ J. Wesley Oler, Jr.
J. Wesley Oler, Jr., J.
COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CHARGES: (1) PERSONS NOT TO POSSESS/USE/
CONTROL FIREARM
(2) UNLAWFUL POSSESSION WITH
V. INTENT TO DELIVER SCHED. I
CONTROLLED SUBSTANCE
(3) RECEIVING STOLEN PROPERTY
(4) UNLAWFUL POSSESSION OF
SCHED. I CONTROLLED
SUBSTANCE
(5) UNLAWFUL POSSESSION OF
DRUG PARAPHERNALIA
TUQUAN HARRIS
OTN: L577832-3 : CP -21 -CR -2606-2010
IN RE: DEFENDANT'S SUPPRESSION MOTION
BEFORE OLER, J.
ORDER OF COURT
AND NOW, this 201h day of May, 2011, upon consideration of Defendant's
Motion To Suppress Evidence, following a hearing held on March 2, 2011, and for the
reasons stated in the accompanying opinion, the motion is granted to the extent that
Defendant's alleged advice to the affiant to look in a second trash bag located in
Defendant's apartment is suppressed and otherwise denied.
BY THE COURT,
J. Wesley Oler, Jr., J.
Jaime M. Keating, Esq.
First Assistant District Attorney
Royce L. Morris, Esq.
GOLDBERG KATZMAN, P.C.
320 Market Street
P.O. Box 1268
Harrisburg, PA 17108-1268
Attorney for Defendant