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HomeMy WebLinkAbout00-1689 CRIMINALCOMMONWEALTH V. DEAN DACOSTA GAYLE IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2000-1689 CRIMINAL TERM IN RE: OPINION PURUSANT TO PA. R.A.P. 1925 Guido, J. September 19, 2001 Defendant has filed a timely appeal from the sentence imposed by the Honorable Kevin A. Hess in connection with the above charges. On appeal, he alleges that we erred in failing to suppress the evidence seized from a suitcase found in the automobile he was driving. ~ Specifically, he claims that he did not consent to a search of the suitcase, and if he did, the consent was not freely and voluntarily given. He further contends that the scope of the search exceeded the scope of any consent he may have given.2 F1NDINGS OF FACT On January 23, 2000, Trooper Overcash of the Pennsylvania State Police stopped a vehicle travelling 75 miles per hour in a posted 65 mile per hour speed zone along the Pennsylvania Turnpike in Cumberland County, Pennsylvania. The vehicle was occupied by the defendant, who was driving, and a female passenger. Upon stopping the vehicle, the trooper asked the defendant for his license and registration. The defendant produced a registration card showing that the vehicle was owned by the passenger. However, he stated that he did not have his license with him. He further indicated that he had no other identification. At that point, the trooper 1 An evidentiary hearing on defendant's Motion to Suppress was held before us on February 27, 2001. Judge Hess presided over the trial. 2 See "Concise Statement of Matters Complained of on Appeal." 2000-1689 CRIMINAL TERM asked the defendant to exit the vehicle, which he did. Once outside the vehicle, the trooper asked the defendant for his name. The defendant gave a response which the trooper does not now remember. The trooper then approached the passenger and asked her to identify the man driving her car. She replied that the driver's name was Anthony Brown. Anthony Brown was not the name the defendant had previously given to the trooper. When confronted, the defendant informed the trooper that his name really was Anthony Brown, as indicated by the passenger. He further told the trooper that the passenger had his identification in her purse. The trooper retrieved a Michigan photo identification card from the passenger. He then ran a records check with Michigan. The records check revealed that an Anthony Brown did, in fact, exist. However, he did not have a license. Sometime after he had received the conflicting stories regarding the defendant's identification, the trooper had called for back up. The trooper was preparing a citation to give to the defendant as the back up arrived. When his paperwork was done, Trooper Overcash returned defendant's identification to him, gave him a citation, and advised him that he was free to leave. However, the trooper did indicate that the passenger would have to drive, since defendant did not have a valid driver's license. The trooper then approached the passenger to tell her that she would have to drive. He also told her that she was free to leave. At the same time, he asked if she had any idea why Mr. Brown would have lied to him. She said she did not. The trooper then described what happened as follows: 2 2000-1689 CRIMINAL TERM Q. Okay. What happened then? Okay. At that point ! asked the (passenger) if she thought that (the defendant), who ! still had identified at the time as Anthony Brown, had anything illegal in her vehicle. She related that Mr. Brown had nothing in her vehicle, and ! said, well, why would he lie about who he was. She said she wasn't sure. I said, do you think maybe he put something illegal in your vehicle that you don't know about? Is he possibly wanted, so forth? She said no. ! then asked her if ! could take a look in her vehicle. She related - - well, she responded, you want to search my vehicle? And ! said ! would like to with your permission to make sure there's nothing illegal in the vehicle, and she did give me consent to search her vehicle. Q. Did that include the trunk as well as the passenger compartment? Yes, ! advised her ! would search the entire vehicle and all items within. See Suppression Hearing Transcript, pages 8-9. (emphasis added). The trooper then began searching the vehicle while the defendant and passenger stood with the backup trooper alongside his patrol vehicle. When he got to the trunk, he pointed to the suitcase and asked the defendant if it belonged to him.3 The defendant acknowledged that it did. The trooper then asked permission to search the suitcase, which the defendant granted. He eventually found drugs concealed in an opaque plastic bag which was itself hidden in a cosmetic kit. The trooper did not get specific permission to look inside the cosmetic kit or the plastic bag. 3 When the passenger had exited the car, it was apparent that her dress was ripped, exposing her buttocks. The defendant offered her a pair of sweat pants which he retrieved from a suitcase in the trunk. 2000-1689 CRIMINAL TERM DISCUSSION Valid Consent. Evidence seized pursuant to a voluntary consent to search is admissible if the consent is given freely and voluntarily. Commonwealth v. Roland, 701 A.2d 1360, (Pa. Super. 1997). "The question whether a consent to a search was in fact voluntary or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of the circumstances." Id. at 1363. Based upon the evidence presented, we were satisfied that the passenger's consent to search the vehicle, as well as the defendant's consent to search the suitcase, were both freely and voluntarily given. In Commonwealth v. Strickler, 563 Pa. 47, 757 A.2d 884, (2000) our Supreme Court addressed the validity of a consent to search given at the conclusion of a lawful traffic stop. The court recognized that a consent to search given after such a stop may, under certain circumstances, be viewed as the product of duress or coercion. The question becomes whether the citizen is aware that he is no longer subject to the commands of the police but, rather, may exercise his own will. As the Supreme Court stated, "The presence of an express admonition to the effect that the citizen-subject is free to depart is a potent, objective factor that favors such conclusion." 757 A.2d at 899. In the instant case, both the defendant and the passenger were expressly told that they were free to leave and all documents had been returned to them.4 It was only after 4 The defendant testified to a version of the encounter which was, in many ways, diametrically opposed to the version related by the trooper. We note that we decided questions of credibility in favor of the trooper and against the defendant. 4 2000-1689 CRIMINAL TERM that express admonition that the trooper sought "permission" to search the vehicle. Furthermore, when he came upon the suitcase in the trunk, he took the trouble to confirm that it belonged to the defendant and obtained his independent consent to search it.5 We were satisfied that no coercion, either or express or implied, was used to obtain the consent of the defendant or his passenger. Therefore, we concluded that the consent to search the suitcase was freely and voluntarily given. Scope of the Search. The defendant claims that even if he voluntarily consented to the search of his suitcase, he did not consent to the search of the cosmetic kit and plastic bag contained therein. This issue is factually similar to the issue addressed by the Pennsylvania Supreme Court in Commonwealth v. Abdul-Salaam, 544 Pa. 514, 678 A.2d 342 (1996). IN Abdul-Salaam, the Defendant's girlfriend gave the police authority to search her apartment for a handgun and clothing. They found a briefcase in her bedroom closet. Mr. Abdul Salaam argued that the consent to search the apartment did not include a consent to search the briefcase. The Supreme Court disagreed. It held that the scope of a search ordinarily encompasses the entire area where an object may be found and "properly includes the opening and inspection of containers and other receptacles where the object may be secreted." Commonwealth v. Abdul-Salaam, 678 A.2d at 352, quoting s The officer asked defendant for permission to "take a look in" the suitcase. See Transcript of Proceedings, February 27, 2001, page 10. While the word "search" was not actually used, it was clear from the circumstances that he was asking to search the suitcase. Even more importantly, it was clear that defendant understood that he was asking for permission to search the suitcase. The trooper's request came in the context of his conducting a thorough search of the vehicle and its contents for "anything illegal." The defendant could not (and we are satisfied that he did not) interpret the trooper's request to be anything less than a request to conduct a thorough search of the suitcase. 2000-1689 CRIMINAL TERM Commonwealth v. Reese, 520 Pa. 29, 33, 549 A.2d 909, 911 (1988), which quotes United States v. Ross, 456 U.S. 798, 820-21, 102 S.Ct. 2157, 2170-71, 72 L.Ed 2d 572 (1982). IN the instant case, the scope of the search was for "anything illegal." Certainly, something illegal (such as drugs) could have been secreted in the cosmetic kit or plastic bag. Therefore, the search of those items was appropriate pursuant to the consent to search the suitcase. DATE Edward E. Guido Mary Jo Mullen, Esquire For the Commonwealth H. Anthony Adams, Esquire For the Defendant :sld