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HomeMy WebLinkAboutCP-21-CR-0001204-2010 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : ABU SAID HABIB : CP-21-CR-1204-2010 IN RE: OMNIBUS PRETRIAL MOTION OPINION AND ORDER OF COURT Masland, J., July 27, 2011:-- Before the court are the omnibus pretrial motions filed by Defendant, Abu Said Habib, asking us to dismiss or quash the information against him and to suppress statements he made to police officers. After a hearing and briefing by the parties, we now deny Defendant's motions in all respects. I. Findings of Fact 1. Defendant is charged with the possession of a controlled substance, specifically cathinone and cathine contained in the plant Khat. 2. Though Khat itself is not a controlled substance, it often contains cathinone and cathine which are Schedule I and IV controlled substances, respectively. 3. The affiant here, Detective Sergeant Thomas Kauffman, first became involved in this matter after being contacted by customs officials from the Philadelphia airport. 4. The customs officials informed him that a package suspected of containing Khat originating from the United Kingdom was en route to an address within the Detective's jurisdiction. 5. Specifically, the package was addressed to an unknown individual named Kaboor M. Gupta at a UPS store in Mechanicsburg, Pennsylvania. CP-21-CR-1204-2010 6. The Detective then met with the customs agent, took possession of the suspicious packages, and delivered them to the UPS store. 7. The package's contents were labeled as "textiles" and emitted a vegetable odor. 8. After delivering the package, the Detective and some other officers surveilled the UPS store waiting for someone to pick up the package. 9. Soon after the store opened, the Defendant arrived operating a Dodge Journey. 10. The passenger in said vehicle, Mohamed M. Ali (Ali) exited the vehicle and entered the UPS store located at 275 Cumberland Parkway in Upper Allen Township, Mechanicsburg. 11. Shortly thereafter Ali exited the UPS store carrying the package known to contain Khat, and re-entered the vehicle. 12. With Defendant still driving, the vehicle exited the parking lot of the UPS store and drove approximately one-half mile to a Burger King at 71 Cumberland Parkway. 13. Both occupants of the Dodge Journey exited the vehicle and began crossing the parking lot towards the Burger King when they were detained by Detective Ryan Parthemore of the Upper Allen Township Police Department. 14. The individuals were not placed under arrest but rather were detained for further questioning as part of an investigatory detention. 15. During the brief questioning the Defendant was extremely nervous. 16. The officers were aware that the Khat was contained in a large five-foot long, bubble-wrapped roll. -2- CP-21-CR-1204-2010 17. In his brief discussion with the two defendants, Sergeant Thomas Kauffman found their stories to be inconsistent and suspicious in the following respect: a. Although the package was shipped through Philadelphia the two defendants who live in Philadelphia came to Mechanicsburg to pick it up. b. Neither recipient was the named recipient on the package. c. Defendant said that they were going to a wedding in Ohio but there was no luggage in the vehicle aside from two grocery bags tin which there was a toothbrush and deodorant. d. Defendant was dressed casually, wearing sneakers, and had no change of formal clothes for a wedding. e. The co-defendant Mr. Ali noted that they were going to a wedding in Ohio after delivering the package in question to an individual in Maryland. 18. The short period of detention yielded suspicious and deceptive behavior on the part of both defendants, which under the totality of circumstances justified their subsequent arrest. II. Discussion Defendant presents two pretrial motions. First, he moves to dismiss or quash the information against him for either of two reasons: (1) the Commonwealth failed to present a prima facie case that he possessed the appropriate mens rea and (2) Defendant lacked fair notice that his conduct was illegal. Second, Defendant asks the court to suppress all statements he made to -3- CP-21-CR-1204-2010 police on the basis that he was not provided with his Miranda warnings. For the following reasons, Defendant's motions are denied in all respects. A. Motion to Dismiss/Quash Information To convict an individual of possession of a controlled substance, the Commonwealth must establish mens rea as to the possession element. Commonwealth v. Mohamud, 15 A.3d 80, 90 (Pa. Super 2010). This may be proven by circumstantial evidence that the defendant knew or believed that he possessed an illegal substance. Here, the Commonwealth has presented sufficient evidence to make out a prima facie case that Defendant had such knowledge as several of his actions indicated the likelihood that he was engaged in the trafficking controlled substances. Defendant, a Philadelphia resident, rented a vehicle and traveled to a Mechanicsburg UPS store to pick up a foreign package addressed to a nonexistent third party. After he was confronted by police, he and the passenger provided inconsistent statements regarding their destination and travel plans; responses that could be interpreted to be an attempt to conceal their ultimate destination. If he did not believe he was in possession of a controlled substance such deception would have been unnecessary. Also, the contents of the package were deceptively labeled as textiles when they were, in fact, vegetable matter. Again, such a ruse would be unnecessary if Defendant believed possession of khat containing cathinone and cathine was legal. In sum, Defendant's actions and statements provide sufficient evidence to conclude that he was knowingly involved in the clandestine possession of illegal drugs. See -4- CP-21-CR-1204-2010 also United States v. Hussein, 351 F.3d 9, 20 (1st Cir. 2003) (relied upon in Mohamud, supra) We next briefly address Defendant's contention that the charges should be dismissed on the basis that he did not have fair notice that possession of khat containing cathine was illegal. This precise argument has already been addressed and rejected by our Superior Court. See Commonwealth v. Muhamad, 15 A.3d 80, 86 (Pa. Super. 2010). We reach the same result here. B. Motion to Suppress Defendant's Statements Defendant seeks to suppress statements he made to police prior to receiving his Miranda warning. At the hearing on the instant motions, the Detective testified that his initial interaction with Defendant constituted an investigatory detention that did not require him to Mirandize the Defendant. After observing Defendant and the vehicle's passenger take possession of the package and depart, the Detective followed their vehicle briefly until it entered a fast food parking lot. The Detective then confronted them in the parking lot after they exited the vehicle. At this time, Defendant was not under arrest but subject to an investigative detention. “It is well-established that the dictates of Miranda do not attach during an investigatory detention.” Commonwealth v. Murray, 936 A.2d 76, 81 (Pa. Super. 2007). For this reason, Defendant's statements will not be suppressed. III. Conclusion For the foregoing reasons, we reach the following conclusions: (1) the Commonwealth has presented sufficient evidence to establish the mens rea -5- CP-21-CR-1204-2010 requirement for Defendant's charges; (2) Defendant had fair notice that cathinone is a controlled substance and its possession illegal; and (3) Defendant's statements to police were made during an investigative detention and therefor will not be excluded for lack of a Miranda warning. Accordingly, Defendant's omnibus pretrial motion is denied in all respects. ORDER OF COURT AND NOW, this day of July, 2011, Defendant’s omnibus IS DENIED. pretrial motion, By the Court, Albert H. Masland, J. Christin J. Mehrtens-Carlin, Esquire Assistant District Attorney Anser Ahmad, Esquire For Defendant :saa -6- COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : ABU SAID HABIB : CP-21-CR-1204-2010 IN RE: OMNIBUS PRETRIAL MOTION ORDER OF COURT AND NOW, this day of July, 2011, Defendant’s omnibus IS DENIED. pretrial motion, By the Court, Albert H. Masland, J. Christin J. Mehrtens-Carlin, Esquire Assistant District Attorney Anser Ahmad, Esquire For Defendant :saa