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HomeMy WebLinkAboutCP-21-CR-0000369-2011 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : v. : : VINCENT DANIELS : CP-21-CR-0369-2011 IN RE: DEFENDANT’S OMNIBUS PRETRIAL MOTION OPINION AND ORDER OF COURT Masland, J., November 29, 2011:-- I. Introduction Vincent Daniels (Defendant) is charged with one count of Possession with Intent to Deliver a Controlled Substance and one count of Possession of a Small Amount of Marijuana. In this case, Defendant argues that the following evidence should be suppressed: 1) evidence seized during the search of Mr. Grimaldi’s vehicle, 2) evidence obtained during the strip search of Defendant at PSP Newville, 3) recording of the encounter between the Pennsylvania State Police Officers, Robert Grimaldi (Grimaldi) and Defendant during the traffic stop, and 4) the written statement Defendant provided to the officers after his arrest. For the reasons set forth below we grant Defendant’s request regarding the recording of the traffic stop but deny his other requests. II. Facts On December 6, 2010 at approximately 4:00 p.m., Pennsylvania State Trooper Mark Gray initiated a traffic stop on a vehicle traveling on the Pennsylvania Turnpike. Trooper Gray initiated the stop because the vehicle was following a commercial motor vehicle too closely and was swerving. Mr. Grimaldi CP-21-CR-0369-2011 1 was driving the vehicle at the time of the stop. Defendant was seated in the passenger seat. Trooper Gray testified that when he approached the driver’s side of the vehicle, he smelled a faint odor of raw marijuana. After giving Mr. Grimaldi a written warning for his traffic violation, Trooper Gray informed Mr. Grimaldi that he was “free to leave.” At the beginning of the stop, a mobile video recording system to record the audio and video of the encounter was automatically activated. Trooper Gray did not inform Defendant or Mr. Grimaldi that their communication was being recorded. After informing Mr. Grimaldi that he was free to go, Trooper Gray asked Mr. Grimaldi to answer some questions, and he agreed. Trooper Gray interrogated Mr. Grimaldi and Defendant about their travel plans, about which they were consistent. However, because Trooper Gray continued to smell the odor of raw marijuana, he sought and received Mr. Grimaldi’s oral and written 2 consent to search. According to Defendant, Mr. Grimaldi was not advised that he could refuse to consent to the search of his vehicle. After Mr. Grimaldi consented to the search of his vehicle, Corporal Dan Housel and Trooper Justin Hope arrived at the scene to assist with the K-9 drug- 1 It was noted at the Suppression Hearing that Mr. Grimaldi’s mother was the owner of the vehicle. 2 The Commonwealth provided the audio and video recording of the encounter as Exhibit One at the Suppression Hearing. The recording contained the time of day when the events were occurring. According to the recording, Trooper Gray advised Mr. Grimaldi that he was “free to leave” at approximately 16:21:21. Approximately four seconds later, at 16:21:25, Trooper Gray began questioning Mr. Grimaldi about his travel itinerary. At approximately 16:23:12, Trooper Gray began questioning Defendant, and around 16:24:38, Trooper Gray approached Mr. Grimaldi with a “consent to search” form. This consent form was pre- completed, and only required Mr. Grimaldi’s signature and address. -2- CP-21-CR-0369-2011 detection dog Nemo. Because Nemo provided an alert to the possible presence of a controlled substance, Trooper Gray and Corporal Housel searched the vehicle. The search of the vehicle yielded Suboxone pills (used for heroin recovery) and cigarette filters in the center console of the vehicle, along with a hypodermic needle under the carpet liner near the gas pedal. Trooper Gray then asked Mr. Grimaldi if he had any other items that could potentially harm any of the officers at the scene, to which Mr. Grimaldi responded in the negative. Trooper Gray, however, noticed that Mr. Grimaldi was holding his arm covering his chest. When Trooper Gray proceeded to feel Grimaldi’s left front shirt pocket, he discovered another needle. Trooper Gray proceeded to handcuff Mr. Grimaldi and ordered Trooper Hope to cuff Defendant, as Trooper Gray believed Defendant and Grimaldi possessed additional potentially dangerous items such 3 as needles or other drugs. After the arrest, Defendant and Mr. Grimaldi were transported to the Pennsylvania State Police (“PSP”) Newville Station and were detained in a patrol room. According to Trooper Gray, this room was not even a holding area, but was a place where the police officers perform their work. Trooper Gray and Corporal Housel knew that suspects would often attempt to smuggle contraband 3 The Commonwealth provided Trooper Gray’s resume as its Exhibit 3 at the Suppression Hearing. This resume detailed Trooper Gray’s extensive experience and education with drug training, particularly drug arrests during traffic stops. The resume shows that Gray had taken courses regarding drug interdictions during traffic stops (including certain behaviors of a motorist that would indicate potential drug possession), as well as courses that discussed developments in Pennsylvania law regarding searches and seizures. -3- CP-21-CR-0369-2011 4 within the Newville barracks. Accordingly, there is a regulation in place at PSP Newville allowing for the strip search of defendants being held at the barracks. Pursuant to this regulation, Trooper Hope and Corporal Housel performed a strip 5 search of Defendant upon Defendant’s arrival at the PSP Newville Station. Trooper Gray credibly testified that this strip search was performed on Defendant for safety reasons, because when he found a syringe in the vehicle and on the person of Mr. Grimaldi, his anxiety level and concern for danger “skyrocketed.” Trooper Gray further justified the strip search by acknowledging that he believed the Defendant to have drugs on his person. During the strip search, Trooper Hope and Corporal Housel found a plastic baggie in Defendant’s underpants which contained suspected marijuana and heroin. Trooper Gray stated that the manner of the packaging of the drugs, as well as the amount of the drugs, appeared consistent with Possession With Intent to Deliver a Controlled Substance. Defendant was given his Miranda warnings and provided a written statement to Trooper Gray that Mr. Grimaldi knew nothing of the heroin and marijuana on Defendant’s person. III. Discussion A. Motion to Suppress Evidence Seized During Search of Vehicle In order for a defendant to prevail on a suppression motion, he must demonstrate that he possessed a personal privacy interest in the area searched. See Commonwealth v. Hawkins, 553 Pa. 76 (1998); Commonwealth v. Millner, 585 Pa. 237 (2005); Commonwealth v. Powell, 994 A.2d 1096 (Pa. Super. 2010). 4 In the past, suspects have been caught smuggling thousands of dollars and hundreds of heroin packets around the patrol room and in the trash. -4- CP-21-CR-0369-2011 This privacy interest must be an “actual (subjective) expectation of privacy,” and “a subjective expectation is one that society is prepared to recognize as reasonable.” Powell, 994 A.2d at 1104 (quoting Commonwealth v. Burton, 973 A.2d 428, 435 (Pa. Super. 2009)). Consistent with this reasoning, our Superior Court in Powell held that an “ordinary passenger in a vehicle does not by his mere presence have a legitimate expectation of privacy in the entire passenger compartment of that vehicle.” Powell, 994 A.2d at 1105. Additionally, the Powell court reasoned that though it might be reasonable for passengers in an automobile to maintain an expectation of privacy in the contents of luggage that they place inside an automobile, it would be unreasonable for an ordinary passenger in a vehicle to “maintain a subjective expectation of privacy in locations of common access to all occupants.” Powell, 994 A.2d at 1105 (emphasis added). Additionally, the Commonwealth has no preliminary suppression burden to connect a defendant to the evidence seized during a search before the defendant has to show that his own rights were implicated by the seizure of the evidence. See Millner, 585 Pa. at 258-59. Our Supreme Court in Millner articulated that the eliminate purpose behind a motion to suppress physical evidence is to “ certain tangible evidence from the Commonwealth’s trial armamentarium on the grounds that the government’s manner of acquisition of that evidence involved a violation of the defendant’s constitutional rights.” Id. at 259. (emphasis in original). The court further emphasized that the Commonwealth is not required to prove this connection. See id. at 259-60. Accordingly, during a pre-trial motion to suppress -5- CP-21-CR-0369-2011 evidence, the burden is on the defendant to prove that the acquisition of the evidence violated his constitutional rights. Even if a defendant is unsuccessful with a pre-trial suppression motion, he may still argue during the trial that the evidence should be excluded on other grounds. See id. at 260. In the present case, Trooper Gray and Corporal Housel seized evidence that was found in the floor by the driver’s seat and in the center console of the vehicle during the search of the vehicle. In contrast to cases where items were seized from baggage that a defendant placed inside the vehicle, the items here were seized from common areas of the car. Defendant was an ordinary passenger in the vehicle. He did not own the vehicle, nor was he even driving the vehicle at the time of the stop. Although Mr. Grimaldi might be found to have standing to raise a Suppression Motion based on the evidence seized during the 6 search of the vehicle, Defendant has no such standing. Additionally, this court notes that, consistent with our Supreme Court’s reasoning in Millner, Defendant’s Suppression Motion will not be granted solely on the grounds that the Commonwealth has not yet connected Defendant to the evidence seized during the search of the vehicle. As the Millner court stated, Defendant could object to the introduction of this evidence during his criminal trial. The purpose of a pre-trial motion to suppress evidence is to eliminate any evidence that the Commonwealth may have seized as a result of unlawful activity. Because Defendant has failed to prove that he had a privacy interest in 6 If Mr. Grimaldi brought the Suppression Motion, there would be a different issue concerning his standing as driver of the vehicle who may have been operating it with the permission of the owner. -6- CP-21-CR-0369-2011 the common areas of the vehicle where evidence was seized during the search of the vehicle, he has no standing to challenge the seizure of this evidence by 7 way of a pre-trial motion to suppress evidence. Accordingly, Defendant’s Motion 8 to Suppress Evidence Seized During the Search of the Vehicle must be denied. B. Motion to Suppress Evidence from Strip Search Defendant next argues that even if his arrest was lawful, the strip search of his person exceeded the permissible scope of a search incident to a lawful arrest. Because of the invasiveness of strip searches, courts have articulated a need to balance between the need for a particular search against the invasion of the personal rights that the search entails. See Bell v. Wolfish, 441 U.S. 520, 559 (1979). In Bell, the United States Supreme Court provided four factors for 7 Because Defendant lacks the standing to bring a Pre-Trial Motion to Suppress Evidence, this court need not address Defendant’s arguments that his warrantless arrest was unlawful and the consent to search the vehicle was involuntary. See Millner, 558 Pa. at 258 (reasoning that because of Millner’s failure to establish a subjective expectation of privacy in the vehicle, there was no need for the Commonwealth to establish the lawfulness of the police entry into the vehicle and the seizure of the firearm, and there was no basis upon which the trial court could properly order suppression). 8 Even if this court found Defendant to have standing to bring a Motion to Suppress Evidence Seized During the Search of the Vehicle, we would still deny the Motion. Although the search was effectuated without a warrant, under Pennsylvania law, warrantless automobile searches may be conducted “when there exists probable cause to search.” See Commonwealth v. Stewart, 740 A.2d 712, 715 (Pa. Super. 1999). Our Superior Court has articulated a “plain smell” concept, and has concluded that when “an officer is justified in being where he is, his detection of the odor of marijuana is sufficient to establish probable cause.” See Commonwealth v. Stoner, 344 A.2d 633, 635-36 (Pa. Super. 1975). In the present case, Trooper Gray was standing near the vehicle during a lawful traffic stop when he smelled the odor of raw marijuana emitting from the vehicle. This “plain smell” of marijuana alone established the probable cause necessary to justify Trooper Gray’s warrantless search of the vehicle. Accordingly, the warrantless search of the vehicle was lawful and evidence seized from this search need not be suppressed. -7- CP-21-CR-0369-2011 courts to consider when determining whether a particular search of a person is permissible under the Fourth Amendment: (1) the scope of the particular intrusion, (2) the manner in which it is conducted, (3) the justification for initiating it, and (4) the place in which it is conducted. Bell, 441 U.S. at 559. Bell was a case brought by pre-trial detainees of a federally operated short-term custodial facility. Id. at 523. The plaintiffs in Bell challenged the constitutionality of numerous conditions and practices of the facility, including the policy that all inmates were required to expose their body cavities for visual inspection as part of a strip search after any contact with someone outside the institution. Id. at 558. Even though there had only been one instance where an inmate of this facility was found to be attempting to smuggle contraband into the institution, the Court still upheld this visual body cavity inspection and strip search policy as constitutional. Id. at 559. The Court reasoned that “a detention facility is a unique place fraught with serious security dangers,” and expressed concern that “the smuggling of money, drugs, weapons, and other contraband is all too common an occurrence.” Id. Applying the Bell factors to the present case, this court finds that the strip search of Defendant was lawful. Unlike the search of the defendant in Bell, the search of the Defendant only extended to the strip search of his person and there was no visual cavity inspection. Further, there is no evidence in the record that the strip search was performed in a coercive or hostile manner. Additionally, Defendant was not the victim of a strip search performed pursuant to an inconsistent policy. PSP Newville has a policy of allowing police officers to -8- CP-21-CR-0369-2011 search defendants being held at the barracks, and Defendant was strip searched pursuant to this policy. As far as the justification for initiating the strip search, Trooper Gray credibly testified that one of the main justifications for the strip search was his concern for his own safety after he had found syringes during the search of the vehicle. Defendant argues that the syringe found on the person of Mr. Grimaldi could not be used as justification for his own strip search. While that may be true, Trooper Gray did find another syringe in the vehicle that had been occupied by both Mr. Grimaldi and Defendant. Even if the trooper’s concern for his own roadside safety did not justify a search at the Newville Station, both Trooper Gray and Corporal Housel credibly testified to knowing of many specific instances where suspects had smuggled various contraband into the Newville Station. This concern provides ample justification for the strip search after Defendant was brought to the station on suspicion of drug charges. In contrast to the situation in Bell, where only one instance of smuggling was sufficient, there had been numerous confirmed instances of suspects smuggling great amounts of money and drugs within the PSP Newville Station. Finally, the strip search of Defendant took place at the PSP Newville Station where defendants are held in the barracks where the police officers actually perform their work. Accordingly, it is a legitimate concern for the officers to make sure that the defendants are not concealing anything that could harm the officers. The strip search of Defendant was supported by reasonable suspicion that Defendant could have been hiding contraband on his person and was justified by the concern for the safety of the officers at the PSP Newville Station. Further, -9- CP-21-CR-0369-2011 analyzing the strip search under the Bell factors yields a finding that the search was constitutionally permissible. Therefore, Defendant’s Motion to Suppress Evidence from the Strip Search is denied. C. Motion to Suppress Audio Recordings of Police Encounter Defendant next argues that the audio recording of the encounter between himself and Mr. Grimaldi and Trooper Gray should be suppressed because this audio recording was obtained in violation of the Pennsylvania Wiretapping and Electronic Surveillance Control Act. This Act prohibits the intentional interception, endeavoring to intercept, or procurement of any other person to intercept or endeavor to intercept any wire, electronic, or oral communication. See 18 Pa.C.S. § 5703(1). The Act does contain a number of exceptions to this general rule, however, and one of these exceptions relates to law enforcement officers. See 18 Pa.C.S. § 5704(16). In order for this exception to apply, five conditions must be met. Of particular relevance here, the law enforcement officer must inform the individuals identifiably present that he has intercepted and recorded their oral communication as soon as reasonably practicable. See 18 Pa.C.S. § 5704 (16)(i), (ii)(A-D). Defendant argues that the audio recording of his encounter with Trooper Gray would not fit into the exception allowing law enforcement officers to intercept the oral communication of individuals because neither he nor Mr. Grimaldi were informed that their communication was being intercepted and recorded as required by 18 Pa.C.S. § 5704(16)(ii)(D). Under Section 5721.1(c)(4), the respondent (as opposed to the moving party) has the burden of proof by a preponderance of the evidence when a party -10- CP-21-CR-0369-2011 moves to exclude intercepted communication under Section 5721.1(b)(1). See 18 Pa.C.S. §5721.1(c)(4). Here, the Commonwealth has failed to satisfy this burden. The Commonwealth failed to produce any evidence showing the existence of a 5712 order of authorization or 5713 order of approval, and has not even responded to Defendant’s arguments on this Motion to Suppress Audio Recordings of Police Encounters in its response brief. Accordingly, the Commonwealth has failed to satisfy its statutorily proscribed burden of proof to prevent this interception of communication from being excluded as evidence, and Defendant’s Motion to Suppress the Audio Recordings is granted. D. Motion to Suppress Custodial Written Statements Defendant’s final suppression motion concerns the written statements that Defendant gave to police after his arrest, which indicated that Mr. Grimaldi knew nothing of the drugs found on Defendant’s person during the strip search. Defendant argues that these “inculpatory statements” should be suppressed because they were the product of an unlawful arrest. See Commonwealth v. Yochman, 375 A.2d 325 (Pa. 1977) (explaining that confessions which are the product of an illegal arrest cannot be introduced at trial). Although Defendant’s arrest was warrantless, it was sufficiently supported by probable cause. A police officer may effectuate a warrantless arrest if it is supported by probable cause under the totality of the circumstances. See Commonwealth v. Banks, 540 Pa. 453 (1995) (citing Illinois v. Gates, 462 U.S. 213 (1983)). This “probable cause” exists when “the facts and circumstances within the knowledge of the officer are -11- CP-21-CR-0369-2011 reasonably trustworthy and sufficient to warrant a person of reasonable caution in believing that the arrestee has committed the offense.” Commonwealth v. Zook, 532 Pa. 79, 89 (1992) (citing Commonwealth v. Travaglia, 502 Pa. 474 (1983), cert. denied, 467 U.S. 1256 (1984)). Under Pennsylvania law, these facts and circumstances are to be “viewed from the vantage point of the prudent, reasonable, and cautious police officer guided by experience and training.” Commonwealth v. Norwood, 456 Pa. 330 (1974). Defendant’s arrest did not occur until after the police officers had discovered Suboxone and a syringe in the vehicle, as well as a syringe on the person of Mr. Grimaldi. Suboxone pills are used as heroin recovery drugs, and syringes are drug paraphernalia used to inject drugs intravenously. Additionally, as evidenced by Trooper Gray’s resume, Trooper Gray has extensive experience and training with drug-related arrests during traffic stops. Under the totality of the circumstances here, it was reasonable for an officer with the education and experience of Trooper Gray, who discovered drug paraphernalia in a vehicle, to believe that the passenger in that vehicle committed a drug-related offense. Additionally, Defendant gave the custodial statements at issue after drugs were found on his person during the strip search. The officers’ discovery of the drugs in the possession of Defendant was sufficient probable cause to justify an arrest of Defendant. Accordingly, Defendant’s arrest was lawful, and the custodial written statements Defendant provided to the officers were the product of a lawful arrest. Defendant’s Motion to Suppress Custodial Written Statements is denied. -12- CP-21-CR-0369-2011 IV. Conclusion Defendant, as an ordinary passenger in Mr. Grimaldi’s vehicle, had no expectation of privacy in the vehicle and, accordingly, has no standing to bring a pre-trial motion to suppress evidence seized from that vehicle. Additionally, the strip search of Defendant’s person was supported by reasonable suspicion that Defendant was concealing contraband and justified by a concern for the safety of the officers at the PSP Newville Station. This search did not exceed the permissible scope of a search incident to a lawful arrest, and was therefore constitutionally permissible. Further, Defendant’s arrest was lawful because, although warrantless, it was supported by probable cause. Accordingly, his custodial statements were not the product of an unlawful arrest. No evidence in the record shows that Defendant or Mr. Grimaldi was ever informed that the communication from their encounter with Trooper Gray was being intercepted or recorded as required by 18 Pa.C.S. § 5704(16)(ii)(D). Because the interception of this communication does not fall under the law enforcement officer exception, then the interception had to have been explicitly authorized by a statutorily proscribed order of authorization or order of approval under 18 Pa.C.S.§ 5712, 5713(a), or 5713.1(b). Section 5721.1(c)(4) of the Act provides that the Commonwealth bears the burden of proof to show that one of these orders existed to support the interception and recording of the communication from the encounter, and the Commonwealth failed to satisfy this burden. Therefore, the communication must be excluded under 18 Pa.C.S. § 5721.1(b)(1). -13- CP-21-CR-0369-2011 ORDER OF COURT AND NOW, this day of November, 2011, upon consideration of the Defendant’s omnibus pre-trial motion to suppress and after hearing and briefing, the court directs that Defendant’s Motion to Suppress Evidence Seized from the Vehicle, Motion to Suppress Evidence from the Strip Search, and DENIED Motion to Suppress Custodial Written Statements are . Defendant’s GRANTED Motion to Suppress Audio Recordings of Police Encounter is . By the Court, Albert H. Masland, J. Jaime Keating, Esquire For the Commonwealth John A. Abom, Esquire For Defendant :saa -14- COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : v. : : VINCENT DANIELS : CP-21-CR-0369-2011 IN RE: DEFENDANT’S OMNIBUS PRETRIAL MOTION ORDER OF COURT AND NOW, this day of November, 2011, upon consideration of the Defendant’s omnibus pre-trial motion to suppress and after hearing and briefing, the court directs that Defendant’s Motion to Suppress Evidence Seized from the Vehicle, Motion to Suppress Evidence from the Strip Search, and DENIED Motion to Suppress Custodial Written Statements are . Defendant’s GRANTED Motion to Suppress Audio Recordings of Police Encounter is . By the Court, Albert H. Masland, J. Jaime Keating, Esquire For the Commonwealth John A. Abom, Esquire For Defendant :saa