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HomeMy WebLinkAbout93-1752 Criminal COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : 1752 CRIMINAL 1993 v. : CHARGE: UNLAWFUL DELIVERY, : MANUFACTURE OR : POSSESSION WITH INTENT TO : DELIVER SCH. II C.S. GLENN HOCH : AFFIANT: PTL. MICHAEL HOPE OTN: E074899-6 : IN RE: DEFENDANT'S MOTIONS TO SUPPRESS BEFORE OLER, J. ORDER OF COURT AND NOW, this 17th day of January, 1995, after careful consideration of Defendant's Motion To Suppress Drugs and Motion To Suppress Statements, and for the reasons stated in the accompanying Opinion, the motions are DENIED. BY THE COURT, J. Wesley Ole~, Jr., J. ~ Alison Taylor, Esq. Sr. Assistant District Attorney Marilyn C. Zilli, Esq. Suite 203 240 North Third Street Harrisburg, PA 17101 Attorney for Defendant : re COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : 1752 CRIMINAL 1993 v. : CHARGE: UNLAWFUL DELIVERY, : MANUFACTURE OR : POSSESSION WITH INTENT TO : DELIVER SCH. II C.S. GLENN HOCH : OTN: E074899-6 : IN RE: DEFENDANT'S MOTIONS TO SUPPRESS BEFORE OLER, J. OPINION and ORDER OF COURT Oler, J. In the present criminal case Defendant is charged with possession of cocaine with intent to deliver. For disposition at this time are a Motion To Suppress Drugs and a Motion To Suppress Statements filed by Defendant as part of an omnibus pretrial motion.~ The motions seek suppression of cocaine found in a small casein Defendant's car and suppression of inculpatory statements made by Defendant regarding the cocaine. A hearing on the motions was held on Thursday, November 3, 1994. Based upon the evidence presented at the hearing, the following findings of fact, discussion and order of court are made and entered. STATEMENT OF FACTS Pursuant to a valid2 search warrant, law enforcement officers ~ A third motion within the omnibus pretrial motion, relating to use by the Commonwealth of Defendant's prior drug record, was disposed of by separate order of court dated November 3, 1994. 2 The validity of the search warrant is not challenged by Defendant. N.T. 4-5, Suppression Hearing, November 3, 1994 (hereinafter N.T. ). 1752 CRIMINAL 1993 went to the home of Defendant Glenn Mervin Hoch in the Borough of Camp Hill, Cumberland County, Pennsylvania, on Monday, July 26, 1993, at 5:15 p.m.3 The affidavit of probable cause for the warrant noted that a confidential informant had made a controlled buy of cocaine from Defendant at the residence within the past 72 hours and that Defendant told the informant that he had more to sell.4 The warrant authorized a search of the premises for "cocaine, packaging material, records of sales and/or purchases, paraphernalia used for cutting and/or use, and also any monies derived from the sales of controlled substances.-s Defendant admitted the officers into his home pursuant to the warrant,~ and Detective Kurt E. Voggenreiter, Operations Commander of the Tri-County Drug Task Force, read portions of the warrant aloud to Defendant and administered Miranda warnings to him.7 At the time the search warrant was executed, Defendant's two grandsons, aged 8 and 12, were present in the small home.8 Defendant implored the officers to permit him to remove the 3 N.T. 8-9. 4 Commonwealth's Exhibit 1, Suppression Hearing, November 3, 1994 (hereinafter Commonwealth's Exhibit __). s Commonwealth's Exhibit 1. ~ N.T. 10. 7 N.T. 10-11, 25-26, 57-58, 67. 8 N.T. 31, 69, 72. 3 1752 CRIMINAL 1993 children to his daughter's home in Mechanicsburg, a drive of 10 or 15 minutes away.9 After initially telling Defendant that they wanted him to remain on the premises,~° the officers yielded to his entreaties out of concern for the children's sensibilities.~ Defendant accepted the stipulation that an officer accompany him in his car as he drove the children to Mechanicsburg.~2 Agent Ronald L. Diller of the Bureau of Narcotics and Drug Control of the Pennsylvania Attorney General's Office volunteered to accompany Defendant.~3 Agent Diller, like Detective Voggenreiter, was aware from experience of the frequency with which drug dealers have weapons.TM Agent Diller got into the passenger's seat of Defendant's car and engaged in a "protective sweep" for weapons by "looking around" the area to which Defendant would have access.~5 Defendant acknowledges that a "protective sweep" of some sort was justified under the circumstances.~6 When the officer leaned over and looked underneath the driver's seat where Defendant was about to sit, he N.T. 73. N.T. 13. N.T. 2, 4. N.T. 2. N.T. 10. N.T. 8, 41. N.T. 44-45, 62, 68. Brief in Support of Defendant's Motion To Suppress Evidence, at 14. 4 1752 CRIMINAL 1993 saw what he reasonably believed, from its size, shape and composition, was a carrying case for a firearm.~? When Agent Diller retrieved the case from under the seat, Defendant stated, "That's it.''~8 "What's it?" asked the officer. "That's it. You've got my cocaine," Defendant replied.TM Agent Diller then unzipped the case and found eleven packets of cocaine and various other items inside.2° After dropping the children off in Mechanicsburg, Defendant and the officer returned to Defendant's residence,2~ the cocaine was turned over to Detective Voggenreiter,22 and Defendant was placed under arrest.23 According to Defendant, he was given Miranda warnings at this time.24 He testified that he was familiar with Miranda warnings from past ~? N.T. 15, 34, 44-47, 55-57, 96-98, 103. This item was a brown, vinyl or leather carrying case, or pouch, of a rectangular shape, with a zipper along one edge. It was seven or eight inches long, somewhat less than that in height, and about an inch and a half in width. N.T. 6; Commonwealth's Exhibit 2. Three law enforcement officers attested at the hearing to its resemblance to a gun case. N.T. 47, 68; see also N.T. 97, 104. N.T. 6; see also N.T. 97, 104. N.T. 36-38, 49. The case did not contain a weapon. The two-way trip took 20 minutes to half an hour. N.T. 49. N.T. 14. N.T. 15, 19, 78. N.T. 75, 78. 5 1752 CRIMINAL 1993 arrests.25 Defendant then made several inculpatory statements regarding the cocaine to Detective Voggenreiter.26 The search of the house pursuant to the warrant produced some suspected drug paraphernalia and records.27 DISCUSSION Defendant contends (1) that the warrantless search of the case containing cocaine was violative of his right under the fourth amendment to be free from unreasonable searches and seizures, and that the cocaine seized and statements acquired thereafter were tainted by the illegality and must be suppressed; (2) that, in the absence of a corpus delicti in the form of admissible drugs, any inculpatory statements of Defendant must be excluded; and (3) that Miranda warnings either were not given when police claimed or, if given as claimed, became stale, rendering suppressible the inculpatory statements of Defendant.~" These issues will be discussed seriatim. Seizure of drugs. With respect to the seizure of drugs by Agent Diller in Defendant's automobile, several principles of law N.T. 78. N.T. 16, 83-84. N.T. 31. Brief in Support of Defendant's Motion To Suppress Evidence, at 13-14. 6 1752 CRIMINAL 1993 are relevant. First, law enforcement officers executing a search warrant have the authority to detain persons on the premises to minimize the possibility of harm to themselves and to prevent concealment or destruction of evidence. Commonwealth v. Hoffman, 403 Pa. Super. 530, 589 A.2d 737 (1991); see Michigan v. Summers, 452 U.S. 692, 101S. Ct. 2587, 69 L. Ed. 2d 340 (1981). Second, where police reasonably believe that such a detainee could be armed and dangerous a Terry-type search for weapons is permissible. Commonwealth v. Hoffman, 403 Pa. Super. 530, 589 A.2d 737 (1991). In this regard, it is noted that the Pennsylvania Superior Court has "join[ed] the growing number of courts who have taken judicial notice of the fact that drug dealers are likely to be armed and dangerous." Commonwealth v. Patterson, 405 Pa. Super. 17, 22, 591 A.2d 1075, 1078 (1991). Third, in connection with automobiles and protective searches, the United States Supreme Court has stated the following: Our past cases indicate ... that protection of police and others can justify protective searches when police have a reasonable belief that the suspect poses a danger ... and that danger may arise from the possible presence of weapons in the area surrounding a suspect. These principles compel our conclusion that the search of ... an automobile, limited to those areas in which a weapon may be placed or hidden, is permissible if the police officer possesses a ~easonable belief based on "specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant" the officer in believing that the subject is dangerous and the suspect may gain immediate control of weapons. 7 1752 CRIMINAL 1993 Michigan v. Long, 463 U.S. 1032, 1049, 103 S. Ct. 3469, 3480, 77 L. Ed. 2d 1201, 1219-1220 (1983) (emphasis added), quoting Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880, 20 L. Ed. 2d 889, 906 (1969). Fourth, where a Defendant voluntarily reveals the contents of a container, he relinquishes any prior expectation of privacy that had existed in the container. Commonwealth v. Hendrix, 426 Pa. Super. 616, 627 A.2d 1224 (1993) (citations omitted). Finally, there is no benefit to be obtained from penalizing police for an act of humaneness by an over-zealous application of the exclusionary rule. Commonwealth v. Rehmeyer, 349 Pa. Super. 176, 502 A.2d 1332 (1985). The exclusionary rule was intended to discourage lawless, overbearing or harassing police conduct. Id. at 187, 502 A.2d at 1338. It was not intended to restrain members of law enforcement from taking reasonable precautionary steps in an effort to insure their own safety in the course of extending a courtesy to a defendant. Id. All of these principles militate against a conclusion that the cocaine in the present case was unlawfully seized. The officers executing the search warrant for Defendant's home had the authority to detain him on the premises. By an act of compassion, they allowed him to relocate to his automobile for transportation of his grandchildren. Based upon actual experience as well as common knowledge, judicially noticeable, the agent accompanying Defendant 8 1752 CRIMINAL 1993 reasonably believed that Defendant could have a weapon available in the car, and Defendant concedes that some form of protective sweep by the officer was warranted under the circumstances. In an area immediately accessible to Defendant as driver the agent saw what he reasonably believed to be a case for a firearm. When he picked it up, Defendant volunteered its contents, thereby waiving any expectation of privacy with regard to the drugs. To hold that this contraband must be suppressed would be to penalize an act of humaneness on the part of police, to protect Defendant against himself rather than against unlawful police conduct, and to deprive police of a legitimate means of self-preservation. Defendant's position, therefore, that the drugs herein must be suppressed as illegally seized, and that admissions he made must be suppressed as tainted by the illegal seizure, will not be sustained. Corpus delicti. In view of the Court's holding that the cocaine in the instant case was properly seized, Defendant's argument that admissions of Defendant must be excluded for lack of a corpus delicti in the form of the drugs must be rejected. Miranda warninqs. With respect to Defendant's position that his inculpatory statements should be suppressed on the ground that Miranda warnings were not in fact given by police at the commencement of the search as claimed, it is noted that the Court 1752 CRIMINAL 1993 in its fact-finding capacity has found otherwise.29 With respect to Defendant's contention that if such warnings were given initially they became stale by the time of any admissions by Defendant, the following observations are pertinent. First, Miranda warnings are required prior to "custodial interrogations" only. Cullenen v. Commonwealth, 138 Pa. Commw. 508, 588 A.2d 988 (1991). "Interrogation" in this context involves "questioning initiated by law enforcement officers." Commonwealth v. Johnson, 373 Pa. Super. 312, 320, 541 A.2d 332, 336 (1985) (emphasis in original). "When an inculpatory statement is not made in response to interrogation by police officers, ... 'the statement is classified as a volunteered statement, gratuitous and not subject to suppression for lack of warnings.'" Id., quoting Commonwealth v. Whitely, 500 Pa. 442, 445, 457 A.2d 507, 508 (1983). Similarly, a temporary detention of a person found on premises for purposes of execution of a search warrant is not equivalent to an "arrest,-3° and it is doubtful whether, without more, it can be classified as a "custodial" situation for purposes of Miranda requirements. See Commonwealth v. Martinez, Pa. Super. , 29 Defendant's version of events throughout the afternoon in question differed in material respects from the testimony of three different law enforcement authorities at the hearing. 3o Commonwealth v. Hoffman, 403 Pa. Super. 530, 589 A.2d 737 (1991), appeal denied, 528 Pa. 628, 608 A.2d 28 (1992). 10 1752 CRIMINAL 1993 A.2d , 1994 WL 585695 (October 26, 1994); cf. Commonwealth v. Ellis, 379 Pa. Super. 337, 549 A.2d 1330 (1988) (detentions of a relatively non-threatening nature such as Terry stops and traffic stops do not require Miranda warnings as general rule). "[P]olice detentions only become 'custodial' when under the totality of circumstances the conditions and/or duration of the detention become so coercive as to constitute the functional equivalent of formal arrest." Commonwealth v. Ellis, 379 Pa. Super. at 356, 549 A.2d at 1332 (emphasis added). Second, "Miranda warnings need not be repeated at every stage of [an] interrogation .... Whether the warning must be repeated depends upon whether [an] objective indicia test indicates that the prior warning became stale." Commonwealth v. Benjamin, 346 Pa. Super. 116, 123, 499 A.2d 337, 341 (1985). Considerations involved in this test include the length of time between the warnings and the challenged interrogation, whether the interrogation was conducted at the same place where the warnings were given, whether the officer who gave the warnings also conducted the questioning, and whether statements obtained are materially different from other statements that may have been made at the time of the warnings. Commonwealth v. Proctor, 526 Pa. 246, 256, 585 A.2d 454, 459 (1991), quoting Commonwealth v. Bennett, 445 Pa. 8, 15, 282 A.2d 276 (1971). An additional consideration may be a Defendant's familiarity with his or her Miranda rights through prior 11 1752 CRIMINAL 1993 experiences. Commonwealth v. Benjamin, 346 Pa. Super. 116, 499 A.2d 337 (1985). The passage of a few minutes3~ or even a few hours32 will not necessarily render Miranda warnings stale, nor will a movement between rooms in the same building,TM or to another location several miles away.TM An application of these principles to the facts of the present case leads to a conclusion that Defendant's admissions to police should not be suppressed on the basis of staleness of Miranda warnings. His admission to Agent Diller was not the product of custodial interrogation, but was in the nature of a volunteered remark in the course of a search warrant detention; no prior Miranda warnings were required. To the extent that they were required, they had been given almost immediately prior thereto and can not properly be considered "stale." Whether Defendant's admissions to Detective Voggenreiter when he was arrested shortly thereafter were the product of interrogation is not clear from the record. To the extent that they were, it must be noted that the argument that the earlier ~ Commonwealth v. Proctor, 526 Pa. 246, 585 A.2d 454 (1991). ~2 Commonwealth v. Benjamin, 346 Pa. Super. 116, 499 A.2d 337 (1985). ~3 See Commonwealth v. Hughes, 521 Pa. 423, 555 A.2d 1264 (1989). ~ Commonwealth v. Bennett, 445 Pa. 8, 282 A.2d 276 (1971). 12 1752 CRIMINAL 1993 warnings had become stale by then is not persuasive under the aforesaid test: the warnings had been administered minutes rather than hours before, by the same officer and at the same residence; Defendant's statements amplified rather than contradicted his earlier admission to Agent Diller; and Defendant was acquainted with his Miranda rights through prior arrests. In addition, Defendant testified that at the point of his arrest he did in fact receive Miranda warnings. For these reasons, the following Order will be entered: ORDER OF COURT AND NOW, this 17th day of January, 1995, after careful consideration of Defendant's Motion To Suppress Drugs and Motion To Suppress Statements, and for the reasons stated in the accompanying Opinion, the motions are DENIED. BY THE COURT, s/ J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. Alison Taylor, Esq. Sr. Assistant District Attorney Marilyn C. Zilli, Esq. Suite 203 240 North Third Street Harrisburg, PA 17101 Attorney for Defendant 13