HomeMy WebLinkAboutCP-21-CR-0000011-2016
COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:
v. :
:
TYLER THOMAS : CP-21-CR-0011-2016
IN RE: OMNIBUS PRE-TRIAL MOTION TO SUPPRESS
OPINION and ORDER OF COURT
Peck, J., August 17, 2016
Before this Court is an Omnibus Pre-Trial Motion to Suppress Physical Evidence
filed by Defendant, Tyler Thomas, through his counsel, Joshua Yohe, Esq., on May 6,
2016, and following a hearing held on June 9, 2016, and having considered the evidence
and arguments presented by both parties, hereby issues the following Opinion and Order
of Court.
Factual and Procedural History
On December 19, 2016, Constable J. Ryan Metcalf, a Constable of the Borough of
New Oxford, York County, Pennsylvania, was conducting a search for a woman and
1
child in relation to a case of parental abduction. An arrest warrant for the felony of
custodial interference had been issued for an individual named Michelle, who had taken
2
physical custody of her young child in contravention of a custody order. Constable
Metcalf had received information the woman was hiding out at a hotel and had last been
3
seen in the Adams County or York area. After investigating every lodging house in
Adams and York Counties, the constable and his partner began searching lodging houses
4
in Cumberland County. Constable Metcalf arrived at the Comfort Inn in Mechanicsburg
5
around midnight and approached the desk clerks. Initially the desk clerk stated that she
knew why the constable was there, referencing “suspicious activity” going on in Room
1
Notes of Testimony, In re: transcript of Proceedings, Omnibus Pretrial Motion, June 9, 2016, (Peck, J.)
(hereinafter “N.T.”) at 8.
2
Id.
3
Id.
4
Id. at 9
5
Id. at 9
1
6
212. Constable Metcalf advised the clerk that he was not the “appropriate investigating
7
agency”, and that she should contact the local police about suspicious activity. He then
proceeded to show the clerk a picture of the woman whom he was seeking, without
8
mentioning the name of the woman. The clerk stated that she did not recognize the
woman herself but that when she had come on duty earlier in the evening, a co-worker
had told her about an interaction with a woman whose description matched the woman in
9
the photograph, named Michelle, who was staying in room 212 with a child. The clerk
stated that several people had been in and out of the room, and she did not know if the
10
child was in the room at the time, but there had been a child there earlier. The clerk
11
said her co-worker had described the woman as behaving erratically. At the time of this
conversation, Constable Metcalf’s knowledge about Michelle included information that
12
she was “emotionally disturbed” and had “pretty significant psychological issues”.
Constable Metcalf testified that by that point, the information he had been given “merited
a knock on the door” of Room 212, to determine whether the woman and child in room
13
212 were the ones he was seeking.
14
Constable Metcalf proceeded to take the elevator to the second floor. Upon
exiting the elevator, Constable Metcalf immediately detected a strong smell of
1516
marijuana. As he approached Room 212, the smell became stronger. Constable
17
Metcalf knocked on the door and announced himself as a police officer. The Defendant
18
answered after Constable Metcalf’s second knock. Once the Defendant opened the
door, Constable Metcalf identified himself as a state constable and told the defendant he
6
N.T. at 9.
7
Id.
8
Id.
9
Id. at 8-9.
10
Id. at 17-18.
11
N.T. at 9-10.
12
Id. at 11
13
Id. at 10, 11.
14
Id. at 11.
15
Id.
16
N.T. at 11.
17
Id. at 11.
18
Id.
2
19
wanted to speak with him for a moment. Simultaneously, Constable Metcalf noticed
20
the Defendant’s eyes were red and glazed, and that the Defendant appeared nervous.
From his position at the doorway, looking over the Defendant’s shoulder, Constable
Metcalf could see a bag of cannabis and a type of spoon commonly used to ingest heroin
21
on the TV stand, and pills that had apparently fallen on the floor from the room’s desk.
Constable Metcalf first asked the Defendant if Michelle was present, and after the
Defendant answered in the negative, the constable informed the Defendant that the local
22
police would want to speak with him.
Constable Metcalf placed Defendant in handcuffs and conducted a pat down for
23
his own safety. Constable Metcalf testified that he generally conducts a “red zone
search” to ensure a defendant does not have any weapons when taking a defendant into
24
custody. During the pat down, Constable Metcalf felt a large wad in the Defendant’s
2526
pocket and removed it. The wad was a large quantity of cash. Constable Metcalf
testified that his usual procedure in instances where takes an individual into custody for
an “on-view” crime is to take the individual into custody, contact the primary local law
27
enforcement agency and detain the subject until those officers arrive. The Constable
described his role as detaining a suspect and waiting for local officers to make an
“actual” arrest.
Patrolman Thomas Gelnett and Officer Laura Castle of the Lower Allen Township
28
Police Department arrived a short time later. Upon arrival, Officer Gelnett also
observed various types of drugs and drug paraphernalia, including loose marijuana,
29
bundled marijuana, pills, alcohol, and at least one syringe and spoon. Officer Gelnett
19
Id.
20
Id.
21
N.T. at 12, 14.
22
Id. at 12.
23
Id. at 12, 15.
24
Id. at 17.
25
Id. at 12.
26
The cash was later valued at approximately $1400. N.T. at 15.
27
Id. at 12, 17.
28
Id. at 20, 21.
29
Id. at 21.
3
30
placed his own handcuffs on the Defendant and conducted a pat down of his own.
31
Officer Gelnett read Defendant his Miranda rights.
Officer Gelnett testified that after he read Defendant his Miranda rights,
32
Defendant said he understood his rights and would answer any questions. Officer
Gelnett testified that Defendant appeared to be under the influence of “some” drugs and
alcohol because his eyes were bloodshot and glazed over and one could smell alcohol on
his breath; Officer Gelnett testified it seemed Defendant had been “smoking marijuana
33
and maybe doing some pills.” Officer Gelnett testified that he spent over two hours in
the room with Defendant and though Defendant seemed at times “a little blurry”, he also
seemed to fully understand his rights and was able to carry on conversations with
34
others.
A search of the room commenced. Defendant initially denied that anything in the
35
room was his. He stated that he had not rented the room and was not responsible for the
36
room, but gave the police permission to search it. At one point, Officer Gelnett allowed
the Defendant to make several calls on a cell phone to try to locate the individuals
37
defendant said had rented the room. Defendant’s girlfriend also arrived at the room
38
while the police were conducting a search. Officer Gelnett testified that the only
personal belongings found in the room were the Defendant’s, aside from some
39
prescription pills in the name of Defendant’s girlfriend. As the search proceeded,
Officer Gelnett asked Defendant if specific items in the room were his, Defendant
40
affirmed that they were. The items Defendant claimed as his included: a guitar, a guitar
30
Id. at 22.
31
N.T. at 22.
32
Id.
33
Id.
34
Id. at 22, 23.
35
Id. at 25.
36
N.T. at 27.
37
Id. at 22, 23, 30, 31. Officer Gelnett actually had Defendant sit in a chair next to the desk and plugged
in Defendant’s cell phone so it could charge in order for Defendant to make the phone calls. Id at 31.
38
Id. at 31.
39
Id at 27.
40
Id.
4
41
case, clothes, and backpacks. Officer Gelnett testified that as he got to each item, he
asked with regard to each one if Defendant owned the items and if he could search the
42
item.
43
Two backpacks were found in the room. One was empty; the second was full of
44
items. Officer Gelnett specifically asked if the backpack was Defendant’s and
45
Defendant said yes. Officer Gelnett asked if he could search the backpack, and
46
Defendant said yes. Defendant’s girlfriend, who was present, stated that the backpack
47
was actually hers, but Defendant had been borrowing it to carry around his clothes.
48
Defendant also identified a jean jacket as his. Incriminating items were found in the
49
backpack and jean jacket.
Defendant filed the instant Omnibus Pre-Trial Motion to Suppress Physical
Evidence on May 5, 2016. A hearing was held on May 9, 2016. At the hearing,
defendant’s counsel argued that: Constable Metcalf’s initial approach to the room was
unlawful, therefore rendering inadmissible all evidence subsequently recovered;
Constable Metcalf’s pat down of defendant was unlawful, specifically rendering the cash
recovered from defendant inadmissible; and that Defendant’s alleged consent to search
his personal belongings was actually involuntary, specifically rendering the evidence
recovered from his backpack and jacket inadmissible.
41
N.T. at 27.
42
Id. at 30.
43
Id. at 28.
44
Id.
45
Id.
46
N.T. at 28.
47
Id. at 28-29.
48
Id at 29.
49
Id.
5
Discussion
a. Constable Metcalf’s Approach to Room 212 Was Lawful & the
Items on the Desk and TV Stand Are Therefore Admissible Under
the Plain View Doctrine
Case law indicates that there are three types of interaction between police officers
and citizens. Commonwealth v. Mendenhall, 552 Pa. 484, 715 A.2d 1117, 1119 (Pa.
1998). The first level of interaction is a "mere encounter" or “or request for information”.
Id. This type of interaction “requires no level of suspicion and no official compulsion to
stop or respond.” Id. See also, Commonwealth v. Vasquez, 703 A.2d 25, 30 (Pa. Super.
1997) (“Police may engage in a mere encounter absent any suspicion of criminal activity,
and the citizen is not required to stop or to respond.”) Constable Metcalf needed no level
of suspicion to approach room 212, where he sought to make a request for information.
Constable Metcalf’s presence at the door of Room 212 was justified.
Accordingly, the items seen by Constable Metcalf from the door of Room 212,
including the drugs and drug paraphernalia on the desk and TV stand, were legitimately
seized without a warrant under the plain view doctrine. “The plain view doctrine permits
the warrantless seizure of evidence where a police officer views an object from a lawful
vantage point, and it is immediately apparent that object is incriminating.”
Commonwealth v. Petroll, 738 A.2d 993, 999 (1999); Commonwealth v. Ballard, 806
A.2d 889, 891 (Pa. Super. 2002). “This doctrine rests on the principle that an individual
cannot have a reasonable expectation of privacy in an object in plain view”. Id. Although
a guest in a rented hotel or motel room has a legitimate expectation of privacy in the
room while it is rented, that expectation does not exclude items in plain view.
Commonwealth v. Brundidge, 620 A.2d 1115, 1118 (1993). See also, Commonwealth v.
Winfield, 835 A.2d 365 (Pa. Super. 2003) (evidence found in a hotel room not suppressed
where found in plain view by officers who were lawfully present); Commonwealth v.
Saldana, 81 A.3d 977 (Pa. Super. 2013) (affirming lower court decision recognizing that
a person may have a reasonable expectation of privacy in a hotel room but applying the
6
plain view doctrine). From where Constable Metcalf lawfully stood, at the door of Room
212, it was immediately apparent that the objects were incriminating. Therefore, the
items seized from the desk and TV stand are admissible because the plain view doctrine
applies.
b. The Money Found in Defendant’s Pocket Is Admissible Because it
Was Discovered Incident to a Lawful Arrest, and Alternately,
Under the Inevitable Discovery Doctrine
Next, the parties disagree about whether the cash discovered by Constable
Metcalf’s pat down is admissible. Defendant argues that Constable Metcalf was
conducting a “Terry stop” or investigative detention (which requires reasonable suspicion
of criminal activity to initiate), during which police may only conduct a pat-down if they
have reasonable suspicion the suspect possesses a weapon. The Commonwealth argues
that Constable Metcalf’s actions actually amounted to an arrest of Defendant, and a pat
down of a suspect’s person is lawful incident to arrest. Constable Metcalf did not testify
that he believed Defendant possessed a weapon, so determining the nature of Constable
50
Metcalf’s detention is essential.
It is well-settled that a police officer may make an arrest without a warrant where
they have probable cause. Commonwealth v. Lynch, 773 A.2d 1240 (Pa. Super. 2001).
When making a lawful arrest, “areas within a suspect's immediate control may be
searched...to prevent danger to the arresting officers and to prevent destruction of
evidence.” Commonwealth v. Stanley, 446 A.2d 583, 586 (Pa. 1982). This includes a pat
down of the suspect’s person. U.S. v. Robinson, 414 U.S. 218, 235 (1975), cited in
Commonwealth v. Shiflet, 670 A.2d 128 (1995). However, when conducting an
investigative detention based on reasonable suspicion of ongoing criminal activity, police
50
Defendant does not argue that Constable Metcalf did not have the statutory authority to detain him,
instead anchoring his defense to the argument that Constable Metcalf was not lawfully present in the
room at all, an argument disposed of supra. Nonetheless, “Constables possess the common law powers to
conduct warrantless arrests for felonies and breaches of the peace” Commonwealth v. Taylor, 450 Pa.
Super. 583 (Pa. Super 1996). Defendant was charged with several felony drug offenses. Given the
multiple types and amounts of drugs Constable Metcalf observed, he may have reasonably concluded
Defendant was in violation of felony drug laws.
7
may only conduct a pat-down if they have additional reasonable suspicion the suspect
possesses a weapon. See Commonwealth v. E.M., 735 A.2d 654 (Pa. 1999), citing Terry
v. Ohio, 391 U.S. 1 (1968). That pat down must be confined to a plain feel search for
weapons, and the incriminating nature of an object must be plainly identifiable to the
officer conducting the pat down for an officer to lawfully seize the item. E.M., 735 A.2d
654.
Although Constable Metcalf did not describe his actions as actually arresting the
Defendant, his actions amounted to an arrest. The courts have defined an arrest as “any
act that indicates an intention to take the person into custody and subjects him to the
actual control and will of the person making the arrest..." Commonwealth v. White, 669
51
A.2d 896, 901, (1995) (citations omitted). Defendant was clearly not able to leave and
under the control of Constable Metcalf at that point. The arrest was supported by
probable cause due to Constable Metcalf’s plain view observation of illegal drugs and
drug paraphernalia. Therefore, the pat down of Defendant was legal and the recovered
cash is admissible.
Under an alternate theory, the Commonwealth argues that if this Court should find
that Constable Metcalf’s arrest was not lawful, the wad of cash should be admitted
subject to the inevitable discovery doctrine, because even if Constable Metcalf had not
conducted a pat down, the arresting or booking officers certainly would have done so.
Under the inevitable discovery doctrine, “evidence which would have been discovered
was sufficiently purged of the original illegality to allow admission of the evidence.”
Commonwealth v. Ingraham, 814 A.2d 264 (Pa. Super. 2002), citing Hoffman, 829 A.2d
737, 793 (Pa. Super. 1991). The burden of proving inevitable discovery rests with the
prosecution. Id. This Court agrees with the Commonwealth’s analysis – even if
Constable Metcalf did not conduct a lawful pat down, and had merely detained Defendant
until the police arrived, the wad of cash would then have been discovered by Officer
Gelnett as he conducted a lawful search incident to arrest.
51
See also Commonwealth v. Bosurgi, 190 A.2d 304, 311 (1960) (“Officers are not required to make any
formal declaration of arrest, or use the word ‘arrest’”.)
8
c. The Items Found in the Back Pack and Jean Jacket are Admissible
Under the Consent Exception to the Warrant Requirement
Consent searches may be executed without a warrant where consent is given
voluntarily. Commonwealth v. Cleckley, 738 A.2d 427, 429 (1999). The Commonwealth
must prove “that a consent is the product of an essentially free and unconstrained choice-
not the result of duress or coercion, express or implied, or a will overborne - under the
totality of the circumstances.” Commonwealth v. Strickler, 757 A.2d 884, 901 (Pa.
2002). The courts have said while the inquiry is objective, “the maturity, sophistication
and mental or emotional state of the defendant (including age, intelligence and capacity
to exercise free will), are to be taken into account.” Id., citing generally United States v.
Mendenhall, 446 U.S. 544, (1980); United States v. Watson, 423 U.S. 411 (1976). While
an individual’s knowledge of the right to refuse consent is not required, it is a factor that
should be taken into account. Strickler at 901. The Commonwealth is not required to
prove the individual had knowledge of their right to refuse. Id. The courts have found
intoxication by drugs or alcohol is insufficient, in and of itself, to render consent
involuntary. Commonwealth v. Barone, 556 A.2d 908, 910 (1989). Furthermore, Courts
have stated that voluntariness of consent may be established if all the facts and
circumstances indicate that the consent was voluntarily given, despite the consent being
given while the defendant was in custody. Commonwealth v. Dressner, 336 A.2d 414
(Pa. Super. 1975).
Defendant argues though he gave consent, that consent was not valid. Defendant
sets forth the five factors considered by the Dressner court in evaluating custodial consent
as dispositive in the instant case. See Dressner at 416. Those five factors are: whether the
consenter aided in the search; the intelligence, education and experience of the consenter;
whether the consenter believed the evidence was so well hidden that it would not be
discovered; whether there was some prior cooperation by the consenter that did not
produce incriminating evidence; and whether the consenter had been advised of his rights
prior to consenting. Id. However, in reading the whole of Dressner, it is clear the court
applied the totality of the factors test, and the five factors specifically addressed by the
9
52
Dressner court were particularly relevant to the facts of Dressner. This Court will
therefore apply the ordinary totality of the circumstances test. See Strickler, 757 A.2d at
901.
Under the totality of the circumstances, Defendant’s consent was voluntarily
given. Though handcuffed, Defendant had been read his Miranda warnings and was
aware he could have refused to speak further with the police. Both Constable Metcalf
and Officer Gelnett testified that Defendant appeared to be under the influence of drugs
and alcohol, but Defendant was able to carry on cogent conversations with both of them.
Defendant’s age, 31 at the time of the searches, and apparent maturity and sophistication,
as discussed below, contributed to the voluntariness of his consent. Defendant was also
capable of making at least two cell phone calls and speaking with his girlfriend, who
arrived while the search was ongoing. In making those phone calls, defendant carried on
coherent conversations. Defendant was also capable of giving Constable Metcalf at least
three different justifications for the wad of cash he carried with him, to varying degrees
53
of plausibility. While these justifications may have lacked detail, they demonstrate that
Defendant realized he needed an explanation for such a large amount of cash when paired
with the existence of drugs and drug paraphernalia. Most importantly, Officer Gelnett
testified that Defendant showed a high degree of comprehension of what was being asked
of him and the required responses, and Defendant was given multiple , specific
opportunities to give or deny his consent. When Officer Gelnett went through personal
items in the room, he asked Defendant if he owned the item individually, and asked for
specific consent. Repeatedly, Defendant confirmed that an item was his, and then
52
In Dressner, a Philadelphia police sergeant was taken into custody for questioning regarding his role in
covert resale of confiscated narcotics. The sergeant helped Internal Affairs officers who were questioning
him to search the trunk of his car in an apparent belief the drugs he had concealed there could not be
found. The sergeant clearly had education and experience related to drug investigations, cooperated with
the officers prior to the search, and although he had not been read his rights, the court reasoned he was
clearly aware of them. Dressner, 336 A.2d 414.
53
Defendant first testified that the money was his friend’s and he was just holding it; he then testified that
he had just gotten paid, and then when Constable Metcalf questioned what job he had that gave him so
much money in cash, defendant said it was income from a rental property he had just collected. N.T. at
16.
10
54
separately gave consent for Officer Gelnett to search the items. Under these
circumstances, this Court finds Defendant’s consent to search his personal items,
including the backpack and jean jacket, was voluntary, and issues the following Order:
ORDER OF COURT
th
AND NOW, this 17 day of August, 2016, for the reasons set forth in the
accompanying Opinion, the Defendant’s Omnibus Pretrial Motion To Suppress is denied
BY THE COURT,
Christylee L. Peck, J.
Scott M. Jocken, Esq.
Assistant District Attorney
Joshua M. Yohe, Esq.
Assistant Public defender
54
Though Defendant repeatedly stated he had not rented the hotel room, it was clear to Officer Gelnett
that Defendant had been staying there and Defendant then claimed several personal items as his. Even if
Defendant argued that he did not have authority to grant consent to the search, the circumstances indicate
he had apparent authority to allow a search of the room and actual authority to grant a search of his
personal belongings.
11
COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:
v. :
:
TYLER THOMAS : CP-21-CR-0011-2016
IN RE: OMNIBUS PRE-TRIAL MOTION TO SUPPRESS
ORDER OF COURT
th
AND NOW, this 17 day of August, 2016, for the reasons set forth in the
accompanying Opinion, the Defendant’s Omnibus Pretrial Motion To Suppress is denied
BY THE COURT,
____________________________
Christylee L. Peck, J.
Scott M. Jocken, Esq.
Assistant District Attorney
Joshua M. Yohe, Esq.
Assistant Public defender
12