Petition — Pennsylvania v. Jackson

Supreme Court brief1975

Ask Donna

What actually matters in this document.

Text

Su the Supreme Court| sfadieau. 2c

United States

No 75-229

COMMONWEALTH OF PENNSYLVANIA,

Petitioner

vs.

EDDIE JACKSON & RONALD GARRETT,

Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT

OF PENNSYLVANIA

EDGAR B. BAYLEY,

First Assistant District

Attorney, Cumberland

County, Pennsylvania

Attorney for Petitioner

Cumberland County Court House

Carlisle, Pennsylvania 17013

SS eee

Kreative Komposition, Inc., 358 Market Street « Lemoyne, Pa. 17043

pet

TABLE OF CONTENTS

Page

UII: 4 OG iS ds & Ack 6 a eae eS l

IT aan OP er er edie 6 ee ale l

III. 0 ks oe tk wo ee a eh ke a 2

Constitutional Provision Involved .............. 3

De rN hg cA ce Ck Oe eS 4

Reasons for Granting the Writ ............... 13

RE 4 6 Ga ce be 4 oe & Oe Oe Re 22

IR, lala gn -0-0. & BG ee web eck ec Bian * 23

ne 66 teks b65S 4S SOA eo 33

he a ae ae ee ak A 34

EE: cs os oho a ie ee Re ee eee 48

TABLE OF CASES

Aguilar v. Texas, 378 U.S. 108 (1964) .........

Bivens v. Six Unknown Named Agents of Federal

Bureau of Narcotics, 403 U.S. 388 (1971) .....

Coolidge v. New Hampshire, 403 U.S. 443 (1971)...

Draper v. United States, 358 U.S. 307(1959) .....

Mapp v. Ohio, 367 U.S.643 (1961) 2... 0.2...

Miranda v. Arizona, 384 U.S. 436 (1966) .......

Nathanson v. United States, 290 U.S. 41 (1933) ....

Sgro v. United States, 287 U.S. 206 (1932) ......

Spinelli v. United States, 393 U.S. 410(1969) .....

United States v. Harris, 403 U.S.573 (1971). 2...

United States v. Harris, 482 F.2d 1115 (3d Cir. 1973)

Weeks v. United States, 232 U.S. 383 (1914)... ..

i

Oe

Opinions Below and Jurisdiction

PETITION

The Commonwealth of Pennsylvania respectfully requests

that a writ of certiorari issue to review the judgment of the

Supreme Court of Pennsylvania.

OPINIONS BELOW

The opinion of the Pennsylvania Supreme Court reversing

the Pennsylvania Superior Court is reported at ______ Pa.

—_——.,, 337 A.2d 582 (1975) and is printed as Appendix A.

The unanimous opinion of the Penasylvania Superior Court

affirming the trial court is repo: ted at 228 Pa. Superior Ct. 885

(1974), and 228 Pa. Superior Ct. 2°86 (1974), and is printed as

Appendix B. The two opinions of th” trial court are reported at

23 Cumberland Law Journal 34 an:! 24 Cumberland Law

Journal 59 and are printed as Appendix © and Apendix D.

JURISDICTION

The judgment of the Supreme Court of Pennsylvania was

entered on May 13, 1975. The jurisdiction of this court is

invoked under 28 U.S.C. §1257 (3) and by United States

Supreme Court Rule 19 §1 (a).

to

Questions Presented

QUESTIONS PRESENTED

May information gained five months before a_ search

conducted with a warrant pointing to involvement by accused

in large-scale drug trafficking, together with a Federal narcotic

violation arrest, be given weight by a magistrate in determining

probable cause to search where respondent’s present conduct is

corroborative of probable continuous activity inherent in

large-scale narcotic operations?

ii.

Does the interpretation by the Pennsylvania Supreme Court

of what constitutes probable cause to search with a warrant

under the Fourth Amendment of the United States

Constitution require an unreasonable burden upon the

government to conduct a “little trial” before a magistrate may

authorize a policeman to conduct a carefully limited search?

Il.

Should the application of the exclusionary rule be modified

where it penalizes a tyilliant, innovative police investigation

without providing a deterrent to outright illegal police activity?

Constitutional Provision Involved

CONSTITUTIONAL PROVISION INVOLVED

The constitutional provision which the above-entitled

Petition involves is as follows:

Constitution of the United States, Amendment IV:

“The right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches

and seizures, shall not be violated, and no Warrants shall

issue, but upon probable cause, supported by Oath or

affirmation, and »articularly describing the place to be

searched, and the persons or things to be seized.”

Statement of the Facts

STATEMENT OF THE FACTS

On June 14, 1972, Trooper George Wynn of the

Pennsylvania State Police, while on duty and on routine patrol

of the Pennsylvania Turnpike, observed a black-over-blue Ford

Thunderbird traveling at a high rate of speed. Following a

high-speed pursuit for some eight to ten miles, the vehicle was

halted, (156 a). The operator produced an operator’s license

issued to Eddie Jackson of Detroit, Michigan, and a Michigan

registration for the vehicle in the name of Teresa Brown of

Detroit, Michigan. The trooper thereupon advised the driver,

respondent Jackson, that he would be arrested for speeding at

ninety miles an hour in a sixty-five-mile-an-hour zone, (158 a).

Jackson was asked to exit his vehicle and return to the patrol

car with the officer; respondent Gerrett remained in the Ford

automobile, (158 a). While seated in the patrol vehicle, Trooper

Wynn explained to Jackson that he was familiar with him as a

result of a previous incident in January of 1972, and that

because of information received earlier the officer believed that

he was transporting large quantities of contraband across the

Pennsylvania Turnpike, (158 a). Thereupon, respondent

Jackson was informed of his Miranda rights, (159 a).'

Confirming Jackson’s identification with his police

barracks, the trooper then informed him that he intended to

procure a search warrant for the search of his vehicle. He

further explained that the respondent had the right to refuse a

police search without a warrant. Respondent Jackson replied

' Miranda y Arizona, 384 US 436 (1966)

ul

Statement of the Facts

that he understood the remarks of the officer, (159 a). In the

course of questioning by Trooper Wynn, after the Miranda

warnings, Jackson stated that he was traveling from Newark,

New Jersey, and that he had left Detroit on Monday, the 12th

of June, 1972, (159 a).

Leaving Mr. Jackson in the patrol vehicle the trooper then

returned to the Ford Thunderbird where he advised Mr. Garrett

of his Miranda rights. Respondent Garrett verbally

acknowledged that he understood those rights. Respondent

Garrett informed the trooper that he had come from Newark,

New Jersey, and that he had left Detroit on Tuesday, the 13th

of June, (160 a). At that point the record discloses the

following:

“A. 1 then went back to the patrol vehicle and confronted

Mr. Jackson with the conflicting statement that Garrett

gave, and Mr. Jackson informed me that Garrett probably

didn’t know what day it was, that he was high. (Emphasis

added)

Q. Did Jackson say anything else to you at that time?

A. Jackson stated that he wasn’t on the Pennsylvania

turnpike in that blue Thunderbird at any time.” (161 a).

The trooper then asked Jackson if he would consent to a

search of the Ford Thunderbird. Jackson replied affirmatively,

saying that he had nothing to hide, (161 a). Prior to the request

to search, the trooper had warned Jackson (1) of his Fifth

Amendment rights (159 a); (2) had informed him of the nature

of the allegations against him (158 a); (3) had told him he had a

right not to consent to the search without a warrant (159 a).

Statement of the Facts

A search of the interior of the motor vehicle was conducted

by Trooper Wynn and Trooper Glunt, who had subsequently

arrived on the scene. The only physical item discovered was a

Blue Cross identification card displaying the name Joseph

Weaver, (161 a - 162 a). While searching the interior of the car,

the trooper discovered that the trunk key was not with the

ignition key. Trooper Wynn approached both respondents who

claimed to have no knowledge of the key, (162 a). The trooper

did not make any attempt to search the trunk but explained to

both respondents that he intended to obtain a search warrant

for the search of the Ford Thurderbird whereupon both

respondents were transported to the State Police barracks in

Newville, Cumberland County, (162 a). Prior to arriving at the

station, respondent Garrett was asked from whom the car had

been borrowed. He answered at first that he had borrowed the

car from a friend and traveled to Newark, New Jersey, with a

girlfriend named Ruby Smith. Trooper Wynn then explained to

both respondents that the same vehicle had been stopped on the

14th of June, 1972, for speeding on the Pennsylvania Turnpike

by a Trooper Moyer and that his report indicated that the

vehicle was occupied at that time by two negro males.

Respondent Garrett then changed his statement saying that he

was accompanied by a male friend named Reuben Smith and

that the officer had misunderstood his initial remarks, (163 a).

Following arrival at the Newville barracks, Trooper Wynn,

accompanied by Trooper Glunt, and respondent Jackson went

to the office of District Justice Esther Cohick in Newville, (164

a). At the office of Mrs. Cohick, respondent Jackson plead

guilty and paid the fine and costs for the summary speeding

violation, (164 a - 165 a). Thereafter, Trooper Wynn obtained a

search warrant for the search of the Jackson and Garrett

Statement of the Facts

vehicle, a 1972 Ford Thunderbird Coupe, Michigan Registration

JWB 992, the sworn affidavit for which sets forth the following

facts:

“That the facts upon which the affiant relies and verily

believes are as follows: That on or about the 14th day of

June, 1972, the above described vehicle and occupants were

stopped for speeding, 90 MPH in a 65 MPH zone. Eddie

(NMN) JACKSON, DOB 15 June 44, was the operator of

the vehicle. Ronald (NMN) GARRETT, DOB 29 Jul 42,

was the occupant in the right front seat.

This officer was aware of previous activities of Eddie

(NMN) JACKSON in reference to large scale Narcotics

traffic in the Detroit, Michigan area.

On 21 Jan 72, Eddie (NMN) JACKSON, DOB 15 June

44, was arrested py Tpr. Michael M. BRENNAN

PSP-Newville for traveling at an excessive rate of speed and

making improper lane cahnges. [sic] At the time of this

arrest JACKSON had in his possession a brown paper bag

containing approximately $25,000.00 in U.S. paper

currency. JACKSON was traveling Eastbound at the time of

this arrest.

Further investigation in reference to the activities of

Eddie (NMN) JACKSON revealed that as of 21 Jan 72,

Detroit P.D. was in receipt of information received from a

reliable CONFIDENTIAL INFORMANT which indicated

that JACKSON was a large scale Narcotics Dealer in

Detroit, Michigan.

On 21 Jan 72, the brown paper bag with currency was

returned to JACKSON and he continued to travel

Statement of the Facts

Eastbound on the Pa. Turnpike.

This officer was aware of the previously stated

information prior to stopping the Ford Thunderbird for a

traffic violation.

On 14 June 72, Eddie (NMN) JACKSON informed this

officer that they were returning from Newark, New

Jersey. JACKSON further stated that they made the trip to

Newark, New Jersey on Monday, 12 lune 72.

Ronald (NMN) GARRETT, informed this officer that

they made the trip to Newark, New Jersey on Tuesday, 13

June 72.

State Police reports indicated that the previously

described vehicle was stopped the morning of 14 June 72

for speeding. Ronald (NMN) GARRETT was the operator

and the vehicle was traveling Eastbound on the Pa.

Turnpike in Cumberland Co. The State Police report

indicated that the vehicle contained two (2) occupants.

JACKSON & GARRETT were appraised of the above

facts and verbally advised of their Constitutional Rights.

JACKSON informed this officer that he was not an

occupant of the vehicle on the morning of 14 June 72 when

it was stopped for speeding. JACKSON further stated that

GARRETT was “HIGH” when he made the trip and

probably did not known [sic] what day it was. JACKSON

stated he was in Newark, N.J. and GARRETT borrowed the

car and made the trip to Newark to pick him up.

9

Statement of the Facts

GARRETT informed this officer that the passenger in

the vehicle in the morning of 14 June, 72 was Ruby

SMITH, a girl friend, that was dropped off in Newark, N.J.

at an unknown location. GARRETT then changed his

statement to indicate that the name of the passenger on the

morning of 14 June 72 was Reuben SMITH, a male

companion of his. GARRETT could not give the name and

address of the owner of the vehicle.

GARRETT & JACKSON denied having any knowledge

of the trunk key for the vehicle.

| One (1) Blue Cross I.D. card in the name of Joseph

WEAVER was observed on the right hand side of the rear

seat of the vehicle. WEAVER was not an occupant of the

vehicle.

GARRETT & JACKSON denied having knowledge of

anyone using the name of Joseph WEAVER.

The described vehicle and occupants were transported

to the Newville State Police Barracks.

Detroit P.D. was contacted and stated that ]ACKSON

& GARRETT were arrested by Federal Authorities on

Narcotics charges shortly after their stop on the Pa.

Turnpike which occurred on 21 Jan 72.

Due to the conflicting and varying statements received

from GARRETT & JACKSON, the known previous

activities of GARRETT & JACKSON, the suspicious

manner of behavior, the location of I.D. in the name of

Joseph WEAVER in the vehicle, the alleged absence and

10

Statement of the Facts

lack of knowledge of the trunk key, lead this officer to

believe that the trunk of the vehicle contains Narcotics

(Controlled Substances) and stolen I.D. & credit cards.”

(35a & 35b)

Trooper Wynn, Trooper Glunt and respondent Jackson returned

to the State Police Barracks. Jackson and Garrett were placed

under the control of another state trooper while Trooper Wynn

and Trooper Glunt searched the vehicle. Access to the trunk of

the vehicle was made behind the rear seat, (167 a). The units of

contraband were taken from a cardboard box in the trunk and

included approximately 15 pounds of high grade heroin and

cocaine. Testimony at trial indicated that the great majority of

the contraband was between 88% and 92% pure and was

sufficient for the preparation of approximately 680,000

individual units with a street value of $6,800,000.00, (352 a).

Following the search the troopers arrested both Jackson

and Garrett for possession of the contraband and they were

taken to the office of the District Justice for preliminary

arraignment. They subsequently posted $50,000.00 bail each

and remain free on bail at this time.

Thereafter, the sequence of events were as follows:

1. A preliminary hearing held on June 29, 1972;

2. A suppression hearing held on September 6, 1972;

3. An additional suppression hearing held on October 10,

1972;

4. A court opinion dated November 29, 1972, overruling

defendants’ motions to suppress (23 Cumb. L.J. 34);

1]

Statement of the Fucts

5. Both respondents waived a jury trail and a non-jury trial

was held February 28, 1973, following which they were both

convicted;

6. New trial motions were filed and orally argued and

overruled by the court’s decision on September 10, 1973 (24

Cumb. L.J. 59);

7. On October 16, 1973, each respondent was ordered to

undergo imprisonment in a State Institution for not less than

five (5) nor more than fifteen (15) years. In addition, each

respondent was fined $10,000.00.

8. An appeal to the Pennsylvania Superior Court resulted

in the following unanimous order dated May 16, 1974:

“Judgement and sentence affirmed on the opinion of

Shughart, P. J. of the court below.” (228 Pa. Superior Ct.

885)

9. A petition for Allocatur was filed with the Pennsylvania

Supreme Court and granted by order of September 4, 1974.

10. On September 11, 1974, the Supreme Court of

Pennsylvania amended its order of September 4, 1974, 4s

follows:

“Petition granted limited to the issues of (1) whether

the search of the interior of the automobile was a valid

consent search; (2) whether the facts alleged in the affidavit

for the search warrant were sufficient upon which to find

probably [sic] cause to search the trunk of the automobile;

and (3) whether the Fourth Amendment to the United

States Constitution requires service of a search warrant.

Per Curiam.”

12

Statement of the Facts

11. On May 13, 1975, by written opinion reported in

——__— Pa. ______, 337 A.2d 582 (1975), the Supreme

Court of Pennsylvania reversed the judgment and sentence

suppressing the physical evidence of the heroin and cocaine.

13

Reasons for Granting the Writ

REASONS FOR GRANTING THE WRIT

I

THIS CASE PRESENTS THE COURT WITH THE

OPPORTUNITY TO DELINEATE PRECISELY WHAT

FACTORS BEAR UPON “STALENESS” OF INFORMATION

IN EVALUATING PROBABLE CAUSE FOR A MAGISTRATE

TO ISSUE A WARRANT AND TO CORRECT THE

MISAPPLICATION BY THE PENNSYLVANIA SUPREME

COURT OF REQUIRING ACTUAL RATHER THAN

PROBABLE CONTINUITY OF PRIOR CRIMINAL ACTIVITY

IN AN ONGOING NARCOTIC OPERATION.

The Pennsylvania Supreme Court misapplied Federal

constitutional principles in ruling that evidence to demonstrate

continued criminal activity must establish actual rather than

probable continuity of an illegal enterprise in determining

probable cause for the issuance of a search warrant.

Sgro v. United States, 287 U.S. 206 (1932) was relied on by

the Pennsylvania Supreme Court for the proposition that

“stale” information will not comprise probable cause under the

Fourth Amendment. The precise language of Sgro reads:

‘“... proof must be of facts so closely related to the time of

the issue of the warrant as to justify a finding of probable

cause at that time.”

This language has formed the basis of many state appellate

14

Reasons for Granting the Writ

decisions, and has spawned a series of federal cases on the issue

of “staleness”’. The United States Supreme Court however has

not delineated what factors bear on staleness, Sgro being cited

only five times by the United States Supreme Court in the 43

years since its decision. Nor has any other case spoken

definitively to the issue.

The absence of definitive enumeration of these factors has

allowed state and federal appellate courts to misapply the

Fourth Amendment. In the present case, part of the probable

cause set forth in the affidavit was information that less than

five months previously, respondent Jackson was a reputed

large-scale narcotics dealer, and had been arrested by federal

agents on narcotics charges. With no guidelines, the

Pennsylvania Supreme Court has _ interpreted Fourth

Amendment “staleness’ so as to give no consideration

whatsoever to this evidence even though corroborated by

present information at the time the warrant was issued.

Likewise, the ongoing nature of the crime of iarge-scale drug

traffic was ignored.

The standard which the Pennsylvania court applied was that

“evidence to demonstrate continued criminal activity must

establish actual continuity of the illegal enterprise.” (emphasis

theirs). ““Actual’’ was applied to mean proof beyond doubt,

effectively requiring that the officer prove the crime before he

may legally search, and proof beyond doubt is not within the

concept of probable cause under the Fourth Amendment.

It is submitted that probable cause must require only

probable continuity, not actual continuity of prior criminal

activity. Because the court below misconstrued the Fourth

15

Reasons for Granting the Writ

Amendment, this case should be heard to enumerate guidelines

governing “‘staleness”’ to prevent future misapplications.

It is submitted that the decision in United States v. Harris,

482 F.2d 1115 (3d Cir. 1973), very similar on its facts to the

present case, more closely reflects the proper consideration to

be given to facts known to the officer, in determining probable

cause under the Fourth Amendment. Considering the nature of

a “large-scale narcotics operation”, the Harris court felt that

continued activity was “inherent”, where present facts affirmed

the conclusion. The decision of the Pennsylvania Supreme

Court in this case leaves no room for considering obvious and

compelling facts on the true nature of a large-scale, inter-state

drug traffic scheme.

With the behavior of respondents herein, the magistrate

could reasonably have probably concluded that respondents

were using the turnpike to transport narcotics — based in part

on his knowledge of their involvement in large-scale narcotics

traffic less than five months before and Jacksons’ federal

narcotic arrest. When the conflicting statements of both

respondents in an effort to cancel damaging facts and deceive

the trooper are considered, together with the missing trunk key,

Blue Cross card and statement that Garrett was “high”’, etc., the

conclusion of continuity is inescapable. The magistrate should

therefore not be precluded from giving the prior information

weight in his evaluation of probable cause.

16

Reasons for Granting the Wnt

ll

THIS CASE PRESENTS THE COURT WITH A PRECISE

FACT SITUATION TO MAKE A_ FULL-SCALE

RECONSIDERATION OF THE DRAPER-NATHANSON.-

AGUILAR AND SPINELLI CASES, OR IN THE

ALTERNATIVE, TO CORRECT A CLEAR

MISAPPLICATION BY THE PENNSYLVANIA SUPREME

COURT OF THE REQUISITE ELEMENTS OF PROBABLE

CAUSE TO SEARCH WITH A WARRANT UNDER THE

FOURTH AMENDMENT OF THE UNITED STATES

CONSTITUTION.

The Pennsylvania Supreme Court in deciding this case

noted:

‘Before a magistrate may issue a constitutionally valid

search warrant he must be furnished with information

sufficient to persuade a reasonable man that probable cause

to conduct a search does exist.” Spinelli v. United States,

"393 U.S. 410, (1969), Aguilar v. Texas, 398 U.S. 108,

(1964).

When these cases are used in a State court to penalize

brilliant police work in the detection of huge amounts of heroin

and cocaine, valued in the millions of dollars, it is time to

re-evaluate these cases or overrule the Pennsylvania Supreme

Court for its clear misapplication of the constitutional principle

of probable cause to issue a search warrant.

Taken together with the interpretation problems inherent

in Draper v. United States, 358 U.S. 307 (1959), and Nathanson

17

Reasons for Granting the Writ

v. United States, 290 U.S. 41 (1933), the concurring opinion of

Mr. Justice Blackman in United States v. Harris, 403 U.S. 573,

(1971), should be noted:

“I join the opinion of THE CHIEF JUSTICE and the

judgment of the Court, but I add a personal comment in

order to make very clear my posture as to Spinelli v. United

States, 393 U.S. 410, 89 S. Ct. 584, 21 L.Ed.2d 637

(1969), cited in several places in that opinion. I was a

member of the 6-2 majority of the United States Court of

Appeals for the Eighth Circuit in Spinelli v. United States,

382 F.2d 871 (1967), which this Court by a 5-3 vote

reversed, with the pivotal Justice concluding his concurring

opinion, 393 U.S., at 429, 89 S. Ct., at 595, by the

observation that, ‘Pending full-scale reconsideration of that

case [Draper v. United States, 358 U.S. 307, 79 S. Ct. 329,

3 L.Ed.2d 327 (1959)], on the one hand, or of the

Nathanson- Aguilar cases on the other, | join the opinion of

the Court and the judgment of reversal, especially since a

vote to affirm would produce an evenly divided Court.”

Obviously, I then felt that the Court of Appeals had

correctly decided the case. Nothing this Court said in

Spinelli convinced me to the contrary. | continue to feel

today that Spinelli at this level was wrongly decided and,

like Mr. Justice BLACK, I would overrule it.”

In the current case the magistrate was able to consider the

following facts:

1. As of January 1972, the Detroit Police department was

in receipt of information from a reliable and confidential

informant that Jackson was a large-scale narcotics dealer in the

Detroit area.

18

Reasons for Granting the Wnt

2. That Jackson had been arrested by Federal authorities

on narcotics charges subsequent thereto. This information was

provided by the Detroit Police Department to Trooper Wynn on

the date the warrant was obtained, the reliability obviously

being evident to the Magistrate.

3. In January 1972, Jackson had been stopped on the

Pennsylvania Turnpike traveling east with approximately

$25,000 in paper currency in a paper bag.

4. The vehicle in which Jackson and Garrett were traveling

westbound on the evening of the 14th of June, 1972, had been

stopped in Cumberland County on the morning of the 14th

traveling east.

5. Garrett claimed to have left Detroit on the 13th and to

have been traveling with a female companion.

6. Jackson stated Garrett had borrowed the car to make a

trip to Newark for the purpose of picking him [Jackson] up.

7. Defendant Garrett changed his story when confronted

by Trooper Wynn with the fact that the passenger in the car on

the morning of the 14th had been a male; Garrett stated first of

all that he made the trip with a girlfriend named Ruby Smith,

then changing his version of the statement and indicating that

he was traveling with a male friend, Reuben Smith. Thus not

only did the statement involving the occupants change, the

statement with respect to the date of the eastbound trip

changed, i.e. from June 13th to June 14th. This was after

Garrett learned that the Trooper knew of his being stopped

going eastbound the morning of the 14th.

19

Reasons for Granting the Writ

8. Defendant Jackson stated that they had come from

Detroit on the 12th of June, that he and Garrett had not made

the trip together, and that Garrett could not have known the

day of his travel because he was “high”. (emphasis added)

9. Jackson and Garrett stated that they had no knowledge

of any trunk key to the vehicle.

10. Jackson and Garrett stated they had no knowledge of

one Joseph Weaver, whose Blue Cross Identification Card was

found in the ear.

The current information obtained upon the circumstances

of respondents’ presence on the Pennsylvanja Turnpike on both

the morning and evening of June 14, 1972, 408 the conflicting

statements of both respondents in an effort to conceal

damaging facts and deceive the trooper, added to the prior

information as to Jackson’s reputation as a large-scale narcotic

dealer and his prior Federal arrest record for narcotics charges,

all signaled probable cause to believe that the respondents were

transporting contraband like a ten-fold beacon in the night.

Reasons for Granting the Writ

ill

THIS CASE PRESENTS A PRECISE FACT SITUATION

WHERE THE APPLICATION OF THE EXCLUSIONARY

RULE DOES NOT DETER OUTRIGHT ILLEGAL POLI@E

ACTIVITY BUT PENALIZES A BRILLIANT, INNOVATIVE

POLICE INVESTIGATION; THE PROPRIETY OF THE

APPLICATION OF THE RULE IN SUCH A SITUATION IS

SQUARELY PRESENTED.

The exclusionary rule, first announced in Weeks v. United

States, 232 U.S. 383, (1914), and extended to the states in

Mapp v. Ohio, 367 U.S. 643, (1961), has as its basis the

deterrence of illegal police activity. Other rationales for the rule

espoused from time to time are in truth superfluous. See Chief

Justice Burger, dissenting, in Bivens v. 6 Unknown Federal

Narcotics Agents, 403 U.S. 388 (1971).

It is submitted that:

(1) the rule does not serve its announced purpose,

particularly in situations as here, and should be

replaced with an alternative deterngnt;

(2) short of replacement, the rule should be modified so as

to be inapplicable in situations where it would serve no

deterrent effect, present or future, and as in this case,

penalizes a brilliant, innovative investigation leading to

the seizure of millions of dollars worth of heroin and

cocaine,

21

Reasons for Granting the Writ

As pointed out by Justice Black, dissenting in Coolidge v.

New Hampshire, 403 U.S. 443 (1971), there is no language in

the Fourth Amendment to support the exclusionary rule.

Modification or replacement of the rule is therefore entirely

proper under the Constitution.

The reasons for outright abandonment are explicitly

detailed in the Chief Justice’s dissent in Bivens, supra. This case

provides a classic example of the injustice without deterrence

which is fostered by the exclusionary rule, thereby providing

the Court with an excellent fact situation to modify the

application of the rule.

Short of replacing the rule, it should be modified so as to

be inapplicable where it has no deterrent effect. In the present

case, the only purpose, past, future, or present, served by the

rule is to free the respondents to continue their trafficking in

narcotics,

The officer herein possessed a quantum of evidence making

him reasonably sure that a crime was in progress. Ignoring his

beliefs would have been dereliction of his duty, hence his action

in seeking a warrant was not only justified, but demanded. It

must be noted that the officer did not break into the

automobile trunk, but rather, respecting the rights of the

respondents, sought a warrant by presenting his information to

a disinterested magistrate for her evaluation. None of this is

even remotely near the activities sought to be deterred by the

exclusionary rule.

Thus, the exclusionary rule will not deter police from

acting on this quantum of information in the future, for the

simple reason that such actions are entirely reasonable. It is

22

Reasons for Granting Writ

further submitted that the rule should not render such searches

illegal. Where police possessed with this much evidence cannot

act, e *n through warrants, their ability to effectively enforce

the law is unreasonably and unnecessarily restricted.

The value of the exclusionary rule — deterrence df illegal

police activity — is not exemplified by this case. It is submitted —

that the Pennsylvania Supreme Court has lost sight of the sole

rational supporting the rule. The court should therefore utilize

this case to redefine the rule to serve the needs of justice and

the protection of the public.

CONCLUSION

For the foregoing reasons, this Petition for a Writ of

Certiorari should be granted.

Respectfully submitted,

Edgar B. Bayley

First Assistant District Attorney

Cumberland County, Pennsylvania

Attorney for Petitioner

23

Appendix A

APPENDIX A

| Pa. , 337 A.2d 582 (1975)]

IN THE SUPREME COURT OF

PENNSYLVANIA

Middle District

No. 47 January Term, 1975

COMMONWEALTH OF PENNSYLVANIA

Appellee

V.

EDDIE JACKSON and RONALD GARRETT

Appellants

Appeals from the Orders of the Superior Court at Nos. 68

and 69 October Term 1974, Axiirming the Judgments of

Sentence of the Court of Common Pleas of Cumberland County

to No, 285 September Term 1972.

Man 13, 1978

Appendix A

OPINION

EAGEN, J.

Appellants, Eddie Jackson and Ronald Garrett, were

arrested and charged with unlawful possession of a controlled

substance, unlawful possession with intent to deliver dangerous

drugs and conspiracy to commit an unlawful act.' A search,

pursuant to a warrant, of the trunk of a 1972 Ford Thunderbird

in which the appellants had been traveling, revealed a box

containing approximately fifteen pounds of heroin and cocaine.

A pretrial motion to suppress this evidence was filed and, after

an evidentiary hearing, denied. Thereafter, appellants were tried

before a judge, sitting without a jury, and adjudged guilty of the

charges. The challenged evidence was introduced against the

appellants at trial. Post trial motions were denied and a sentence

of five to fifteen years imprisonment, plus the payment of a

$10,000 fine was imposed on each appellant. On appeal, the

Superior Court affirmed the judgments of sentence in separate

per curiam orders. We then granted allocatur.

The record discloses the following:

On June 14, 1972, at approximately 6:00 p.m., Trooper

George Wynn of the Pennsylvania State Police stopped a Ford

' The Controlled Substance, Drug, Device and Cosmetic Act, Act of April

14, 1972, P.L. 165, No. 64, s 13,35 P.S. s 780-113 (Supp. 1974-1975).

25

Appendix A

Thunderbird automobile traveling west on the Pennsylvania

Turnpike for a speeding violation.2, The driver, appellant

Jackson, produced an operator’s license issued to Eddie Jackson

of Detroit, Michigan, and a Michigan registration for the vehicle

in the name of Teresa Brown of Detroit, Michigan. The

appellant Garrett was the vehicle’s sole passenger. The officer

advised Jackson he would be arrested for speeding and asked

him to exit the vehicle. The two then proceeded to the officer’s

police patrol automobile nearby and Garrett remained in the

Ford.

While seated in the police vehicle, Trooper Wynn

immediately advised Jackson of his rights as mandated by

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966). The °

officer then went on to tell Jackson that he “suspected him of

transporting large quantities of heroin across Pennsylvania . . .

because he “was familiar with his [Jackson’s] stop on the 21st

of January, 1972, at which time he had a brown paper bag

containing $25,000 in U.S. paper currency” and that on the

21st day of January, 1972, Trooper Wynn “was made aware of

information from Detroit... that he [Jackson] was a large

narcotic dealer in the Detroit area” who used the Pennsylvania

Turnpike to transport large quantities of heroin. During the

course of this conversation, Jackson said nothing incriminating,

but told Trooper Wynn he was traveling from Newark, New

Jersey, and had left Detroit on Monday, June 12th.

2 The vehicle had been stopped earlier the same day while traveling east on

the turnpike.

26

Appendix A

Trooper Wynn then returned to the Ford automobile and

advised Garrett of his Miranda rights. Garrett stated he

understood his rights and, upon questioning, informed Trooper

Wynn that he and Jackson were traveling from Newark, New

Jersey, and had departed from Detroit on Tuesday, June 13th.

When confronted with this apparently contradictory statement,

Jackson stated that Garrett was “high” and probably unaware

what day it was. Subsequently, a search of the interior of the

Ford automobile was conducted by Trooper Wynn and Trooper

Glunt, who had arrived on the scene.? The troopers discovered

a Blue Cross identification card issued in the name of Joseph

Weaver, an individual whom Jackson and Garrett denied having

any knowledge of. In addition, the troopers discovered that the

trunk key was not present with the ignition key and, when

Jackson and Garrett claimed to have no knowledge of the trunk

key, a decision was made to transport them, as well as the Ford

automobile, to the State Police barracks in Newville,

Cumberland County.

Enroute to the State Police barracks, Garrett stated he had

traveled to Newark, in the Ford automobile, with a girl friend

named Ruby Smith. However, upon being advised by Trooper

Wynn that the same vehicle had been stopped earlier in the day

for speeding on the turnpike and that the arresting officer had

reported the occupants of the vehicle to be two males, Garrett

changed his story. He explained that Trooper Wynn had

3 The suppression hearing court determined tf at Jackson had “‘voluntarily

and intelligently” consented to this search. The appellants contest this

determination and assert that any clairaed consent was obtained only as

the result of the troopers’ claim of lawful authority to go through the

vehicle. In view of our disposition of this case it is not necessary to now

reach this issue.

27

Appendix A

misunderstood his first statement and that his traveling

companion had been Reuben Smith.

Following arrival at the State Police barracks, Trooper

Wynn obtained a warrant to search the trunk of the Ford

automobile for *“‘Narcotics, Controlled Substances, and Stolen

Articles.” The affidavit in support of the issuance of the

warrant recounted the events which transpired on June 14th,

namely: (1) the stopping of the Ford autombile for speeding on

two occasions; (2) the inconsistent and _ contradictory

statements given by Jackson and Garrett; (3) the absence of a

trunk key and i>e failure of Jackson and Garrett to know the

whereabouts of such key; and (4) the discovery in the interior

of the vehicle, of a Blue Cross identification card issued to

Joseph Weaver, an individual whom both Jackson and Garrett

denied having any knowledge of. In addition, the affidavit

related: (1) that on January 21, 1972, Jackson had been

stopped for speeding while traveling east on the Pennsylvania

Turnpike and a brown paper bag containing twenty-five

thousand dollars in cash was found in his possession; (2) that as

of January 21, 1972, the Detroit Police Department was in

receipt of information from a “reliable confidential informant”

that Jackson was a large scale narcotics dealer in the Detroit

area; and (3) that shortly after January 21, 1972, Jackson and

Garrett were arrested by federal authorities on narcotics

charges. The subsequent search produced the heroin and

cocaine which were eventually introduced into evidence at trial.

Appellants contend the warrant which authorized the

search was constitutionally defective, in that it was issued

without a showing of probable cause and, thus, renders the

28

Appendix A

evidentiary use of the property seized in the execution of the

warrant as constitutionally proscribed at trial. We agree.

Before a magistrate may issue a constitutionally valid search

warrant he must be furnished with information sufficient to

persuade a reasonable man that probable cause to conduct a

search does exist. Spinelli v. United States, 393 U.S. 410, 89 S.

Ct. 584 (1969); Aguilar v. Texas, 378 U.S. 108, 84S. Ct. 1509

(1964); Commonwealth v. D’Angelo, 437 Pa. 331, 263 A. 2d

441 (1970). The requisite probable cause must exist at the time

the warrant is issued and be based on facts which are closely

related in time to the date of the issuance, for it is well-settled

that stale information cannot supply the probable cause

necessary for the issuance of a search warrant. Sgro v. United

States, 287 U.S. 206, 210, 53 S. Ct. 138 (1932);

Commonwealth v. Eazer, 455 Pa. 320, 323, 312 A. 2d 398

(1973); Commonwealth v. Simmons, 450 Pa. 624, 629-630, 301

A. 2d 819 (1973); Commonwealth v. Shaw, 444 Pa. 110, 113,

281 A. 2d 897 (1971).

Instantly, the only information contained in the affidavit

relating to the possible presence of narcotics or other controlled

substances in the trunk of the Ford automobile, dated from

January 21, 1972, almost five months prior to the issuance of

the search warrant. As this Court noted in Commonwealth v.

Shaw, supra at 113-114, 281 A. 2d at 899:

“If the issuing officer is presented with evidence of criminal

activity at some prior time, this will not support a finding

of probable cause as of the date the warrant issues, unless it

is also shown that the criminal activity continued up to or

about that time.” | Emphasis supplied. |

29

Appendix A

Here, as in Shaw, the requirement of establishing continuing

criminal activity has not been satisfied. See also Commonwealth

v. Simmons, supra.

The Commonwealth argues the furtive behavior of the

appellants, when considered with the reports of past criminal

narcotic activity, dictated the probability that, on June 14th,

the appellants were using the Pennsylvania Turnpike for the

transportation of narcotics, thus supplying the required element

of continuity. However, evidence to demonstrate continued

criminal activity must establish actual continuity of the illegal

enterprise. Commonwealth vy. Eazer, supra at 324, 312 A. 2d at

400. Herein, Trooper Wynn possessed no information that a

crime had been committed. He had neither an informant’s tip

nor the benefit of police surveillance to indicate that narcotics

were being transported in the Ford vehicle. Although the

appellants’ behavior may not have been of an outwardly

innocent character, it was not such as indicated a probability

that narcotics would be found in the Ford automobile. The

appellants’ responses and movements may have appeared

suspicious to Trooper Wynn, but “mere suspicion” is not an

adequate ground for the issuance of a search warrant.

Nathanson v. United States, 290 U.S. 41, 47, 54 S. Ct. 11

(1933); United States v. Day, 455 F. 2d 454, 456 (3d Cir.

1972); Commonwealth v. Pinno, 433 Pa. 1, 5, 248 A. 2d 26

(1968). Therefore, we conclude there did not exist probable

cause to search the trunk of the Ford automobile for narcotics

and controlled substances.

The Commonwealth contends that, even if probable cause

did not exist to justify a search for narcotics, there was

probable cause to search the trunk of the automobile for stolen

30

Appendix A

goods, and since the presence of the narcotics was disclosed

through this search, this contraband was properly seized under

the “plain view” doctrine set forth in Coolidge v. New

Hampshire, 403 U.S. 443, 465, 91 S. Ct. 2022 (1971). We find

this position to be devoid of merit.

Fundamental to the application of the “plain view”

doctrine is the principle that the seized objects must not have

been put in plain view as a result of unlawful police conduct.

Harris v. New York, 390 U.S. 234, 236, 88 S. Ct. 992 (1968);

Commonwealth v. Jeffries, 454 Pa. 320, 327, 311 A. 2d 914

(1973). Instantly, probable cause to search the trunk for stolen

goods did not exist. The sole indication that stolen goods might

be found in the trunk of the Ford automobile was the discovery

of an unexplained Blue Cross identification card in the interior

of the vehicle. Trooper Wynn possessed no information

indicating the Blue Cross card had been stolen, nor was he in

possession of knowledge indicating the appellants were

transporting stolen goods. Under these circumstances, the mere

discovery of an unexplained Blue Cross identification card, in a

borrowed vehicle, did not justify the police in believing that

fruits of criminal activity would be found upon an inspection of

the trunk. Commonwealth v. Carrington, 227 Pa. Superior Ct.

472, 324 A. 2d 531 (1974), relied upon by the Commonwealth

to support the validity of the search on this theory is decidedly

different factually. Therein the automobile occupied by

Carrington and others had been reported to the police as stolen

and had in plain view, on the front seat, when stopped by the

police, a can containing three plastic bags of white powder.

Appendix A

The orders of the Superior Court are reversed. The

judgments of sentence of the court of original jurisdiction are

reversed and a new trial is ordered.

Mr. Chief Justice Jones dissents.

32

Appendix B

APPENDIX B

[228 Pa. Superior Ct. 885, 322 A.2d 680 (1974)]

IN THE SUPERIOR COURT OF

PENNSYLVANIA

Middle District

Nos. 68 and 69 October Term, 1974

COMMONWEALTH OF PENNSYLVANIA

v.

Eddie Jackson,

Appellant

COMMONWEALTH OF PENNSYLVANIA

We

Eddie Jackson (et al, appellant)

Ronald Garrett

Appeal from the Judgment of Sentence of the Court of

Common Pleas, Criminal, of Cumberland County, at No. 285

September Term, 1972.

33

Appendix B

OPINION

PER CURIAM.

Judgment of sentence affirmed on the opinion of Shughart,

President Judge, of the court below.

34

Appendix C

APPENDIX C

{23 Cumberland Law Journal 34]

IN THE COURT OF COMMON PLEAS OF

CUMBERLAND COUNTY, PENNSYLVANIA

No. 285 September Term, 1972

COMMONWEALTH OF PENNSYLVANIA

Vv.

EDDIE JACKSON

RONALD GARRETT

OPINION and ORDER OF COURT

The above-named defendants were siopped by the

Pennsylvania State Police on the Pennsylvania Turnpike for

speeding. Following an alleged consensual search of the motor

vehicle, the police officers procured a search warrant for the car

which resulted in the seizure of a quantity of narcotic drugs. As

a result of the testimony introduced at the suppression hearings,

we make the following findings of fact.

% eee

—

35

Appendix C

FINDINGS OF FACT

1. At approximately 6:00 p.m. on June 14, 1972, Trooper

George Wynn of the Pennsylvania State Police stopped a

Thunderbird automobile traveling west on the Pennsylvania

Turnpike for a speeding violation (N.T. 4, 5).

2. The vehicle was registered in the name of Teresa Brown

of Detroit, Michigan, and was being operated by Eddie Jackson

who was accompanied by a passenger, Ronald Garrett (N.T. 6,

7).

3. Upon being stopped, Jackson was removed to the patrol

car where Officer Wynn stated that he had information dating

from January 1972 which indicated that Jackson was a known

narcotics dealer and that Wynn planned to make a search of the

vehicle by the use of a search warrant (N.T. 7, 8, 22-24).

4. At the same time, Wynn advised Jackson of his Miranda

rights and of his right to refuse a warrantless search of the

vehicle at which time Jackson indicated that he understood his

rights (N.T. 8).

5. Jackson advised Wynn that he had left Detroit on

Monday, June 12, 1972, and was returning to Detroit from

Newark, New Jersey (N.T. 8, 9).

6. Wynn returned to the Thunderbird and advised Garrett

of his Miranda rights. Garrett stated that he understood his

rights and, upon questioning, advised Wynn that he and Jackson

were traveling from Newark, New Jersey, and had left Detroit

on Tuesday, June 13, 1972 (N.T. 9).

Appendix C

7. Wynn confronted Jackson with Garrett’s contradictory

statement and Jackson stated that Garrett was incorrect and

that he, Jackson, had not been on the Pennsylvania Turnpike in

the Thunderbird at any time (N.T. 10, 35, 36).

8. Upon request of Trooper Wynn, Jackson consented to a

search of the Thunderbird stating that he had nothing to hide

(N.T. 10, 26, 27, 31, 32).

9. Trooper Glunt of the Pennsylvania State Police arrived

and, pursuant to request from Trooper Wynn, together they

conducted a search of the interior of the Thunderbird which

produced a Blue Cross identification card issued in the name of

Joseph Weaver (N.T. 10, 11).

10. The troopers discovered that the trunk key was not

present with the ignition key and both defendents denied any

knowledge of its whereabouts (N.T. 11).

11. At this point, the defendents were informed that they

would be detained for the purpose of obtaining a search warrant

(N.T. 11, 33).

12. Garrett and Jackson were transported to the Newville

State Police Barracks by Trooper Wynn while Trooper Glunt

drove the Thunderbird to that location (N.T. 11).

13. Enroute to the Newville Barracks, Garrett advised

Wynn that he had borrowed the Thunderbird from a girlfriend

named Ruby Smith whom he had left in Newark. Upon being

advised by Wynn that the same vehicle had been stopped for

speeding on the turnpike on the morning of June 14, 1972, and

that the arresting officer reported the occupants of the car to be

37

Appendix C

two negro males, Garrett stated that Wynn had misunderstood

his first statement and that his traveling companion was one

Reuben Smith, a male companion (N.T. 11, 12, 13).

14. At the Newville Barracks, Jackson made a call

ostensibly to his attorney and then revoked his original

permission to search the vehicle. At this time, Trooper Wynn

called the Detroit Police Department and received confirmation

of information previously received on January 21, 1972, to the

effect that Jackson was a large-scale narcotics dealer and that he

was arrested by federal authorities in a narcotics raid in Detroit

(N.T. 26, 29, 33-35, 53, 59, 60).

15. Jackson and Garrett were escorted by the police

officers to the office of District Justice Esther Cohick in

Newville where Jackson pled guilty and paid the fine for the

speeding violation (N.T. (2) 4).*

16. Trooper Wynn next typed his complaint for a search

warrant, during which Jackson’s attorney, Milton Henry,

Esquire, called District Justice Cohick on several occasions

inquiring about the search warrant (N.T. 63, 64; N.T.(2) 5-7).

17. Trooper Wynn talked to Milton Henry on the phone

who identified himself as Jackson’s attorney but the officer

refused to discuss the case and finally referred Mr. Henry to the

district attorney of Cumberland County (N.T. 44, 45, 47, 62,

63).

*Page numbers following “N.T.(2)” refer to notes of testimony from

the second suppression hearing on October 10, 1972; other page numbers

refer to the first suppression hearing on September 6, 1972.

38

Ippendiv C

18. After examination of the sworn complaint, District

Justice Cohick issued a search warrant (N.T.(2) 8).

19. At no time prior to the issuanee of the seareh warrant

did District Justice Cohick have any communication with the

district attorney of Cumberland County or any member of his

staff concerning the ease (N.T.(2) 4, 9).

20. Trooper Wynn did not confer or communicate with the

distriet attorney or any member of his staff comeerning the case

on the evening of June 14, 1972, until after the search warrant

had been issued by District Justice Cohick. Further, Trooper

Wynn and District Justice Cohick had no discussion regarding

the district attorney or assistant district attorney concerning the

case or the issuance of the warrant prior to the time the warrant

was issued (N.T.(2) 6, 7, 9, 10, 18, 24).

21. After the warrant was issued, the police officers and

the defendants returned to the Newville Barracks where the

trunk of the vehicle was searched by removing the rear seat of

the vehicle (N.T. 18).

22. The search produced a brown sealed cardboard box

containing eight clear plastic bags containing suspected

narcotics, Detroit Edison electrical statements in the name of

French Continental Realty Company, and a white slip of paper

with red numerical figures.

23. Following the seizure of the suspected contraband,

Jackson and Garrett were arrested for possession of contraband

and were taken to District’ Justice Cohick’s office for

preliminary arraignment,

39

Appendix C

24. On September 2, 1972, Trooper Wynn conducted a

further search of police patrol car No. 360 which was used to

transport the defendants on the evening of June 14, 1972, and

under the back seat of that vehicle he discovered a Ford Motor

Company trunk key which he subsequently found would open

both the trunk and the glove compartment of the Thunderbird

which had been in police custody since June 14, 1972.

DISCUSSION

The first question for consideration is whether the

warrantless search of the interior of the vehicle on the evening

of June 14, 1972, was valid. The validity of the search hinges on

whether or not Jackson consented to the search. It is clear that

“a waiver is ordinarily an intentional relinquishment of a known

right or privilege.” Johnson vy. Zerbst, 304 US 458, 464 (1938),

82 L Ed 1461, 1466. An individual may personally waive the

constitutional right prohibiting unreasonable — searches.

Commonwealth v. Smith, 201 Pa. Superior Ct. 511 (1963),

(citing cases). Further, when a waiver or right is involved, the

prosecutor has the burden of showing voluntary consent and

“this burden cannot be discharged by showing no more than

acquiesence to a claim of lawful authority.” Bumper v. North

Carolina, 391 US 543, 88 S Ct 1788, 20 L ed 2d 797, 802

(1968). In the Bumper case, the police secured admission to a

residence by deceitfully stating that they had a search warrant

in their possession. The court therefore held that their

misrepresentation invalidated the search. There is no claim of

alleged lawful authority involved in the case before us.

The Pennsylvania Supreme Court has held that for

consensual search to be valid, “there must be a total absence of

duress or coercion, express or implied.”” Commonwealth v.

40

Appendix C

Harris, 429 Pa. 215 (1968). The implied coercion has been

defined as ‘‘stealth, deceit, or misrepresentation.”

Commonwealth v. Wright, 411 Pa. 81 (1963). Consent or waiver

is valid, however, if obtained under a threat to obtain a search

warrant. Commonwealth vy. Wright, supra; United States v. Haas,

106 F Supp 295 (1952).

Further criteria for determining voluntary waiver have been

established in United States ex rel. Harris v. Hendricks, 423 F

2d 1096 (3d Cir 1970), where the court said at page 1009:

lt is settled that “the existence and voluntariness of a

consent is a question of fact” to be decided in light of the

attendant circumstances by the trier of facts. Critical

factors of attendant circumstances include the setting in

which th) consent was obtained, what was said and done by

the parties present with particular emphasis on what was

said hy the individual consenting to the search, and his age.

intelligence, and educational background. (Footnotes

omitted.)

In this case there is no evidence that the officers obtained

Jackson’s permission through a claim of authority or through

the use of coercion or duress. Trooper Wynn advised Jackson

that he had no authority to make the search without a warrant

and Jackson clearly indicated that he understood his right to

refuse. We are satisfied that Jackson freely consented to the

search and there is nothing lo negate a finding that his waiver

was voluntarily and intelligently given. We conclude, therefore,

that the Blue Cross 1.D. card obtained in the search of the car

was properly secured and therefore could be used as one of the

grounds for securing a search warrant,

41

Appendix C

The defendants earnestly contend that one who is carrying

contraband would assuredly not voluntarily consent to a search

which would disclose those articles, citing United States v.

Gregory, 204 F Supp 884 (D.C.N.Y. 1962). The reasoning of

the court in that case, however, is inapplicable to this situation.

Here, the defendants knew that the key to the trunk of the

vehicle was not available and therefore the coatraband in the

trunk could not be uncovered by the search. By voluntarily

The defendants earnestly contend that one who is carrying

contraband would assuredly not voluntarily consent to a search

which would disclose those articles, citing United States v.

Gregory, 204 F Supp 884 (D.C.N.Y. 1962). The reasoning of

the court in that case, however, is inapplicable to this situation.

Here, the defendants knew that the key to the trunk of the

vehicle was not available and therefore the contraband in the

trunk could not be uncovered by the search. By voluntarily

consenting to the search of the rest of the car which produced

no contraband, the defendants had every reason to expect that

the officers would be satisfied and permit them to go on their

way. The consent to search in this situation might therefore be

considered as a means of avoiding discovery of the contraband.

The consent is no less valid because the ploy was unsuccessful.

Having decided that the seizure of the Blue Cross 1.D. card

resulted from a consensua search, we next turn to a determina-

tion of whether the narcotics were seized pursuant to a

valid search warrant. For a search warrant to be valid, the

issuing officer must have been able to find probable cause

from the facts and circumstances as presented in the sworn

affidavit. Nathanson v. United States, 290 U.S. 41, 54

S Ct 11, 78 L ed 159 (1933). An affidavit, however, does

42

Appendix C

not establish probable cause when it merely states the affiant’s

suspicions or beliefs without stating facts upon which the belief

is based. Nathanson v. United States, supra.

On the other hand, the decision as to whether a complaint

for search warrant establishes probable cause is made in a

commonsense and realistic manner and not upon legal

technicalities. United States v. Ventresca, 380 U.S. 102, 13 L ed

2d 684, 85 S Ct 741 (1965). Further, reviewing courts will pay

great deference to a magistrate’s determination that probable

cause dees exist. Jones v. United States, 362 U.S. 257. 4 L ed

2d 697, 90 S Ct 725 (1960). This principle was enuciated in

Aguilar v. Texas, 378 U.S. 108, L11, 12 Led 2d 723, 726, 845

Ct 1509 (1964). where it was said:

... When a seareh is based upon a magistrate’s, rather than

a police officer's determination of probable cause, the

reviewing courts will aecept evidence of a less “judicially

competent or persuasive character than would have justified

an officer in acting on his own without a warrant” and will

sustain the judicial determination so long as “‘there is a

substantial basis for (the magistrate) to conclude that

narcotics were probably present.” (Emphasis added.)

(Citations omitted.)

Nonetheless, the decision that probable cause exists may

not be arbitrarily made, and the facts from which probable

cause is determined must be closely related in time to the

issuance of the warrant. Commonwealth v. Shaw, 444 Pa. 110.

11:3 (1971). In that ease, Justice Eagen stated at page 113:

If the issuing officer is presented with evidence of criminal

eee — ones ae one

43

Appendix C

activity at some prior time, this will not support a finding

of probable cause unless it is also shown that the criminal

activity continued up to or about that time. (Emphasis

added.)

A warrant may be valid even when the affidavit contains

extraneous or impermissible information if the matter is merely

cumulative and probable cause exists independent of the

impermissible facts contained therein. United States v. Sterling,

369 F 2d 799 (3d Cir 1966); Commonwealth v. Thomas, 444

Pa. 436 (1971). '

Considering the above principles, it is apparent that there

was a substantial basis for the issuance of the warrant either (1)

based upon the facts set forth in the affidavit which were

closely related in time to the issuance of the warrant, or (2)

based upon all of the facts as stated since they reasonably

display that the original criminal activity continued up to that

time.

Ignoring the information compiled prior to June 24, 1972,

the following facts are set forth in the affidavit: (1) the vehicle

in question was stopped for speeding two times on the same

day, once traveling east on the Pennsylvania Turnpike and once

traveling west; (2) the occupants gave conflicting statements as

to the dates of travel and as to who had been in the vehicle on

the earlier occasion, all of which was irrelevant to the speeding

charge; (3) the car had purportedly been borrowed by Garrett

and he did not know either the name or address of the owner;

(4) a Blue Cross 1.D. card which was issued to one Joseph

Weaver who was unknown by either occupant was found in the

car and; finally, (5) the fact that, although allegedly the parties

44

Appendix C

had traveled across the Pennsylvania Turnpike to Newark and

on their way back, neither occupant admitted knowledge of the

whereabouts of the key to the trunk in which a spare tire would

be located.

While the fact that the same automobile was stopped twice

for speeding on the same day going in opposite directions may

arouse suspicion, the fact that the occupants made conflicting

statements regarding their travels was suspicious. See

Commonwealth v. Beatty, 216 Pa. Superior Ct. 144 (1971).

That the occupants would make a long journey in a borrowed

car without having access to the trunk or having off-hand

knowledge of the owner, when combined with the other

circumstances, leads to a justifiable conclusion that some illegal

activity is afoot. Therefore, the discovery of the unexplained

Blue Cross 1.D. card issued to one unknown to either of the

occupants, combined with these circumstances, provides a

substantial basis for concluding that stolen credit cards and I.D.

cards were probably in the trunk of the automobile. The

totality of the circumstances were such as to lead to a

reasonable conclusion that the trunk might contain other stolen

identification or credit cards.

Even if probable cause did not exist to justify a search for

narcotics, when narcotics were found during a reasonable search

for stolen goods, the narcotics became subject to seizure under

the “plain view rule” enunciated in Coolidge v. New Hampshire,

403 US 443, 465, 29 L ed 2d 564, 582 (1971), where the court

said al page 465:

An example of the applicability of the “plain view”

doctrine is the situation in which police have a warrant to

45

Appendix C

search a given area for specific objects, and in the course of

the search come across some other article of incriminating

character. (Citations omitted.)

Even though we believe that probable cause did exist for

the issuance of the search warrant without regard to the

information on Jackson dating back to January 21, 1972, we

are satisfied that the circumstances occurring on June 14, 1972,

were so similar in nature to those prevously recorded that the

magistrate issuing the warrant would be justified in considering

all of the facts set forth.

The complaint for the warrant stated that: (1) a “reliable

confidential informant” had given the Detroit police

information that Jackson was a large-scale narcotics dealer; (2)

the affiant had previous knowledge of Jackson’s connection

with narcotics trafficking in Detroit; and (3) the affiant knew

Jackson had been arrested for a speeding violation on the

Pennsylvania Turnpike on January 2), 1972, with $25,000 in

cash in his possession.

The implication of this information is that the defendants

had a route whereby they transported narcotics from New

Jersey to Detroit. Therefore, although in and of itself this

previously gathered information would have deen stale, when

examined in light of the circumstances occurring on June 14,

1972, a pattern of continuous criminal activity is displayed.

Thus, the previous information could be utilized in determining

whether probable cause existed for the issuance of a search

warrant.

This situation is distinguishable from Commonwealth v.

46

Appendix C

Shaw, supra, for in that case the only fact connecting the

previously gathered information to the present circumstances

was the presence of visitors with long hair and unusual clothing.

Logically, there could not be an inference of criminal activity

from that circumstance alone. In this case, however, as

indicated, there are several clearly suspicious circumstances

which, when coupled with previously gathered information,

form a pattern of activity. We conclude that even had probable

cause for the issuance of the warrant not existed apart from the

material which was five months old, there is sufficient

connection between the activities of the defendants on the two

oecasions to provide a substantial basis for the issuance of the

warrant.

The defendants have also moved to suppress the trunk key

found by Trooper Wynn in the patrol car on September 2,

1972, on grounds that the key is the result of an illegal search

and seizure. In accordance with the prior findings that the

warrantless seareh was properly consented to and that the

warrant was properly issued, this motion must be denied.

Further, the Thunderbird was being properly held under

authority of the Controlled Substanee, Drug, Deviee, and

Cosmetic \et. Net of April 14, L972 (35 PLS. 780-101 et seq.)

which was in effect on the date of defendant’s arrest. The police

have the right to seareh vehicles properly held under the

provisions of a state statute. Cooper v. California, 386 US 58.

17 1. ed 2d 730, 87 S Ct 788 (1967). Thus, both the diseovery

of the key and its use to open the trunk and glove compartment

of the Thunderbird are admissible as evidence.

Sinee we regard the alleged statement of Jackson that “you

rower cath + enna

47

Appendix C

got us now” as being too ambiguous to be admissible in

evidence, the motion to suppress this statement is sustained. =

Therefore, except as noted above, we conclude that both

the original and amended motions to suppress the evidence

must be overruled.

ORDER OF COURT

AND NOW, November 29, 1972, for the reasons set forth

above, the motions to suppress the evidence adduced in the

above case be and are hereby overruled, except as to the oral

statement of the defendant Jackson.

By the Court,

/s/ Dale F. Shughart

P.J.

Appendix D

APPENDIX D

| 24 Cumberland Law Journal 59]

IN THE COURT OF COMMON PLEAS OF

CUMBERLAND COUNTY, PENNSYLVANIA

No, 285 September Term, 1972

COMMONWEALTH OF PENNSYLVANIA

v.

EDDIE JACKSON

RONALD GARRETT

OPINION and ORDER OF COURT

On June 14, 1972, a vehicle driven by the defendant Eddie

Jackson, in which Ronald Garrett was a passenger, was stopped

on the Pennsylvania Turnpike for a speeding violation by

Trooper George A. Wynn of the Pennsylvania State Police.

Based on the information he had previously received, the

arresting officer believed the defendants were transporting

nl

49

Appendix D

narcotics and therefore conducted an investigation which

ultimately led to the seizure of a large quantity of heroin and

cocaine from the trunk of the vehicle pursuant to a search

warrant. The defendants were then arrested and a criminal

complaint was filed.

A preliminary hearing was held on June 29, 1972, at which

the two defendants were charged with possession of heroin,

possession with intent to deliver heorin, possession with intent

to deliver cocaine, and conspiracy to commit an unlawful act.

The defendants were bound over to the court and were

subsequently indicted by a grand jury on all charges. The

defendants filed timely motions to suppress all evidence and

hearings on these motions were held on September 6, 1972, and

October 10, 1972. An order of court and opinion containing

specific findings of fact, which overruled the defendants’

motions, was filed on November 29, 1972. Evidence of an

allegedly inculpatory statement by the defendant Jackson was

suppressed.

The defendants waiveda jury trial and were tired before the

writer on February 28, 1973. Both defendants were found

guilty on all charges. The defendants then filed post-trial

motions for new trial and in arrest of judgment, asserting that

the evidence which they had previously moved to suppress was

unlawfully obtained and therefore should not have been

admitted at the trial. Additionally, they contended that (1)

even if the evidence was admissible, it was not sufficient to

support a conviction on any of the charges; (2) the

unavailability at trial of the box in which the narcotics were

found was an unlawful suppression of exculpatory evidence by

the prosecution; and (3) because the narcotics which the police

50

Appendix D

confiscated were in the process of interstate transportation, a

state prosecution could not be sustained.

We feel that the issues and facts relevant to the seizure of

the evidence introduced by the Commonwealth at trial were

adequately set forth in the opinion filed with the court order

overruling the motion to suppress. That opinion is part of the

record of the case and those matters will not be re-evaluated

here. The recent cases of Schneckloth v. Bustamonte,

cccsmmmmn Udo commun, ¢ GO Ge GRy cecum OO te Ge SEGRe

(1973), and Commonwealth v. Mamon, 449 Pa. 249 (1972),

support our original conclusion of the legality of the consensual

search of the interior of the car which produced the Blue Cross

1.D. card issued to Joseph Weaver. Since the search warrant was

in part issued in a reasonable belief that stolen credit cards were

being transported in the vehicle, it is also important to note that

the Blue Corss card is a standard type credit card made of

plastic with the name and account number offset from the

surface.

Additionally, the defendants have renewed the contention

that the statements made by the defendants when questioned

by Trooper Wynn at the scene of the arrest and enroute to the

police barracks were unlawfully elicited. We did not deal

specifically with this issue in the opinion on the motion to

suppress because we did not feel the contention merited

discussion. At this time it is sufficient to say that the

prosecution proved at the hearing that the defendants were

fully informed of their Miranda rights and that they indicated

an understanding of the rights (i.e., to remain silent and to have

the assistance of counsel before answering any questions), There

is no indication that the defendants have any deficiency of age

51

Appendix D

or intelligence or difficulty understanding the English language

which might have precluded their fully understanding these

rights. They freely, voluntarily, and intelligently chose to

answer the questions without the assistance of counsel and

those statements were therefore admissible in evidence. Miranda

v. Arizona, 384 U.S. 436, 479, 86 S. Ct. 1602, 16 L. Ed. 2d

694, 726 (1966). Also see Commonwealth v. Jefferson, 445 Pa.

1 (1971).

We will now summarize the evidence presented at trial to

determine whether that evidence is sufficient to support the

convictions. The evidence will be reviewed in the light most

favorable to the Commonwealth. Commonwealth v. Powell, 449

Pa. 126 (1972). .

At approximately 6:00 p.m. on the evening of June 14,

1972, a blue Ford Thunderbird automobile with a Michigan

registration plate was stopped by Trooper Wynn for a speeding

violation. The vehicle was going 90 miles per hour in a

65-mile-per-hour zone and was traveling westbound on the

Pennsylvania Turnpike in Cumberland County. The driver of

the vehicle was determined to be Eddie Jackson and his only

passenger was Ronald Garrett. The vehicle was registered in the

name of Theresa Brown of Detroit, Michigan. This same vehicle

had been stopped for a speeding violation at 8:17 a.m. of the

same day by Trooper Harry F. Moyer of the State Police when

it was traveling eastbound of the Pennsylvania Turnpike in

Cumberland County. Ronald Garrett was driving the vehicle at

that time and Eddie Jackson was his only passenger. Trooper

Wynn had knowledge of this arrest when he stopped the vehicte.

After Trooper Wynn had stopped the vehicle on the evening

52

Appendix D

of June 14, he had Jackson sit in the police car while the

citation was issued. Garrett remained seated in the Thunderbird.

While in the patrol car, Jackson told Wynn that he was coming

from Newark, New Jersey, but had originally left Detroit that

morning. Wynn then walked to the Thunderbird and spoke to

Garrett who informed the officer that he (Garrett) had left

Detroit on Tuesday, June 13 (the day before), and was

returning there from Newark. When Wynn confronted Jackson

with Garrett’s conflicting statement, Jackson replied that

Garrett was high and did not know what was “going on.” Wynn

then requested and obtained permission to search the vehicle

and called Trooper Glunt of the State Police to the scene to

assist in the search.

Wynn noticed that the key ring upon which the ignition

key was hanging did not have a trunk key on it. Both

defendants denied any knowledge of a trunk key. The search of

the interior of the vehicle ensued and produced a Blue Cross

credit card issued to Joseph Weaver of whom neither defendant

professed any knowledge (Commonwealth Ex. 1). No trunk key

was located. Wynn then notified the defendants that he was

going to try to get a warrant to search the trunk. The

defendants were then placed in the patrol vehicle and taken to

the police barracks by Wynn. Giunt drove the defendants’ car to

that location.

Before being placed in the police car, the defendants were

searched for weapons. No weapons, trunk key, or other

evidence was found during the search. While enroute from the

turnpike to the police barracks, Garrett told Trooper Wynn that

he had made the trip from Detroit to Neward with Ruby Smith,

a female companion. Wynn then stated that he had been

A ce I A EE el ~

53

Appendix D

informed that Garrett was given a speeding ticket that morning

and that his companion was male. Garrett then stated that his

companion was a male named Ruben Smith and that Wynn had

misunderstood his previous statement.

Wynn obtained a search warrant from district justice of the

peace Cohick and returned to the police barracks to search the

vehicle. Ready access could not be gained to the trunk and the

rear seat of the vehicle had to be removed to conduct the

search. In the trunk was a sealed cardboard box which was too

large to remove through the rear seat opening and was therefore

slit down the sides so the contents could be removed. The box

had no discernible writing, printing, or address on it but was not

available at trial because of its inadvertent loss or destruction by

the police.

Among the contents of the box were five clear plastic bags

containing a white powder and three smaller wrapped packages

containing a white powder (Commonwealth Ex. 2). These items

were seized and placed in the police evidence locker by Wynn

and remained there until later taken by him to the police crime

laboratory and presented to James L. Miller, a chemist

employed there. Miller took random samples from each bag

(Commonwealth Ex. 7), each of which were marked to indicate

their origin. He then chemically analyzed the samples in

accordance with proper scientific procedures and found the five

samples from the large plastic bags to be heroin and tie three

samples from the smaller packages to be cocaine.

Wynn testified that he had weighed the bags containing the

narcotics and found the total weight to be approximately 15

pounds. Ronald L. Prough, State Police Narcotics Coordinator

54

Appendix D

and Supervisor of Undercover Details, testified that the heroin

and cocaine, when cut, would have an estimated street value of

$6.8 million.

The Commonwealth also attempted to introduce into

evidence a key found in the patrol car which transported the

defendants on the night of their arrest. The key was discovered

almost three months after the arrest but was found to open the

trunk of the defendants’ car. The defendants contend that the

refusal of the court to admit the key in evidence at trial was not

in accordance with finding of fact #24 of the suppression

opinion and was therefore prejudicial. This reasoning is

specious. As a result of the suppression hearing, the key was

found to have been legally seized and used to open the trunk.

At trial the defendants objected to the Commonwealth's

attempt to have the key admitted. The objection was sustained

and the key was not admitted in evidence because the lapse of

time between the defendants’ arrest and the discovery of the

key rendered it too remote to be considered incriminating to

the defendants. The defendants were therefore belatedly

granted the relief prayed for in the suppression hearing. It is

impossible tu see how they could have been injured by the

action of the court in refusing to admit it into evidence.

I. SUFFICIENCY OF THE EVIDENCE.

To determine whether the evidence presented by the

Commonwealth was sufficient to support the verdicts, it is of

prime importance to establish the standard of proof necessary

to support a conviction for the possession of narcotics. Our

courts have accepted the definition of “possession” as “power

of control and intent to control” as set forth in United States v.

4 e+ ees te ee

ae

55

Appendix D

Curzio, 170 F. 2d 354 (3d Cir. 1948), for cases of both illegal

firearms and narcotics possession. Commonwealth v. Armstead,

452 Pa. 49 (1973); Commonwealth v. Townsend, 428 Pa. 281

(1968); Commonwealth v. Yaple, 217 Pa. Superior Ct. 232

(1970); Commonwealth v. Pinckney, 194 Pa. Superior Ct. 371

(1961). Under this rule it is necessary to prove that the person

charged with possession of an illegal object knew the object was

in his possession. Commonwealth v. Armstead, supra.

The difficulty with the Pennsylvania rule is that there is an

apparent lack of any judicial definition of “power of control”

or “intent to control” regarding narcotics possession. ‘* Power of

control” may be narrowly construed to mean the ability to

exert actual physical dominance over an object, or might be

broadly construed to mean nerely an ability to exert an

influence over the object. The restrictiveness of the former

definition is readily seen by examining the instand case. The

defendants were apprehended in the process of transporting

$6.8 million worth of narcotics, but were not proved to have a

ready means of reducing the contraband to physical control. If

they knew that contraband was present, however, they certainly

were in actual control of it even though they were perhaps not

readily able to reduce it to physical control. We therefore

consider the broader definition as being the proper guideline for

the determination of narcotics possession.

“Intent to control” can also be construed either narrowly

or broadly. It may be restrictively construed to mean a desire to

illegally reduce an object to actual physical possession. On the

other hand, it may be defined as a desire to exert any type of

illegal influence over an object. Certainly persons illegally

involved with contraband goods are often in the business of

56

Appendix D

selling them to other persons any may do so without ever

reducing the goods to actual physical control. The present case

may well be indicative of that type of situation. The broad

definition of intent to control is therefore accepted as the

correct guideline for the determination of narcotics possession.

Applying the above analysis of narcotics po ~ssion to the

instant case, the scope of our review is brought into perspective.

The issue before the court is whether the evidence presented is

sufficient to prove the defendants knew the narcotics were

present. They were actually transporting the contraband; the

question is whether they intended to do so. If they knew

contraband was present, then certainly they were transporting it

intentionally. This knowledge may be established by logical

inferences drawn from the surrounding circumstances.

Commonwealth v. Whitman, 199 Pa. Superior Ct. 631, 634

(1962). Also see Commonwealth v. Shaffer, 447 Pa. 91 (1972).

However, if the evidence presented allows an equally logical

inference that the defendants did not know or have reason to

know contraband was present, the conviction must be reversed.

Commonwealth v. Armstead, supra; Commonwealth _ v.

Henderson, 451 Pa. 452 (1973).

Although possession of narcotics may be both joint and

constructive (particularly of such a large quantity), “mere

proximity to the drug, or mere presence on the property where

it is Joeated or mere association with the person who does

control the drug or the property, is insufficient to support a

finding of possession...” United States v. Davis, 461 F. 2d

1026, 1035, 1036 (3d Cir. 1972). Also see Commonwealth v.

Tirpak, 441 Pa. 534 (1971). In other words, the circumstances

which will permit a finding of knowledge (or intent to control)

ne NS ERNE Wo eine:

Appendix D

must be more than one of physical location near the drug or

those in actual physical possession of it. Numerous Pennsylvania

decisions demonstrate the proposition that guests or visitors

(ard even occupants) in a residence (or vehicle) may not be

convicted for proximity to a drug, even when it is lying in open

view. Commonwealth v. Tirpak, supra; Commonwealth v.

Updegrove, 223 Pa. Superior Ct. 7 (1972); Commonwealth v.

Tine, 221 Pa. Superior Ct. 318 (1972); Commonwealth v.

Schulhoff, 218 Pa. Superior Ct. 209 (1971); Commonwealth v.

LaRosa, 218 Pa. Superior Ct. 203 (1971); Commonwealth v.

Dasch, 218 Pa. Superior Ct. 43 (1971). The reason for these

holdings is logical. Where narcotics or drugs are readily

accessible to a number of people, then any one person or

combination thereof may be involved in the illegality. Without

other facts and circumstances indicating his individual guilt, no

specific person may be convicted merely because he is near to

the location of the narcotics. A guest in a residence may not be

aware of the presence of drugs even if they are in open view. An

occupant may not know of their existence if they are secreted.

Especially where a small quantity of a drug is involved, it may

be of such a nature that normally only one person would

possess it. However, when there is evidence that the narcotics

have been utilized, processed, or otherwise handled within a

short time before seizure, and there is also evidence that the

defendant was present at that time, then presumably there is

sufficient proof to support a conviction. See United States v.

Davis, supra.

In Commonwealth v. Tirpak, supra, marijuana and

extinguished marijuana cigarettes were seized from within open

view of seven individuals who were guests on the premises. The

occupant pleaded guilty to possession of the substances; the

58

Appendix D

guests pleaded not guilty but were convicted. Four of the guests

appealed their convictions which were reversed by the Supreme

Court. Although the court was not explicit in its reasoning, it is

obvious that there was no evidence that the guests were either

aware of the presence of the drugs or intended to control them.

The situation would certainly have been different, however, if

the appellants in that case were all seated around a lighted

marijuana cigarette. That circumstance would permit a finding

of knowledge upon which inferences of actual control or intent

to control would logically be based. Precisely this type of

situation is found in United States v. Davis, supra. In that case,

the Circuit Court of Appeals upheld the conviction on

possession of heroin of a temporary resident in the house where

the substance was found. Her conviction was based on evidence

that she was present in the apartment when the heroin was

discovered lying in plain view and that the drug had recently

been measured and placed in bags.

Examining the evidence in the present case, the initially

important circumstances are: (1) that the two defendants were

stopped by police while traveling in a vehicle from some

location, presumably Detroit, eastward on the Pennsylvania

Turnpike to another location, presumably Newark, on the

morning of June 14, 1972; (2) that the same two defendants

were traveling in the same vehicle westbound on_ the

Pennsylvania Turnpike on the evening of June 14, 1972, when

stopped by police: (3) that the vehicle was registered to Theresa

Brown of Detroit, Michigan, who was not present in the vehicle

at either time the police stopped it; (4) that the defendants

denied any knowledge of a trunk key and no key was ever

found which could be inferred to have been in the defendants’

possession at that time: (5) that the trunk was entered from the

Appendix D

interior of the vehicle and a sealed cardboard box was found

inside; and (6) that the box was found to contain

approximately $6.8 million in heroin and cocaine.

These facts present a clear picture. It is inconceivable that

anyone would permit the defendants to borrow a vehicle with

that large a quantity of heroin in the trunk. The only logical

inference is that the defendants drove the vehicle to some

location where the heroin was placed in the trunk to be

delivered at some ultimate destination. The defendants may

certainly be inferred to have been the only occupants in the

vehicle that day and are therefore in a different position from

the exonerated Tirpak defendants. Jackson and Garrett were

the sole occupants of the vehicle in which the drugs were

concealed.

The situation here is also distinguishable from

Commonwealth vy. Dasch, supra. In that case the driver-owner of

a second-hand car, which admittedly had carried numerous

passengers, was convicted of possession of marijuana particles

which were found on the rear floor of the vehicle. The

substance could have gotten on the floor of that vehicle in so

many ways, completely unknown to the defendant, that no

logical inference of knowledge could be attributed to him. In

the instant case, the possibility that the cardboard box in which

the drugs were found was placed in the trunk without the

defendants’ knowledge is so remote that it may permissibly be

ignored.

Since it can logically be concluded that the defendants were

present when the cardboard box was placed in the trunk, the

absence of a trunk key becomes important. Either the

60

Appendix D

defendants had a trunk key which they secreted, or the trunk

was opened by a key in someone else’s possession at the

eastbound destination.

If the first inference is correct, then the secretion of the

key is a circumstance indicative of knowledge. If the second

circumstance is true, then the defendants were at least put on

notice of the possibility of illegality, since it is indeed unusual

to find someone traveling a long distance without access or a

means of access to a spare tire carried in the trunk. See

Commonwealth v. Henderson, supra.

If either conclusion were reached, the inference may

logically be drawn that the defendants knew they were

committing an illegal act. Further, other circumstantial evidence

inidicating that the defendants were aware that the box

contained narcotics was also. before the court. This

circumstantial evidence not only helps to prove that they knew

the narcotics were in the trunk, but also supports the initial

inferences drawn above.

The defendants were apprehended while speeding 90 miles

per hour in a 65-mile-per-hour zone. Jackson was driving the

vehicle at that time. Although innocent persons certainly speed,

in this situation the illegal cargo could certainly be inferred to

have been the reason the defendants were in such a hurry. The

deduction that the defendants were in such a hurry to reach

their destination is a circumstance similar to flight from a crime.

\dditionally, the defendants made false and contradictory

statements to the police, a circumstance which is always

indicative of guilt. Commonwealth v. Pinckney, supra, at 376,

(citing authority).

es

61

Appendix D

These two factors are certainly sufficient to dispell any

doubt as to whether the defendants knew they were

transporting narcotics. The very great amount of the drug

supports a conclusion that it was intended for sale and not for

personal use. All of the circumstances taken together leave no

question that both defendants could be found guilty beyond a

reasonable doubt of possession with intent to deliver the

narcotics. Simple possession of heroin and conspiracy are

necessarily lesser included illegal acts also committed. The

convictions are therefore affirmed.

Il. DESTRUCTION OF BOX IN WHICH NARCOTICS

WERE FOUND.

The defendants further contend that their rights under the

Fourteenth Amendment of the U.S. Constitution were violated

because the prosecution failed to produce at trial the cardboard

box in which drugs had been found. The record shows,

however, that the box was present at the preliminary hearing

(N.T. 92, 93) where it was available for inspection by the

defendants. The Pennsylvania Rules of Criminal Procedure

would have enabled its pretrial inspection upon a showing of

exceptional circumstances and compelling reasons (Pa. R. Crim.

P. §310). No such request was made by the defendants. The

first request for production and examination of the box and the

first assertion of its alleged materiality did not occur until trial,

when it became known that the box was unavailable (N.T. 75).

Under these circumstances, the current claim of materiality of

the box as evidence loses force. We shall, however, examine this

matter further.

The United States Supreme Court set forth the now-settled

62

Appendix D

rule concerning prosecution suppression of evidence in Brady v.

Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215

(1963) as follows:

We now hold that the suppression by the prosecution of

evidence favorable to an accused upon request violates due

process where the evidence is material either to guilt or to

punishment, irrespective of the good faith or bad faith of

the prosecution. /d. at 10 L. Ed. 2d 218. (Emphasis added.)

Thus there can be no denial of due process and consequently no

grounds for a new trial arising from such a denial unless the

evidence suppressed is shown to be material to guilt or

punishment of the defendant. Recent Pennsylvania court

decisions considering this issue establish that a new trial will not

be granted if the evidence allegedly suppressed is not

exculpatory to the defendant. Commonwealth v. Powell, 449

Pa. 126, 129-31 (1973); Commonwealth v. Cox, 209 Pa.

Superior Ct. 457, 461-63 (1967). This position has been

adopted in other jurisdictions as well. See Hale v. State, 248

Ind. 630, 230 N.E. 2d 432 (1967); State v. Blankenship, 277

Minn. 32, 151 N.W. 2d 410 (1967).

In the case at bar, the box allegedly suppressed by the

prosecution was not material to the guilt or punishment of the

defendants, and its production at trial could by no means have

been exculpatory. The defendants were charged with possession

of controlled substances, not possession of a box of controlled

substances. The arresting officer testified at trial to the salient

facets surrounding the box, including its loss and apparent

destruction (N.T. 79-81). The only fact conceivably material to

the guilt of the defendants was that the box was sealed, which

tw eee Stpetna oF

OS ERO Os te

63

Appendix D

was unequivocally established by Trooper Wynn’s

uncontradicted testimony at trial (N.T. 79). Thus the defense

request that the court order production of the box at trial,

unsupported by any evidence of its materiality or of any

additional exculpatory circumstance that might arise from its

physical presence, was properly denied. The argument on the

present motion that the box should have been produced at trial

to enable fingerprinting fails for that same reason. Trooper

Wynn testified that no fingerprints had been lifted because the

box had been handled by many persons after arrest of the

defendants (N.T. 81). Furthermore, even the complete absence

of the defendants’ fingerprints on the box would, under the

circumstances, have no bearing on the determination that they

had possession of the contraband contained therein.

The defendants’ briefs in support of this motion rely

heavily on United States v. Bryant, 439 F. 2d 642 (D.C. Cir.

1971) and United States v. Augenblick, 393 U.S. 348, 89 S. Ct.

528, 21 L. Ed. 2d 537 (1969) to establish an affirmative duty

on the Commonwealth to have preserved the box in this case

and to have produced it at trial. Both Bryand and Augenblick

are, however, concerned with destruction of vital evidence or

evidence potentially favorable to the defendant. No such

significance attaches to the box in the present case.

Furthermore, neither Bryand nor Augenblick is analogous to

the case at bar. Bryant deals with the prosecutor’s duty where

pretrial discovery under the Federal Rules of Criminal

Procedure is requested. As previously discussed, there was no

such request in this case. Furthermore, former Justice Fortas in

his concurring opinion in Giles v. Maryland, 386 U.S. 66, 87 S.

Ct. 793, 17 L. Ed. 2d 737, 760 (1967), noted that rules of

discovery have no applicability to the question of prosecution

64

Appendix D

suppression of evidence at trial. Thus the rule of Bryant clearly

does not apply in the instand situation, nor does the holding in

Augenblick, which was decided by virtue of the provisions of

the Jencks Act, 18 U.S.C.A. §3500. In Augenblick the court

took great ca + to explain that the decision did not rise to

constitutional limensions, and that provisions of the Jencks Act

and decisions thereunder were never extended to state criminal

trials. Augenblick, supra, at 21 L. Ed. 2d 545.

It is our opinion that the post-Brady decision in Stepps v.

State, 242 Ark. 587, 414S.W. 2d 620 (1967), U.S. cert. denied

389 U.S. 1036, 88 S. Ct. 766, 19 L. Ed. 2d 823 (1968), is

clearly analogous to the present case with respect to the issue of

alleged prosecution suppression of evidence. In that case the

defendant was convicted of voluntary manslaughter and there

was dispute as to whether the victim had a knife in his hand

when he was killed. A witness testified that upon returning to

the scene of the crime after taking the victim to the hospital, he

found a knife on the floor which was appropriated by a police

officer to whom it was shown. The officer testified he had

placed the knife in a locker but that it was lost or mislaid before

trial. The court held that failure to produce the knife at trial

was not a denial of due process because the officer had testified

to its discovery and subsequent loss, and there was no reason to

suppose that the trier of fact disbelieved the officer's

uncontradicted statements or that the accused’s position would

be strengthened by actual production of the knife. Stepps,

supra, at 622.

In the present case, Trooper Wynn testified to the discovery

and later probable destruction of the box in which the

contraband was found, and his testimony describing the box

65

Appendix D

was uncontradicted even though the defense had an

opportunity to examine the box when it was present at the

preliminary hearing. Furthermore, his testimony revealed the

only possibly exculpatory factor, that the box was sealed, and

there is consequently no reason to believe the defendants’ case

could be strengthened by production of the box. Thus, just as

in Stepps, there has been no denial of due process in the case at

bar.

HI. JURISDICTION OF THE COURT

The defendants contend that the Commonwealth cannot

prosecute persons transporting drugs from one foreign

jurisdiction to another via Pennsylvania highways because to do

so would give unintended extra-territorial effect to The

Controlled Substance, Drug, Device and Cosmetic Act, Act of

April 14, 1972, P.L. , No. 64 §1 et seq. (35 PS.

§ 780-101 et seq.) and would thereby violate the commerce

clause of the United States Constitution.

It is well established, however, that a state may exercise its

police power to regulate the unauthorized manufacture,

prescription, sale, purchase, or possession of narcotics within its

borders. Robinson v. California, 370 U.S. 660, 82 S. Ct. 1417, 8

L. Ed. 2d 758, 761-62 (1962). See also Minnesota ex rel.

Whipple v. Martinson, 256 U.S. 41, 41 S. Ct. 425, 65 L. Ed.

819, 822 (1921). There can be no doubt that Section 13 of The

Controlled Substance, Drug, Device and Cosmetic Act (35 P.S.

§ 780-113), as amended, was created by the legislature as an

exercise of its power to prohibit possession or possession with

intent to deliver heroin and cocaine within the confines of

66

Appendix D

Pennsylvania.'| It is furthermore inconceivable that the

proscriptions of that section would not apply to travelers on the

Pennsylvania Turnpike, as undoubtedly the legislature does not

intend that highway to function as a corridor for drug traffic

across the Commonwealth.

The possession of such a large quantity of contraband by

the defendants in the present case certainly gives rise to an

inference that they intended to deliver at least part of it; and

from their presence in Pennsylvania at the time of their

apprehension, it is also readily inferable that they intended to

make their delivery within the Commonwealth. Although

Trooper Wynn testified that the defendants told him they were

enroute from Newark, New Jersey, to Detroit, Michigan, when

stopped on the turnpike (N.T. 34, 35), there is no evidence that

the defendants intended to deliver all of their illicit cargo

outside the borders of Pennsylvania. It is at least equally

inferable that they intended to deliver all or a part of it within

the Commonwealth. The Pennsylvania Turnpike, although a

limited-access toll road, contains many points of ingress and

egress between the point where the defendants were

apprehended and the western border of Pennsylvania, and tolls

are not paid until the vehicle exits the highway at one of these

controlled interchanges. The defendants might have exited at

any one of the interchanges to deliver their cargo within the

state, or they could have delivered all or a portion of it without

' See generally Statutory Construction Act, Act of May 28, 1937, P.L.

1019, Art. Il 631, Art. [V s 851, 52 (46 P.S. $ $531, 551, 552), and

cases thereunder.

nA te me a a al

ee tne ee

ee ee ears

67

Appendix D

exiting, whether in transit or while stopped at any service or

rest area along the highway. Absent clear evidence of the

defendants’ intent to deliver all of their cargo outside

Pennsylvania, the inference that they intended to deliver it

within the Commonwealth is valid.

The defendants’ contention that the Commonwealth’s

prosecution of nonresidents transporting drugs through the

Commonwealth is violative of the Commerce Clause of the

United States Constitution is without merit. The United States

Supreme Court has stated:

Every state police statute necessarily will affect interstate

commerce in some degree, but such a statute does not run

counter to the grant of Congressional power merely because

it incidentally or indirectly involves or burdens interstate

commerce. Milk Control Board v. Eisenberg Farm Products,

306 U.S. 346, 59 S. Ct. 528, 83 L. Ed. 752, 756 (1939).

See Com. v. Flickinger, 365 Pa. 59, 63 (1950).

In view of the expressed state’s authority to regulate narcotics

traffic within its borders (Robinson, supra, at 761), to hold the

exercise of state police power in the present case

unconstitutional would be to foment unrestricted trafficking of

dangerous drugs and narcotics inimical to the health, welfare,

safety, and morals of citizens of the Commonwealth, in

derogation of the clear intent of the legislature.

ORDER OF COURT

AND NOW, September 10, 1973, for the reasons set forth

above, the motions in arrest of judgment and for new trial filed

08

Appendix D

on behalf of each defendant are overruled and the defendants

are directed to appear for sentence at the call of the district

attorney.

By the Court,

/s/ Dale F. Shughart

P.J.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.

Petition — Pennsylvania v. Jackson · 423 U.S. 999 | Frix