Petition — Pennsylvania v. Jackson
Supreme Court brief1975
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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.
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